Originalism vs Living Constitution: My Lecture

In Kelo, we are seeing the Great Debate between Justice Scalia (joined by Justice Thomas) and Justice Stevens over how the Court should read the Constitution. Does public use mean use by the public? Or is the Court free to judicially amend the Constitution by interpreting public "use" as public "purpose"? 

In case you are interested, here is a short (30 minute) video lecture in which I discuss the Great Debate--Originalism vs. The Living (Common Law) Constitution:

Duncan Originalism vs Living Constitution:

https://unl.yuja.com/V/Video?v=6827926&node=29033304&a=188047276&autoplay=1

 

We will discuss quite a bit of Constitutional Law as it concerns private property in the Property course, but this video is not an assignment. I share it just in case you are interested in learning about the Great Debate about how to read the Constitution. And here are two good short articles on originalism vs the Living Constitution:

 

Strauss article (link); Sollum Article (link) 

 

 Finally, here is a quotation from Justice Gorsuch to the NYT (link) on his view of originalism:
 

 So what originalism is, is just the simple idea that you are entitled to rely on the written words in the Constitution. We the people, the American people, bothered to write it down. Write down the law. It was the first written constitution of its kind in human history. And so when it promises you a right to a jury trial, when it promises you a right to confront your accuser, when the laws enacted promised somebody by treaty certain rights, an originalist, a textualist, will take that seriously. And there’s going to be no pragmatic argument, no argument from efficiency. Nothing that can undermine that. Now, if you want to change the law, there are lawful processes for doing so, but the originalists and textualists, simply put, seek to honor written law.

It seems clear to Justice Gorsuch that the duty of the Court is to follow the written law (as opposed to amending the written law).

Nebraska School Choice Lawsuit

 Here is an article from the Plains-Sentinel.

And here is a money quotation:

The New Civil Liberties Alliance (NCLA) is representing two Lancaster County families in a civil rights suit against multiple state and local officials alleging the state education system abridges private and homeschool parents’ free speech.

The plaintiffs, Justin Jacobsen and Timothy & Joanna Menter, argue that they have suffered civil rights violations and financial complications as a result of choosing private and homeschool education for their previously public-schooled children.

Co-defendants include the City of Lincoln, Lincoln Public Schools, and state officials, among others.

The three charges in the lawsuit assert that Nebraska’s education system imposes an unconstitutional condition on parents and abridges their federal and state rights of free speech by mandating education while simultaneously pressuring parents to accept government viewpoints in the absence of any compelling state interest.

The plaintiffs hold that education – from teaching style to curricula to incentivized behavior – is speech. Nebraska mandates educational speech by holding parents responsible for their children’s education under threat of criminal penalty. However, Nebraska parents may only educate their children free of cost if they waive their right to free educational speech by enrolling their children in government schools.

And here is my Case Western law review article on the constitutional right to School Choice under the First Amendment:

Link

Thank You Property Class of 2028

Thank you all for the kind retirement card you signed. I love teaching 1Ls Property! And this last Property class, the class of 2028, has been wonderful. 

I'll see you tomorrow for the exam Q & A. I will take a picture of y'all, and I hope some of you will take a picture of me (I will be styling my Padres Mexican night jersey--the Padres are playing in Mexico City this weekend) and text the pics to my phone.

I taught for 47 years with joy; and I'm leaving with joy. And with a peace that surpasses understanding.

See y'all tomorrow.

Parting Advice From a Grandfather: "Buy Dirt"

Thank you for being my last class at Nebraska Law. It has been a blast! Time goes by fast; 1979 seems like only yesterday. Now for a little parting advice from a grandfather.

Courage is contagious; when you take a stand for truth it makes it easier for the next person to do so. But cowardice is also contagious. And the Law College's mission statement makes courage part of our mission.

So be courageous and live large in the law. 

More importantly, be God's, find love, get married, and have as many children as God gives you. Marriage and children (and grandchildren) are wonderful gifts to make life on this planet full of love and joy. As my 3-year old granddaughter, Addie, says, "some things never change."

 And, as the recent hit country music song performed by Jordan Davis and Luke Bryan says, "buy dirt [a home called Blackacre], find the one you can't live without."

By the way, I saw Jordan Davis perform Buy Dirt in person a couple of weeks ago at the Chris Tomlin concert I attended in Nashville. Unforgettable concert!

As for me, as President Washington sang in Hamilton:

Like the scripture says:
"Everyone shall sit under their own vine and fig tree
And no one shall make them afraid."
They'll be safe in the nation we've made
I wanna sit under my own vine and fig tree
A moment alone in the shade
At home in this nation we've made
One last time

And remember the Declaration on its 250th birthday: First come God-given rights, then comes government to secure those rights. 

Be seeing you!

MC Practice Question #3

 Here is a link to the relevant blog post: LINK

And here is the question:

             Last summer, I went to a Padres game with "old Stone-fingers,"Prof. Finkelman. We sat in the right field bleachers. Manny Machado hit a home run over the right field fence and Finkelman spotted the ball, tracked it, and raised his glove intending to catch it. But he squeezed his glove too soon. The ball hit his glove and fell to the ground. I bent over and picked up the ball. Finkelman demanded the ball and I refused to give it to him. If he sues me for possession of the ball, how is a court most likely to decide his claim? Assume that Major League Baseball, the original owner of the ball, has abandoned its claim to balls hit into the stands.

 

            A.        The court will rule for Finkelman because he stopped the ball’s momentum with his                         glove.

            B.        The court will rule for Finkelman because he spotted the ball first.

            C.        The court will rule for me because I was the first person to take possession.

            D.        The court will decide that Finkelman and I each have an equal claim to the ball and give each of us a one-half interest in the ball.

            E.        The court will decide that Manny Machado has the best claim to the ball because he hit  the home run.

MC Practice Question #2

Here is a link to the relevant blog post: LINK

On Date 1, Harvey Grutz, both the actual owner and the record owner of Blackacre, sold it to Archie Bunker. Archie neglected to record his deed until Date 4.

On Date 2, Grutz conveys Blackacre again, this time to Barney Fife. Barney is a BFP for value who promptly recorded his deed on Date 2.

On Date 3, Barney conveys to Charlie Chaplin. Although Charlie purchased Blackacre for full value, he had actual notice of the prior conveyance of Blackacre to Archie. Charlie promptly and properly recorded his deed on Date 3.

On Date 4, Archie records his deed.

Assume the relevant jurisdiction has a notice type recording act. Who owns Blackacre        on Date 4?

 

A.        Barney

B.        Archie

C.        Grutz

D.        Charlie

E.        None of the above

 

MC Practice Question #1

 First here is the blog post I used to come up with the question: Link

And here is the Hypo from that blog post: 

"To A for life then to the first child of A who graduates from Law School." Let's assume that A was alive and that no child of A had yet graduated from law school.

I might change the Hypo to create a question such as this:

Grutz, the owner of Blackacre in Fee Simple Absolute, conveys Blackacre "to Schutz for life then to the first child of Schutz who becomes a law professor." At the time of the conveyance, Schutz is alive and has one child, Mary, who is at the top of her kindergarten class but has not yet become a law professor. Which of the following statements is most accurate?"

A.    Mary has an indefeasibly vested remainder in fee simple absolute
B.    Mary has a vested remainder subject to complete defeasance
C.    If the relevant state has abolished the Doctrine of Destructibility of Contingent Remainders, the contingent remainder of the first child to become a law professor is valid under the Rule Against Perpetuities
D.    If the relevant state still recognizes the Doctrine of Destructibility of Contingent Remainders, the contingent remainder is valid under the Rule Against Perpetuities
E.    All of the above statements are false

 

Now, go back to the blog post and work through this question. What is the correct answer?

Next, suppose I change answer D above to read:

D.    If the relevant state still recognizes the Doctrine of Destructibility of Contingent Remainders, the contingent remainder is void under the Rule Against Perpetuities

Now what is the correct answer?

Preston, Your Wish is My Command

 Over the weekend, I will come up with a few sample MC questions. And I will show you how I create them from hypos in blog posts.

Property Spring 2026: Assignment For Week Thirteen (April 13-16)

 Landlord and Tenant: A Brief Introduction (with emphasis on Nebraska Law)

--Nebraska Residential Landlord and Tenant Act (see link to Nebraska Property Laws on side bar)(sections 76-1401 to 76-1449: read through the Act generally, but pay particular attention to sections 76-1416, -1418,-1419,-1421,-1426,-1427,-1437 and -1439). We will spend two class periods on this assignment.

V. Easements, Etc.

--Casebook p. 559-571
--Casebook p. 576-593

Granite Properties Case

                                             Pictured Above: Map of Granite Properties 

Thanks to Todd Rischling for sending me this Google map image of the three properties.

I think it makes it easier to see what the case was all about.

Granite Properties Diagram

                                          Pictured Above: Diagram of Granite Properties

George Harrison: Going Tropo and Prescriptive Easements

                                     Picture Above: George Harrison's Heavenly Hana in Hawaii

When I visited Maui a few year's ago, a tour guide told me the story about George Harrison and his discovery that many locals had easements by prescription to walk over his beautiful "Heavenly Hana" estate.

Thanks to Tom Grover, here is an article about Harrison and the prescriptive easements. Here is an excerpt:

George Harrison bought a secluded 63-acre site in Nahiku along the Hana Highway 20 years ago because he was so taken with the "beauty and remoteness" of the area.
Nahiku resident Cynthia Allencastre says she will always remember Harrison for his kindness.
"We are saddened by his death. I loved him. He was so happy to see you," she said. "He made you feel comfortable."
"He was really kind, open and hospitable."
Allencastre said she met Harrison and his family through her husband Arnold who was a bulldozer operator and helped in clearing the land on Harrison's estate when the former Beatle first moved to Nahiku in the early 1980s.
She said Harrison hired local residents to care for his estate and employed a lot of Nahiku people.
The Allencastres were invited occasionally to lunch at Harrison's home, and Harrison spent several New Year's Eves with them, playing guitar with their younger relatives and singing Beatle and Hawaiian songs.
Allencastre said whenever Harrison would come to Nahiku, he would call her husband and invite him over to talk with him and catch up with what was happening in the neighborhood.
She said Harrison didn't talk much about himself, "he'd want to know how our family was," she said.
Maui resident and entertainment promoter Shep Gordon said Harrison was a part of a music generation and touched many with his music.
"It was just his great songs, great music," Gordon said.
But Harrison's life on Maui was not without controversy.
For 10 years he was embroiled in a fight with some neighbors to maintain his privacy.
His low-key life was sometimes disrupted by people going to the shoreline and by others trying to catch a glimpse of the ex-Beatle.
Some neighbors sued the entertainer in 1991, claiming they had the right to use a 10-foot easement running across his property to the shoreline.
In 1993 then-Circuit Judge E. John McConnell sided with the neighbors and two Maui men filed a defamation lawsuit against Harrison for remarks he made after the hearing.
Harrison appealed McConnell's decision and last year, the Hawaii Supreme Court ordered a new trial.
Harrison said he chose the secluded site because it was difficult to reach and his deed didn't include an easement.
Coming to his defense was lifelong resident and sometimes Nahiku mayor "Uncle" Manuel Vares who said during the controversy that Harrison and his wife were "nice people" who didn't bother anybody.
Vares said it wasn't right that people wanted to go by the former Beatle's house on a pedestrian path as close as 60 feet from Harrison's bedroom window.
A secret settlement in the 10-year battle over the beach path was reached June 7, this year, allowing no one the right to cross Harrison's property, his lawyer said.

Mitchell v Castellaw Diagram

                                 

                                         Pictured Above: Diagram of there relevant parcels of land

Finn v Williams Diagram

                           

                                    Pictured Above:: Diagram From Finn v Williams 

Beebe v DeMarco

 Plaintiff purchased a lot (Lot 11) that had access to an alley in the back.

From 1959 to 1993, Plaintiff and her husband towed their large boat down the alley and across the rear of lots 12, 13 & 14. "The frequent use created easily visible tire ruts across defendant's property [Lot 14]." P. 589

The doctrine of prescriptive easement requires actual, open, notorious, hostile, and continuous use of the land of another for the period of the statute of limitations.

 Although permissive use negates a prescriptive easement [neighbors often allow permissive uses], in this case the use was not permissive, and thus plaintiff acquired a permanent easement by prescription for a right-of-way over the rear edge of Defendant's land.

 

Willard v First Church Map

                            Pictured Above: Diagram Mapping the Lots involved in the case

Granite Properties (p. 580): Notes and Questions

 Plaintiff owns all 3 parcels: A, B & E. See diagram.

Plaintiff conveys Parcel B to Defendants

However, (legal malpractice alert!) Plaintiff failed to expressly reserve any easements appurtenant to the retained Parcels A and E.

Plaintiff contends that it retained--by implied reservation--easements no. 1 and no. 2 over parcel B to access Parcels A and E.

Notice this is not a case of a landlocked parcel and an implied easement by necessity. Plaintiff has some access to Parcels A and E. Rather, Plaintiff wants access to two driveways over Parcel B: No. 1 which gives him access to the rear of Parcel A for deliveries and No. 2 which gives him access to the Parking Lot of Parcel E.

What is Plaintiff's theory for implied easements here?

The theory is an Easement Implied from a Pre-existing Use (also known as a "quasi easement"). p. 583.

 Here are the three elements (p. 584):

1. common ownership and severance;

2. before severance--prior use of one part of the united parcel for the benefit of another part and the prior use was apparent and obvious, continuous and permanent; and

3. the claimed easement is "necessary and beneficial" to enjoyment of the dominant parcel or parcels. 

The theory of this doctrine is an inference of the intention of the parties to fill "common gaps resulting in incomplete thought." (p. 584) DO NOT ENGAGE IN INCOMPLETE THOUGHT WHEN REPRESENTING A CLIENT--SWEAT THE DETAILS!

How necessary is "necessary and beneficial"? 

Strict necessity? --No

Reasonably necessary or "important to enjoyment" of the retained dominant parcels? (p. 585)

The court holds that in view of "strong evidence of the plaintiff's prior use of the driveways in question and the defendant's knowledge thereof" the "elastic necessity requirement" is satisfied. (p.587)

Finn v. Williams (p. 576)

Williams owned 140 acres and conveyed one tract ( Tract X: 39 acres) to Thomas Bacon who subsequently conveyed the tract to Plaintiff Finn.

Williams retained Lot Y which passed by inheritance to his daughter, Defendant Zilphia Williams. 

What is Plaintiff's problem?

See p. 576:

"By their complaint filed in the circuit court of Sangamon county, plaintiffs charge that the nearest and only available means of egress from and ingress to their land to a highway and to any market for their livestock and crops is by means of a right of way over defendant’s tract immediately to the north; that their tract is not located or situated on any public highway and is entirely surrounded by land of strangers and the defendant’s tract; that prior to and during all the time the 40 acres and the 100 acres constituted one tract and were owned by defendant’s husband, the only means of ingress and egress to and from the single tract to a highway was by right of way in a northerly direction through a third tract of land north and adjacent to the present tract of defendant, and that this open road is still used by defendant as her only means of egress and ingress from and to the highway. The relief sought was the declaration of a right of way easement of necessity from the north line of plaintiffs’ tract through the defendant’s tract, to the beginning of the right of way road through the third tract mentioned."

More facts at 577:

"Private permissive ways of ingress and egress over the land of strangers both to the east and to the south have been available to the successive owners, including plaintiffs, of the 40-acre tract since its severance from the 100-acre tract of the defendant in 1895, but each of the private ways over the lands of the adjoining strangers has been closed and, as defendant concedes, these permissive means of ingress and egress do not now exist. Two witnesses for defendant who had lived near the property in controversy for about sixty years testified to roads leading to the south and to the east from the 40-acre tract over the land of strangers. These roads were private roads over the property of strangers, and are now closed."

 As a result, to get to the market for their livestock and produce, Plaintiffs have had to walk to the township highway "carrying such produce as they could." Id.

So, Plainiffs ask the court to recognize a right of way easement by necessity over Defendant's land.

To establish an easement by necessity, Plaintiffs must show 1. original unity of ownership between the dominant (Lot X) and servient (Lot Y) estates; and 2. necessity--either strict or reasonable necessity depending on the jurisdiction.

Did Plaintiffs in this case make such a showing?

The typical easement by necessity case is a right of way appurtenant to a dominant estate that is completely inaccessible because surrounded by the grantor's retained lands and/or land owned by strangers.

The problem here is that the necessity did not exist at the time Lot x and Y were originally divided; the necessity facing plaintiffs today was brought about by changed circumstances--at the time of the severance the original grantee of Lot X had the permissive use of private roads over the lands of strangers, permissive use which has now been closed. 

So the necessity  existed at the time of severance but was dormant (see p. 577):

"Where an owner of land conveys a parcel thereof which has no outlet to a highway except over the remaining lands of the grantor or over the land of strangers, a way by necessity exists over the remaining lands of the grantor. 17 Am.Jur., (Easements) sec. 48; Trapp v. Gordon, (Ill.), 7 N.E.2d 869; Gilfoy v. Randall, (Ill.), 113 N.E. 88. If, at one time, there has been unity of title, as here, the right to a way by necessity may lie dormant through several transfers of title and yet pass with each transfer as appurtenant to the dominant estate and be exercised at any time by the holder of the title thereto. 17 Am.Jur., (Easements) sec. 49, 127; Logan v. Stogsdale, (Ind.), 24 N.E. 135. Plaintiffs’ land is entirely surrounded by property of strangers and the land of the defendant from which it was originally severed. A right of way easement of necessity was necessarily implied in the conveyance severing the two tracts in 1895, and passed by mesne conveyances to plaintiffs in 1937. The fact that the original grantee and his successors in interest have been permitted ingress to and egress from the 40 acres over the land owned by surrounding strangers is immaterial. When such permission is denied, as in the present case, the subsequent grantees may avail themselves of the dormant easement implied in the deed severing the dominant and servient estates."

 

Suppose Grutz conveys a tract of land (Blackacre) to Duncan retaining a larger adjoining tract (Whiteacre). The only open way to a public road is over Whiteacre. However, Duncan's land borders on a highway, but it would be costly for him to build a road through the woods on his land. Does Duncan have a strong claim for an easement by necessity?

Probably not, although some courts might recognize an easement by necessity when the cost of building the alternate route is disproportionate or unreasonable. In other words, some courts would require only reasonable necessity as opposed to strict necessity.

Mitchell v. Castellaw and Easements ( Reservation By Grantor)

Date 1 (1938) Sally Stapp conveys Lot 2 to Smiths (attempts to reserve right-of-way easement over driveway on Lot 2 for benefit of Lot 3)

Date 2 Smiths convey Lot 2--->Defs. Mitchell and Powers (See p. 562)

Date 3 (1948) Sally Stapp's will bequeaths Lot 3 to her daughter Pl. Castellaw

Does Pl have a valid easement to access Lot 3 via the driveway on Lot 2?

As one Hornbook points out, "easements seem to evoke careless drafting" as in the Mitchell case. This, of course, often results in expensive litigation in which the courts are asked to clean up the mess resulting from the careless drafting. Careful drafting is something you should strive for in your practices. What was the drafting problem here? See p. 562-563

For example, suppose Grutz, the owner of two adjoining lots, Blackacre and Whiteacre, wishes to sell Blackacre to Mr. Yuckle, but also wishes to reserve an easement to use the driveway on Blackacre for access to his retained lot, Whiteacre. Grutz clearly may "reserve" the easement in his deed conveying Blackacre to Yuckle. "The grantor's instrument of conveyance may simply provide that 'grantor reserves' an easement, describing its purposes, location, and duration...." If the intention is to reserve a perpetual easement over Blackacre appurtenant to Whiteacre, one having the duration of a fee simple absolute, the "safe practice is to use words of inheritance" even though magic words are probably no longer required. See Hornbook at 442-443.

Be careful to use the word "reserve" as opposed to the word "except." "Properly, an exception is the withholding of title [as opposed to merely an easement] to a piece of a larger parcel of land." Hornbook at p. 444.

Willard Case (p. 565)

Mrs. McGuigan owned lots 19 and 20. She allowed the church to use lot 20, a vacant lot, for parking during church services.

Date 1 McGuigan sells lot 19 to Peterson

Date 2 McGuigan sells lot 20 to Peterson "subject to an easement for automobile parking during church hours for the benefit of the church" and its property. 

Date 3 Peterson sells lots 19 & 20 to Willard.

Does Willard take lot 20 subject to the easement? Willard brings a quiet title action against the Church to quiet his title.

What kind of easement did Mrs. McGuigan intend to create?

Was Willard a BFP without notice of the church's parking easement?

What is Willard's argument that the attempt to create an easement in the deed from McGuigan to Peterson was "invalidated by the common law rule that one cannot 'reserve' an interest in property to a stranger to the deed?" (p. 566) To "reserve" an easement is when the Grantor conveys one tract of land and wishes to retain (to reserve) and easement in the parcel conveyed to benefit an adjoining parcel also owned by the Grantor. So, technically one does not "reserve" an easement for the benefit of a third party (such as the Church in our case).

The old common law rule was based upon obsolete feudal policies designed to protect the rights of feudal lords. The court holds that the old common law rule can not be applied to defeat the intent of Mrs. McGuigan to convey an easement to the church.

But many states may still apply the old common law rule so...

Did the common law rule forbid the creation of easements in favor of a third person? Could McGuigan have avoided the common law rule by first creating an easement to the church and then conveying lot 20 subject to the easement to Petersen? If so, is there any reason to require a grantor to use two deeds rather than one? But the better practice in Willard would have been for McGuigan to first create an easement appurtenant to the Church, and then convey Lot 20 to Peterson subject to the Church's easement for parking.

Easements: Some Vocabulary

An easement is a non-possessory interest in land which entitles the owner to make limited use of another's land or to restrict such other's use of his land. As the casebook puts it, "the essence of an easement is that it 'creates a nonpossessory right to enter and use land in possession of another and obligates the possessor not to interfere with the uses authorized by the easement.'" (P. 560)

An easement may be affirmative, i.e. it entitles the owner of the easement to use the land of another in a way which, but for the easement, he would not be privileged to do (e.g. an easement granting A a right-of-way over the land of B, or a utility easement allowing A to run utility lines over or under the land of B) or negative, i.e. one which enables the owner of the easement to prevent the landowner from doing acts upon his land which, but for the easement, the landowner would have a right to do (e.g. easement preventing the landowner from restricting the free flow of light and air, or a conservation easement which limits development in order to protect conservation values).

An easement is appurtenant to land when it is created to benefit the possessor of neighboring land in his use of such land. As a leading Hornbook notes (p.440), "[t]ypical examples of easements appurtenant are walkways, driveways, and utility lines across Whiteacre, leading to adjoining or nearby Blackacre." So, for example, the owner of Whiteacre might grant an easement to the owner of Blackacre allowing the latter to drive over a driveway on Whiteacre to gain access to a road abutting on Whiteacre.

When an easement appurtenant exists, we refer to the land bearing the burden of the easement (Whiteacre in the above example) as the servient estate and to the land receiving the benefit of the easement (Blackacre) as the dominant estate.

An easement in gross is an easement which is created to benefit the owner in his personal capacity and not in connection with his possession of a dominant estate. Utility easements owned by utility companies and railroad easements are examples of easements in gross. (Same Hornbook at p. 440.)

A license is a privilege to make some limited use of the land of another. For example, I might allow my neighbor to take a short cut to school by walking across my yard. Such a mere license is not really an interest in land and is revocable at the will of the landowner. Since a license is not an interest in land, it "may be granted orally; easements...are subject to the Statute of Frauds" and the "draftsman should create them in [written] instruments that comply with the Statute of Frauds for deeds."

Next Week: I will call on volunteers

 Next week is our last week. Rather than continue through the alphabet, I will call on volunteers. I want to give everyone a chance to enter the fray.

By the way, next week is the last week of Property class. It has been my privilege to teach Property one last time:

"One last time
Relax, have a drink with me
One last time
Let's take a break tonight
And then we'll teach them how to say goodbye
To say goodbye
You and I"

Hamilton is like the Godfather; there is always a quote that applies to any situation.

Landlord-Tenant Vocabulary

                                    Picture above: Three-decker House in Fall River Massachusetts

3-Decker in Fall River Massachusetts (my boyhood home--2 blocks from the projects--we lived on first floor and had tenants on floors 2 & 3; most landlords are not rich; owning a rental is the first step out of poverty for many Americans)


1. What is a lease? One scholar provides the following definition: "A lease is a transfer of the right of possession of specific real property for a period of time or at will... If a transaction confers physical control of the premises and the right to exclude others, including the owner, a true tenancy is established."

Thus, the Tenant's right to exclusive possession--the right to exclude even the landlord--is the key characteristic that distinguishes a leasehold from other property interests such as a license.

Query? Does the relationship between a hotel and a guest create a leasehold estate or a license? Would you consider it normal if you came home to your apartment tonight and discovered that your Landlord had picked up your clothes from the floor, emptied your trash baskets, made your bed, and left a chocolate on your pillow? Notice that a license gives only the right to use, not the right of exclusive possession.

What about the relationship between UNL and students living in dorms? Leasehold? Again, what would you think if your Landlord informed you that you were being assigned to a new apartment and would be living with two roommates not of your choosing? A housing contract for a dorm room is normally only a license, not a lease.

2. Types of Leasehold Estates (see chart on page 253)

I. Tenancy for a Term--This is an estate that lasts for some fixed or computable period of time. Fixed: when the lease specifies both the beginning date and the termination date (e.g. From August 1, 2025 to July 31, 2026). Computable: When the lease specifies a formula for determining the beginning and ending dates of the tenancy--e.g. Grutz leases a hunting cabin in the mountains to Yuckel "for the 2026 deer hunting season." What are the beginning and ending dates of the lease? You can look it up by checking with the State Department of Game and Wildlife!

Query: What about a lease (entered into by a journalist) for an apartment (for monthly rent of $2500) near the State Department "for the duration of the War in Ukraine?" Tenancy for a term? Is the ending date computable? When will the war end? If the tenant enters into possession of the apartment and pays rent, this will probably be treated as a month-to-month periodic tenancy.

II. Periodic Tenancy--A lease for a period of some fixed duration which is automatically renewed for succeeding periods until either the Landlord or the tenant gives adequate notice of termination. For example, if Landlord and Tenant enter into a month-to-month tenancy on January 1, 2025, the tenancy will continue (be automatically renewed after each monthly period) until either L or T gives proper notice of termination.

As the casebook points out on page 475-76, "At common law notice six months prior to the end of a yearly period was necessary to terminate a tenancy from year to year, and notice one full period in advance was required to terminate a periodic tenancy for a shorter period....Many states have now codified required periods of notice, and these may be different from the common law notice requirements. Such statutes often shorten the advance notice required to terminate a year-to-year tenancy."

Take a look at Neb. Stat. sect. 76-1437:

(1) The landlord or the tenant may terminate a week-to-week tenancy by a written notice given to the other at least seven days prior to the termination date specified in the notice.

(2) The landlord or the tenant may terminate a month-to-month tenancy by a written notice given to the other at least thirty days prior to the periodic rental date specified in the notice.

Year to year residential tenancies are rare. The statute does not mention them. I don't know the answer for sure (it would require some research), but the common law probably supplements the Nebraska Residential L & T Act and the 6-month notice rule should apply.
.
III. Tenancy at Will-- This is a tenancy that has no designated period of duration and which is subject to termination at the will of either party. It is rare that the parties will intentionally enter into a Tenancy at Will, but it could happen if, for example, Grutz puts his house on the market to sell and needs to be able to ensure that his temporary tenant can be required to vacate quickly if the house sells and the Buyer needs immediate possession.

Be careful here because modern statutes often require 30 days notice to terminate even a Tenancy at Will (which makes the Tenancy at Will almost a fraternal twin of a month-to-month periodic tenancy).

IV. Tenancy at Sufferance--This is not really a "tenancy" at all, but rather a placeholder used to label a Tenant who wrongfully holds over after termination of his tenancy. As a popular Hornbook points out, the Landlord has the power to treat a Tenant at Sufferance as "either a trespasser or a periodic tenant retroactively to the beginning of the holdover period."

Holdover tenants are wrongdoers who often interfere with the right of incoming tenants to take possession of their leased premises. Imagine moving to Lincoln to start law school and discovering someone still living in your apartment when you show up (two days before classes begin) with your moving truck parked on the street outside the building. What do you do? Suppose the holdover says "Don't sweat it, dude. I'll be out by the end of next week." Is this a problem? What should the law do about holdover tenants? Should it be lenient? Or harsh?


 76-1437. Periodic tenancy; holdover remedies.

(3) If the tenant remains in possession without the landlord's consent after expiration of the term of the rental agreement or its termination, the landlord may bring an action for possession and if the tenant's holdover is willful and not in good faith the landlord, in addition, may recover an amount not more than three months' periodic rent or threefold the actual damages sustained by him, whichever is greater, and reasonable attorney's fees. If the landlord consents to the tenant's continued occupancy, subsection (4) of section 76-1414 applies.
  

76-1414.  

 (4) Unless the rental agreement fixes a definite term, the tenancy shall be week to week in case of a roomer who pays weekly rent, and in all other cases month to month.

 

 

 

Typical Landlord Tenant Issues

1. Take a look at Neb. Stat. section 76-1419 which requires the Landlord to "make all repairs and do whatever is necessary, after written or actual notice, to put and keep the premises in a fit and habitable condition." If the premises are located in a city or town with a minimum housing code, the landlord's maximum duty is to "Substantially comply, after written or actual notice, with the requirements of the applicable minimum housing codes materially affecting health and safety."

 Prof. Sullivan thinks this provision does not go far enough because "when the dust settle[s] this obligation is merely "a requirement that landlords partially [i.e. "substantially'] comply with only some housing codes, but only those that materially affect health and safety."  100 Nebraska L.Rev at 856.

 What is the effect of this required warranty of habitability on the supply of low-income housing? 

What is the effect of the implied warranty of habitability on the rent of housing for the poor? If a landlord must pay a great amount on repairs, won't this require him to raise rents to cover the costs? If the costs can't be recouped, might the landlord decide to take the building out of the rental market or even abandon it? How do these costs affect the availability of housing for the poor?

Now take a look at section 76-1425. "My place is a dump. Can I break my lease? What are my remedies? Section 1425 provides "if there is a material noncompliance by the landlord with the rental agreement or a noncompliance with section 76-1419 materially affecting health and safety, the tenant may deliver a written notice to the landlord specifying the acts and omissions constituting the breach and that the rental agreement will terminate upon a date not less than thirty days after receipt of the notice if the breach is not remedied in fourteen days, and the rental agreement shall terminate as provided in the notice...."

Again, Prof. Sullivan thinks this remedy does not go far enough:

"Recall that these are not insignificant repair requests— this statute comes into play only if the landlord has failed to at least partially comply with a housing code that materially affects health and safety. Only extremely serious issues would give rise to the remedy set out in section 76-1425. But, when alerted to such an extreme issue, the landlord is given a full fourteen days to remedy it—if the landlord chooses to do so. A landlord can refuse, and the tenant’s only viable recourse is to move out. Importantly, the landlord’s obligation to make the repairs only arises if the tenant notifies the landlord of the defect in writing. Actual notice is insufficient to impose an enforceable obligation to remedy the issue materially affecting health and safety." Id. at 857

See also section 76-1439 (no retaliation by Landlord): Link and 76-1430: Link


2. "I moved out of my apartment last month. Can I get my security deposit back?

See Sections 76-1416, 76-1421.

 
3. "If I move out of my apartment before my lease is up, do I have to pay rent for the rest of the term of my lease?

See section 76-1432.

Article on Nebraska Residential Landlord and Tenant Act.

 For a critical, pro-tenant perspective on the Nebraska Residential Landlord and Tenant Act, see Ryan P. Sullivan, Nebraska’s Anything-but-Uniform Residential Landlord and Tenant Act, 100 Neb. L. Rev. (2021) Available at: https://digitalcommons.unl.edu/nlr/vol100/iss4/4

 I am not assigning this, but we will discuss a few of Prof. Sullivan's points in class.

10 Key Concepts of Property

Over at the PropertyProf blog is a post about the ten key concepts of the law of property as summarized by Prof. Dale Whitmen. We have already discussed many of these in our Property Class. Here they are:

10. a joint tenancy might be severed by a conveyance by one of the joint tenants, even if the other joint tenant was unaware of the action and did not consent to it.

9. adverse possession is not a transfer of title from the former true owner, but rather creates a new original title in the adverse possessor.

8. a future interest is "future" only in the sense that possession under it is deferred until some later time.

7. restraints on alienation, unlike restraints on use, are widely disfavored and often held unenforceable.

6. deeds, once delivered, are not ambulatory.[i.e., once a deed is delivered title passes and the Grantor no longer has the power to change the interests created]

5. a deed will transfer whatever interest the grantor holds, even if it is a lesser interest than the deed describes, unelss the deed contains language that is inconsistent with a more limited transfer.

4. recording is not necessary to the effectiveness of a conveyance as between the parties.

3. possession is often treated as the equivalent of ownership except as against someone with better title.

2. servitudes run to successors, on both the benefit and burden sides.

1. rights in land can be created in a profusion of ways in our legal system.

Assignments and Subleases

Suppose Landlord leases an apartment to Tenant for 2 years at a rental of $1000 per month. Six months into the lease, Tenant has an opportunity to spend 6-months studying in London at the London School of Economics. T would like to transfer his leasehold interest to a third party to recapture some or all of his rental liability.

                                                      

A few quick issues here.

In the absence of any clause restricting the Tenant’s right to transfer his interest under the lease, the Tenant’s interest in the leased property is freely alienable.

However, it is typical for the lease to provide that the Tenant may not sublet or assign his leasehold without the express written permission of the Landlord. Sometimes the lease will provide that the Landlord will not unreasonably withhold his consent, and some courts judicially impose a reasonableness standard even in the absence of such language in the lease.

There are also two types of transfers of lease interests—assignments and subleases.

As one commentator puts it: “As assignment is a transfer of the [tenant’s] entire interest in the premises for the entire unexpired term of the lease, the assignor retaining no reversionary interest in the property. It is a transfer by the Tenant of the identical estate he acquired under the lease.”

A sublease is a transfer in which the original Tenant “retains a reversion or at least a reversionary interest in the leased premises. A common example of a sublease is a transfer of the original Tenant’s interest for a term less than the unexpired term of the lease.”

So, in our example above, in which the Tenant will go away for 6 months but wishes to resume living in his apartment when the 6-month study trip is over, the Tenant is probably thinking about subleasing his property for six months to a subtenant—he will wish to retain a reversion following the 6-month sublease so he can resume living in his apartment for the last year or so of his 2-year lease.

But now assume that a Tenant—Cornelius Husker--is a law student who moves to Lincoln for law school and signs a 3-year lease for an apartment right across the street on Holdredge. Assume Husker flunks out of law school and is not admitted to the Dental College!

He wants to go back home to South Dakota and work for his family-owned cattle ranch.

Now what is he thinking about the 2 years left on his lease?

Now he probably wants to assign the entire remaining term of the lease to an Assignee who will replace Husker as the Tenant under the original lease.

Cowling v. Colligan (p. 667)

 Suppose you have a subdivision—Grutz Acre--located in an area of the city where conditions have changed and commercial development has invaded the area. The zoning law has changed to allow commercial development ion this part of town. Suppose further that the interior lots in Grutz Acres are still protected by the single-family covenants, but the border lots are no longer suitable for single-family residential use. Should courts refuse to enforce the covenants against the border lots because they are no longer receiving any protection from the common scheme?

See p. 669=670:

 "A court may not refuse to enforce a residential-only restriction against a particular lot on the sole ground that a change of conditions has rendered the lot unsuitable for residential purposes and it would therefore be inequitable to enforce it. The equities favoring the particular owner is only one facet of the judicial inquiry. Those equities must be weighed against the equities favoring the lot owners who, having acquired their property on the strength of the restriction, wish to preserve the residential character of the area. The judgment must arise out of a balancing of equities or of relative hardships....

 The trial court made no finding that the removal of Tract No. 2 from the restriction would not prove harmful to the plaintiffs who wish to preserve the residential character of the subdivision, and we may not presume such a finding. Rule 299, Texas Rules of Civil Procedure. Other than the advent of churches into the subdivision the only changed conditions found by the court lie outside the subdivision. Tract No. 2 is a border tract and is openly exposed to those changed conditions but the majority view is that “if the benefits of the original plan for a restricted subdivision can still be realized for the protection of the interior lots, the restriction should be enforced against the border lots, notwithstanding that such lot owners are deprived of the most valuable use of their lots.” 2 American Law of Property 447. See also 4 A.L.R.2d 115. We are committed to that view."

Pro tip: When you are considering buying a lot in a subdivision, make sure to buy an interior lot in the middle of the subdivision. The covenants do not apply outside the subdivision, and the border lots serve as a buffer to protect the interior lots against changed circumstances occurring outside the subdivision. It is better to be buffered, than to be the buffer!

 

Rhue case (p. 665): I like ranch style houses. And so should you!

 Or as the Monty Python boys like to say, "No one ever expects the Spanish Inquisition." 

Notice that landowners in this subdivision must submit their building plans to "the architectural control committee." The committee likes ranch-style house and does not like Spanish-style houses with red tile roofs.

What do you think of this kind of control over human individuality?

Pay attention to note 2 on page 667--do you agree or disagree with Prof. Winokur when he worries about the "resulting homogeneity" caused by allowing covenants to control so much of the development and use of land? Here is the money excerpt from Prof. Winokur's statement:

"The domination of housing markets by potentially perpetual, uniform servitude regimes has begun to undercut both the economic efficiency of these servitudes and the personal liberties of existing residents and potential buyers. Enforcement of all restrictions imposed by servitude regimes, limiting neither the duration nor the content of servitudes, can also undermine the availability of neighborhoods conducive to human flourishing, where each individual's identity can be based on personal control of a unique place in the residential environment."

If A likes a modern ranch style home and B likes a "Spanish style" stucco home, and if there are more As than Bs in the community, should the As be able to control the style of B's own home on his own piece of land?

What are your thoughts?

To quote Burr in Hamilton:

 "I should’ve known the world was wide enough for both Hamilton and me
The world was wide enough for both Hamilton and me"

Is the neighborhood wide enough for both ranch houses and Spanish stucco house?

Shelley v. Kraemer (1948): Are Covenants Merely Private Agreements? p. 91

  Street level view of the Shelley House in St. Louis, Missouri, USA. (photo by Francis Nancy Wikimedia Commons)

 

Or is the body of law we call "the law of covenants and equitable servitudes," and enforcement of that body of law, state action under the Fourteenth Amendment ("No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws")?

Suppose that A, B and other owners of land in a neighborhood agree, on behalf of themselves, their heirs, successors, and assigns, that no lot in the neighborhood could be owned or occupied by anyone "not of the Caucasian race."  This covenant was duly recorded in the real property records office.

Subsequently, one of the Lots in the area is sold to Shelley, an African-American who wishes to live on the property. Nothing in the deed to Shelley mentioned the racially restrictive covenant and Shelley did not agree to be bound by it.

 Will a racially restrictive covenant such as this one run with the land. Shelley purchased a home subject to a racially restrictive covenant. Neighboring landowners sued to enforce the covenant to restrain the Shelleys "from taking possession" of their own property.

Does this covenant run with the land under state law? [The Missouri Supreme Court held that the covenant did indeed run with the land and was thus enforceable against Shelley]. 

Does the race of the homeowner "touch and concern" the land?If so, does enforcement of this covenant against Shelley violate his right to racial equality under the Equal Protection Clause of the 14th Amendment? Is this covenant merely a private agreement enforceable against Shelley who purchased with record notice? Or is there sufficient state action to trigger the Equal Protection Clause of the Fourteenth Amendment? 

 "The Constitution is not the law that governs us. [It] is the law that governs those who govern us." --Randy Barnett

Make sure you understand this issue. If this were a zoning law mandating segregated neighborhoods, there would clearly be state action. But the racial restriction is contained in a private agreement, not in a zoning law enacted by government.

Some key passages from Shelley:

• "[T]he principle has become firmly embedded in our constitutional law that the action inhibited by... the Fourteenth Amendment is only such action as may fairly be said to be that of the States. That Amendment erects no shield against merely private conduct, however discriminatory or wrongful." (p. 94)
• "It has been recognized that the action of state courts in enforcing a substantive common-law rule formulated by those courts, may result in the denial of rights guaranteed by the Fourteenth Amendment." (p. 95) [RFD: For example, the tort of intentional infliction of emotional distress applied against very offensive political speech--Phelps (Westboro Baptist Church) case]
  
• "We have no doubt that there has been state action in these cases in the full and complete sense of the phrase. The undisputed facts disclose that petitioners were willing purchasers of properties upon which they desired to establish homes. The owners of the properties were willing sellers....It is clear that but for the active intervention of the state courts, supported by the full panoply of state power, petitioners would have been free to occupy the properties in question without restraint." (p. 96)
  
• "The enforcement of the restrictive agreements by the state courts in these cases was directed pursuant to the common-law policy of the States as formulated by those courts in earlier decisions." (p. 96)
  

So, let me ask you this question: What gives A and B (the original covenanting parties) the power to enforce their agreement against C, D, E, F & Shelley, subsequent purchasers of the affected tract who take with notice but who otherwise do not agree to be bound by promises made by A and B?

Is the law of covenants and equitable servitudes really a kind of common law zoning scheme pursuant to which government delegates rulemaking authority to the original covenanting parties but then applies those rules to future owners of the relevant parcels? If so, is this not state action?

Notice that the state action in Shelley involved more than mere enforcement. Here is a way to think about the Court's holding:

State action equals the sum of (1) judicial enforcement plus (2) common law rules allowing covenants to run with the land against remote landowners.

 Suppose homes in an exclusive single-family neighborhood are subject to a covenant that forbids guns from being kept in any home within the development. May this covenant be enforced against Joey Spano, a remote purchaser of a home in this subdivision, who has a collection of handguns and rifles that he keeps in a gun safe in his den? Or suppose Spano open carries whenever he is outside his home. His neighbors see his gun when he is mowing his lawn and seek to enforce the no gun covenant against Spano. State action triggering the Second Amendment?

Or suppose another covenant prohibits "any pro life signs" from being displayed on lawns of homes in the subdivision. If a neighbor seeks to enforce this covenant against a remote purchaser who wishes to display a pro-life poster, does the Free Speech Clause of the First Amendment apply?

Some commentators read Shelley as a special state action rule for racially restrictive covenants. But whether there is state action cannot depend on which constitutional right the covenant restricts. Can it?

Suppose Denicola comes over to my home pursuant to an invitation to come for dinner. He arrives wearing a New York Yankees baseball cap. I ask him to remove the cap and put it in his car parked outside my house. He refuses, so I ask him to leave. He says not until after dinner and a glass of wine. I call the Lincoln Police and they arrest him for trespassing. Does Denicola's arrest for trespassing violate his rights under the Free Speech Clause of the First Amendment? Is this anti-Yankee viewpoint discrimination attributable to the city of Lincoln and the LPD? As a private individual, I am certainly restricting Denicola's speech in my home based upon his pro-Yankee viewpoint. But is there state action under the Free Speech Clause on the facts of this case?

Suppose Taylor Swift hires me as her security guard. I drive with her in her limo and on her private plane, I make sure she gets safely to her hotel room and then stand guard outside the door to her room. I know everything she says and does on the road. She requires me to sign a nondisclosure agreement. When I am about to publish a tell-it-all book on Taylor Swift and her conduct on the road, she enforces the NDA against me. Is there state action under the Free Speech Clause? How is this different from Shelley? Am I being forced to comply with an agreement I never made?

Joslin Case (p. 662)

Does a covenant restricting the types of buildings that may be built on lots fronting on a lake be construed to prevent land from being used as a common recreational area for owners of "back lots" with no beach access?

How should covenants be construed? Strictly under the traditional approach to "permit the free use of land?"

Or pursuant to the "modern viewpoint" that takes the position that covenants are good for property values and thus "the former policy" of strict construction "is no longer operative?"

Should the law facilitate the hoarding of scarce recreational resources by those who can afford beach front lots? Or should it at least not hinder the efforts of less affluent "back lot"owners to try to get access to the beach?

Termination of Covenants

1. Express termination--some covenants expressly state that they will expire after a certain number of years from the date of the deed creating them. (see Neponsit case at p. 629).

2. As a commentator observes, some states have statutes "limiting the duration of covenants" to a certain number of years.

3. The equitable doctrine of acquiescence provides a defense to enforcement when plaintiffs (other lot owners seeking to enforce a burden against defendant) have acquiesced "in such substantial violations within the restricted area as to amount to an abandonment of the covenant or a waiver of the right to enforce it." (see Casebook p. 669)

4. The "change of neighborhood" doctrine applies when changes in the area have been so great as to cause "the restriction to become outdated and to have lost its usefulness, so that its benefits have been substantially lost."  Here is another statement: "if the benefits of the original plan for a restricted subdivision can still be realized for the protection of the interior lots, the restriction should be enforced against the border lots, notwithstanding that such lot owners are deprived of the most valuable use of their lots." (Casebook p. 670)

The bottom line is covenants and equitable servitudes can restrict the free use of even a fee simple absolute for a very long time, for so long as they are realizing "the benefits of the original plan for a restricted subdivision."  This includes exclusionary residential covenants that are far more exclusionary than single-family zoning laws.