When T1 assigns to T2, is there any privity of estate or previty of contract between T1 and T2

Property II – Questions & Answers

Question: I was going over your Spring 2002 Exam and model answer that is posted on the library web-site. The question asks about whether or not P will be successful in an action to enjoin the defendants from building retail stores. One of the lots in question was lot 2 the fact pattern stated, On *May 1, 2000*, *Lot 2 *was sold to *Betty* and her deed contained the following restriction: "Betty promises to use Lot 2 only for residential use in residential structures. This promise shall run with the land." I understand that the promise Betty made does not need to run to anyone, because she is a party to the contract/promise, and the promise is being enforced against her. However P is not a party to the contract either, wouldn't it be necessary to show the benefit runs to P, or maybe that he is a third party beneficiary to the promise? The model answer has a small section on Betty's lot, 2. *Lot 2 (Betty)*

Answer: Betty made an express promise, on behalf of herself and her successors, to use Lot 2 only for residential purposes in residential structures. Betty is bound by the promise. Note that there is no need to analyze whether or not the covenant "runs with the land" since Betty is the original promisor.

Question: Why doesn’t the answer to the 2002 exam discuss the benefit running to Peter?

Answer: In the model answer the introduction makes clear that the writer will be discussing whether each lot is burdened, and then whether the benefit runs to Peter. Here are excerpts from the Model Answer:

Introduction:

To succeed Peter must show that Lot 1, Lot 2 and Lot 3 are subject to a covenant or servitude restricting each lot to residential use. I will discuss each lot individually and then these additional issues: the running of the benefit, waiver, changed circumstances and the impact of the zoning classification.

Paragraph 4:

Running of the Benefit: When Betty made her promise to Developer, Developer owned the remaining 98 lots so all of those lots benefitted from the promise. As a successor to the original benefitted party (Developer), Peter will have to show that the benefit also runs with the land. This will be no problem since the same elements must be satisfied, with the exception of notice. The same would be true with respect to Clara.

Does that answer your question?

Question: I got another lease question for you... A and B rents an apt from L, month to month, as co-tenants. B moves out without giving written notice. L makes A pay all of the rent. A pays the entire rent for the apt for 3 months. Until A found a new co-tenant. Can A sue B for half of the 3 months of rent he paid? Thanks. My understanding is that he can.

Answer: What’s the legal theory on which A is suing B?

Question: I had not thought about that; and come to think of it, I do not think there is one, unless there was a K between A and B. It would seem the landlord is the only one that can go after B, since B had a lease agreement with the landlord. But it would appear that A is stuck with paying the whole rent since he was a co-tenant. Does this seem correct to you?

Answer: Ahhhh. You can see why roommates should have a clear agreement between them regarding the lease obligations. Even in the absence of an express agreement, I think that A can probably come up with some theory such as implied contract or, perhaps, third party beneficiary. However, even if A has an enforceable cause of action, A would be entitled to only one month’s share of the rent from B since the lease is a month-to-month and B can terminate his interest at any time on 30 days notice.

Question: I had a question regarding CCR's and Administrative Relief. Suppose A wanted to open a day care center but there is a CCR which restricts the houses in the area to single- family residential purposes. A then seeks to get a Conditional Use Permit from the city and the City grants it. Can the CC&R be enforced against A? I believe that the CUP should prevail, but I cannot come up with a coherent reason.

Answer: This is the whole point of CC&R’s. They restrict the burdened land MORE than the zoning does.

Question: I was reviewing the holdover tenants slides and a question arose regarding the amount of time a landlord can give a tenant to renew a lease after the landlord has elected to hold the tenant as a tenancy at sufferance. Is there a grace period from the time landlord has made this election to the time he actually evicts the tenant, wherein the tenant can renew his lease?

Answer: Once the L has elected to evict the tenant, the tenant has no rights. It’s up to the L to bring an unlawful detainer action.

When the CQE is breached because of a partial eviction, T's remedies are to:

1. Terminate and Move out OR

2. Stay and sue for damages

If T stays and sues for damages, his option is to keep paying rent and then sue for damages.

Question: 1. Can T also stop paying rent and use the breach of CQE as a defense, and THEN offset the damages. 2. On slide 7 from 3/19/09, it says that "Upon breach of CQE the obligation to pay rent ceases and L cannot collect rent." Does this mean that L cannot require T to pay rent but that T can choose to pay rent and then sue for damages.

Answer: The case law seems to support the idea that the L can't bring an unlawful detainer action for nonpayment of rent if the CQE has been breached. It is sometimes said that the L can't "apportion his wrong" by partially evicting the tenant then expecting to be paid the rent, even partial rent. Therefore, the L can't use the unlawful detainer proceeding because the L can't assert that the rent is not being paid. L may be limited to bringing a normal type of civil proceeding for the fmrv of the apartment.

Make sense?

Question: I had a question regarding the 2003 Summer Finals essay question. The facts stipulate that Angela conveyed a deed with a covenant to Bob where Lot B was the only bound property because of some recording error. I am getting confused in identifying which party is the burdened and benefitted party. The way I’m understanding it is that Bob should be the burdened party because his property is the one bound, whereas Angela should be the benefitted party, but your model answers says otherwise. Should I instead assume that since Angela conveyed the deed to Bob, this automatically renders her the burdened party? Or is this a faulty approach?

Answer: The fact pattern states that the deed to Bob contains the following clause:

"Bob promises on behalf of himself, heirs, successors and assigns, that Parcel B will be used only for single family residential use. The benefit and burden of this promise shall run to all successors of Lots A and B, respectively."

The deed was supposed to contain the following clause but, due to an error in drafting, the clause was omitted:

"and Angela promises on behalf of herself, heirs, successors and assigns, that Parcel A will be used only for single family residential use. The benefit and burden of this promise shall run to all successors of Lots B and A, respectively."

In the first clause Bob is promising to bind Parcel B and is, therefore, the burdened party.

In the second clause, Ann is promising to bind Parcel A and is, therefore, the burdened party

Question: Further, in regards to the Spring 2002 essay, why shouldn’t we analyze whether the benefit runs to Peter with respect to the issue of Peter v. Betty? Is it because Betty mades an express promise, and as such it binds the developer and subsequent owners, here Peter?

Answer: You should analyze whether the benefit runs to Peter. The response on file addresses this issue but only after all the burden questions are resolved.

Question: If X has invested a great deal of money and time preparing to build a condominium project and the city rezones the area right when X is getting ready to get his permits, X must exhaust administrative remedies before asserting a regulatory taking. If X's activities rise to the level of a vested use but he has not begun to build, can he apply for and recieve a non-confoming use as an administrative remedy?

Answer: Of course. The landowner should and must first try for a non-conforming use. If that's denied (unlikely in your scenario), the landowner would pursue a claim of unconstitutional regulatory taking of private property without compensation.

Question: I have been going over the Penn Central Balancing Test and have found myself getting into heated debates with salim about Character of Govt Action factor. We realize that we want to look at whether the regulation is allocational or acquisitional, but we started arguing once we got to PA Northwestern. This case is about N/C uses and interference with DIBE but in your slides you said the courts could of decided this by using the Balancing Test. Basically my question is ...... was the govt. action is PA Northwestern allocational or acquisitional?

Answer: The dissent in the case points out that there was no need to “announce” a new rule in Pennsylvania that a zoning classification could never eliminate a pre-existing lawful use without compensation. As the dissent points out, the majority could have applied a Penn Central type of balancing test (remember it’s the state constitution in that case, not the federal constitution) and reached the same result. The primary factors would be (i) the landuser truly relied on the existing classification (DIBE’s); and, (ii) the local government clearly wanted to “buy-out” the porn business and get it out of town, quick. This wasn’t broad based land use classification – it was targeted at a single store owner. Tends to look acquisitional rather than allocational but the dominant factor would be DIBE’s.

Question: Under CA and current US law does a landlord have a duty to deliver possession of premises? From what I can read.. American law says no? and English law says yes. Seems kind of unfair.

Answer: We talked about this in class. Remember when we distinguished Hannan v. Dusch and a modern residential lease? See the slides for those classes (3/19 and 3/20).

Question: I have a question about Reste Realty. This was a case about a commercial lease. Here the court found that the Plaintiff breached the express covenant of quiet enjoyment (CQE) under the lease through constructive eviction. The court found that L had a duty to act and that there was an omission of that duty. My question is whether this duty/promise needs to be express and in writing as part of the lease, or can it simply be an enforceable verbal promise. It seems like the latter is acceptable. In the case, terminating a commercial lease based on L's breach of IWH was not possible. The court then bases the duty on covenant between L and T, which I understood was verbal. The covenant to remedy the flooding problem arose from the promise by Donigian (acting as L's agent) to remedy which L relied on as consideration to sign on to a new 5-year lease. Is this correct?

Answer: This is purely a contracts question. The court was willing to go outside of the written contract and consider other evidence to show the existence of a promise by the landlord to keep the property free of water damage. There was overwhelming evidence that part of the consideration for the second lease was the L’s promise to fix the problem.

Question: I have another quick question for you: what about setback restrictions that are in violation- does this affect marketable title? Does the answer change if seller discloses this? I wouldn't think this would hamper marketable title because this is similar to zoning. I had a question regarding Duty to Repair/Maintain. Is there an implied duty imposed on the L under modern law? I am not sure how to categorize duty to repair.

It overlaps with CQE and Warranty of Habitability (the remedies part)?

Answer: The answer is no. Title and zoning are unrelated. If you look at the contracts of sale in Dukeminier and the Supplement, you’ll see that these two matters are handled in different parts of the contracts.

Question: Can noise (specifically, a club rented out on the first floor of an apartment building who, despite promises to keep it down, continually has music "played at a volume approaching that of departing jet engines") constitute breach of quiet enjoyment? I feel like the better argument would be a breach of the warranty of habitability, but the question only calls for whether or not it was a breach of CQE. Also, they define the breach as "so egregious as to seriously interfere with the beneficial enjoyment of the property or render the property substantially unsuitable for the purposes for which they were leased." Your slides say, "caused a substantial and grave interference with T's possessory rights." Your definition of the element seems more narrow to me. Would you agree with the first definition?

Answer: For the T to terminate, there must be a breach of some covenant by the L. If the L has not promised to keep other tenants quiet, then there has been no breach of the CQE. Can you see why? You should be able to figure it out. Go back to the slides for Constructive Eviction.

Question: So, I am reading that there is a slight modern trend to allow aesthetic zoning ordinances, so as to describe them as to improve the public spiritual well being. Additionally, the prohibited use would decrease property values. This seems to pass our "singe cogent reason" test. So, for our class, does the legislature have the power to pass aesthetic zoning ordinances? In the hypo, the example is that neighbors were required to paint doors a conforming color. My supplement found that even under this modern trend, that would not be for the furtherance of PHS&W, nor would it have any effect on property values, and thus there would not be a single cogent reason. Do you agree?

Answer: No, I don’t really agree. The courts shouldn’t be stepping in and replacing the determination of the legislature regarding whether aesthetic zoning is, or is not, in the PHS&W. After all, the legislature is in a much better position to make this determination, following public hearings, studies, etc. The legislature is directly responsive to the people. For all the reasons we talked about, the courts tend to stick to a PLV. However, if the particular regulation has no possible PHS&W explanation, well, then it’s a deprivation of property without due process. I find it hard to believe that a municipality can’t come up with a cogent reason for uniform color schemes. They’re used all the time to enhance the value of private communities.

Question: What, then, would be example of a regulation which does not have a single cogent reason? I know we touched on it in class, but I can't find a slide which has an example of a regulation where you wouldn't be able to come up with a single cogent reason.

Answer: It’s hard to come up with a good example. Bribery of the City Council by a developer is certainly a good case. That’s why there are virtually no cases finding “no cogent reasons.” Don’t forget that, sometimes, courts may drop the PLV (such as in cases of spot zoning).

Question: I am trying to clear up some blurry conceptual points in Crechales. In the case, L elected to treat T as a tenant at sufferance on February 6th. By electing this option, he then has used up any rights for unilateral election and therefore could not change his mind. But then, by accepting the check for February to March, L and T have bilaterally agreed to create a new estate for years. My question is what happened when the February-to-March estate for years expired. It seems to me that T offered once again a new estate for years from March to April, which then L rejected on April 6th by refusing to accept the check because it was for final payment. Indeed there was no new bilateral agreement created. It also seems to me that when the February-to-March estate for years terminated on March 6th, T again was holding over and L is given a brand new set of election to evict or treat T as a periodic tenant. Is this analysis correct? Assuming that a brand new set of unilateral election was afforded to L on March 6th, L did neither of the two options. T stayed on the premises until April 17th without L ever evicting him. The only communication T got from L before T left the premises was L’s refusal to accept the check on April 6th and L’s refusal to inventory the building on April 7th. Since doing nothing is not an option, does failure to evict here indicate an intent to treat T as a Periodic Tenant?

Answer: Very good point. Yes, doing nothing is not an option. When the T moved on on April 7th, L had not yet made an election. Note that in the case, the landlord did not argue a holdover when the new estate for years terminated on March 6th. L relied on a periodic tenancy beginning on Feb. 6th and lost on that argument.

Question: In a situation where the rent according to the lease is $1000 but the FMRV is $1200, I understand that L has no damages in the event of T leaving because he can find a new T to come in and pay the FMRV (which is a bonus to L). What if the L is making reasonable efforts and can't find a new T? Does L still get $0 or can L ask for money that he would have gotten whether it was the $1000 or $1200? I just don't understand why L is so disadvantaged and missing out on the money that he reasonably expected to be bringing in when T is the wrongdoer.

Answer: I think you’re asking about the time period it takes to get a new tenant. If the property is really worth $1,200 per month, it shouldn’t take too long to find a new tenant. Let’s say it takes 3 weeks. L is entitled for his/her loss of three weeks RENT (not FMRV), since that’s the damage suffered by L. Note that if a reasonable L could find a new tenant in 3 weeks and this particular landlord takes 5 weeks, he/she will still only collect 3 weeks rent for the vacancy period.

Question: I have a question about partial actual eviction: If T is padlocked out of a room and then T doesn’t pay any rent- (but, I know that T can’t withhold rent, but in my hypo he does). At the point of the actual partial eviction is the lease terminated? And therefore, T will have to pay FMRV ( and can't be unjustly enriched) and L can’t sue for rent? Is that correct?

Answer: The general rule seems to be that T is not obligated to pay RENT since the covenant of quiet enjoyment has been breached and “the landlord cannot apportion his wrong.” However, the T is obligated to pay FMRV for the apartment. The way it would probably shake out is T withholds the rent, L sues for unlawful detainer for nonpayment of RENT. The unlawful detainer will be dismissed, since L is not entitled to RENT. L would then sue for FMRV. Obviously, this places a strong incentive on L to unlock the door or fix the partial eviction.

Question: In Lohmeyer v. Bower, the violation of the restrictive covenant (the house only being one story) did not make the title unmarketable? I understand that the zoning ordinance has nothing to do with the covenant to provide marketable title, but a violation of a restrictive covenant which is in the deed itself does not render the title unmarketable? Why not?

Answer: It does make the title less than marketable BUT in the contract, Dr. Lohmeyer AGREED to accept title of that kind.

Question: If Ann owns 100 lots, files CC&R's on all the lot's, then later begins to convey the lots, is there horizontal previty between Ann and subsequent owners? It seems like the answer would be no because the covenant did not arise at the instant the estate was passed.

Answer: The horizontal privity requirement refers to the privity of estate at the time of creation of the covenants. When a landowner files CC&R’s, the horizontal privity requirement is satisfied, since the landowner owns the fee to all of the lots at the time. Vertical privity is the issue when the landowner then conveys any interest in any of the lots to a successor.

Question: I am reviewing the answer posted online for the hypothetical, and I'm just trying to figure it out. The landlord, to recover rent, would only sue T3 for the rent from 1939-1958 if T1 had no assets and the landlord couldn't recover from T1, right? If T1 didn't want to pay for all of the rent, could he indemnify or join T3? Are they jointly or severally liable? Just to be clear, the other tenants are only liable for the time they actually were in previty of estate (the time they sublette) b/c they didn't assume the contractual obligations of the rent, correct?

Answer: T3 is primarily liable so, as a matter of Civil Procedure, L will sue both T3 and T1. T1 will cross-claim against T3 in the event that L recovers against T1, T1 will obtain a judgment against T3 for reimbursement.

Question: I thought I had a solid grasp of the concept of holdover tenants, but in reviewing the slides, I may have confused myself. Could you please clarify... Ex. L says to T (who's lease has expired): "I’m electing to treat you as a tenant at sufferance, get out". Then, T tenders check for “The months of February & March only.” L accepts. I thought that as soon as the L chooses 1 of his 2 options, that decision is final. So, if he chooses to treat the T has a tenant at sufferance and evict that T--thats it, he can't go back and accept the check. And if this new bilateral agreement is allowed, I guess my next question would be: At what point does the L reach the "pt of no return"? When he officially files the unlawful detainer action? On the other hand, I understand that if the T approaches L and offers to pay him for the next 2 months only, an entirely new leasehold estate is created (estate for years).

Answer: The original lease has been terminated. The parties are free after that to agree to a new lease. For instance, they could sign a new lease for just two months, February and March. When the tenant makes an offer by presenting the check for February & March and the landlord accepts, it’s a completely new estate for years for the months of February and March. It’s unrelated to the termination of the prior lease.

Question: 1. The remedy for partial actual eviction. Tenant leases a three bedroom Apt. from Landlord for $2000. Landlord padlocks one room. FMV of a 3 BDR apt. with one padlocked room is $1500/mo. Tenant can terminate lease and move out, plus sue for damages, with no further obligation for rent. His damages would be 500/mo for however many months he didn't have the room. If Tenant stays, and pays only $1500/month what happens? (LL can evict, I assume--this counts as "withholding rent?")

Answer: The universal rule is that L cannot “apportion his wrong.” Theoretically, L cannot sue for rent or bring an action for nonpayment of rent. However, L can sue for the FMRV of the property. Whether the average judge would follow this rule is not clear, despite widespread agreement in the treatises.

Question: 2. The remedy for partial constructive eviction. My understanding was that, although it doesn't make sense, there is no remedy for "partial constructive eviction" unless it rises to the level of Breach of K, in which case you would treat it as Breach of K. In tutoring, the students were very sure that the remedy is "the same as for partial actual eviction." Considering how badly outvoted I was, I presumed them to be correct--whats the remedy for partial constructive eviction?

Answer: There seems to be some statements in some student treatises that there is no remedy for a partial constructive eviction (although there is a remedy for a full constructive eviction). Such a statement seems ill-advised. Eviction is eviction, actual or partial, actual or constructive. The remedies should be the same. We’ve seen that: actual notice = constructive notice; actual possession = constructive possession. The whole point of the term “constructive” is that we will legally deem it to be the equivalent of the actual event. If that’s true, then the impact should be the same as the actual event. There is no logical support for the idea that we should treat a partial constructive eviction any differently than actual partial eviction. Why would we do that? Either way there’s been a partial eviction.

Question: 3. Slight variations from your March 9 hypo... Landlord and Tenant sign a 2 year lease at $1000/mo. FMV is $900/mo. Tenant occupies Jan, Feb, and March but pays no rent. Judgment at the end of May. If LL "actually" relets for $1200/mo in June through the end of the lease: Changes nothing. What LL actually did irrelevant.

Answer: The fact that L relet for $1200 is evidence of FMRV but it is not determinative. FMRV is FMRV. L is going to have a very rough time showing FMRV of $900 when L rented the apartment for $1,200.

Question: If T can only prove that the FMRV is $900 per month, then that’s the FMRV. The statutes require that we use FMRV in making our computations. Any other rule would mean that L’s damages are contingent on how good, or bad, L is as a negotiator. The question is what a REASONABLE L could have leased the premises for. If FMV was 1200 instead of 900: Landlord still gets 1200 for April and May, but 0 in damages for the remaining months.

Answer: L is entitled only to damages once T abandons.

Question: If Landlord waited until entire lease term was over then sued for back rent: changes nothing because he has duty to mitigate.

Answer: Correct.

Question: Quick question about partial actual eviction. If the tenant stays in the apartment what is the proper remedy? Should the tenant continue to pay full rent and then sue the landlord for a return of the difference between rent and FMV? Or can the tenant merely reduce payments to the FMV and when the landlord brings an unlawful detainer action, the tenant can assert that the landlord terminated the lease by his breach, therefore, "rent" is no longer due, just the FMV? Does this make sense? I am confused.

Answer: I believe that both remedies are available to tenants. The eviction is a breach of the covenant of quiet enjoyment. The T can:

Terminate & move out & sue for damages.

Stay, pay the rent in full and sue for damages.

Stay, pay the FMRV and raise partial constructive eviction if L brings an unlawful detainer.

Every jurisdiction holds that L is not entitled to rent in the case of a partial eviction. The L cannot “apportion his wrong.”

Question: I also had a question regarding the hypothetical from today about the "$250 cleaning policy." Would it have made a difference if the policy was stated in the lease that was signed by the T? So then, even if a T returned the apt as clean as it was, he could still owe the $250?

Answer: The statute has a clear answer to your question. See 1950.5(b)(3). Statutory edicts cannot be undone by contract.

Question: I am still a bit confused about how the Lucas court came to its decision. Couldn't it be argued that since the law was enacted to protect erosion and destruction of the islands it was in furtherance of public health, safety, and welfare. Therefore, even if it was a 100% devaluation it would not be a taking because it would fail the Penn Central test.

Answer: All legislation must be in furtherance of the PHS&W or it will be invalid under the due process clause. So, the fact that it’s in furtherance of the PHS&W does not resolve the taking issue. That’s a separate inquiry.

Question: It seems to me that what this case really didn’t create a new test, it merely shifts the burden of proof when evaluating under the Penn Central test. Is that correct?

Answer: Not exactly. It shifts the burden of proof to look at factors (such as nuisance law and property expectations) that are similar to the Penn Central balancing factors.

Question: 1. In HFH, we talked about them playing the "speculation game". I understood this to mean that they wanted their cake and wanted to eat it too. They wanted the commercial zoning so that their shopping center could flourish, but also wanted the residential zoning around their parcel so that their center would have patrons. Is this correct?

Answer: Yes, that is correct. The court stated: “Plaintiffs in this case therefore find themselves in a somewhat uncomfortable position: they wish to reap the benefit in the form of higher market values of their land, of the restrictive zoning on other properties, but do not wish to bear the reciprocal burden of such zoning when it applies to their property.”

Question: 2. In re: to pre-condemnation - I understand pre-condemnation to mean "a public agency may not use a zoning ordinance to evade the requirement that the state acquire property which it uses for public purposes via compensation". I think the key here is the government’s evasion or delay in solidifying the ordinance, which essentially puts a hold on the owner's use of the land. Is this correct?

Answer: Yes, that is correct. The key to “pre-condemnation” is in footnote 14. The court points out that in all 3 of those cases, the cities were actually trying to acquire the land for public purposes but avoiding the necessity of actually buying the land (at least for a few years).

Question: My question is from this portion of the model answer: "Notice: The facts state that the CC&R's were recorded by Developer while Developer owned Lot 3 and, therefore, are in Clara's chain of title. She is held to be on constructive notice of the CC&R's whether she actually knew about them or not, because all purchasers of land should check the recording office for exactly these types of encumbrances." For Lot 3 (Clara), why does Peter need to establish the "notice" element? Peter just needs to establish that the benefit of the covenants run to Peter's Lot to enjoin Betty and Clara?

Answer: Peter is trying to establish that Clara is bound by the covenant. Clara never made an express promise (her predecessor, Developer, made the promise). To enforce the burden against Clara, Peter must show that Clara had actual or constructive notice of the promise made by her predecessor.

Question: I was thinking of a hypothetical that has confused me. If a developer creates a huge development for single family home use and all of the necessary CC&R's were filed. And a private owner buys up enough lots to build a small chip and putt course. If the course was well maintained and increased the value of the other lots in the development, would this mean that the covenant restricting the land for single value land use still touch and concern the land? It seems that a single family restriction on the other lots still makes sense. Would the court modify the restriction to permit the golf course?

Answer: I think you’re raising a waiver argument. Regardless of the impact on value, the surrounding neighbors seem to have waived the use. Under Western Land the change wouldn’t be enough to TERMINATE the covenant. The enforcement of the residential restrictions remains of a real and substantial benefit to the surrounding land. So the golf course is still subject to the covenant, but enforcement has been waived.

Question: I wanted to clarify that I understood the following correctly: Tulk v. Moxhay: rejected the requirement of horizontal previty in courts of equity Neponsit: rejected the requirement of all previty in courts of law Modern courts that follow the Restatement as well as CA courts: do not require previty at all.

Answer: Yes, Tulk v. Moxhay: rejected the requirement of horizontal previty of estate in courts of equity as a requirement for the running of the burden of the covenant. Neponsit: rejected the requirement of VERTICAL previty in courts of law as a requirement for the running of the benefit. Modern courts (including CA) and the Restatement do not require previty of estate (horizontal or vertical) as a requirement for seeking the legal remedy of damages. There simply is no logical reason to do so.

Question: I have a Q about the doctrine of marketable title: It is implied in every K unless the parties K around it, as did Lohmeyer and Bower. The one thing that I am confused about is why does it matter what S is promising to deliver in the K if once the deed is delivered the K, performed or not, is extinguished and only what is in the deed binds the parties??

Answer: It doesn't matter after the deed is delivery but matters very much during the contract period. The issue in Bower was whether or not the buyer was obligated to pay the purchase price under the contract. Suppose the buyer promised to pay $500,000 for the house if seller delivered "marketable title, subject to any easements or CC&R's of record." Prior to the closing, the buyer discovers that there is a 40 foot wide easement for drainage purposes over the surface of the parcel. Does the buyer have to pay $500,000? The answer is yes, since the seller has fully performed the seller's obligation to deliver "marketable title, subject to any easements or CC&R's of record." Can you see why signing such a contract would be imprudent? The buyer should have insisted that the contract state: "marketable title, subject to any easements or CC&R's of record, provided however that buyer shall have 3 weeks to review and approve any easements or CC&R's."

Question: Tenant's remedies under warrant of habitability -- they can stay and sue for damages, terminate and leave without liability for rent, or reduce rent to FMRV. when we say "stay and sue for damages" are we saying they stay and don't pay rent and then the landlord has to bring a U.D. action? or does it mean stay and pay rent and then sue for the difference in value?

Answer: If the tenants stay and pay the rent in full, then the L can't evict them. They can bring an action in small claims court for L's breach. So, the tenants can "stay, pay the rent, and sue for damages." Get it?

Question: Ann owns a 100 acre parcel. She sells 50 acres to Bob and in the deed to bob says "I promise to use the land for residential purposes, it shall run with the land." Ann then sells her retained land to Cory and does not tell him of the promise she made to Bob. My issue here is that the promise is only in Bobs deed, since this isn't a residential development, there are no CC&R's to put put Cory on notice.

A) Will the covenant not run because it fails the notice element?

Answer: We didn't have time to really dig into "chain of title" questions and what a reasonable search of the title records would reveal. For purposes of discussion let's assume Ann owns 100 lots and conveys Lot 21 to Bob and, in that deed, promises Bob to use the retained land for residential purposes. When Ann then sells another lot (let's say, Lot 60) to Xavier, will a reasonable search of the title records reveal the promise made by Ann. The answer is no, the promise in the deed of Lot 21 to Bob would not show up in a title search of Lot 60. Successors to Ann would look in the title records to see if ANN made any promises about, or conveyances of, the parcels that Ann is selling to them. Since Ann did not make the promise in a document concerning the title to Lot 60, it won't show up in a rational search. It would be unreasonable to do a title search for ALL land that Ann has ever owned. A reasonable person buying Lot 60 would only look at Ann's conveyances of Lot 60.

That's why developers file CC&R's while they still own all of the lots -- so it will show up in the chain of title for all of the lots.

Question: B) What does Ann do if she wants to be sure the covenant runs from owner to owner without the grantor having to give actual notice?

Answer: File CC&R's before conveying to Bob. "I Ann, owner of Lots 1 through 100 do hereby covenant and declare . . . "

Question: C) If this was a common scheme of residential development that for some reason did not have CC&R's, could Bob argue constructive notice, similar to an implied reciprocal covenant argument?

Answer: Ahhh. This is the problem with Sanborn v. Maclean. THERE CAN'T BE NOTICE OF AN IMPLIED COVENANT. By definition, you could search every title record for every lot in the U.S.A. and you still wouldn't know if there's an IMPLIED promise. We only know if there's an implied promise by going to court and having the court declare that one exists. A very, very bad way to run a real property system.

Question: 1. What happens if a deed describes only the land and not the house?

Is the deed invalid?

Deeds typically describe the boundaries of the real property. Improvements are appurtenances and fixtures and are part of the real estate. It's not unusual for deeds to state: "I hereby grant Lot 3, Block A, together with any improvements thereon . . . "

Question: 2. What if a deed is stolen then recorded? The person who stole the deed then sells it to a purchaser who has no actual or constructive notice. Is this presumptive delivery even though the true owner did not hand it to the grantee?

Answer: No, it is not delivery of any kind. A forged or stolen deed is void.

Question: In the Andy, Betty, Clara, Peter essay question. The model answer talked about Betty being able to argue waiver, zoning, and changed circumstances although unsuccessfully. But since Betty was the original promisor aren't those points moot?

Answer: Suppose there are 100 ORIGINAL owners who all promise to use their land for residential purposes. Owners 44 & 45 build churches at the intersections of major roads and none of the other owners object. Owner 46 then tries to build a church at the same, or similar, intersection. The other residents bring an action seeking an injunction. Does this seem like a good case for waiver? It really doesn't matter whether the landowners are original or successor owners. The question in waiver cases is whether the parties seeking to enforce the benefit have waived these kinds of uses in these kinds of locations.

Question: I was talking with another student about the implied cov of QE and we kept disagreeing about one thing. At CL, the only way a T could stop paying rent was if the L breached the cov of QE. the T had to prove that L breached 1. promise that T has legal right to possession, such that T won't be "ousted" by someone w/superior title or 2. promise that L will not evict T by actual(change locks, drag T out) or constructive eviction. the argument comes in about the elements of constructive eviction. I thought that elements of constructive eviction are 1. L acts or omits to act(when L has a duty to act) 2. act or omission causes a serious, grave, permanent, and substantial interference w/Ts possessory rights such as to equal an actual eviction 3. T leaves w/in a reasonable time. we disagree over element 1. I understood that "when L has a duty to act" meant that L had to agree to keep the premises in good condition as a covenant in the lease rather than referring to a general duty not to evict(actual or constructive). If L omitted to do something that caused serious, grave, and permanent substantial interference to equal actual eviction, but did not have a duty to act, coming from a covenant in the lease, T can not prove constructive eviction. is this correct?

Answer: You are correct. For there to be a constructive eviction based on an OMISSION by L, you would have to show a duty by L to act. Prior to the 1970's, this would require an express promise by the L to keep the premises in good repair. More recently there is an implied covenant in residential leases to keep the property habitable. For there to be a breach of the C.Q.E. based on L's omission to act, there must be some affirmative obligation (express or implied) for the L to take action. The only implied obligation is the warranty of habitability.

Question: LL leases an apartment to T1 for $1,000 per month. T1 assigns the apartment to T2 for $3,000 per month with out disclosing what the rent payment to LL is. Exact grant is "To T2 all my interest in apartment for $3,000 per month for the term of 10 months. This is NOT a sublease. T2 does NOT assume the contract." T2 pays $3,000 per month by check to T1 and T1 pays $1,000 of that $3,000 to LL. The term is 10 months. If the house burn down how much is T2 liable for?

a. $30,000 ($3,000x10)

b. $20,000 (($3,000-$1,000)x10)

Answer: I'm a little confused by this. There can't be an assignment for just a part of the lease term. If the PRIMARY lease term has 11 months remaining and there is an "assignment" for 10 months, then the "assignment" is really a sub-lease, regardless of what the parties call it. An "assignment" for less than the full remainder of the term of the primary lease is, by definition, a sublease, since the intention of the parties is to carve out a lesser estate. If, on the other hand, the parties are transferring the entire lease (the primary lease has 10 months remaining and all of that remaining term is assigned), then it's an assignment.

Outcome if an Assignment: T2 is liable to L for the RENT on the primary lease ($1,000 per month). T2 is liable to T1 for $20,000 (the consideration for the transfer was 12 x $2,000 per month). If the structure is destroyed and the primary lease can be terminated, then T2's obligation to pay the rent to L is terminated but T2 must still pay T1 the full amount that the parties agreed to as consideration for the assignment (a total of $20,000)

Outcome if a Sublease: T2 owes nothing to L, ever. There is no contractual nor estate relationship between them. T2 owes $3,000 per month RENT to T1 unless the sublease is terminated for some reason. If the lease is terminated by destruction of the structure, then T2's rent obligation ($3,000 per month) ceases.

Question: To make my question a bit more clear, we can change the Hypo a bit. Everything is the same, except T1 leased the apartment in a down spiraling market for $1,000 per month. T1 assigns to T2 the interest for only $500 per month. (Assume that T2 protects him self with contractual obligations making T1 liable to T2 if he fails to pay full rent to LL.) If the house burns down, what, if anything does T2 owe T1? $500 per Month? Nothing?

Answer: Nothing changes. The answer remains the same, just the amounts change. See above.

Question: Finally, I was wondering if I am correct about the following covenants. Hypo. LL leases to T1. T1 sublease to T2.

1. T2 can sue T1 for breach of Warranty of habitability.

Answer: Yes, of course. Every residential lease has the implied warranty of habitability. Imagine that LL leased a 100 unit apartment building to T1 for 40 years. T2 then "sub" leases the apartments to tenants. Why wouldn't there be a W.H.?

Question: 2. T1 can sue LL under derivative liability for breach of Warranty of habitability.

Answer: I don't follow this question. Using the above example (40 year lease of 100 unit apartment building), what's the legal theory that LL has liability to T2? Even if it's a single apartment, what legal theory are you using to assert that LL has some legal obligations to T2 (someone LL has never met, never contracted with, and who has not taken possession of the estate that LL transferred to T1).

Question: Hypo. LL leases to T1. T1 assigns to T2.

1. T2 can NOT sue T1 for breach of Warranty of habitability.

Answer: Incorrect, see above.

Question: 2. T1 can NOT sue LL for breach of Warranty of habitability even if he is not in possession.

Answer: Incorrect. What's your thinking here?

Question: Will we need to have the SD municipal/civil codes in our cheat sheet or do we not need them because an alternative will be provided in the exam?

Answer: You don't need to memorize the statutes. They are examples of how modern states address certain issues such as Unlawful Detainers, mitigation of damages, statutory short form deeds and other matters. You should understand the concepts behind the statutes but you don't need to memorize them.

Question: I am somewhat confused w/the concepts of Constructive Eviction w/in the CQE and the Implied Warranty of Habitability. Here is little hypo to illustrate my confusion. Suppose that the electricity is shut off in T's apt b/c of some failure on the part of the L. If the L does not take the steps to fix the problem and T is forced to move out, has L breached the CQE AND the Implied Warranty of Habitability? It would seem that both covenants are breached in this factual scenario and the remedies for T would be the same if they chose to move out and sue for damages. Is this analysis correct? I will probably swing by your office later to get some of these hazy areas worked out, but I figured the answer to my question may be fairly simple. Thanks for you help!

Answer: Yes, both the CQE and the W.H. have been breached. In addition, since L is obligated to maintain the electricity, L is also in material breach of the lease. Thus, T has 3 different legal theories for terminating the lease, moving out and suing for damages.

Question: Will we need to have the SD municipal/civil codes in our cheat sheet or do we not need them because an alternative will be provided in the exam?

Answer: You don't need to memorize the statutes. They are examples of how modern states address certain issues such as Unlawful Detainer’s, mitigation of damages, statutory short form deeds and other matters. You should understand the concepts behind the statutes but you don't need to memorize them.

Question: I am somewhat confused w/the concepts of Constructive Eviction w/in the CQE and the Implied Warranty of Habitability. Here is little hypo to illustrate my confusion. Suppose that the electricity is shut off in T's apt b/c of some failure on the part of the L. If the L does not take the steps to fix the problem and T is forced to move out, has L breached the CQE AND the Implied Warranty of Habitability? It would seem that both covenants are breached in this factual scenario and the remedies for T would be the same if they chose to move out and sue for damages. Is this analysis correct?

Answer: Yes, both the CQE and the W.H. have been breached. In addition, since L is obligated to maintain the electricity, L is also in material breach of the lease. Thus, T has 3 different legal theories for terminating the lease, moving out and suing for damages.

Question: Previty of Estate and Adverse Possession: So, when it comes to real covenants, at common law, adverse possession would defeat vertical previty, therefore adverse possessors could not be bound by, or enforce real covenants, however, since modern jurisdictions do not require previty, adverse possessors could be bound by, and enforce covenants. With equitable servitudes, A/P never prevented a adverse possessor from enforcing, or being bound to a servitude, because there is no requirement for previty.

Answer: Yes, that seems correct. Keep in mind that it's really not two different things. There's only one promise but two remedies. The courts of law would refuse to enforce an action for damages (an action to enforce the promise as a real covenant) if there was no vertical previty of estate. However, since 1848 (Tulk) the courts of equity have been willing to enforce the burden, and allow the benefit to run, against an adverse possessor in an action for injunction (an action to enforce the promise as an equitable servitude). In modern times, the need for previty of estate is rejected and the promise will be enforced against an adverse possessor in an action for either/both damages &/or injunction.

We said in class that there is no horizontal previty here, because Bob owns both lots. The hypo we discussed in class creates the same relationship between Ann and Bob as it does in the hypo above. So I am confused, in the in class hypo, how can there be no previty of estate?"

Answer: In this hypo, the problem was a lack of VERTICAL previty, not horizontal previty. "Vertical previty of estate" refers to the connection between the original burdened/benefited party and successors. For the burden of a covenant to run to a successor, it must travel on the back of an estate. In this hypo, no estate passes between Ann and Art. Art obtains fee title by operation of law through adverse possession and, therefore, is not in vertical previty of estate with Ann. At old common law, Art would not be bound even if Art knew about the covenant (a very silly outcome since it was Art's mistake to accept an invalid deed, yet he is released from the burden of paying damages if he breaches the covenant).

Question: For the purposes of our class, do "traditionally" and "at common law" mean the same thing? Or does traditionally refer to older, feudal laws? When does "common law" end and modern begin? Maybe with Cardozo / Hand ?

Answer: There's no clear line between "older" or "traditional" common law and modern day common law. Sometimes when someone refers to "at common law" they are referring to older cases although, technically, that's not always correct. I try to be clear about this in class by using the phrase "traditionally, at common law" or "historically, at common law" to refer to older cases and thinking about the legal concepts. Hope that helps.

Question: I beg your pardon, but reading the supplemental introduction to Tulk v. Moxhay (pp. 10) I think I found a discrepancy:

It appears from the facts in the case that Tulk, not Elms, was the original landowner in London. Tulk, "sold the piece of ground . . . to one Elms in fee . . . the deed of conveyance contained a covenant by Elms . . . with the Plaintiff." 41 Eng. Rep. 1143, 1143 (1848). I think this makes Elms the promisee and Tulk the promissor

Answer: The original deed of the pleasure garden was from Tulk to Elms BUT in the deed there was there was a covenant in the deed BY the GRANTEE (Elms) to Tulk. So, Elms is the promissor and Tulk is the promisee.

Question: 1. Is it safe to say that Horizontal Previty is created when one estate is split into two or more, either by the original landowner or a Strawman?

Answer: No. Previty of estate, most often, is when an estate passes from one owner. For instance, when Ann sells Bob her lot, they are in previty of estate for that brief instant in time when the fee estate passes from Ann to Bob.

Question: 2. Would it be considered actual notice if a successor to land was verbally told by his predecessor that the land was burdened by a covenant but failed to put it in the deed. Or is notice only considered actual when it is express and recorded?

Answer: Actual notice means that the purchaser actually knows about the existence of the covenants. It's a simple factual question. For example, Ann records CC&R's. She then sells the land to Bob. She tells Bob that there are CC&R's burdening the property. Bob has actual notice.

The more likely scenario is that Bob gets a title report prior to the deed transfer to Bob. The title report shows the existence of the CC&R's. Bob has actual notice.

Question: After reading Loretto it seems to me that the Court's decision is problematic when measured against our definition of property. In property I we decided that property was really the interests in rights that the government/law would enforce. Therefore, we did not really draw a distinction between real property and intangible property in terms in one being more "legitimate," for lack of a better word, than the other.

However, Loretto implies that real property deserves more protection than other forms of property. The emphasis upon physical invasions and the holding that a permanent physical occupation is always a taking deserving just compensation, while holding that use restrictions on property are valid, (as long as there is a public interest)is problematic.

For example, using the Loretto standard, as the law seems to do, the government can regulate the number of times I withdraw money from my savings account each month (currently it is 6 times). This restriction of my property is considered valid. But a physical invasion of my real property, such as my home, would draw criticism.

If both my savings account and my home are property then why do the courts distinguish between the two?

Answer: Excellent points. This is what the Dissent is arguing in the case. We step onto a slippery slope when we make the determination based on the physical nature of the interference. As you point out, that seems to value physical characteristics more than intangible characteristics, even though it's the intangible expectations that are really the focal point of all "property."

Question 1: In an example: March 31st, Tenant's lease ends and he remains in possession after the date. At this point the landlord has to make one of two choices - treat the tenant as trespasser (tenant at sufferance) or the landlord can chose to treat the tenant as a periodic tenant. First, to be clear, the period from when the tenant holds over to the time the landlord makes his decision is called a Tenancy at Sufferance (right?). Is this period created by the landlord's inaction (his failure to choose one of the two options)?

Answer: Yes, that is correct, this is often called a “tenancy at sufferance” although it’s not quite clear what rights the parties have until L makes his election.

Question 2: Second, if a few months go by and the landlord doesn't make any decision, he allows the tenant to remain but doesn't demand rent or that he vacate, does this inaction only extend the tenancy at sufferance period or would a court look at it like it was the landlord's choice to treat this arrangement as a periodic tenancy?

Answer: At some point, the L's inaction will be held to make an election to treat the T as a periodic tenant.

Question: For clarification purposes in the Hypotheticals - Covenants & Servitudes, when it states that "All of the remaining lots subsequently sold to buyers with identical restrictions in each of the deeds." Does this mean that all the deeds have the same covenant but the Lot # is changed according to whatever Lot # is being sold? Thanks.

Answer: Yes, that is correct.

Question: You were saying earlier today that all restrictive covenants, whether commercial or residential, are actual “non-competition” covenants. Does that mean that a residential restrictive covenant essentially “recognizes” that alternative uses of land are likely more valuable to the owner, but that each owner has forgone the “right” to compete for that kind of open-market valuation for the benefit of the group?

There's something about this concept that is very odd/interesting, but I'm not sure why just yet... it's almost like a more mature version of capitalism using "game theory" or something...

Answer: Yes, I said that all land use restrictions, residential or commercial, are restraints on alienation. That's the whole point. Land is burdened with the restriction but enforcement of the restriction leads to reliable land uses that increase the value of land use projects. This is true even when the covenants/servitudes are viewed as "anti-competitive." By restricting competitive use of other's land, the parties can plan for value-enhancing uses. Of course, there's a balance involved. If the covenants/servitudes go too far towards anti-competitiveness and further away from land use, it becomes more likely that the courts won't enforce it.

Question: Will the test be based on the modern requirements regarding previty and covenants, i.e., not required ever in equity and only required in law for partial vertical in running the burden?

Answer: You should know both the traditional and modern viewpoints.

Question: Another quick question. I was going over the covenants and servitudes section this past weekend and I read a secondary source that implied that only equitable servitudes can be terminated by changed circumstances and not covenants...is this an incorrect reading?

Answer: Hmmmm. That's a curious statement. I don't think the source is a very good one. Keep in mind that we don't enforce covenants in the first place unless they touch and concern. So, if circumstances change and the covenant no longer touches and concerns, why would we continue to enforce it?

Also, all modern states have merged covenants & servitudes because the only distinction between them was based on the absence (or presence) of previty (see the decision in Tulk v. Moxhay). I can't think of a sensible reason that we would terminate an "equitable servitude" but not terminate a "covenant" when it no longer touches and concerns.

Question: Thanks so much. I thought that changed circumstances would have rendered both unenforceable if they no longer touched and concerned the land...and as I was racking my brain, I couldn't come up with a rational distinction between the two that would terminate one and not the other because the only differences between the two are that 1. Neither horizontal nor vertical previty is needed for the benefit or the burden to run for an equitable servitude. 2. Remedy at common law was an injunction.

I also had one other question. The secondary source also states that that real covenants may not be created by implication or prescription. Here's the language:

"A real covenant can only be created by a written instrument. A deed signed only by the grantor suffices to create a real covenant on the part of the grantee, because the grantee is held to have made the deed his own by accepting it. Real covenants may not be created by implication or prescription."

Is this basically just getting to the heart of the "enforceable promise" element for the burden or benefit to run?" for a covenant? I know we had three theories under servitudes in order for the burden to run: for an enforceable promise 1. Express 2. Implied Reciprocal Promise (Sanborn) and 3. Third Party Beneficiary. Do those theories only apply to Equitable Servitudes?

I really hope this makes sense and I'm not just talking you around in circles...

Answer: Yes, the only way to create a covenant or servitude in California and other modern states is an instrument in writing that meets the requirements for the transfer of an interest in land. This makes sense under the Statute of Frauds. We've seen the one exception to this rule in the case of Sanborn v. Maclean, which is largely discredited in modern jurisdictions.

Question: Is it fair to say that Lucas is for regulatory takings what Loretto is for physical takings--that is, a per se test that applies to an ever so exceptional category of cases that we probably will not see it being applied again, especially considering the fact that the balancing the factors test is able to resolve these inquiries as well?

Answer: Yes, you're right. We're very unlikely to ever see another Lucas case. Keep in mind, it's not exactly a "per se" test. It still requires a bunch of balancing.

Question: Quick question: Let's say I buy a house for $300,000 then the market crashes and my house is now worth $220,000. The government then exercises its right of eminent domain. Will the remedy be the market value of my house at that point, or what I paid for it to begin with...is this another losing lottery ticket situation? Thanks!

Answer: Good question. The obligation placed on the government is to pay the same fair market value that the owner would receive if the owner was to sell the property at that time. So, whatever the value is at the time. Keep in mind if market values are low, the owner can just invest in other property and wait for the market value to rise.

Question: Question regarding Commons v. Westwood Zoning Board. From the opinion of the case (2nd full para on page 852):

"It is appropriate to consider first the origin of the existing situation. If the property owner or his predecessors in title created the nonconforming condition, then the hardship may be deemed to be self-imposed."

Could the WESTWOOD have made the argument that COMMONS' delay in constructing (unlike all other lots in the subdivision) had created the situation, and that the "undue hardship" was therefore actually self-imposed?

The court seems to indicate that self-imposed hardship is triggered by affirmative actions by the land-owner, but the criteria listed were by no means exhaustive...

Answer: Your question about delay in construction is interesting. Read the San Diego variance statute. There's no obligation on an owner to rush construction to take advantage of the variance statute. This makes sense since the idea behind variances is to allow minor deviations from size & area restraints if that can be done without interfering with the surrounding land use. We saw in HFH that there is no vested right to a zoning classification, so if they were smart, they would have sold or built before the zoning changes. However, variances are not really about reliance. They're about balance and are discretionary. Does that make sense?

Question: It does make sense, but then again, the same comeback could be used to defeat the "self-imposed" lot size problems of an owner who sold away a chunk and is now unable to build.

The owner would assert he is experiencing "undue hardship" because he cannot build and has therefore lost reasonable use of his land. However, the COMMONS opinion would indicate that because he sold the land, the courts would not be sympathetic because his plight was self-imposed.

Could the owner then "defeat" the "self-imposed limitation" by claiming that his lot is only 5% undersized (95 ft. instead of 100 ft.), and that the house he wishes to build would not have any negative impact on the surrounding houses and would fit into the neighborhood perfectly well according to the spirit of the zoning ordinance?

If so, when/how does this "self-imposed" rule get some teeth?

Or does the "balance" you referred to have some "equity" traits that might require "clean hands" (that the land owner didn't create this situation intentionally, or with knowledge)?

Answer: An owner who sells off some part of the land following the zoning change (or in anticipation of the zoning change) loses any entitlement to a variance. The undersized lot must be in existence prior to the zoning change. Take a look at the S.D. Municipal Code provision on variances (paragraph #1 on p. 77).

Question: I am reading Gilberts on Property and two questions have come up: Novation - is it true that this only occurs when the Landlord expressly releases T1 from the previty of contract relationship between them?

Answer: A novation is an implied release by L. When L and T2 agree to material changes in the assigned lease, it can be interpreted as an unequivocal intention on the part of L to release T1.

Question: Ernst v. Conditt - Gilberts seems to indicate that this case established the Minority view that intention controls whether a transfer is an assignment or a sublease. The book also mentions the Modern View that a right of entry creates a sublease (contingent reversionary interest) and the Common Law view that such a transfer is an assignment because T1 retained no reversion. I'm confused about which view is the rule of law. Does a reversion and/or a right of entry for non-payment of rent create a sublease or not. I thought it did. Maybe I'm just confusing myself!

Answer: The case indicates a modern and sensible view of interpretation of documents. The universal rule of interpretation of deeds, wills, leases and other documents is to look for the intention of the grantor. Assume that the parties (T1 and T2) want to create a sublease for the remainder of the term, but at a different rent. The traditional view was that the parties would have to make a formal reservation of a 1-hour reversion in order to assure that the intention of the parties (creation of a sublease) would be honored by the courts. Doesn't this remind you of "strawman" transactions where technical, formal acts had to be taken to realize the intentions of the parties? Obviously, an enlightened and reasonable view is the one taken by the court in Ernst v. Conditt. Whether it's currently the majority or minority view is irrelevant. It's the modern and sensible rule that courts should apply.

Question: I'm working on the Reste Realty case and I have a question: The court discusses two cases Stewart v. Childs and Higgins v. Whiting. It seems that the facts of the cases are very similar...how is it they turned out so different? I thought the court had to follow the rulings of prior decisions...am I wrong? The court in Reste seems to pick whichever ruling they like the most and go with that one (Higgins)...they aren't bound by precedent?

Answer: This case is an example of a change in the law over time that reflects modern economic and social realities. The case of Stewart v. Childs was a 1914 case that stuck to the ancient principle that lease covenants were independent and, therefore, a breach of the landlord's covenants did not give the tenant the right to terminate the lease. Higgins (decided in 1925) was a first step towards rejecting the rule of "independent covenants" that was followed in Stewart. The Higgins court pointed out that, in the case of a RESIDENTIAL lease: “In the present case, the covenant to pay rent and the covenant to heat the apartment are mutual and dependent. In the modern apartment house equipped for heating from a central plant, entirely under the control of the landlord or his agent, heat is one of the things for which the tenant pays under the name of ‘rent.’”

Question: I was reading the assignment for Tuesday and in Note 3 on page 541 it says "virtually all" jurisdictions allow a tenant to raise the defense of breach of warranty of habitability to a summary proceeding but I was under the impression that the only defense a tenant can bring in a summary proceeding is that they've paid and are not in default. Am I wrong on this or is there just a substantial difference among jurisdictions contrary to what the textbook says?? Hope you had a good weekend, see you in class!!

Answer: This case is one of many that signal a change in the rule that no affirmative defenses can be raised in an unlawful detainer proceeding. Even Oregon (the state where Lindsey v. Normet was decided) now allows a limited number of affirmative defenses.

Question: It seems to me that the majority opinion in PA Northwestern Distributors favors a per se categorical taking rule regarding amortization and Judge Nix favors a "balancing test", similar to the Penn Central "balancing the factors" test. Is this an accurate reading of the case?

Answer: Yes, your analysis is correct. Keep in mind that, according to the Supreme Court of Pennsylvania, any more restrictive zoning that interferes with a vested use will be a taking. This is a peculiar view under the PA constitution.

Question: I am curious about why the plaintiff's are suing for damages in this case [Rick v. West]. I understand that they couldn't sue for an injunction against West, as she was not the covenant breaking party. Is there such an action as dissolution of covenant, or something to that effect? Were damages their only choice, just to get it into the ct to be heard?

Answer: Good question. The plaintiffs were seeking to have the covenants declared unenforceable or, in the alternative, to limit the defendant's rights to the collection of damages (that is, the covenant would be "enforceable" but the only remedy available for Mrs. West would be to collect damages for breach of the covenant). By the way, what would Mrs. West's damages be if her land is worth more as a result of the termination of the covenant?

Question: I have a question concerning your lecture today in class: We discussed the anti-competitive covenant in the case of Whitinsville Plaza v. Kotseas & CVS. I'm wondering why Longs drugs and Sav-on drugs would consider each other "competition" if located in the same shopping mall, but car dealerships and gas stations seem to go out of their way to position themselves together? Could you please explain the difference? Additionally, I'm still struggling with "equitable servitude" and "real covenant". I'm trying to put my finger on the appropriate situation to use each term.

Answer: Whether competition is welcomed or rejected is a question of business factors. Sometimes, competitors need other similar companies to attract potential customers to remote locations (the "mile of cars" phenomenon). Indeed, that's the fundamental assumption of a shopping mall -- bring together lots of retailers as a way of attracting customers.

Sometimes, there are just not enough customers to realistically support two substantial competitors within a shopping center. In the Long's Drug hypothetical, the initial investment costs are very high and Long's can predict that, if it's the only "discount drug store" in Horton Plaza, there will be sufficient customers to assure a decent return on its investment. If there were two such stores dividing up the available customers, neither would make a profit and, therefore, would not undertake the venture in the first place. So, Longs would refuse to lease the property unless it can be assured that it won't have to compete with another similar store in Horton Plaza. It's in the best interests of the Lessor (Horton Plaza) and the Lessee (Long's) to agree that Horton Plaza won't lease space to any similar competitors. Horton Plaza gets a large, attractive, stable tenant and Long's gets to open a store where it can assure itself a decent rate of return on its investment.

Question: While reviewing the Warranty of Habitability I encountered questions regarding damages available. I have written that the formula for damages for situations in which the property is habitable or uninhabitable at outset is [Rent - FMRV (as uninhabitable)]. Is there another formula - I have that the formula from Hilder was basically unworkable because it was only effective the first time it is implemented. Please advise.

Answer: The common formula for damages for breach of the W.H. is the rent stated in the lease, less the value of the apartment as uninhabitable. The formula in Hilder, quite strangely, was the value of the apartment if habitable, less the value as uninhabitable. See the slide shows for more info.

Question: Can an illegal lease be a defense to an unlawful detainer?

Answer: No. An U.D. is an action to regain possession. If the lease is invalid, the T has no right to remain in occupancy. This doctrine is used only to avoid liability for rent.

Question: Are the Tenant’s remedies the same for Breach of Covenant of Quiet Enjoyment and a Constructive Eviction – i.e. the T can terminate lease, vacate in a timely manner, without liability for further rent, and can sue for damages.

Answer: I don't really understand this question. A constructive eviction is a breach of the CQE.

Question: What type of estate is created under an illegal lease if the T is still in occupation? A tenancy at sufferance or at will?

Answer: Good question. It can't be a T.S. That estate exists only when a T "holds over" and L elects to treat the T as a trespasser. There was no "illegal lease" doctrine until the 1960's, so it's hard to pigeon-hole this estate. Estate at will is probably the best we can do.

Question: What is the notice to terminate requirement for a tenancy at will?

Answer: What do you think the answer is: (i) at common law? (ii) in states like California, as modified by statute?

Question: Do the Boards have to grant nonconforming use, variance or special exception when all the requirements are met? Do they have discretion?

Answer: This depends on the municipal code, doesn't it? Take a look at the S.D. Municipal Code provisions for NC uses and Variances. Is the applicable agency given discretion or not?

Question: Does the expressed release of a covenant require all 100% of the benefactors’ agreement?

Answer: It's not "expressed" release. It's "express" release. The answer to your question, of course, is yes.

Question: I was going over my outline and had a question on covenants I was hoping you might be able to clear up. Under the touch and concern element of equitable servitudes, Neponsit v. Emigrant holds that payment of maintenance money does touch and concern the land, but isn't this benefit in gross, and thus should not be enforced. I understand that in England a covenant that has a benefit in gross never touches and concerns the land, and that in the US easements in gross are recognized, but is this the majority holding?

Answer: The holding of Neponsit is that covenants to pay money for common area maintenance will touch and concern if it is part of a value-enhancing common land use scheme. As you state, prior to Neponsit, the rule was that covenants to pay money were unenforceable against successors even if it's what the parties intended, and there was notice to the successor, and it made sense to enforce it. If Neponsit stuck to the old English rule, we would not have condominium and subdivision CAM's (unless there were statutory modifications of the common law rule).

Question: Are there any supplemental sources which you can recommend to help me better understand the concepts of Scope and Interpretation of Covenants as introduced in the casebook by Hill v. Community of Damien of Molokai?

Answer: The scope issues usually relate to issues of interpretation of the CC&R's. As we discussed in the case of Hill, the courts will interpret covenants the same way they interpret deeds and easements to determine the intentions of the parties. You know the rules, right? If the intent of the parties is clear, then their intent will be implemented (unless there's some public policy reason restricting enforcement). If the intent of the parties is unclear, the courts will use rules of construction that favor free alienability of land. These fundamental principles can be found in just about any treatise or student commercial outline. I'm sure you studied scope when you covered estates in land and easements last semester.

We faced an additional issue, in Hill: If the intent of the parties is clear & there is no question regarding the scope of the covenant (no homes with families not related by blood or marriage), is that the type of covenant that T&C's land so that it will be enforced against successors.

Question: As for the second issue in Hill - Am I correct in stating that we determine whether the scope of a covenant "touches & concerns" land by looking at Use v. User restrictions and that the latter are usually held not to touch and concern?

Answer: As to the 2nd issue, all we can say is that some courts probably will not enforce "user"-type restrictions since they don't necessarily relate to land use. We saw the court in Hill was offended by the use of CC&R's to restrict users and discriminate against individuals based on who they were, rather than on the basis of legitimate land use planning. Keep in mind the general rule: we don't enforce the burdens of contractual promises against successors to land unless the promise is related to some land use planning scheme that is of a real and substantial benefit to land. It's hard to see how covenants based on user characteristics are rationally related to land use planning.

Question: I have a quick question on today's lecture. You gave a hypo in class: " A statute requires all landlords of residential multiple dwellings to provide cable service at their own expense & cannot charge tenants extra for this. " You said that the Loreto "per se" test does not apply in this hypo because it did not involve a third party. Am I correct?

Answer: That is correct. Loretto only applies if the statute authorizes a permanent physical occupation by someone other than the landowner.

Question: If the trial judge in West case could make a jury instruction and let the jury decide whether there was 'real and substantial benefit', I wonder why he did not do that.

Answer: There was no jury in the West case. The issue was adjudicated by motion not by trial. The judge held that, even if all the facts alleged by the plaintiff were true, there was still no basis for terminating enforcement of the residential restriction against Rick's successors.

Question: 'Real and substantial benefit' is not clear to me, a law student. Can we expect that the jury can understand the concept clearly?

Answer: "Real and substantial" means that objective and disinterested parties would determine that the enforcement of the covenant enhances the value of the land of the party seeking enforcement. It's really quite simple, does the value go down if the covenant is not enforced. If it does go down, the covenant was of a real and substantial benefit.

Question: I was reviewing the model answer, and had one quick question that I can't seem to figure out. Under question 3 (Ann v. Zed), I understand that with the implied reciprocal servitude approach, Ann will then have to show that the burden runs to Zed (intent, T & C, notice). Your answer indicates that with the 3rd party bene approach, if Ann can prove that she and other lot owners are direct, intended bene's, then it's as if the promise was made directly to her. Is that right? So she then does not have to prove that the burden runs to Zed b/c they are the original parties and it's a simple breach of covenant? I think your answer is indicating that Ann and Zed are therefore original parties to the K. Is that right?

Answer: Yes, you are correct. If Ann is relying on a "3rd party beneficiary" theory, then she is alleging that the promise she is enforcing is Zed's promise to her as a 3rd party beneficiary.

Question: When you are acting as the third party beneficiary what horizontal previty are you trying to argue exists? Horizontal/vertical previty between the developer and lot owner who violated the covenant or lot owner who violated the covenant and owner seeking damages?

Answer: This is a good question. Keep in mind that a Plaintiff would be using the 3rd party beneficiary theory only to establish that there is an enforceable promise! If the original burdened party and the original benefited party (the 3rd party beneficiary) are the parties in the law suit, there is no need to show that the burden or benefit runs. However, if the original parties have conveyed the burdened and/or benefited land, then to bind the successor to the burden, the plaintiff would have to show (2) intent, (3) notice (4) touch & concern and, to get damages at old common law, H&V previty of estate. I think we have big problems with Horizontal Previty between the promissor and the 3rd party beneficiary, don't you? Keep in mind that, at old common law, there was no "3rd party beneficiary" contract enforcement anyway.

Question: I have a question regarding previty and it goes like this: D conveys two separate fee's to A and B with real covenants riding on back, say for, residential purposes only. A and B subsequently sell to C and D respectively. The question is could C sue D if D decided to build a disco. The reason I ask is because A and B were not in horizontal previty but in were in previty with D and now D is gone.

Answer: This is not a "dumb" question at all (per your second email). In your hypo, Developer and A are in horizontal previty of estate. Therefore, A's successor's will be bound (if all the other elements are satisfied). Similarly, Developer and B are in horizontal previty of estate and B's successors will be bound.

However, there are problems with the benefit running in your hypo. A and A's successors cannot sue B nor B's successors, since the beneficiary of B's promise is Developer and Developer's successors. B made B's promise to Developer, not A. A is not a successor to the benefit of the promise made to Developer. A can sue neither B nor B's successor, D.

A would be able to enforce B's promise to Developer only if A can show that A is an intended, 3rd party beneficiary.

Question: I had a question on the hypo for Property II. In order to for Zed to sue Ann in question 1, does he have to show an implied reciprocal servitude from the developer to himself (since there was no expressed servitude from the developer saying that all other lots would be residential)to carry a successful suit? My thinking is that as the situation stands, only the developer can sue Ann since she had a promise with them only that her building would be residential. Zed would have to show that the developer made a reciprocal promise to him and then he could sue Ann.

Answer: Your analysis is not correct. What promise is Zed seeking to enforce? Isn't Zed seeking to enforce the benefit of the promise from Ann to Developer? If that's true, then Zed just needs to show that the benefit of Ann's promise to Developer runs with the land from Developer to Zed.

Question: I know that the Council was seeking compensation for the temporary taking of their land, but was it for the 32 month moratorium or the 6 years? The dissenting opinion kept bringing up that it should be for 6 yrs. but I was under the impression they were fighting for recovery for the 32 months. The TRPA, they are just seeking to not have to pay compensation for the "temporary taking"--right?

Answer: For the "100%" loss of use during the 32 month moratorium. The plaintiffs are classifying this as a 100% taking during the period of the moratorium, not as a "temporary taking".

Question: This case just confused me a little bit because it would refer to the Penn Central case and say that we should use that because Lucas was just for extreme circumstances. But then it would say that we cannot argue under Penn because the petitioners failed to raise it. I felt like it was going around in circles essentially saying the same thing but varying it a little bit each time.

Answer: The majority decision (and the Court of Appeals decision) stressed that the appropriate test to use when a moratorium deprives landowners of use is the Penn Central balancing test. However, in this case the Plaintiffs neglected to raise that argument in their pleadings (because they knew they would lose if they did).

Question: When discussing the requirement that there must be vertical previty of estate for the benefit to run, I don't really know what the "majority" rule is at this time. As you point out, it was rejected by the courts of New York in the 1920's. Indeed, the English courts of Equity rejected the requirement of previty of estate on the burden side in the mid-1800's (Tulk v. Moxhay). There just doesn't seem to be a reason that modern courts would require previty of estate for the benefit to run. Indeed, despite my 23-year long offer of a really good lunch to a student who can present some persuasive reasons why we should require previty of estate, no one has ever succeeded in doing so.

Answer: My guess is that no modern court would require previty of estate for either the benefit or the burden to run. But I can't state definitively whether or not it's the "majority rule." It just doesn't come up that often.

Question: What does it mean to say that a covenant burdens an estate and a servitude burdens the land? The implication seems to be that I can pass an estate to someone and not pass the covenant along with it, but that I can't sell land burdened by a servitude without "selling" that servitude along with it.

Answer: Covenants at law traditionally hitched a ride on the "estate" so there had to be previty of estate for the covenant to run. For the burden to run, the previty had to exist at the time of creation ("horizontal") and each time the burdened land was transferred ("vertical"). On the other hand, servitudes work like easements and run with the land, regardless of the presence or absence of previty of estate (as in Tulk v. Moxhay). For instance, a covenant would not run against an adverse possessor traditionally at common law since the adverse possessor gains title by force of law, not by transfer of an estate from the prior owner. In the law courts, there would be no remedy (damages). However, the promise could run as an equitable servitude in the equity courts, since it did not burden the estate but, burdened the land, regardless of whether or not an estate passed.

In modern times the distinction is not relevant, since previty is not required in modern courts.

Question: I understand how both the benefit and burden run to successors in courts of law. I'm having some difficulty when trying to determine whether the benefits and burdens run to successors in courts of equity, more specifically, how the benefit runs in courts of equity. I have in my notes the elements required for the burden to run in a court of equity (same as others but without the horizontal previty requirement), but not for the benefit to run in a court of equity. Are the requirements the same? (And am I making any sense?)

Answer: This is a really good question. The requirements for the running of the benefit are always less intense then the running of the burden. In fact, it's just not litigated that much. Traditionally, horizontal previty of estate was not required for the benefit to run, even in the law courts. So, I think we can safely assume that the equity courts would not require horizontal previty for the benefit to run (especially after Tulk v. Moxhay, where the equity courts dropped the horizontal previty requirement for the burden to run). It's highly unlikely that full vertical previty of estate would be required by any court for the benefit to run, whether in law or equity. We're just not that concerned about it. Indeed, in the case for tomorrow (Neponsit Realty) the highest court of New York rejects the vertical previty requirement for the benefit to run at law -- so the courts of N.Y. would be even less likely to require it for the benefit to run at equity.

Question: I read your notes in the supplemental first and then read the case. It seemed to have a contradictory conclusion so I turned to an outside source as well, it also agreed with the text. The conclusion I drew from the case itself, and what the outside source said, was that Moxhay was held to the covenant and a ruling was in favor of Tulk because otherwise Moxhay would have been unjustly enriched. In the supplement it says that the law courts were unwilling to enforce the covenant between the subsequent purchasers of Elm's land. These are two totally different outcomes...Am I missing something or did I interpret your supplemental notes wrong?

Answer: Good questions. Yes, you're missing something. Re-read the materials in the Supplement, and focus on the following two paragraphs, keeping in mind the fact that there were two different court systems in England at the time of Tulk v. Moxhay, courts of law and courts of equity. Here’s the excerpts:

However, to obtain a remedy in the law courts of England, there needed to be horizontal previty of estate between Tulk and Elms for the covenant to be enforced against subsequent owners of the land, such as Moxhay. It is very helpful to know that in England there could not be horizontal previty of estate between the original parties (Elms & Tulk) unless they were in a landlord-tenant relationship. Therefore, the law courts were unwilling to enforce the covenant against subsequent purchasers of Elm's land, even though that's what the parties intended, and the successors were aware of the promise.

In the case of Tulk v. Moxhay, pay attention to the fact that the case is being adjudicated in the equity court of England (the plaintiff was seeking an injunction, not damages), where the judges were not bound by the same formalistic requirements as the law courts. Does the equity court require horizontal previty of estate? What does the court require for a covenant to be enforced against a subsequent owner such as Moxhay?

I am having a problem distinguishing b/wn "running w/ the land" v. "running w/ the estate." As I understand it, the former applies to servitudes and the latter to real covenants. But, don't real covenants run with the land today? I thought the RC's requirement of horiz and vert previty meant that a real covenant could not "run w/ the land" b/c it first had to travel on the back of an estate.

Covenants at law traditionally hitched a ride on the "estate" so there had to be previty of estate for the covenant to run. For the burden to run, the previty had to exist at the time of creation ("horizontal") and each time the burdened land was transferred ("vertical"). So, an adverse possessor of the burdened land would not be bound since title was not acquired by the formal conveyance of an estate. On the other hand, since the case of Tulk v. Moxhay in 1849, servitudes work like easements and run with the land, regardless of the presence or absence of previty of estate. There is a modern trend towards dropping the requirement of previty of estate as a requirement for the running of the burden as a covenant (damages). In those modern jurisdictions, the promise will run with the land, not the estate, regardless of the remedy sought.

If a developer promises to the first buyer in his common scheme that all of the remaining development will be residential but secures no reciprocal promise from the first buyer, will subsequent purchasers in the subdivision be able to find an implied reciprocal promise from first buyer to the developer--that will in turn run to them? My hunch says NO b/c first buyer made no express promise to developer.

The answer is no for the reason you state.

I am confused as to whether modernly, a LL is required to mitigate his damages or be barred from recovery. From what we learned in contracts class, if a party doesn't at least make reasonable effort to mitigate their damages (like in Sommer v. Kridel), they can be barred from recovery. You said: “It does not matter what the LL actually does.”

The rule for mitigated damage recovery in lease termination cases is well-stated in California Civil Code §1951.2: ". . . Upon such termination, the lessor may recover from the lessee: . . .

(2) The . . . amount by which the unpaid rent which would have been earned after termination until the time of award exceeds the amount of such rental loss that the lessee proves could have been reasonably avoided.

Note that it doesn't matter what L actually does. The amount of damages will be limited to the difference between the rent reserved in the lease and the FMRV (the amount of loss the T proves the L could reasonably avoid).

As far as I know, this is the same rule for breach of contracts for the delivery of goods when there is an anticipatory repudiation and the seller still has control over the goods. It doesn't matter what the seller actually does with the goods. The seller will be limited to the amount by which the contract price exceeds the FMV of the goods (the amount of loss the Buyer proves the Seller could reasonably avoid).

Section 2-708 of the U.C.C. provides that: "the measure of damages for non-acceptance or repudiation by the buyer is the difference between the market price . . . and the unpaid contract price together with incidental damages."

Does this answer your question?

Could you help me with the holdover tenant v. Tenancy at Sufferance? I am reading the supplement (page 68-69) and am still a little mystified. Is a tenant who is a "Holdover tenant" not necessarily a "Tenant at Sufferance"?

My thought is that when a tenant stays past their term, they are a holdover tenant. A landlord may *choose* to treat them as renewing under a periodic tenancy or treat them as a trespasser under the more specific designation as a "Tenant at Sufferance".

You are correct.

1) One thing that we didn't discuss today at all during our discussion of Hadacheck was his claim about a monopoly and I was wondering if it was simply because it wasn't pertinent to the "taking" discussion, or simply because no one brought it up. Would that have been a consideration under the character of government action being prejudicial in some way?

I can't see a way that antitrust is related to the due process or takings issues that arose in the case. Hadachek's complaint was enormously long and used a scattergun approach (asserting many causes of action). The court correctly ignored this.

2) When we were reviewing the taking 'per se' I noted that would include both permanent and temporary (even for a few minutes) taking of physical possession. Did I misunderstand? Source of my confusion, if I noted permanent and temporary both equating to taking requiring just compensation, when I read Loretto, I had noted the following cases: Pumpelly v Green Bay Co.: D’s construction of a dam which permanently flooded plaintiff’s property constituted a taking. Northern Transportation Co. v Chicago: Temporary dam (to build a tunnel) was not a taking because it only impaired use of private person's land. What would differentiate the Northern Transportation Co. v Chicago case from the US v Causby which was also noted in Loretto and mentioned in class in regards to temporary use?

An actual physical seizure by government is always a taking (unless some emergency or other extraordinary civil or criminal doctrine applies) and, therefore, compensation must be paid. Even a temporary seizure. In the temporary dam case there was no physical seizure, merely activity that temporarily flooded the plaintiff's land. There were no physical intrusions by others using the land. In Causby planes were intruding along a government maintained flight path. Does that seem to justify a distinction between the cases?

I appreciate the confirmation and clarification of the rule on number 2. Guess I am still troubled by the temporary dam because it did preclude the owner from using part of his land temporarily, just as the planes temporarily enter the air space.

I agree with you, it's a difficult distinction. Just keep in mind that unless the regulation authorizes a permanent physical intrusion, the courts will use a balancing test -- which means that sometimes a taking will be found (the over flight cases) and sometimes it won't (the dam case) depending on how the factors balance out. In the over flight cases the use is occasional but approaching permanent since the airport is likely to be there a long time. Perhaps that's a way of distinguishing the cases.

I'm still a bit stuck on seeing a clear distinction as I believe it was a taking for the welfare of the public, albeit a temporary one. Part of me wants to argue that the dammed land (sorry, but that is a funny pun when you think about it!) wasn't being used for anything anyway so when balancing the economic impact it was minimal, whereas the man with the land at the end of the runway, couldn't build vertically, ever, creating a larger economic impact.clarification!

Yes, that seems like a rational distinction between the cases.

In our property II supplement regarding termination of covenants, you state that in addition to the 6 ways that an easement can be terminated, covenants may also be terminated by changed circumstances and waiver.

Last semester, we learned that easements may be terminated by condemnation (government taking the land) and destruction (when the property is physically destroyed). I would imagine that these concepts hold true for covenants as well. In other words, a covenant can be terminated through condemnation and destruction. Am I right?

Yes, that is correct. The government can take any property for public use by power of eminent domain but must pay just compensation. Keep in mind that two different "owners" own an interest in the parcel: (i) the fee owner, and (ii) the easement holder.

When the government "condemns" a parcel that has an easement across it, government can opt to condemn just the fee - and pay the fee owner, leaving the easement unaffected. On the other hand, government can condemn both the fee and the easement. If the government condemns the easement, it must, of course, pay just compensation for the easement to the owner of the easement. If both interests are being acquired by government, then in the eminent domain proceeding both the fee owner and the easement owner will be joined as defendants.

As to destruction, I'm not quite sure of the principle you're referring to. Can you give me an example?

My second question about destruction referred back to a concept I learned last semester. For example, if I had an easement to walk over another person's land to obtain access to the beach, and the land in which I had the easement over was washed away by the ocean, then my easement was "destroyed." I would no longer have access to the beach (unless of course the owner of the servient estate granted me an easement in gross over another part of her land).

This is a very interesting line of thought. I'm still not quite sure about this destruction doctrine. Easements exist in time & space regardless of what the fee owner does with the servient parcel. It's hard for me to picture the destruction of land, except in rare circumstances. An easement for access across my land will continue to exist even if I excavate the top 100 feet of the parcel and it fills with water. So, even if the beach washed away, the easement still exists. If the beach was to be replenished, the easement would still be there. There's a situation in Hawaii where the lava flows from the Volcano destroyed the town of Kalapani in the late 1980's. All there was for several years was harsh, hard, black lava. But, life is springing up again and the dangerous conditions are subsiding. If the fee owners move back, will they still have access easements?

Do you have a case you studied regarding this principle?

Using this concept for covenants, if a natural disaster occurred for example, and destroyed a residential development, would the owners of the lots in this development still have to abide by the restrictions of the covenant? (This is not a very good example, but I couldn't think of a better one on the top of my head).

If the residential development was destroyed and was not being rebuilt then the covenants would no longer touch and concern. However, if it was being rebuilt by some of the owners, then the covenant would continue to touch & concern. So, again, I'm not quite sure about this destruction doctrine.

When I was thinking about this, I concluded that all forms of termination go back to whether or not the covenant "touched and concerned" the land. This statement doesn't seem accurate to me. Express termination, release, abandonment are not related to "touch and concern." Neither are waiver & estoppel.

In other words, if the covenant that was "destroyed" had a real and substantial value to the land, then it would run with the land so long as the lot owners redeveloped their residential area. (i.e. one lot owner could not decide to use his lot for an apartment complex when previously his covenant restricted its use to single family dwellings).

I'm not quite sure I understand this last point. Thanks for some interesting Sunday night thoughts.

As I read the Hadachek case tonight, it just doesn't seem right. How is it that the zoning ordinance that was put in place, which precluded Hadacheck from running his mfg plant, thereby causing him to incur costs by moving/shutting down his facility, did not earn compensation from the gov't? Shouldn't compensation for these things be part of the planning commission's risk assessment when proposing these usage restrictions? Is that part of the budgeting process? I realize he was still able to get the raw materials from the location, but by imposing this restriction on the land use, he clearly incurred costs. Wouldn't it have been more 'just/fair' to compensate him for costs incurred due to imposing the zoning ordinance? or is it just 'life isn't fair' situations and 'live and learn'?

As I sit back and think about this case, it is becoming more and more clear to me why businesses need to be involved/aware of local planning commissions and their proposals. I suspected these things occurred and I understand the need for zoning, but it seems only fair people/businesses should be compensated. I had similar stomach churnings over the Village of Euclid case. On the flip side, if they see how the political climate is changing, they can always try to alter the zoning or sell and get out before the ordinance is passed.

Question for you: If a business owner is aware that an ordinance is being proposed that could drastically hurt his business and he wants to sell BEFORE the decision is made, is he legally required to disclose his concerns to prospective buyers? or is it 'Buyer Beware'?

I thought your comments were very insightful. We have a lot of cases in this part of the course that focus on the questions you raise -- when should compensation be required for decreases in value caused by land use regulation. Rather than respond to you at this point I'm going to ask you be patient. We'll be examining this issue in great detail in class.

As to your question regarding disclosure to prospective buyers, the common law rule is “caveat emptor” or “buyer beware”. This makes sense since the buyer is just as capable as the seller with regard to checking the status of pending zoning changes. In addition, if the buyer is using a real estate agent, the agent is a professional who should know of such matters and disclose them to the buyer.

On the other hand, why not impose a simple burden on sellers to disclose known information regarding such important matters? We will study this issue at the end of the semester.

If this was a serious concern for the buyer, the buyer might want to insist in the contract of sale that the seller disclose any known issues regarding the compliance of the land & improvements with existing or proposed land use regulations.

I am unsure how adverse possession affects previty of estate when dealing with the burden and benefit of a covenant at law? My understanding is that since an estate relationship has not been established between the original party to the covenant and the "successor" adverse party, vertical previty cannot be established and therefore an adverse possessor cannot enforce a burden or enjoy the benefit of a restrictive covenant. Is this correct?

Your analysis would have been correct prior to 1848. In 1848 the Courts of Equity in England held that the burden of the covenant would run regardless of previty of estate -- but only in the Courts of Equity. Therefore, since 1848, the restriction would be enforceable against the adverse possessor by way of injunction but damages would not be recoverable. However, this historical anomaly (not allowing damages against an adverse possessor but allowing an injunction) doesn't hold water any longer. There is no logical, economic, social or other reason for requiring previty of estate as a condition to enforcement for damages but not for an injunction. It just doesn't make sense. So, my guess is that a modern court would allow damages against the adverse possessor even though there is no "previty of estate" between the adverse possessor and the prior owner of the land.

Do I understand it right that a restrictive covenant not to compete does not run with the land in traditional common law, but it may in 'modern law' so long as it is 'reasonable'?

This is the issue in Whitinsville Plaza. The Massachusetts Supreme Court joins the other 49 states in rejecting the traditional view (expressed by Justice Holmes in Norcross v. James) and accepting the modern view. What is the holding of the case?

I was reviewing my notes from the lecture and I do not have a firm understanding for why the court rejects the vertical previty requirement in the Neponsit case. (Aside from the fact that it does not make any logical sense to continue using vertical and horizontal previty), I gathered from the reading that "violation of the restrictive covenant may be restrained at suit of one who owns property, or for whose benefit the restriction was established, irrespective of whether there was previty either of estate or of contract between the parties..." (880) In this case, even though Neponsit did now own any property, because they were acting in the interest of Emigrant, previty was not necessary. Is this correct? Also, I am unclear about "form" and "substance." Does the court mean that when determining whether a covenant "touches and concerns" land, they will focus more on the benefits the covenant induces (substance) rather than by the rigid application to the elements (form)?

The court is not exactly clear about it's rationale for ignoring the traditional vertical previty requirement. On the one hand, the court seems to use an agency theory (the Homeowner's Association is acting as an agent for the property owners who are in vertical previty with the developer). This makes sense since any of the homeowners could have easily joined as a plaintiff in the lawsuit and the requirement of previty would be satisfied. On the other hand, the court states that to honor the vertical previty requirement would be to exalt form over substance. That is, why honor vertical previty when there does not seem to be any substantive reason for doing so. The parties could have easily satisfied the previty requirement by having developer transfer a tiny piece of land to the Homeowner's association. Or, another homeowner could simply have joined as plaintiff in the lawsuit. So, the court seems to reject the requirement of vertical previty of estate - at least in a case like this where the party seeking to enforce the benefit is a homeowner's association seeking to collect common area maintenance charges.

Regarding implied reciprocal servitudes, Is it also necessary (as an element) that at one point all the land in question was owned by a single owner (developer, etc.)? Or could this situation arise too by way of, perhaps, a Home Owners' Association that decided starting in said year, no more condos could be sold to subsequent purchasers without a restriction for residential use only. Could then the condos retained by original owners be subject to the restriction via an implied reciprocal servitude? All of this is of course assuming the situation arose in a time in which this area of law would have been acceptable to a court.

In Sanborn the court emphasized that the promise had to be reciprocal by the common owner. So, the implied reciprocal servitude must arise, if at all, when the developer of a planned community sells off a parcel and receives a unilateral promise from an early purchaser. It cannot arise between neighbors or prior purchasers.

(1) what’s the difference in terms of remedy b/t an illegal lease and breach of warranty of habitability? Seems like if one were available so would the other be, (except for when a residence BECOMES uninhabitable while living there)--other than that, is one a more favorable option for the T than the other?

Illegal leases only exist where the premises were so substantially in violation of the housing codes at the beginning of the term that the subject matter is “illegal.” This requires extreme conditions and they must exist at the time the lease was agreed to. The ONLY remedy is to move out without liability for rent (although T must pay the FMRV of the premises). IWH is far more preferable. Any substantial violation of the housing code provisions dealing with health and safety constitute a breach and T has several remedies.

(2) In a common scheme of development: Is there anyway for the subsequent parties bound by covenants to enforce against “A” who was the first purchaser and had no covenants? (express/implied reciprocal wouldn't work, 3PB wouldn't work...)

No. If A is the first purchaser who makes no express promises then A and A’s land are not bound.

(3) if there is a holdover, and the new family is waiting downstairs to move in on the 1st, can the holdover be responsible for their damages? Or is the L directly responsible and then can sue holdover for damages?;

Very good question. What should the answer be? Who is causing the harm? Has L violated any covenant to the new family? We studied the case of Hannan v. Dusch regarding this very question.

(4) Does 3rd party beneficiary work in CA or Massachusetts to enforce a covenant at equity? (or is this not allowed the same way implied recip. servitude is not allowed b/c of Statute of Frauds?)

I’ve not researched this but there is no reason not to follow the doctrine in California and Mass. If X and Y agree, in writing: “For the benefit of all lots in the Rosewood Subdivision, I will use my land only for residential purposes. This covenant shall run with the land and bind successors.” Ann is an owner of a lot in Rosewood Subdivision. Should the courts allow Ann to enforce the covenant? Note that there is not a statute of frauds problem here since the promise is in writing.

Your model answer to spring 2002(regarding Andy)says: If developer established a common scheme of development and conveyed lots containing express covenants, some courts will imply a reciprocal servitude binding the land retained by developer.

Q: if the lots contained express covenants, what interest is being implied?
Q: does it relate to a subsequent purchaser of a lot on developer’s land which did not contain an express restriction?

The Model Answer points out that an Implied Reciprocal Servitude (IRS) may have arisen prior to the conveyance to Andy. Suppose that 2 years prior to conveying to Andy, developer had sold 4 parcels to W, X, Y & Z and they each promised to use their land for residential purposes. At that time, there was a common scheme of residential development that included those 4 lots and the retained 100 lots owned by the grantor. Under such circumstances, the grantor's retained land (including the lot eventually sold to Andy) might be bound by an IRS and the burden of that IRS runs to Andy.

Also, does recording the document entitled CC&R's satisfy the written promise requirement so that the restriction does not need to be in each subsequent purchaser's deed?

Yes, that's the point of recording a Declaration of Conditions, Covenants and Restrictions.

If you have an implied reciprocal servitude would the only way for you to meet the notice requirement be constructive notice threw the common scheme? And, if no common scheme then Sanborn says that you can have inquiry notice?

Notice is a troublesome issue in Sanborn. Even if the MacLeans checked all 90 or so surrounding parcels, they still wouldn't know whether or not their lot (Lot #84) was bound or not by a covenant or servitude. All they would discover from their search is that about 50% of the surrounding lots have a residential restriction. The only way to "know" whether or not Lot #84 is bound is to commence a law suit and have a court determine that Lot #84 is bound by an IMPLIED reciprocal servitude. By definition, since it's IMPLIED there is no way to discover its existence from an investigation of the property or the record. That is, there can’t be “notice.” Keep in mind that searching the record title of the surrounding 90 lots is an unreasonable burden. It would cost about $10,000-25,000 just to get the title reports and thousands of dollars more to actually review the title reports.

What the court in Sanborn called "inquiry notice" is NOT what courts typically mean when they use the term "inquiry notice." Inquiry notice means that a physical inspection of the lot in question (Lot #84 in MacLean) would reveal someone in possession other than the grantor and, therefore, the buyer should inquire further into the rights of the possessor.

Let me make sure I have this correct. If T2 does not assume from T1. T2 has an estate relationship, but no K relationship with L. Once T2 moves out there will be no previty of estate between T2 and L, and T2 will not be liable for rent. But, T2 will be liable for all of the covenants that run with the land. Doesnt the covenant for the rent run with the land. How does T2 get out of rent after he leaves simplly b/c there is no K theory? I know the rule, but I am not sure how it work.

I assume you're talking about an assignment here, correct? Once he no longer is in possession of the estate, T2 is not liable for performance of any of the covenants, even those that run with the land. If he re-assigns the leasehold or abandons it, he is not liable for performance of any of the covenants, since he is no longer in previty of estate.

If your land is zoned for residential use and later it gets rezoned to your detriment, must you first exhaust administrative remedies: nonconforming use permit, variance, conditional use permit, application for rezoning? Then, if these methods don't offer relief, you can challenge the zoning as a regulatory taking?

That is correct. Courts will not hear constitutional claims if the plaintiff has a possible administrative remedy available. The administrative remedies must be exhausted first. In this regard, "application for rezoning" is not an administrative remedy. Rezoning is a change in the zoning classification made by the legislature. That is part of the political process and hardly an administrative remedy provided by the municipal code (such as a variance or non-conforming use.)

A few of us are a bit confused on the remedies in First Evangelical. After land owner brings the inverse condemnation suit, if the court determines a taking has occurred, the decision is given to the legislature whether to amend the ordinance, repeal the ordinance, or do eminent domain. Only if they chose to amend or repeal the ordinance, the landowner is entitled to temporary damages or will the landowner get temporary damages even if the legislature chooses eminent domain?

If the municipality opts to exercise the power of eminent domain, the landowner will get the full market value for the land, so there is no need for damages for a "temporary" taking, since the land is permanently taken by the municipality. The value will be determined as of the effective date of the regulation, with interest.

L has made an estate for yrs for 1 yr from Apr 1 to March 31st with T. April 5 arrived but T still stays. L has not made his decision yet. On April 6th L decides to kick T out. Is T liable for the rent for 5 days? What if T moves out on April 6th? My answer is T is not liable for anything because L did not make decision before April 1st arrives.

T is not liable for rent but T is liable for the use & occupancy of the premises (at the fair market rental value).

If Mark rents to Nancy & then rents to Peter later (the same apartment). When Peter moves in, Nancy shows up and says she has superior title, so “get out.” Is this constructive or actual eviction?

This is actual eviction by the party entitled to possession. Nancy can bring an unlawful detainer and will succeed in gaining possession.

Can statute permit L to recover 2-3 times the regular rent for the time T actually holds over? I remember in Lindsey v Normet court says it is unconstitutional to charge 2 times.

Yes, a statute may provide this (this is true in several states). This is different than Lindsey v. Normet, where the state required a double bond & forfeiture for a tenant to appeal an adverse ruling in an unlawful detainer case.

Are the Present Covenants of Title and Encumbrances and the Future Covenant of to quietly enjoy and warrant or defend against people claiming superior title and to provide further assurances implied in a certain type of deed? I don't think they could be implied, if at all, in a special warranty deed or a quitclaim deed. If this is better left for an office visit I understand.

These may be implied by using a statutory short form deed. For instance, a deed that uses the word "grant" in the State of California will automatically include the warranties contained in section 1113 of the Civil Code. In the absence of a specific statute creating such a short form deed, the courts will not imply covenants in deeds.

Is this a correct analysis of Reciprocity of Advantage? If a block has been zoned for commercial and the owner sits on it for few years, it is then subsequently zoned for residential and the original buyer sues for taking because his land dropped from 80%. It would probably not be a taking if it can be proved the rezoning is benefiting a substantial amount more then it is hurting. Plus he waited on the land, a public entity will not be obligated to reimburse because of zoning

This is not what the courts are referring to when they refer to an "average reciprocity of advantage" or a "reciprocal scheme of benefits & burdens." Those terms refer to whether or not, in general, landowners are burdened & benefited by the land use regulation. For instance, a zoning regulation benefits and burdens all landowners, while historic landmark designation burdens a relatively few owners but benefits all owners.

Covenants & Servitudes: I know you can't force someone to tear down a structure in violation of a covenant running at law once it is already built, but what if it is only partially built? Can someone who holds the benefit of a restrictive covenant force the violator to stop building in the middle of construction (injunction via suing as an equitable servitude), and recover at law for damages the existence of the partial structure may have caused?

This question is a general remedies question that is outside the scope of our course.

2.) At CL, under the doctrine of "independent covenants," even though T was not paying rent, does L remain obligated to allow T to retain possession (and sue for rent)?

I'm not sure I understand this question. If T doesn't pay the rent, for whatever reason (except a breach of the warranty of habitability or pursuant to a repair and offset statute) L has the right to bring an unlawful detainer action for non-payment of rent. The T's remedies for a material breach of an express covenant by the L are: (i) pay the rent & sue for damages; or (ii) terminate the lease, move out and sue for damages.

Professor Bigelow's Test for touch and concern - It is kind of confusing. I know that you said it was circular and the court it Neponsit rejects it and says that if it is part of a land use planning scheme which affects the value of the land that the court will enforce it. Do we have to know anything more about that test, like the specific argument behind it or is that sufficient knowledge?

I have a very low regard for the Bigelow test (as does your casebook author). The courts don't seem to pay much of attention to it the last few decades but, rather, concentrate on whether the covenant is of a real and substantial benefit to the land of the party seeking enforcement.

If T vacated and L attempt to relent for the T's account, but could not find T for 2 months, then what is L's damage? my answer would be ( two months of rent + (rent-fmrv)*period left. is this right? here fmrv is the new rent the new T would pay for.

Yes, that is correct.

At common law for the burden to run need:

1. enforceable promise

2. notice

3. touch and concern real property

4. intent to burden successors

5. horizontal and full vertical previty of estate

In modern law - are the requirements for both horizontal and vertical previty eliminated?

For an injunction at equity the requirement of previty has been eliminated since the case of Tulk v. Moxhay in 1848. Theoretically, if the plaintiff is seeking damages, the requirement of previty still exists in some jurisdictions. Many modern courts have dispensed with the requirement of previty for damages as well, for the same reasons as the Lord Chancellor dispensed with previty 155 years ago – there is no sensible, logical, economical or social reason for requiring previty of estate (horizontal or vertical) as a condition for the running of the burden of a covenant/servitude.

At common law for benefit to run need:

1. enforceable promise

2. touch and concern real property

3. intent to benefit successors

4. partial vertical previty

Do you still need partial vertical previty in modern law?

Again, it is unclear in some jurisdictions. Does it make sense to require it? Should it matter whether a successor to the benefit takes by deed from his predecessor or, because of a failed deed, by adverse possession?

Am I correct to say that equity courts used to require previty for the burden and benefit of servitudes to run and that Tulk v. Moxhay was what eliminated previty for equitable servitudes?

There was no such thing as an equitable servitude prior to Tulk v. Moxhay. The case allowed the running of the burden in the Courts of Equity notwithstanding the lack of previty of estate.

If no previty is needed for burden or benefit to run for covenants, is the only difference between covenants and servitudes in modern law the remedy?

If previty is not required, either remedy is available and there is no difference in the case of an express promise. However, if the plaintiff is relying on an "Implied Reciprocal Servitude", the plaintiff is seeking to have the court imply the existence of a promise. This appears to be an equitable cause of action (not based on traditional legal principles) and, depending on the jurisdiction, the remedy may be limited to an injunction.

I have one more question regarding the Spring 2002 Model Answer. On the issues of waiver and changed circumstances - should we have argued them as you did - as separate points regarding the termination of the covenant - or should we have argued them under the "touch and concern" element of an equitable servitude?

1. Waiver: This affirmative defense is unrelated to the issue of touch and concern & should be discussed separately.

2. Changed circumstances: It's really a judgment call. This could have been effectively argued in the touch and concern section. However, if you did so you would have to make clear that there are two different points in time being discussed (the date the CC&R's were created and the date of the possible changed circumstances).

In my notes I have..."If L breaches a material part of the lease/K, T can terminate lease and move out due to the doctrine of dependent covenants. Therefore, we don't need constructive eviction anymore." However, is this only in reference to the landlord specifically agreeing to making certain repairs etc. in the lease? Thus, if the landlord did not agree to anything in the lease besides the IMPLIED warranty of habitability then the doctrine of dependent covenants would not apply, but rather, the warrant of habitability would...?

If there is a material breach by L of any covenant in the lease, express or implied, T can terminate, abandon & sue for damages.

In an assignment, if T2 is evicted actually or constructively (breach of CQE), Can T2 sue both Landlord and T1 based on estate relation?

T2 can sue L for breach of the CQE based on the estate relationship between them. T2 cannot sue T1 unless the contract between them specifies that T1 promises that T2 will not be disturbed and will quietly enjoy the property. Remember that an assignment is the transfer of a leasehold estate with T1 retaining no reversionary interest. T1 is not creating an estate in favor of T2, so there is no CQE.

I was wondering if we need to know the California statues that you provided for us in the supplements. I understand the basic idea behind them, but I don't have them memorized nor could I cite them by section/title. Should I memorize them?

No, you need not memorize them. They are intended as examples of how some states respond to common law issues. If you understand the basic idea behind them you're fine.

We need to prove if there is an express promise between original parties in order to show burden or benefit run with a land. However, we sometimes should show that reciprocal express promise and sometimes we don't have to. For example, in Hype of Ann, Art, Zed (homework assignment), we don't have to show reciprocal promise for question 1 and 2. Why is this?

Because in questions 1 and 2 Ann made an EXPRESS promise. So, to enforce the promise against her or her successors there is no need to show an IMPLIED promise on her part.

1) If a buyer accepts a deed from seller that conveys a title that is unmarketable (assuming no exclusions in the K for sale), does the buyer still have a way out if she argues breach of the implied covenant to deliver marketable title even though the deed has now been delivered and the deed is supposed to extinguish the K of sale under the doctrine of merger? (in other words, since the K of sale is extinguished under the merger doctrine, how can the buyer get out of the deal if the seller delivers unmarketable title? Breach of K? How, if the K is deemed extinguished?)

Once the deed is accepted, the buyer can rely only on the covenants, if any, in the deed. That's the whole point of the doctrine of merger. Defects in title are discovered all the time prior to the closing but buyers still go through with the transaction and accept delivery of the deed. Acceptance of the deed is the completion of the seller's performance of the contract. If there was a material defect in the title of the seller, the buyer could have rescinded the contract and sued for damages but, instead, the buyer accepted delivery of the deed. The only contract provisions that survive delivery are those that the parties agree will survive delivery of the deed.

2) Hypo: "Seller says to buyer, 'Blackacre is yours WHEN you give me $1 million.'" The million dollars is paid 10 years later. Question: For those 10 years was the buyer the "equitable owner" under the doctrine of equitable conversion?

I'm not clear about your question. Is there a written contract of sale? If there is, then the answer would be yes if the buyer was in possession. Indeed, under long term contracts of sale, buyers will take possession for 10, 20 or 30 years and the seller is not obligated to deliver title until the buyer has completed the payments called for under the contract. The doctrine protects such buyers who are relying on the seller actually delivering title at some point. If the buyer was not in possession, it's hard to imagine that the intent of the seller was that the delivery condition could be satisfied any time over the next 10 years. Usually the seller will specify: "Blackacre is yours if you pay me $1 million no later than 30 days from today." (or some other time period). During that time period, the buyer is treated as treated as the equitable owner and can obtain specific performance of the contract if the buyer is ready, willing and able to perform.

3) Can CC&Rs be considered "encumbrances" on the property, making title unmarketable if they aren't removed or agreed to? Are encumbrances limited to interests in the property, such as an easement, or can they include CC&Rs? Easements and CC&R's are encumbrances.

Technically, any encumbrance renders title unmarketable. However, some courts might be willing to find that CC&R's that have no negative effect on the value of the property do not render title unmarketable. A seller of a condominium should provide in the contract that: "Seller will provide marketable title, subject to CC&R's of record, provided however that buyer shall have the right to review and approve any such CC&R's within 3 weeks of this agreement."

4) Even if CC&Rs are not encumbrances, a covenant limiting house size to 3 inches in the title would qualify the title as "unmarketable" because a reasonably prudent purchaser would not accept such a title - Correct?

See above.

When L breaches an express promise in the lease and T remains in possession, is T still liable for: rent? damages?

Yes. A failure to pay the rent gives L the right to possession in an unlawful detainer for nonpayment of rent. There are only a few exceptions that the courts & legislatures have carved out: Breach of the Warranty of Habitability, Repair & Offset statutes.

Is regulation of a noxious use always ok (ie: never a taking)?

I don't believe this is true. The character of the government action (regulation of a noxious use) is just a factor. Keep in mind that a landowner may have strong IBE's that outweigh the fact that the use is "noxious." For instance, suppose a cattle feedlot starts up in 2002 at a cost of $14 million. Just two years later, a developer builds a 1,000 unit residential development nearby. The city counsel then re-zones the feedlot "R-4" residential only. The feedlot may be a "nuisance" or "noxious" but the strong IBE's may result in this being considered a taking.

As far as the difference in the courts' decisions to drop the PLV when considering "spot zoning" in the cases of State v. Rochester and Fasano does this show that the courts in general are split and that the U.S. Supreme Court has never ruled specifically on this issue? There is a split in the jurisdictions and the Supreme Court has not ruled on this. Also, in general, do the court drop the PLV when considering Variances and CUP's?

This is a good question. Court's tend to look more closely at the issues when the action is not legislative in character. When variances are granted, courts tend to review the grant closely. Where variances are denied, the courts tend to respect the discretion of the administrative officers, looking only to see if there was an abuse of discretion.

When applying the Lucas Test, if you can show that a regulation has taken 100% of the value of a property, the burden is shifted to the gov't to show that the use can traditionally be limited by nuisance law or other pre-existing expectations. Can you please give me an example of another "pre-existing" expectation that wouldn't already have been covered under the "nuisance" umbrella?

Air and water pollution come to mind. There are times that pollution does not rise to the level of a nuisance, yet landowners have come to expect that pollution can be regulated. Perhaps another example is salt-water estuaries. In some states, these areas have never been developed and landowners may have come to expect that they cannot use these areas for development.

My Q is that you used the term "implied reciprocal servitude" instead of "implied reciprocal NEGATIVE servitude" on the model answer of the first homework assignment... Why? I know that it is obvious that the restriction on the hypo is something that prevent someone to do st. But don't we still need to talk about "NEGATIVE"?

Whether the servitude was negative or positive was not really an issue in Sanborn v. MacLean. After the case of Neponsit, it is no longer a serious issue as to whether or not a servitude is negative or positive, so long as it touches and concerns the land.

Is this correct? Present covenants do not run with the land, but we really don't care that they don't because today no one should or does really rely on warranty deeds anymore and rather gets title insurance. Also, going through your slides, I noticed that you didn't discuss short form deeds today. Should I be concerned with those slides? I assume not since you did not discuss them. Thank you for your help.

We have discussed short form deeds in earlier classes. Yes, the traditional view was that present covenants don't run. This was based on the common law antipathy towards the transfer of "choses in action." In modern times "choses in action" are freely transferable, so there is no logical reason that they can't run just as easily as future covenants but the issue doesn't come up that much. No rational buyer would rely solely upon the warranties in some earlier deed in the buyer's chain of title.

Does actual partial eviction have a different remedy than constructive partial eviction? I remember you mentioning that a tenant can withhold rent if there is an actual partial eviction, but it seems that it may not be the same for constructive... can you help?

There seems to be some mention in some student outlines that a partial constructive eviction does not give rise to the same remedies as a partial actual eviction. This does not make any sense to me. An eviction, actual or constructive, is an eviction. The remedy should be the same. At common law, a landlord who partially evicted a tenant could not collect rent, since the landlord could not "apportion his wrong." Of course, the landlord could collect the fair market value of the premises actually retained and used by the tenant. If this is the rule for actual partial eviction, it should be the same for constructive partial eviction. There is no theoretical or practical reason to distinguish between actual or constructive eviction regarding the remedy.

When T1 sublets to T2, is there any previty of estate or previty of contract between T1 and T2?

Yes & yes. There is a new lease between T1 and T2. So there is both and estate and contractual relationship between T1 & T2.

When T1 assigns to T2, is there any previty of estate or previty of contract between T1 and T2?

There is previty of contract between T1 and T2 (the contract regards the assignment of the lease from T1 to T2)