I. Introduction A. The Finder's Cases

1. Rule: The finder of property (real or personal) does not acquire ownership, but he does have such a property interest as will enable him to keep it against everyone but a prior possessor (title is relative) – protects prior possessor from subsequent possessors1. How is this different from absolute ownership?

1. True owner can do almost anything with the property – sell it, use it, give it away, recover from thief, change it, insure it, prevent others from using it

2. Can do all of the above subject to the rights of the owner or prior possessor – prevent anyone but the owner from using it

2. Reasons for the rule1. Public order rationale – if we don't protect any possessors other than the owner, gives

incentives for others to steal (“endless series of unlawful seizures”)2. Facilitates bailments – where one person puts another person in possession of personal

property temporarily3. Rewards expectations – if you expect to be in possession, you expect to keep it4. Rewards finders – also helps true owner recover (b/c finder can admit he found it

without risk of losing it)5. Best way to protect true ownership – almost impossible to prove true ownership. More

likely to give to true owner if you give to prior possessor. 3. Results of the case

1. Court is protecting prior possession from a subsequent possessor whose claim is only based on possession

2. Speaking of true ownership rarely makes sense – key is to show someone has a greater property right than the other● Property is the relationship between people with respect to things (not relations of

people to things)4. Armory v. Delamirie (pg. 96) – Chimney sweeper's boy (Armory) finds a jewel, takes it to

a goldsmith to find its value and apprentice wouldn't give it back. Armory puts in an action in trover (recover damages, not the property) – does this to get best possible value and in case the owner shows up to recover the property.

-Burden of proof on D to show it wasn't the finest jewel possible – reason is b/c Armory doesn't have the information to if the burden was his

2. What is possession?1. Possession – physical control and intent to assume dominion

1. Bridges v. Hawkesworth (pg. 100) – P arrives at D's shop, finds money and gives it to D to advertise to find true owner. D wouldn't return it and P sues. D argues constructive possession b/c it was in his shop. Court applies Armory and rules for P b/c he had prior possession and place where money found doesn't matter. D never possessed the money b/c not in physical control before P.

-Significance – Mere presence of chattel on premises does not constitute possession.2. Constructive Possession – Treated as possession for use of the rule

1. Possessor is unaware of possession, but has it (usually b/c he owns land on which the chattel lies)

2. Reason – Protects rightful owner – more of a chance that the rightful owner will come back to land owner and retrieve lost property (rather than coming to finder)

3. Exceptionsa. Agency Exception – Owner of premises gains right to property if finder is an

agent of the owner of the premises – South Staffordshire Water Co. v. Sharman (pg. 101) – Finder of an old boat on someone else's land (he was hired to work on

the land). Court says where property was found makes a difference (tries to distinguish from Bridges). Anything attached to or under the land goes to the land owner and anything lying on top of the land is the finder's. Also, owner had control of the land (not public).

b. Attached to/Under Soil Exception – Anything attached to or under the land goes to the land owner and anything lying on top of the land is the finder's – South Staffordshire Water Co. v. Sharman (pg. 101)

c. Private Home Exception – Property found in home is the owner of the home – Owner of the home must exert control1. Hannah v. Peel (pg. 99) – Peel owns house, but never occupied it. A soldier

who was quartered there found a brooch, turns it over to police (who didn't find true owner) and they give it back to Peel instead of Hannah (the soldier). Peel claims to have constructive possession of everything in the house and Hannah argues he was the prior possessor. Court gives possession to finder following Bridges.

-More like Bridges b/c - 1. South Staffordshire involved agents of the owner as the finders (not

true here)2. Bridges had chattel lying unattached like the brooch

-D was never in physical possession of premises (didn't exert control) – so no constructive possession of the brooch

3. Exceptions to Finder's Rule1. Lost Property = Prior possessor loses possession inadvertently

-Rule – Finder entitled to possession of lost property against everyone except the true owner2. Mislaid Property = Prior possessor voluntarily gives up possession but with the

intent to get it back at some point-Rule – Finder acquires no rights

3. Abandoned Property = Prior possessor intentionally gives up possession with an intent not to get it back1. Rule – Finder is entitled to keep it2. Treasure Trove Rule – Anybody who rescues property in peril gets compensated

(usually treated as abandoned property unless the true owner appears)3. Popov v. Hayashi (pg. 110) – Two fans fighting over Barry Bonds's record-setting

home run ball. Court rules that MLB abandoned the ball when it went over the fence and splits the value of the ball between the two fans.

4. How do you determine whether the property is lost, mislaid or abandoned?1. Focused more on what the claimant does than what the owner does2. Evidence of owner's intent hard to discern and easy to manipulate (b/c true owner isn't

there most likely)5. Reasons

1. Mislaid – property was voluntarily mislaid rather than lost, so property owner (whoever) has better right.

2. Better secure owner's rights – owner more likely to return to the land if he intentionally placed the item there

6. McAvoy v. Medina (pg. 105) – Finder is a customer in D's shop and finds a wallet. Court says property was mislaid (owner voluntarily placed wallet on table) and therefore, finder acquired no rights.

II. System of Estates A. Introduction to Estates Doctrine

1. Historical Background

1. William the Conquerer (conquered England in 1066) – needed a solution to provide order and found it in the land – gave land to nobles with strings attached

2. Organization of English Property1. King branching out to nobles2. Nobles branching out to knights3. Knight branching out to farmers4. Farmers branching out to peasants

3. Who owns Blackacre?1. Peasant holds land is desmesne (he is tenant) and farmer is mesne-lord (intermediate

lord)2. Farmer is tenant of knight and the noble is the mesne-lord over the knight3. Noble is tenant of the King (tenant-in-chief) and is a mesne-lord over the knight4. Tenant-in-Chief → Mesne-lord (intermediate) → Tenant in demesne (possessory use)

4. Seisen – possession1. seised in possession or in service2. Each person in the chain of Blackacre is seised in the property, just in different forms

5. Tenure – describes relationship b/t lord and tenant1. Knight's service, frankalmoin (best tenure – religious tenure), socage (most popular

over time – paying money), villeinage (peasants – no protection by the courts)2. Social status determined, to a degree, by your tenure

6. Feudal incidents – obligations – different incidents attached to all forms of tenure1. Homage and fealty – swear to protect each other and the King2. Forfeiture – If tenant breached oath/service, land goes back to the lord3. Aids – Money you pay your lord to help him when he was in great need of money

(festivals or if lord was being ransomed)4. At death:

a. Relief – money paid when you succeed the landb. Escheat (see below) – if tenant died without heirs or convicted of a felonyc. Wardship - if you're a minor when you get the property, the lord controls itd. Marriage - if you're a minor when your parents die, lord controls marriage

7. Escheat – if you died with no heirs, this is the process where the land goes back to the lord1. No right of inheritance – but common practice was to recognize elder son of the prior

tenant as the new tenant-Gradual progression over time that land becomes more heritable

2. Canons for Descent – Determines who would be the heir (looks to relatives, but doesn't go too far)

8. Subinfeudation – Tenants collect a lump sum, it puts somebody else in the chain1. Not good for the lord b/c at your death, he loses the incidents and only gets what your

tenant was giving you2. Statute Quia Emptores (1290) – Prohibited subinfeudation. Allowed substitution and

alienation instead9. By 1290 – Clear recognition that land is alienable (you can sell it)

1. LAND BECOMES HERITABLE EARLY IN THE PROCESS, THEN BECOMES ALIENABLE, AND LATER BECOMES DIVISABLE (ability to specify in your will who gets the land)

2. Statute of Wills (1540) – Recognized land as divisableB. Freehold Estates

1. Fee Simple Absolute (Fee Simple, Fee) – 1. X owns an FSA if:

1. Entitled to present possession2. entitled to future possession until X dies

3. X's heir is entitled to the property at X's death and the heir of X's heir entitled to it as heir's death, etc.

4. O (grantor) has nothing2. Only restricted by society's restrictions3. Heritable, Alienable, Divisable (after 1540)4. Escheats to crown if there are no heirs whatsoever

5. Words of limitation: “and her heirs”6. Post Statute of Uses (1536)

1. “to X and his heirs” required – otherwise defaults to life estate2. Most states today have statutes addressing this

2. Fee Tail1. X owns a Fee Tail if:

1. X is entitled to present possession2. X is entitled to future possession until X dies3. X's linear heir is entitled to the property at X's death4. And so on (direct descendants)5. O has a reversion

2. Expiration – On the death of the last direct descendant, fee tail expires3. Can have a Fee Tail Female or a Fee Tail Male4. Post Statute of Uses (1536)

1. Not much in practice todaya. About half of states it's forbiddenb. Other states – it can be barred

3. Life Estate1. X owns a Life Estate if:

1. X is entitled to present possession2. X is entitled to future possession until X dies3. O has a reversion

-This future interest is heritable, alienable and divisable after 15402. Measured by a lifetime – doesn't have to be X's lifetime (would be LE pur autre vie if

not X's lifetime)3. If X sells to Y – LE pur autre vie4. Alienable – most common way to see a LE pur autre vie5. Not heritable6. Not divisable

4. Fee Simple Determinable1. X has a Fee Simple EXCEPT it comes to an end automatically when something

happens (must be in line with public policy)2. O has possibility of reverter

1. Interest in the land, but no guarantee of possessory interest2. Heritable, NOT ALIENABLE, NOT DIVISABLE

3. Words of Limitation: “to X while the land is used for Y” and other variants5. Fee Simple Subject to Condition Subsequent

1. X has a Fee Simple EXCEPT when the condition happens, it ends if somebody exercises their right of re-entry (not automatic)

2. O has right of re-entry-Same as FSD – no future interest in a third party allowed here

6. Fee Simple on Executory Limitation1. Statute of Uses – 1536 – allowed a third party in law to have a fee simple on executory

limitation. Also allows springing and shifting interests that were previously forbidden.2. X has a Fee Simple EXCEPT it may have conditional or durational language.

3. A third party has the future interest, which may cut short X's fee simple (shifting) = executory interest1. Any future interest that does not meet the remainder test2. Also includes springing interests

4. History1. Chancellor began providing relief not available in common law to “remainders” that

didn't fit the rules, but were still fair2. These future interests were recognized as “uses” - person had equitable title in the land

a. “Feofee for uses” is the trustee (one who is granted the property)b. “Cestui que use” is the one who gets benefits from propertyc. Valuable of the cestui que use couldn't own property (minor, woman, etc.)

3. Monarchs began making CQU pay reliefs, etc. and not dodge taxes4. 1536 – Statute of Uses – make these uses into legal titles

a. Fraud was increasing since there was no official title for the landb. Uses allowed CQU to avoid taxes

7. Public Policy Restraints1. Societal Constraints2. Restraints on alienation

1. Many grantors put them as conditions2. CANNOT UNDULY RESTRAIN ALIENABILITY – it's a key right3. Can't put a restraint on marriage

C. Remainders1. Requirements

1. Can only follow a LE or FT2. Must be capable of taking immediately upon the expiration of the estate – must be

exactly on time (No springing interest)3. Can't cut short a prior estate (No shifting interest)

2. Even if at the time of death it turns out to pass the rules, still not OK. Remainder void if it violates any of these rules in any possible situation.

3. Types of Remainders1. Vested

1. Must be born and ascertainable2. No condition remains to be satisfied except the expiration of the preceding estate3. Types

a. Indefeasible1. Identifiable person2. Without any condition or executory interest

b. Subject to Partial Divestment (“subject to open”)1. Ex: to Ingrid for life, remainder to such of her children who survive to age 25. 2. Remainder remains open to other people who qualify

c. Subject to Total Divestment 1. When the LE or FT have a condition subsequent so if the LE violates the

condition, O has a right of re-entry and the remainder is divested2. It may be subject to an executory interest that would divest it3. Condition subsequent – VR Subject to Total Divestment; Condition precedent

- CR2. Contingent

1. Must be unborn or unascertainable2. OR there is a condition3. Once the above two requirements are met, it's a vested remainder4. Alternative Contingent Remainder

a. If there are two contingent remaindersb. Must be exhaustive and mutually exclusive

4. Doctrine of Destructibility of a Contingent Remainder – the CR is destroyed if it doesn't vest before the termination of the LE or FT1. O has a reversion in contingent remainder2. Termination includes: Expiration, Forfeiture, Escheat3. Three ways to destruct

1. At the natural expiration of the LE or FT, the condition wasn't met2. Forfeiture – If the death of the present possessor is necessary for the condition to

be met and b/c of felony or other reason the land is forfeited, CR is destroyed3. Merger – one person has the reversion and the LE or FT

a. Value to merger – the whole is greater than the sum of its partsb. Merging cuts out the CR – now a FSA

4. Shelley Rule – If O creates a life estate in A and a CR in the heirs of A, the remainder becomes a remainder in fee simple in A → If remainder is vested use merger doctrine to create an FSA in A1. Ex: “A for life, remainder to A's heirs”2. Not a rule of construction – court will apply regardless of what grantor intends3. Pre-conditions

a. One instrumentb. Creates a life estate in the land to Ac. LE remainder are both equal and equitable

4. Only applies to real property (not personal property)5. How can you get around it?

a. Hard to do, but can – make a gap so it's an executory interest (and not a remainder), set it up with a trust, long term lease (999 years) and upon his death to heirs

6. Reason - Preserving alienability – easier to sell an FS7. Most states gotten rid of Shelley Rule today

5. Doctrine of Worthier Title – if the CR is in the grantor's heirs, and the reversion would be in the grantor's heirs anyway, the reversion is worthier than the CR and the CR wouldn't count1. Rule of Construction in most states2. Not limited to remainders – could be other future interests3. Not limited to land4. Two estates need not be of the same quality

6. Most states today – where a CR is destroyed, creates an executory interest insteadD. Modern day – all of these interests are heritable, devisable, and alienable except where it

doesn't make sense (life estate not heritable?)1. Right of entry is heritable and devisable, but alienable only under certain circumstances

E. Intestate Succession – Process by which property passes from prior owner as a matter of law1. Die without a will = intestate2. Common Law Cannons of Descent

1. Issue = most preferred then search for other heirs1. Primogenitor – give to eldest son, if he is dead, give to eldest son of eldest son, etc.

2. Per stirpes – follow each line down and goes to issue (not same share)3. Per capita – everyone gets same share4. One system for determining heirs for land property and another for personal property

3. Uniform Probate Code1. Each state has one

2. General rule: surviving spouse gets some portion (or all) of property – children get at least some

4. Why do we have these rules?1. Wanted to give property to person or people who the intestate would have given it to (but

don't necessarily have to)F. The Life Estate

1. In certain circumstances, Court can order sale of LE and remainder, splitting the proceeds of the FSA1. To determine how much each get:

1. Life expectancy – how long would it be until LE holder dies?2. Interest rate3. Idiosyncratic value – land has sentimental value

2. Uncertain of scope, but needs to be exercised with caution1. When it is necessary to prevent waste2. Maybe when it serves the best interest of all

3. Law of Waste1. What is it? - Present possessor shouldn't be allowed to use it in a way that

interferes with the future interest2. How is it decided? - The greater the present possessor's interest, the more

freedom he has3. Needed b/c incentive in a LE is to exploit it as much as possible now, not considering

future interests (versus an FSA)4. Types of Waste

a. Affirmative Waste – Through injurious acts (reducing value) with more than trivial effects

b. Permissive Waste – neglects to take reasonable care of itc. Ameliorative Waste (controversial) – changing the land (even if more

profitable, etc.) not to the liking of the remaindermen-Rejected in the US

5. Baker v. Weedom (pg. 197) – John Weedon's will gave land to wife for her natural life and then to wife's children or potential children (CR) with an alternative contingent remainder to John's grandchildren from another marriage. John has a reversion, but he dies so his daughters have the reversion. Wife wants to sell land, but daughters don't want it. Court does not sell land. No waste and best interest of daughters to have her keep the land. Remaindermen are basically allowed to wait out for the LE tenant's death.

G. Rule Against Perpetuities1. COMMON LAW RULE: No interest is good unless it must VEST, IF AT ALL, not later

than 21 years after some LIFE IN BEING at the CREATION OF THE INTEREST1. Not the strict rule – just summarizing 200 years of cases2. Vest

1. Looking at when the interest will vest, NOT when they will become possessory2. Three things that RAP applies to

a. CRb. VR subject to openc. Executory interests

3. Life in Being1. Anyone who is alive can be a life in being, but an effective life in being is someone

who gives you a long enough perpetuity period that either the interest will vest in time or we will be certain that it won't vest at all

4. Creation of the Interest – everything is judged from the creation of the interest

2. Six-Step strategy to applying the RAP1. Classify the particular grant (disregarding anything about RAP)2. Identify future interests, if any, that are subject to the RAP

1. None of present possessory interests are subject to RAP2. No future interest in grantor subject to RAP – only look for a future interest in a

grantee3. Don't worry about 1) vested remainder indefeasibly vested and 2) vested remainder

subject to total divestment4. What are subject to RAP

a. CRb. VR subject to openc. executory interest

3. Determine when, if ever, these future interests will vest considering all potential scenarios4. Determine if vesting might occur beyond the perpetuity period or if it must occur, if at all,

within the perpetuity period (meaning the interest is valid)-Look for scenarios. Look for people with lives in being and how they relate to the grant

5. If you found any violations in Step 4, cross them off6. Once you've crossed off invalid interests, re-classify what you're left with7. Some states – apply statutory modifications to the rule

3. Savings Clause – just in case we overlooked anything, we will terminate the trust and distribute the assets before 21 years after the expiration of the specified measuring lives1. So, you pick a list of people you want to use as measuring lives and direct somebody to

keep track of the list of people and when the last one dies, start the watch and then distribute the assets in 21 years

4. The Symphony Space v. Pergola Properties, Inc. (pg. 251) – Broadwest makes deal with Symphony Space to give them the property and Broadwest can get it back in certain years if they want. They chose one of the middle years (1987 when the latest year was more than 21 years after the creation of the interest). Broadway says the executory interest vests when it becomes possessory, so no problem. Court says option was void b/c it might have vested outside of the perpetuities period

-Hard to apply RAP in commercial situations – anybody who could have been a life in being could have died the day of the contract here (no effective lives in being in commercial transactions)

5. Reforms1. Policy reason for RAP – bad idea to let people restrict the land forever (makes sense)2. Statutory Reforms of RAP

1. No agreement on the right way to modify RAP – most agree some modification is good

2. If an interest fails RAP in common law, THEN we apply the modifications to see if we can save the interest

3. Wait and See Approach1. We will wait to see what actually happens (if the interest vests by the deadline)

-Gets rid of the initial certainty rule (the rule that looks at what might happen)2. No effective life in being

a. Statutes ascribe someone to be the life in being ORb. Uniform Statutory Rules Against Perpetuities – set time at 90 years

3. Most long-standing and popular modification to RAP4. Not much different from Savings Clause5. Extends benefits to all – now the poor aren't as screwed by not having lawyers to get

around RAP4. “Cy Pres” Statutes - If there's an interest that violates RAP, can't give effect to

grantor's specific intent (against public policy), but try to get as close as possible to

the grantor's general intent5. “Patch Up” Statutes

1. Leaves RAP for the most part, but fixes some of the bizarre scenarios2. Rules of construction – presume validity3. Examples of fixes

a. Fertile octogenarians – rules as to when people can have kids as per RAPb. Delinquent lawyer – lawyer takes forever and lives in being diec. Consider health reasons for ppl not having children, but disregard adoption

6. Alternative Perpetuity Period – specifies a year-Not that effective b/c still have the initial certainty rule

7. State statutes can use any combination of the aboveIII. Concurrent Ownership

A. Tenancy in Common – separate but undivided interests1. Interest of each party is descendible and may be conveyed2. No right of survivorship

1. On death of co-tenant, property passes just like other property would (smaller and smaller portions of the land as time passes)

2. This is the distinction b/t a Tenancy in Common and a Joint Tenancy3. Modern day – this is the presumed scenario (unless specified otherwise)

-Assumed that a co-tenant would not want to lose their interest in death-Used to be presumption in favor of a Joint Tenancy

B. Joint Tenancy1. Four unities are required

1. Time – each of the joint tenants takes at the same time2. Title – all of the tenants have to acquire by the same form of conveyance or come at

the same time3. Interest – everybody has to have the same interest4. Possession – all have the same right to possess every part of the land

2. If a rule is violated, the joint tenancy is severed and it becomes a tenancy in common3. Right of Survivorship – on the death of a co-tenant, the co-tenant's interest doesn't pass

to anyone else; it disappears-Property ends up being held by the last of the tenants

4. Severance of a Joint Tenancy1. Severance of one of the four unities severs the J.T., destroys the right of survivorship

and creates a T.I.C-Fair b/c otherwise can convey your interest to a younger person who will get all of the property at some point

2. Conveyance by the J.T. - Can convey separate estate without knowledge or consent of the other tenant, thereby destroying the joint tenancy1. Riddle v. Harmon (pg. 280) – Frances Riddle wrote a deed to herself where she

granted one-half of the property to herself and the purpose was to terminate the joint tenancy and turn it into a tenancy in common (by breaking one of the four unities – here possession). Traditionally in CL, didn't terminate the joint tenancy b/c didn't break unity of possession). She would have had to terminate the joint tenancy by conveying it to someone else first, then back to herself. Court gets rid of CL rule and says it worked, J.T. was severed.

-Reasonsa. Why require someone to do something indirectly when they can do it directly? It's

a legal rightb. If they wanted it non-severable by this method, could have created a Tenancy by

the Entirety3. Mortgage by the J.T.

1. Title theory – mortgage conveys a legal title and terminates J.T.2. Lien Theory (majority) – A security interest is conveyed, not the title, and the

mortgage does not sever the title (unique character of mortgages is recognized)3. Harms v. Sprague (pg. 285) – John and his brother have a J.T. Sprague takes out a

mortgage using his J.T. interest as a lien. John dies, devising his land to Sprague. Mortgage does not sever J.T. (follows lien theory) and the mortgage doesn't survive b/c Right of Survivorship is in effect before the will is. His brother gets the land.

-Today, a bank would have to get both J.T.'s to sign a mortgage or get them to sever first before one signs a mortgage-Hypothetical: If brother died before John mortgages it, the bank can foreclose and get the entire property

4. Lease by J.T. - some jurisdictions hold that a lease by one J.T. severs a J.T. and others hold that it doesn't

5. Agreement among tenants – intent controls – they can agree to convert it to a T.I.C. even though the 4 unities are intact or they can agree to one exclusive possession w/o severance

6. Other situations1. Divorce doesn't terminate J.T.2. Murder b/t tenants goes both ways in different states3. Simultaneous death – usually half goes to the estates of the tenants

5. Advantages of J.T.1. Like a will b/c automatically goes to co-tenant – no probate (which is costly and time-

consuming)2. Originally made to get around prohibition against wills3. Used to be used to get around taxes b/c land doesn't pass – now no longer true

C. Tenancy by the Entirety – a “Super Joint Tenancy”1. “Super” because can't get rid of the right of survivorship2. Can only be created by married couples (and can't end until the marriage dissolves)

D. Obligations of Co-tenants1. Partition – how a T.I.C. or a J.T. destroys the tenancy

1. Partition-in-kind1. Courts have a preference for partition-in-kind over sale (even though sales are

more common b/c they're easier)a. Don't want to force people to part with their land against their will

2. Divide as close as you can to the value, not the acreage3. Factors

a. Does splitting it up hurt? (ex: decrease value of future sale)b. Hardships on current possessor tilts in favor of partition-in-kind –

sentimental value2. Partition by Sale

1. Requirementsa. Physical attributes of land are such that a partition-in-kind is impracticable

or inequitableb. The interests of the owners would be better promoted by a partition by sale

3. Delfino v. Vealencis (pg. 292) - P owns 99/144 of the land and D owns 45/144 of the property. D lives on the land and runs a garbage disposal business. Has sentimental ties to the land. Court can either force a sale or have a partition-in-kind. D wants partition-in-kind (no sale b/c P would buy it b/c has more money). D wins. Practical to split and and the interests would not be better served by a sale. Sentimental value attached to land.

4. Sometimes unfair – Example of black sharecroppers in the South (with so many people

having such tiny shares of the property, have to sell it to rich white guy b/c too hard to divide)

5. Reasonable agreement not to partition is OK1. Viewed as a restraint on alienation – so has to be reasonable2. What is reasonable? - Short duration and there's a good reason to wait a while to

partition2. Right to possess all of the property

1. Majority rule: Co-tenant has the right to possess all of the property without paying rent1. More partitions if you can't work it out2. Policy

a. Good - More use of the property – more efficientb. Bad – More litigation to determine if there was an ouster

2. Minority rule: Need to pay rent if using more than your allotted interest or else vacate other tenant's area1. Burden on tenant who's using property to get an agreement from the other tenants on

terms of use → more negotiation of use2. Policy

a. Good – reduces litigation over useb. Bad – Shouldn't have to pay rent if in possession of the entire land as long as he

hasn't refused the right of the other tenant3. Ouster = Depriving the other tenant the right to possession – must have refused the

other's demand for equal enjoyment4. Spiller v. Mackereth (pg. 300) – Two co-tenants own the property. After someone moves

out, Spiller uses space for commercial storage. Mackereth sends a letter saying he should either vacate or pay rent. No ouster, so rent shouldn't be paid. Mackereth argues that the locks put on the storage show ouster, but not true, only there to protect goods. Mackereth is also not using the property (i.e. not a demand for equal enjoyment).

IV. Landlord and TenantA. Introduction

1. Historical Background1. Few duties imposed on Landlord historically, modern law adapted to modern tenant

2. Non-freehold estate (a term of years)1. A contractual right used for protection rather than a strictly property right2. A unique blend of contract and property law

1. Landlord-tenant is a non-freehold estate2. BUT – leases are chattel real

B. Types of Leases1. Term of years – determines how long the lease lasts in years

1. Could end sooner if it's a determinable tenancy for years (fixed years in terms of its maximum duration or a condition)

-Ex: “1000 years or until the war is over” - determinable term of years2. Periodic Tenancy – a lease for a period of fixed duration that continues for succeeding

periods of the same length of time until either the landlord or the tenant terminates it-Termination

1. Must terminate at the end of one of the periods2. Need notice (modern times)

a. CL - half a year notice required to terminate a year-to-year tenancy and for any period less, notice must be given equal to the length of the period but not to exceed 6 months

b. Modern day – most states have shortened this or made them all 30 days-Also, if tenant gives notice too late for one month, that will count as giving valid notice for the next month

3. Death has no effect3. Tenancy at will – a tenancy of no fixed period that endures as long as the landlord and

the tenant want to continue it1. Termination

1. CL – any party could terminate at any time without notice2. Notice required (modern day)3. Death automatically ends it

2. Courts try to avoid classifying it was a tenancy at will – if there is rent paid by a certain period, will classify it as a periodic tenancy by that period

3. Garner v. Garrish (pg. 365) – Donovan leases a house to his friend, Garrish and the parties intended the lease to say that it would continue as long as the tenant would want it to (tenant can end it anytime, landlord can't at all). Donovan dies and executor wants land back. It's a life tenancy determinable at the will of the tenant. Not a T.A.W. b/c landlord had no right to terminate, not term of years b/c no fixed ending date. It's a freehold estate.

4. “Tenancy” at sufferance – arises when someone who really is a tenant (rightfully in possession) doesn't leave at the end of the lease1. Landlord could stick them with a new tenancy that the tenant doesn't want or evict

(with damages) – b/c tenant is the wrongdoer2. If you consent (express/implied) to a new tenancy

1. Most jurisdictions – turns into periodic tenancy, in some, there's one new term and in a few, it's a tenancy at will

2. Length of the term may bea. the way rent is paidb. length of the original term, but max. is 1 year

3. Crechale & Polles, Inc. v. Smith (pg. 369) – 5 year lease (term of years) and Smith thought there was an oral agreement to keep on the lease, but Crechale denies it. Smith stays on and pays rent, Crechale cashes first rent check but then the next month, he won't accept. Smith is not liable for an additional year term b/c Crechale did something (cashed check) inconsistent with his right to evict. Crechale was ambiguous and by accepting check, consented to new month to month tenancy of Smith.

5. License – gives permission to use land in ways that would otherwise be a trespass without giving you an estate in the land (either freehold or non-freehold)1. Issues – trying to figure out if even in a landlord-tenant relationship2. Example: staying at a hotel3. Merely a contract

6. Reversions – landlord's interest in gaining back the property at the end of the termC. The Lease

1. It is a conveyance of a leasehold estate and is a contract1. Odd mix of property and contract rights – shifts over time as to which one is more stressed

2. An arrangement that resembles a lease might nevertheless be held by the courts to be something else (ex: license, freehold estate or easement). Factors to determine if it's a lease:1. Defined space

1. Not a lease – staying in a hotel – they could move you to a different room (it's a license)

2. Not a lease – erecting a billboard (prob. a license or easement)2. Right to exclusive possession

1. If you can't keep others off your land, looks a lot less like a lease2. BIG FACTOR

3. Examplesa. Not a lease – Clinique booth at Foley's – Foley prob. has the right to come in and

clean the floor (license)b. Probably a lease – A is allowed to farm someone's land and then shares crops with

B – as long as A has exclusive possession to the space and farmingD. Delivery of Possession

1. RULE: L has the duty to to deliver legal possession, but doesn't always have to deliver actual possession

-Most jurisdictions today in the US and England follow English rule2. Hannan v. Dusch (pg. 384) – Commercial lease (15 year term of years). When T shows up to

take possession, someone else is there. Question is: Who has the burden of getting rid of the holdover tenant?1. Issues not applicable here

1. Covenant to assure tenant of the legal rights of possession – already done2. Covenant of Quiet Enjoyment

a. Three categories of people trying to dispossess you1. Landlord – if so, has breached covenant of quiet enjoyment2. Holdover tenant – no remedy against tenant who's dispossessed you, but do

have remedy against L (breach of covenant of quiet enjoyment and the covenant to assure the tenant of the legal right of possession)

3. Anybody with superior title to landlord – L in breach of covenant of quiet enjoyment

4. Third party (nothing to do with L) – no remedy under covenant of quiet enjoyment

2. Two Rules – Court follows American Rule1. English Rule – implies a covenant requiring the lessor to put the lessee in

possession (creates a right against the landlord)-Advantages

1. L in better position to avoid problem2. L can take action sooner3. L has better information (for proof in a lawsuit)4. Better meets parties' intent – both sides intend for actual possession5. Can contract around if L doesn't want to assume the burden6. L is more sophisticated party7. Bargaining power8. L can better spread the risk

2. American Rule – recognizes the lessee's legal right to possession, but implies no such duty upon the lessors as against wrongdoers

-Advantages1. Single suit2. L is not wrongdoer, and T is the injured party3. L is not generally responsible for wrongdoers4. T has an easy remedy5. T can protect himself with a clause in the lease

E. Subleases and Assignments1. Subleases

1. Creates a chain (L → T → Subleaser)2. T doesn't transfer all that she has (keeps a reversion) – like subinfeudation3. Example

1. Dells lease to Amelia and Amelia leases to Tima. Dell → Amelia = Privity of contract (P/K) and privity of estate (P/E)

b. Amelia → Tim = P/K and P/Ec. Dell → Tim = nothing

2. Assignments1. Like substitution – T grants all she has2. Example

1. Dell leases to Amelia and Amelia assigns to Tim (creates a triangle, not a chain)a. Dell → Amelia = P/K Onlyb. Dell → Tim = P/E Onlyc. Amelia → Tim = P/K Onlyd. No P/E b/t Tim and Amelia

3. Ernst v. Conditt (pg. 388) – Ernst leased to Rogers. Rogers wants to sell business to Conditt (who wants a longer lease) so new agreement. Ernst has P/K with Rogers and has P/E with Conditt. When Conditt stops paying rent, Ernst sues Conditt. Question of whether transfer from Rogers to Conditt is a sublease or assignment. Document says “sublease,” but court looks at characteristics to determine. Court says it's an assignment.1. Why is it an assignment?

1. Rogers transferred all he had2. Modern Rule (look to intent of the parties) and common law rule (transferring

everything) both point to an assignment2. Irony – Ernst had P/K against both since he made both sign contracts (no need to sue

under P/E)3. Subrogation = if you pay an obligation that someone else should have paid, you step

into the shoes of the person who gave you the money to and can exercise their rights against the person who was supposed to have paid the money

4. Can a landlord arbitrarily withhold consent to sublease/assign?1. Majority Rule: if a lease contains an approval clause, landlord may arbitrarily

refuse to approve1. Approval Clause = lease can't be assigned/sublet without the prior consent of the

landlord2. Court will still narrowly construe approval clauses b/c don't like restraints on

alienation3. Dumpor's Rule (NOT MANY STILL USE THIS RULE): Once you give consent

to the first assignment, that is consent to all assignments4. Reasons (from Kendall case)

a. Freedom of Ownership and Control1. Court responds by saying that this freedom to look to only T for damages has

been undermined by duty to mitigate damages by seeking a substitute lessee1. Under Majority rule, L can realize increased rents if this happens – if T

leaves, then he'll find someone else who will pay more in a good market. Under minority rule, in a good market, T realizes the benefit. If market is down or constant, it operates like the minority rule and just passes it on to new tenant.

2. T also has an interest – what amount of control can T have?b. Stare decisis – been the rule for a long time

1. Court responds1. Majority rule never universally held2. Not a surprise to L – trend of recognizing contract-like obligations from

leasesc. It's part of the contract – lessee could have bargained for it

1. Court responds1. Not rewriting the contract to imply good faith and fair dealing

2. Anything could be bargained for – doesn't help come up with a default ruled. L has a right to realize the increased value

1. Response1. It's under contract already bargained for – shouldn't be able to extort more

money out of something already done2. Doesn't belong to L until reversion

2. Minority Rule: Landlord can only withhold consent where landlord has a commercially reasonable objection1. Reason

a. Restraints on alienation are disfavored1. General rule: can only have reasonable restraints on alienation2. What's reasonable? - economic reasons for protection of L

b. Implied duty of good faith in every contract1. L should only refuse if it's for a commercially reasonable reason

2. What is “reasonable?” - commercially reasonablea. If T is financially unable to pay rentb. If T is trying to put in a business that competes with L's business

3. What is “unreasonable?”a. T1 is already a tenant in another building and wants to move to another of

L's properties – commercial reason for L to refuse, but commercial reasonableness must relate to the space in question, not L's business as a whole

b. L objects to T on moral reasons (church giving out to Planned Parenthood)1. Might be different if there were Church services held there and attendance

would drop4. How would you get around this rule as L?

a. Contract around it by saying “can refuse for any reason”1. Courts will prob. uphold it if it was freely bargained for

b. Ban all subleases or assigning3. Kendall v. Ernest Pestana, Inc. (pg. 395) – City of San Diego leased to Perlitch (who

leased to Ernest Pestana, Inc.) -> Bixler (who leased to Kendall, et al.). Court just treats it as a lease from Pestana to Bixler. Pestana won't let Bixler give an assignment. Court adopts minority rule. Want free alienability in increasingly urban society (needs to be reasonable). Uses contract law arguments as well: good faith implied in every contract.

4. Court applies Majority rule to residential leases and minority rule to commercial leases (for now)1. Commercial context – more worried about L trying to capture more rent2. Should apply to residential context

a. Purpose of approval clause is to protect L's interest in knowing the identity of the tenant (more relevant in commercial situations b/c residential tenants are interchangeable) – so if applies to commercial, should really apply to residential

b. Restatement adopted minority rule – maybe things will change 3. Not much controversy in residential context → harder to change rule

a. Not as much money at stakeb. Short-term leases – market doesn't change much, so owners have less incentive to

refuse consentF. Duties, Rights and Remedies

1. Quiet Enjoyment and Constructive Eviction1. Background on Constructive Eviction

1. Lease was one contract with separate covenantsa. Independent covenants = if breached, T still has to pay rentb. Dependent covenants = T can stop paying rent

2. Common Law = “caveat lessee” - buyer beware – L has no duty as per premises (makes sense back then b/c ppl were more self-sufficient, etc.)a. Exceptions (but these were independent covenants, T still had to pay rent):

1. Duty of L to disclose latent defects2. Short-term lease of furnished dwellings3. Duty of L to maintain common areas4. If L undertakes to make repairs, can't do so negligently5. No fraudulent misrepresentations6. Abating a legal nuisance

3. Revolution in the '60'sa. Covenant of Quiet Enjoyment (originally):

1. L won't evict you1. won't send someone else to evict you (and get double rent)2. Someone with greater property right than L can't interfere

2. Rent was dependent on covenant of Quiet enjoyment – if breached, don't have to pay rent

b. Covenant of Quiet Enjoyment broadened to include beneficial use → constructive eviction (not just actual eviction)

2. Constructive Eviction = When the disturbance substantially breaches tenant's enjoyment of the property that it amounts to eviction, and T finally abandons the premises

-T has to leave in a reasonable time3. Partial Eviction

1. Partial actual eviction – T is relieved of paying all rent2. Partial constructive eviction (most say not relieved of paying rent)

Ex: NYC case where green shit dripping all over balcony. They are the minority and said don't need to pay rent.

3. Restatement – can get partial abatement in either case. Pay less rent and let jury figure it out.

4. Reste Realty Corp. v. Cooper (pg. 422) – Cooper leased ground floor in commercial building. Every time it rained, filled with water and disrupted meetings. L promised to fix the problem, then she signed another lease. Wasn't fixed and Cooper finally vacated after a big flood. Court says it's constructive eviction - She could leave and not pay rent and lease is over1. CL remedies wouldn't work here

a. She knew about the defect when she signed the second lease (relied on promise of L to fix it)

b. But other possibilities could have been pursued on that front, but Court takes a broader approach by extending the covenant of Quiet Enjoyment

2. Did she leave quickly enough? - stayed there after receiving assurances it would be fixed – finally received the last straw and left

3. L argues it wasn't a “permanent” problem – Court says it was “permanent” in the sense that it could happen at any time, happened regularly and interfered with T's enjoyment of property

5. Other Examples of Constructive Eviction1. Tenancy At will – hard to get constructive eviction2. Landlord fails to control noise problems

a. Probably NO constructive eviction b/c it is NOT THE LANDLORD BREACHING THE COVENANT

b. However, if there are provisions in the lease giving L more control over it, L doesn't control it and L has a particular reason to know why you want a quiet

apartment – all evidence in favor of constructive eviction3. Second-hand smoke?

a. Same analysis as L failing to control noise4. Lots of criminal activity in the building if L has installed locks and hires private

security?a. L has a duty to provide reasonable security and has done it – not a guarantor of

safety and not responsible for acts of 3rd parties5. Case where office had abortion provider in it with tons of protestors – lease also had

L's obligation to provide security and L told sheriff he wasn't telling sheriff to move protestors offa. L could've easily done something and didn't do it – constructive eviction

2. The Illegal Lease1. Next step in 60's revolution2. Brown v. Southall Realty (pg. 430)3. Apartment was not legally rented as per housing code, so it's an illegal lease – must

be a substantial violation and the codes need to have existed at the time you entered into the lease1. More contract law in property law – law will not enforce an illegal contract for public

policy reasons (it's void)3. Implied Warranty of Habitability

1. Implied warranty that the L will deliver and maintain premises that are safe, clean and fit for human habitation

2. Not all jurisdictions have adopted it and doesn't apply to some leases1. Many states don't apply it to amateur landlords (ex: professor leaving for vacation for

a month)2. Commercial leases don't count

3. More powerful than Constructive Eviction1. T doesn't have to vacate to claim a breach of implied warranty of habitability

-Good for the poor who can't afford to vacate2. L has duty to maintain property – an affirmative duty

4. Tenant's Remedies1. Can withhold rent (but must give sufficient notice for L to fix it)2. Measure of damages

a. Hilder approach1. Damages = difference b/t conforming value (as warranted) and non-

conforming value (as occupied) – D = Vc – Vnc2. Landlord's recovery here = Vnc – (Vc – R)

1. Protects value of the bargain – if rent was for more than the property was worth, then still recover that value

b. Kline approach1. If T paid rent – Damages which T recovers = R – Vnc

-Assuming that you pay what it was originally worth2. If T withheld rent – Damages which L recovers = Vnc

-Ignores bargainc. Restatement approach

1. If T withholds rent – Damages which L recovers = (Vnc/Vc)*R2. If T pays rent – Damages which T recovers = (Vc – Vnc/Vc)*R3. Looks at what proportion of what she thought she was getting did she not get

b/c of the breach (percentage-diminution approach)d. Can also have damages for discomfort or annoyance, and punitive damages in

some cases

5. Why have this?1. Modern tenants want the full package – short-term leases, T not experienced in

maintenance work2. T doesn't have to vacate to sue

6. Hilder v. St. Peter (pg. 431) – Hilder (T) moves in, finds broken windows and fixes them herself. Water leaking down walls, plaster falling from ceiling, tons of other problems that stay there or she fixes them herself (after asking L to fix and he didn't). She continues to pay rent and stay there (no constructive eviction). Court held implied warranty of habitability was breached here.

7. Other Examples1. Garbagemen and city sanitation workers go on strike and trash piles up and is very

smellya. General rule: L is responsible (fault doesn't matter)b. Yes – it is a breach of the warranty of implied habitability

2. T has a nice apartment with a pool and health club. They stop workinga. No – not a breach b/c the warranty is for being habitable, the bare minimum

3. Where T waives the warranty of habitabilitya. NOT WAIVABLE – uniform rule (basic public policy)

4. Retaliatory Eviction1. Can terminate leases for no reason whatsoever, but can't terminate for invalid

reasons1. Anti-discrimination provisions2. Can't terminate b/c of a housing violations complaint

2. Shifts burden – if the termination happens within a certain time of the complaint, it is presumed invalid unless L can prove otherwise

5. Summary of the Revolution1. Stress on lease as a contract (more than just a conveyance)

1. T's get more protection2. Shifting burden of litigation: now T can stop paying rent and L sues T (rather than in the

past where T had to sue)3. Has the Revolution been good for T's as a class?

1. Noa. Chicago Board of Realtors, Inc. v. City of Chicago (pg. 444)

1. Easterbrook and Posner argue the revolution hurts renters2. Their economic analysis

1. Supply shifts left (increases P, decreases Q and decreases consumer surplus)

2. BUT assumes that D doesn't shift right (could happen b/c higher preference for safer apartments) → P increasing, but Q stays the same (along with consumer surplus)

-Posner's response: if this is what the markets would do, why would the courts be needed to impose it?b. Posner's graph

1. D shifts right a little, but lots of S shifting left (wouldn't be willing to pay for costs of improvements as proven by fact that market hasn't done it yet)

2. Consumer surplus shrinks, T worse off as a whole3. Burden falls on the very poor tenants who can't afford new lease –

nonconforming apartment better than the street2. Yes

a. Prisoner's dilemma argument1. If both invest in improvements, get 7% return (neighborhood effects, etc.), if

both don't invest, get 6%, if one invests and the other doesn't, one not investing

gets 7.5% and the one investing gets 5.5%2. Dominant strategy is to not invest (need communication, etc.)

V. Servitudes A. Why are Servitudes needed?

1. Suppose Blackacre has no access to the road b/c of Whiteacre. B would need to build a driveway

2. You want more than a contract, something that's good against the land (easement also is binding against subsequent landowners)

B. Only 4 negative easements enforced in CL (more now)1. Air (ex: blocking wind)2. Light (ex: blocking light)3. Lateral support (ex: don't dig near the property line that would hurt my fence)4. Water/Artificial Stream (ex: can't block a canal)

C. Servitudes are widely in place1. Increase joint value of property2. Reduce transaction costs (b/c binding on future owners, don't need to re-negotiate)3. Gives stability to invest in the land

D. Functions of servitudes1. A is given the right to enter upon B's land2. A is given the right to enter upon B's land and remove something attached to the land3. A is given the right to enforce a restriction on the use of B's land4. A is given the right to require B to perform some act on B's land5. A is given the right to require B to pay money for the upkeep of specified facilities

E. Seven elements need to be found to have an easement (Sec. 450 of the Restatement)1. An easement is an interest in land (the burden falls on the land, so it can be enforced against

the land regardless of current ownership)2. An easement is a non-possessory interest (holder of easement doesn't have power to

exclude others from the land with an easement)1. Holder of easement must be different than the owner of the land the easement

controls2. Can never have an easement over your own land (can have the same rights over your

land b/c you're the owner)3. Limited use or enjoyment

1. Affirmative easement – entitles holder to use the easement to do something that would otherwise be prohibited (as trespassing)1. Ex: a right-of-way, right to maintain pipes, etc.

2. Negative easement – right to prohibit the servient owner from doing something1. Ex: right to the water in a stream, support for a neighboring building

4. Provides protection against 3rd persons (as a property right, it's protected not only for the servient owner, but also for anyone else)

5. Not subject to the servient owner's will (comes from being a property right versus a contractual right)

6. Has to go beyond the normal incidents of possession7. Must be capable of creation by conveyance

1. Don't want something too vague2. If you take away property rights, must be clear

F. Categories of Easements1. Affirmative vs. Negative

1. Affirmative – right to do something on the land2. Negative – right to control what somebody does on their land

2. Appurtenant Easements vs. Easements in Gross1. Appurtenant – when it is created to benefit, and does benefit, the possessor of the

land in his use of the land2. Easement in Gross – not created to benefit, or does not benefit, the possessor of the

land in the use of his land (benefits the possessor himself rather than his land)G. Other Servitudes

1. Profits a' prendre – right to go on someone else's land and remove something from the land1. Ex: right to remove minerals, oil, timber, etc. Hunting, fishing2. May be either appurtenant or in gross3. Same rules as Easements

2. Real Covenants – promises respecting land that will be enforced against the land (i.e. against subsequent owners)1. Both real covenants and easements start out as promises, but unlike contracts, will be

enforced more strictly3. Licenses – permits licensee to do something they would otherwise not be able to

1. Historically, don't belong here – contracts, not property2. Ex: Tickets for a sporting event, sitting in a UT classroom3. Subject to the will of the landowner – revokable

1. Can't get an injunction to stay on the property – only contractual remedies4. Vast majority of licenses are contractual obligations, not property

H. Creation of Easements1. Express grant2. Reservation – when O grants land to A, he reserves the use/limitation for himself

1. Creating easements by reservation for third-party use1. Majority rule (CL): One can't reserve an interest in property to a stranger/third-

party to the title2. Minority rule: It's OK3. Willard v. First Church of Christ, Scientist (pg. 672) – M owned the lots, let the

church use one of the lots for parking (appurtenant easement with church as dominant estate). Willard wanted to buy both lots. M granted one lot to P. M granted the other lot to P with reservation for church's use. P granted both lots to Willard with no mention of easement (although he did mention the parking). Willard brought action to get unencumbered land. Court upholds minority rule by saying clause was effective in creating an easement for the benefit of a third-party. a. Why is the CL rule bad?

1. Tied with seisin – relic of the past2. Nobody relies on the CL rule – no evidence Willard did rely3. Can lead to injustice – M got 1/3 less for the land b/c of the easement, but

doesn't get any value from it (church does)b. To determine whether to apply this rule or the CL rule, balance equitable and

policy considerations (injustice)3. Prescription – a claim for an easement through adverse possession

1. Requirements1. Adverse

-If there's permission, won't work2. Prove that you've been using it3. Open and notorious4. Continuous and uninterrupted5. Certain amount of time passes (usually 20 years)

2. Don't need exclusive use

3. Reasons?1. Legalized theft2. Convenient way to resolve disputes

4. Holbrook v. Taylor (pg. 677) – Taylor bought 3 acres. Neighbor (Holbrook) allowed Taylor to use the roadway to build the house (all done with his permission). Holbrook closes road and Taylor claims he has an easement. He says he has an easement through prescription or estoppel. No prescription b/c not adverse use of the roadway. It was estoppel b/c relied on the use of the roadway and made substantial expenditures on reliance of it.

4. Estoppel – if the licensee has used the license to erect improvements or make substantial expenditures on the faith or strength of the license, it becomes irrevocable and continues for so long a time as the nature of the license calls for1. Length of time

1. First Restatement – can keep it as long as is needed to continue the investment2. Third Restatement – looks to reasonable expectation of the parties to see how long it

lasts3. Hypo: If Holbrook's house burns down, can he still use easement?

a. First Restatement – nob. Third – maybe, look to reasonable person.

2. Example: See Holbrook above5. Implied Easements

1. Two Types1. Prior Use

a. Only over land granted or reserved when tract divided into two or more parcels1. Implied in favor of grantee = implied grant2. Implied in favor of grantor = implied reservation

b. Existing use at time of tract division1. Must be inferred that O intended use to continue (apparent, continuous,

conveyance by paper)c. Reasonable Necessity – required in older jurisdictions to derogate grantee's

interest2. Necessity

a. Must be compelling and obviousb. Must exist at time of property severancec. Must be properties commonly owned in the pastd. Use does not need to have existed at time of severancee. Lasts as long as necessity continues

2. No express creation of the easement1. BUT have to identify a specific grant where the easement can be implied (i.e. if

they had good lawyers, it would be in there, etc.)3. Restatement factors (no easy formula and can consider other stuff)

1. Whether claimant is a grantor or a grantee (or successors of them)a. Heavier burden on grantor to have put more rights into the grant –

ambiguities implied in the grantee's favor2. Terms of the conveyance

a. Did the parties put something in the conveyance saying they don't want an implied easement?

3. Consideration – how much did the grantee pay for the property received?a. If the grantee paid a whole lot less for the property, a good indication there as an

encumbrance and vice versa

4. Whether the claim is against a simultaneous conveyeea. More likely to convey easements in this case b/c more likely that there is a

common plan5. EXTENT OF NECESSITY OF EASEMENT TO PLAINTIFF

a. Third Restatement – separate Implied Easement by Necessity section (b/c so important)

b. Also relative necessity (would it be hugely inconvenient?)6. Existence of reciprocal benefits

a. Is the servient tenant also getting benefits? If so, more likely to grant an easement7. HOW WAS THE LAND USED PRIOR TO THE CONVEYANCE?8. EXTENT OF PARTY'S KNOWLEDGE OF PRIOR USE

4. Van Sandt v. Royster (pg. 682) – Bailey has whole lot, then splits it into three and conveys to different ppl. She had a lateral sewage pipe running under the other two lots to get sewage from the house to the city sewage system. Raw sewage leaked up on one of the lots. There was no express easement created. Court evaluates (through Restatement factors) to see if there is an implied easement. Some factors say no implied easement: #1 (Bailey had lots of control and could have put the reservation in the conveyance), but the most important ones point to an easement: Necessity (sewage...duh), prior use, extent of party's knowledge of prior use (could have easily found out), and simultaneous conveyee (common plan).

5. NECESSITY – Othen v. Rosier (pg. 689) – Hill had all the land at first, then conveyed first tract to Rosier, then second to Othen, then Othen buys a tract near his original one. There are roads all around the area. Othen gets to the road on a lane running by Rosier's house on Rosier's property. Court says no prescription and no implied easement by necessity (Othen claims that when Hill conveyed the tracts, he impliedly contained an easement over the lane – lot is not unencumbered). In this case, only strict necessity was considered for an implied easement.1. Why no prescription? - use of the lane was permissive (just let him do it, no explicit

permission)2. No evidence of strict necessity – no evidence as to whether it was necessary in 1896

when Hill first sold Rosier's lane (bad lawyering)-If last sale made him landlocked, could have claimed easement by necessity

6. Another necessity example1. A has all land. Then it's divided up (where 4 squares surround 1 square). A gives all

his land to his kids – in order and the last one handed out is the surrounded one. Court will find an implied easement by necessity (b/c landlocked when grant was made) – put it in the least harmful spot

2. If A buys back one surrounding tract – still easement. If A also buys back middle one, easement disappears

7. Easement by Necessity disappears when necessity doesI. Scope of Easements

1. Rule: Current use and reasonably expected developments1. Look to intent of the parties AND whether it will unreasonably burden servient

tenant2. Limits – Not any use is allowed3. Brown v. Voss (pg. 716) – Three parcels of land. A and B are next to each other (B is the

dominant estate with an easement over A for a road). D (who owns B) buys tract of land C (right next to B). He extended the road across B to C to get to his house. Easement here was expressly created. Court says it's trespassing, but doesn't award injunction (just $1 of damages)1. Extending to C not allowed b/c the easement is ONLY for the dominant estate.

Misusing the easement2. Ordinarily will grant an injunction if misusing the easement (injunctions are

discretionary)a. Here, misusing it, but not terrible Just to get to his houseb. Hypo: if extended the road to make a high-rise condo or tourism, prob. grant an

injunction3. Looks like Brown wins4. Could have argued: easement by necessity

J. Termination of Easements1. Terms – the easement expires by terms of its grant2. Merger – if dominant tenant and servient tenant are owned by the same individual

1. Easement does not automatically re-appear if the land splits again3. Release – Reverse grant releasing servient tenant from the burden4. Prescription – if violation of the easement meets the prescriptive requirements5. Abandonment

1. More than simple non-use2. Verbal statement don't suffice3. Must be an unequivocal act that clearly indicates intent to abandon4. Preseault v. United States (pg. 725) – Railroad gets an easement for placing of RR tracks.

Question of whether the US had an easement even after the RR. Now it is used as a public park for bikes and pedestrians. Court looks at what was reasonably anticipated at the time when the RR acquired the easement – not reasonably anticipated to have bikes, just trains – Not a reasonable use of the easement. RR had removed tracks, other stuff to show intent to never use easement again.

6. Estoppel – if servient owner has detrimental reliance on the non-use of an easement7. End of Necessity – only for easements by necessity8. Other means

1. Condemnation – gov't can condemn easement2. Bankruptcy – Reworking of debtor's estate can include termination3. Changed conditions – doctrine of contracts now applies to easements4. Recording Act – Unrecorded statements will be terminated under the Recording Act if not

properly recorded5. Abuse – when someone abuses the easement, the court can enjoin

K. Covenants1. A promise to do or not do a certain thing relating to the use of land

1. If b/t original parties – law of contracts2. If b/t subsequent parties – law of property

1. Consider whether burden or benefit runs with the land2. Creation of Covenants

1. Must be created by a written instrument signed by the covenator – no prescription, estoppel or implication

2. Equitable Servitudes can be created by reciprocal implied easements1. If the owner has two or more lots and sells one w/ restriction, the restriction

counts for the owner's land too, if the land is “so situated as to bear the relation” – GENERAL PLAN

-So situated – gives courts flexibility to enforce or not for fairness2. Requires notice (actual or constructive)3. Must start with a common owner4. Sanborn v. McLean (pg. 751) – McLaughlins owned all the land, then sold 21 lots to

ppl with a covenant with typical residential promises to the grantees, but not expressly binding themselves for the land they still owned. The land the McLeans got never had

an express promise to their predecessor from the McLaughlins. McLeans want to build a gas station. Court issues an injunction.a. Nuisance per se – no. Gas stations in general aren't nuisancesb. McLaughlins had inquiry notice – b/c he saw all the houses were residential, he

should've inquired around to find out about the plan more than just asking the predecessor to his land

5. This is a COVENANT – don't look at easement rules (necessity or prior use)3. Requirements for enforcing a real covenant running with the land

1. Intent – parties had to intend that the promise be enforceable1. Potential outcomes

a. No legal enforceabilityb. Intend that it's a personal contract (i.e. not running with the land)c. Intend to make this binding to the land (must intend to bind subsequent parties

as well)2. “In esse” rule – if you are making a promise about something that is not yet in being,

you had to have a stronger indication that you intended to bind future partiesa. Required the magic word “assigns”b. Spencer's case – Promise to build and maintain wall. Had to use the words “in

assigns” b/c the wall was not in being at the time.2. Touch and Concern

1. Promise must touch and concern the land2. No good definition – really fucking nebulous – work with analogies to other cases

b/c no good rule3. YES - Neponsit Property Owners' Association, Inc. v. Emigrant Industrial Savings

Bank (pg. 755) – Neponsit gave property that had covenant requiring the payment of homeowners association dues – it was a lien. Bank won't pay. Court rules for Neponsit.a. Intent? - Very clear what Neponsit intendedb. Privity

1. Horizontal – not a problem2. Vertical on burden side – not a problem3. Vertical on benefit side – question b/c property association doesn't own land

c. T and C1. Affirmative covenants traditionally not considered T and C2. BUT, court decides to use Bigelow test – covenant which runs with land must

affect legal relations – advantages and burdens – of the parties of the covenant, as owners of particular parcels of land and not merely as members of the community in general (works here b/c paying for common areas)

4. NO – Caullet v. Stanley Stilwell & Sons, Inc. - Covenant on the deed said that the grantors reserve the right to to be the sole company allowed to construct the first house on the premises and it shall run with the land. P seeking to quiet title (get out of this). First, court says it's so vague so it's not an enforceable contract, but they go beyond it to ask even if it was enforceable, is it an equitable servitude? It's not.a. Does not touch and concern the land – regardless of who builds the house, can

have the exact same land use.b. Where the burden is placed on the land and the benefit is personal, covenant

DOES NOT run with the land1. Policy – free alienability of land – no corresponding enhancement accrues to

surrounding lands2. First Restatement – Benefit can be personal3. Third Restatement – Benefits can run in gross, but makes it a lot easier to

get rid of the burden if you have trouble finding who can enforce it4. For EQUITABLE SERVITUDES – IF THIS WERE A NEGATIVE

EASEMENT, BENEFIT BEING IN GROSS DOESN'T MATTERc. What could you do now to avoid this ruling? - make it touch and concern to

benefit neighboring land. Or you could avoid the rules of servitudes and convey it to X on a condition with a right of entry (harder to do that b/c most people wouldn't buy it b/c it makes investment risky).

5. Third Restatement – gets rid of T and C requirement 3. Privity

1. Horizontal Privitya. Privity b/t original partiesb. For the burden to run

1. English CL: must be a tenurial relationship (L/T)2. US (successive interest) – any grantor/grantee relationship3. Massachusetts rule: parties must have mutual interest in the same land at the

same time4. First Restatement – still required (very adverse to burden running with the

land)5. Third Restatement – not required at all

c. For benefit to run1. Not required (b/c benefit doesn't affect marketability of the land)

2. Vertical Privitya. Privity b/t original party and subsequent ownersb. For burden to run to assignee

1. Must succeed to land AND same estate of same duration (First Restatement)

-Most take a more flexible view now (some similarity to what is passing)c. For benefit to run

1. Assignee just has to have some property interest in the land2. Third Restatement – rejects VP altogether

1. Negative covenants – like negative easements2. Affirmative covenants – both burden and benefit only run to assignee who

succeeds to same estate of same duration3. Neponsit Property Owners' Association, Inc. v. Emigrant Industrial Savings

Bank (pg. 755) – No vertical privity here, but court says it's fine. Courts much more relaxed on benefit side. Perhaps agency theory – representing homeowners, who would have a right to enforce covenant.

3. Courts regulate affirmative easements much morea. Requires judicial supervisionb. More harmful – property worth less and require more

4. Courts are much more strict on the burden running4. Notice (only if not recorded property originally – not required normally)

1. Not required in CL (was in deed)2. Notice is constructive when recorded

4. Scope of Covenants1. Hill v. Community of Damien of Molokai – group home for AIDS patients and neighbors

sued trying to enforce the covenant for single family use. Court rules that group home is not outside of “single family use.”1. Rules of Construction for Covenants

a. If there's ambiguity, will rule for unrestricted use over restricted use (favor free alienability)

b. If there is ambiguity as to the words – use definition provided in covenant or the definition provided by the initial parties of the covenant

2. It's a residence for 4 people, can be included under “single family” - using definition of the city

3. Even if wrong about construction, it would violate the Fair Housing Act4. Another example: “residential” - include home offices? Music lessons at your house?

Etc.2. Shelley v. Kraemer – racially restrictive covenant restricting property to “Caucasian race”

only. Applies rules of equitable servitudes b/c seeking an injunction. Court says covenant is invalid b/c it violates the 14th amendment (state action involved here is the court acting to provide an injunction)1. State Action is on a continuum – State action (highest to lowest) = Zoning → Shelley

→ Enforcing an FS/CS. Private Action (highest to lowest) = Clearly private → No selling → FSD (court doesn't need to enforce it) – but all statutory now

2. Court could have ruled saying no T & C5. Termination of Covenants

1. Terms (either time or on a condition)2. Merger – must have merger of ALL benefitted land and ALL burdened land (very

hard to do especially in a general plan scenario)3. Release – with consent of ALL benefitted estates4. Acquiescence

1. More meaningful in this context than in others2. Need it from EVERYONE, but easier to prove than merger or release3. Ex: Covenant says you can't paint your house purple. But he didn't object to 20 others

houses that were painted purple.4. Not all acquiescences are created equal (can acquiesce to commercial use, but

doesn't mean industrial use, etc.)5. Abandonment – same as easements (need an affirmative act) – like easements, very

difficult to get6. Change of Neighborhood Doctrine – agreement to impose covenant was dependent

on certain facts being in existence and they are gone1. Third Restatement makes it easier, but still difficult now2. Very hard to win – have to persuade the court that things have changed so severely

that there's no benefit to enforcing the covenant (unlikely considering the side who is trying to enforce the covenant is spending so much time and money, it's probably important)

3. Western Land Co. v. Truskolaski – Homeowners trying to enforce a covenant for single-family dwellings against a shopping center about to go up. Area had not changed enough to not enforce the covenant. Commercialization has increased, but covenants still enforceable b/c they are of real and substantial value and accomplish their purpose.a. New zoning laws don't matter – can't override private restrictionsb. More value as commercial property doesn't matter

4. Rick v. West – Owner would not consent to waive covenant for residential use. P sued saying there were changed conditions. Equitable considerations do NOT come into play here (no damages awarded to P) – D has complete right to force adherence to a valid covenant.

7. Prescription8. Estoppel9. Miscellaneous

1. Condemnation – if the gov't condemns the property, it becomes an unencumbered fee

simple2. Bankruptcy3. Recording Act – if you don't record the covenant, Recording Act has rules. Basic rule:

if you don't record it and somebody else buys the land without notice, not enforceable4. Foreclosure5. Statutes – some states make it easier to terminate covenants

L. Equitable Servitudes1. Interest in land enforceable against holder of land2. Rules of Equity apply – not rules of law

1. No horizontal privity needed2. Remedy is injunction traditionally

1. more valuable than damages b/c you can sell injunction3. Cannot be obtained by prescription, but can be implied in some circumstances4. Equitable defenses apply

1. Laches – if you don't use rights quickly enough, court takes them away (look to SoL, but flexible as long as person who it's being enforced against isn't unduly prejudiced by the delay)

2. Unclean hands – have to follow promises to enforce them3. Estoppel – prevents one side from arguing something4. Bona Fide Purchaser – may be wholly enforceable against previous owner, but if

current owner acquires title in good faith, for value, without notice of covenant, he will take free of the covenant in equity

5. “Balancing of Hardships” - applying rules specific to injunctions3. Requirements

1. Intent, T and C, Privity of Estate (vertical for benefit only to run – but runs with land, not estate so adverse possession can get it), notice (actual or constructive) but can still be enforced without notice (look to see if the party is Bona Fide Purchaser for Value – not a gift or inheritance)

2. Courts will protect BFP w/o notice4. Traditionally, only about restrictive covenants. In America, expanding to include affirmative

covenants.5. Who can enforce equitable servitudes?

1. England: had to be neighboring appurtenant2. US: can enforce it even w/o owning land (although some states agree with England)

6. Tulk v. Moxhay (pg. 746) – Tulk gives property to Elms, who gives property to Moxhay. Tulk is still around. Restrictive covenant in the lease saying keep the square open with no buildings, maintain it, etc. Moxhay wanted to put a building on there and Tulk brought this action. Court gave him an injunction.1. If court had applied rules for covenants, what would have happened?

1. Intent, T and C there, maybe privity (depends on what the rules were in the court)2. It would be a negative easement and this case is not one of the four traditional CL

cases where negative easements were allowed – so out of luck2. Court created equitable servitudes

1. Concerned about lack of effective recording system (difficult to figure out restrictions on land)

2. Court will enforce if there's notice. Probably actual notice here.7. Termination of Equitable Servitudes – same as for covenants but also with Equitable

Defenses8. Summary: Party may not use land inconsistent with grantor's contract if he took notice

of it (inequitable)1. Basically the same as Real Covenant but with equitable rules applying

VI. Takings A. Background

1. 5th Amendment – Private property shall not be taken for public use without just compensation1. Why did the Framers put it in there? - Government often took title without paying

(rebellion against it) and land was tied to wealth and politics2. Could the government just buy land? - Government may have difficulty buying the land it

needs. Often site-specific projects and need a way to overcome strategic bargaining in those situations

3. Reasons for compensation1. Forces efficiency2. Prevents tyranny – gov't could threaten to take land of its opponents

4. Three issues1. Has there been a taking at all?2. Has it been taken for public use?3. Has the government offered just compensation?

B. How can we tell if the property's being taken for “public use?”1. Theories

1. Only when the public can use it – public ownership and public use2. Some guarantee of public access even if public doesn't have to own it (ex: railroads)3. No need for public access, all that matters is that there's a public benefit

2. Kelo v. City of New London (2005)1. Background - Pfizer wants to build a new research complex as part of the New London

Development Commission's plan. Would bring a lot of jobs and, in general, part of a plan to economically revitalize the city. P sues (house isn't blighted, etc.).

2. Well-settled propositions (this case is in the middle)1. Prohibits takings for private purposes (not by its terms, but 5th amendment

incorporated that way)2. Permits exercise of eminent domain even if to a private person as long as use by

the public is the purpose3. Rule P wants – economic development is never a public use – Court rejects

1. Logic - Economic development is a key function of local gov't – we should defer to them in their judgments (lack of institutional competence)

2. Would have to overturn key precedents – Berman (court allowed city condemnation for “urban revitalization – deferred to city's determination of what the public welfare was) and Midkiff (land transfer from private individual to another one to get rid of land oligopolies – court upheld public purpose of getting rid of social and economic evils)

4. What's the standard now?1. PUBLIC USE = PUBLIC BENEFIT, which is to be determined by the legislature2. Limits to broad legislative deference – if it's a PURE PRETEXT

-How do you tell? - red flag if it's a private transfer, public funding?, transparent?, comprehensive?, lots of deliberation?

5. Court says if you don't like it, you can put your own constraints on eminent domain – many states now have (b/c can protect property more than the 5th amendment does)

-Most states: eminent domain is not a “public use,” or provide what a list of what is acceptable for eminent domain purposes, etc.-All solutions contain a huge hole: none of the restrictions apply when local gov't makes determination that the area is “blighted”

C. Regulatory Takings – regulations can be so burdensome that they constitute a “taking”1. Before 1924 – no such thing as regulatory taking2. Between 1924 and 1982 – decided on an ad-hoc factual inquiry (now some bright-line rules)

3. Loretto v. Teleprompter Manhattan CATV Corp. (1982)1. Background – Statute says apartment owner can't exclude cable company from her

apartment building (get $1 in compensation). The lines are anchored to her building2. Evaluating on ad-hoc factors - Loretto won't prevail here

1. Economic impact = 02. Degree of interference with expectations of investment = No3. Character of gov't action

3. Rule = PERMANENT PHYSICAL OCCUPATION IS ALWAYS A TAKING1. Precedent

a. Pumpnelly v. Green Bay – if the gov't floods your property, it's a takingb. United States v. Causby – gov't planes flying overhead that interferes with use of

property is a takingc. Where it's the practical equivalent of an ouster – Court says they have always

recognized a taking2. Logic

a. Right to exclude is one of the most fundamental rights of propertyb. Bright-line rule is easier to administerc. Application to cases

1. Kaiser Aetna – gov't dredged out a waterway, which made the lake public. A taking b/c it's a permanent physical occupation, takes away right to exclude.

2. PruneYard – court upheld constitutional requirement that shopping center permit individuals to exercise their free speech on their land. Not a taking b/c b/c could place reasonable restrictions to limit interference (temporary).

4. Dissent – seems like a bright-line rule, but will be hard to prove evidentiarily (not so as per majority)

5. This is a taking – but statute not invalid b/c they already gave just compensation of $14. Hadacheck v. Sebastian (1915)

1. Background – P makes bricks in an area now zoned for residential purposes by the city of Los Angeles. The property is perfect for making bricks.

2. Supposed bright-line rule: If it's within the police power, then no compensation1. One of the most essential functions of gov't and should defer to them2. As long as it's a legitimate exercise of police power, no compensation3. BUT this can't be right! - otherwise no compensation for ANY regulatory cases

3. Not a taking – within police power5. Pennsylvania Coal Co. v. Mahon (1922)

1. Background – Landowner bought property and got limited title (bought the surface part) and coal company had title to support and mineral estates. Coal company wants to take the support and mineral estates out, but can't do it b/c PA passed a statute saying you can't take an estate that would result in subsidence. Coal company sued to receive compensation. SCOTUS says compensation required.

2. Holmes Majority1. Most land-use regulations aren't takings - “government could hardly go on” if you

have to compensate for diminution of value2. If regulation goes too far, it's a taking3. Why does the Koehler Act go too far?

a. Eliminates ALL of the value of the SUPPORT ESTATEb. Confers a private benefit, not a public one (not protecting health or safety b/c

provided notice to the landowner, it was just about a house)c. No reciprocity of advantage – coal company gets nothing back

3. Brandeis Dissent1. Reciprocity of Advantage = broad (living in an ordered society, etc.)

2. Not losing all value – out of everything PA coal owns, this is a tiny portion4. Leaves three issues unresolved today

1. Elimination of value – Denominator Problem (i.e. what property you consider as the denominator when you're calculating if the regulation has taken away all value)

2. Private Benefit vs. Public Harm – how do we tell which is which?3. Reciprocity of Advantage – how broadly do we consider it? See Holmes vs. Brandeis

6. Penn Central Transportation Company v. City of New York (1978) – change in view from Pennsylvania Coal1. Background – Company that owns Grand Central Station wants to put an office building

on top of it. The commission set up under the Landmark Preservation Law denied permits to do it b/c it would ruin the look of Grand Central (gives them Transfer Development Rights as compensation). Not a taking

2. FACTORS (not balancing test, it's an ad-hoc factual inquiry)1. Economic impact of regulation2. Degree of interference with distinct (or reasonable) investment-backed

expectations-#1 deals with sheer money, #2 = percentage

3. Character of the government actiona. Distinction b/t actual physical invasion and a regulation (if actual physical

invasion, court will weigh the balance in favor of a taking and you rarely win if it's just a regulation)

b. Hadacheck is still good law, but evolved a lot3. Application

1. Reciprocity of Advantage – focus on the whole (landmark preservation in general)2. Not singled out – Landmark Preservation is comprehensive and applied broadly

7. Lucas v. South Carolina Coastal Council (1992)1. Background – Lucas has beachfront property. SC passed the Coastal Zone Management

Act, which requires people in “critical” areas (including beaches) to obtain a permit from the council prior to committing the land to a use other than the use the critical area was devoted to in 1977. Council rejects Lucas's petition to build a single-family home. Lucas bought the lots in 1986 and the act came into effect in 1988. It's a taking.

2. Another brightline rule: IF YOU'RE DEPRIVED OF ALL ECONOMICALLY VIABLE USE OF THE PROPERTY, IT'S A TAKING UNLESS THE PROSCRIBED USE WAS NOT A PART OF THE TITLE TO BEGIN WITH (NUISANCE)

3. Here, says denied of all economically viable use of the property (however, dubious, could have camping, etc. - key is courts are more likely to rule that it is not economically viable if your neighbors can do it and you can't)

4. Why make this rule?1. No good reason not to compensate – not many cases like this and there's no reciprocity

of advantage in this situation2. Good reasons to compensate

a. Total deprivation of economically viable use is like a permanent physical invasion-Not sure that's true (can still exclude people, right to enjoy it, etc.)-Still a debate as to what the essence of a property right is – court argues that right to exclude is core b/c it's in the service of using property for financial benefit

b. Much more likely property is being compelled into public service rather than simply used to prevent a public harm

3. Nuisance - Idea is that you never had a right to do this in the first place if it's a nuisance, so government isn't taking anythinga. Distinguishes Hadacheck – it's rule only applies if you're in the nuisance category

b. Makes “benefit/harm” debate judicial rather than legislative – common law nuisance rules rather than legislative determinations of public harm

5. Denominator still a problem – court says not easy to define. Court shifting to Holmesian view and saying that you can look to find the answer in the owner's reasonable expectations (which are shaped by state's property laws)

8. Palazzolo v. Rhode Island (2001)1. Background – A regulation that had passed before Palazzolo bought the property was

enforced against him. State court says there was an inherent limitation on your title since you knew there was a substantial statutory constraint on your property. SCOTUS rejects that argument

2. Reasoning1. Too much of a burden on prior landowner – choice b/t develop or lose their

compensation - Very hard to get takings claim ripened (and too much to ask previous owner that they ripen it before they sell it)

2. Too much state power for a statute to effect background property rights3. Statute is NOT completely irrelevant – goes into Penn Central factors

D. Exactions1. Nollan v. California Coastal Commission (1987)

1. Background – Cities make people give exactions in exchange for permits, etc. Nolan wants to get a permit to tear down his house and build a new one, city wants an easement across his beach for public access. Court says it's a taking

2. It's a permanent physical occupation – a classic right of way easement is a permanent physical occupation

3. Only way you can condition a permit on someone relinquishing a constitutional right is if the condition bears a central nexus to the reason why you could have denied the permit in the first place1. Qualitative connection2. No connection here – goal was to make the beach visible and here the easement was to

make it accessible3. However, test doesn't deal with the SIZE of the exactions

2. Dolan v. City of Tigard (1994)1. Background – Dolan wants to expand his hardware store (significant expansion) and city

will grant permit if he makes a hike and bike trial, keep open space and increase the flood plain.

2. Court looks at this regulation with heightened scrutiny (because legislative determination singled out this owner rather than being a broad determination)

3. Nolan – There IS a central nexus here1. Worries about traffic → hike and bike trail2. More impervious ground as a result of construction → flood plain

4. Central Nexus NOT enough – need to limit quantity - Court adopts “ROUGH PROPORTIONALITY” test – no precise mathematical calculation required, but the city MUST make some sort of individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development (at least some numbers)

5. Case violates this test1. No reason why the city needed a public flood plain versus a private one2. No findings that the hike and bike trail will decrease traffic (it could)