Next week: No class Wednesday and Thursday; however, Riley will conduct an optional review session on Wednesday April 8 at 3 PM in Room 113.
The final exam is Tuesday April 28. I will schedule a room and a time for me to conduct a pre-exam Q & A session, probably on Saturday April 25 or Sunday April 26.
--Casebook p. 628-640
--Casebook p. 91-98; Re-read Moore case (casebook p. 894-896)
If time permits:
-Casebook p. 662-672
Remember, no class Wednesday and Thursday (April 8 & 9)
1917 Deed Neposit Realty conveys Blackacre in FSA to Mr and Mrs Deyer and in the deed the Deyers covenanted on behalf of themselves, their successors and assigns to pay an annual charge of $4 for the maintenance of the roads, paths, parks, beach, sewer, and other common areas.
The deed also provided that the covenant was made for the benefit of the grantor, its successors and assigns which may include “a Property Owners Association which may hereafter be organized.”
Neponsit Realty----à Mr and Mrs Deyer
The Deyers conveyed the land to x who conveyed to Y who conveyed to Defendant Bank.
Neponsit Realty assigned the benefit of the covenants to the Neponsit Property Owners Association, which does not own any land in the subdivision.
Mr. Allen covenants not to build on Blackacre--->London County Council(no land nearby)
Mr. Allen Conveys Blackacre to Mrs Allen (with notice)
Does the burden of the covenant run to Mrs. Allen as an equitable servitude? No! Why not?
London County Council--What happens when the burden of a covenant
touches and concerns land but the benefit of the covenant is in gross
(i.e. the benefit is personal). As the note on p. 640 puts it,
"Traditionally, a covenant would not run unless it benefited land as
well as burdening land. In other words, the benefit of the covenant
could not be in gross." Many cases reject this view, and as the casebook
points out on p. 640, the Restatement "recognizes covenants with
benefits in gross; however the party seeking to enforce such a covenant
must show a legitimate interest in its enforcement." Most covenants in
the real world--for example covenants in a single family development
such as The Knolls--are not in gross because they are part of a common
scheme of reciprocal restrictions which both benefit and burden all lots
in the subdivision.
From Oyez:
Facts of the case
In 1911, a St. Louis, Missouri neighborhood enacted a racially restrictive covenant designed to prevent African-Americans and Asian-Americans from living in the area. In 1945, an African-American family (the Shelleys) moved into the neighborhood. Louis Kraemer brought suit to enforce the covenant and prevent the Shelleys from moving into their house. A similar lawsuit arose in Detroit, Michigan. Both state supreme courts enforced the covenants because they were private rather than state action. The Supreme Court consolidated the cases on appeal.
Question
Does the enforcement of a racially restrictive covenant violate the Equal Protection Clause of the Fourteenth Amendment?
What happens when the burden of a covenant touches and concerns land but the benefit of the covenant is in gross (i.e. the benefit is personal). As the note on p. 640 puts it, "Traditionally, a covenant would not run unless it benefited land as well as burdening land. In other words, the benefit of the covenant could not be in gross." Many cases reject this view, and as the casebook points out on p. 640, the Restatement "recognizes covenants with benefits in gross; however the party seeking to enforce such a covenant must show a legitimate interest in its enforcement." Most covenants in the real world--for example covenants in a single family development such as Hut Hut Hut Estates--are not in gross because they are part of a common scheme of reciprocal restrictions which both benefit and burden all lots in the subdivision.
Don't worry too much about this case--it has very unusual facts.
Many apartment buildings in London contain a little private park or green space that only tenants who lease flats in the building have access to. If you have seen the Julia Roberts-Hugh Grant movie Notting Hill, there is a scene where they climb the fence and sit on one of the benches in such a private little park. A warmly romantic scene, but never forget they are trespassing on private property!
1808 Tulk (plaintiff) conveys to Elms in FSA and Elms covenants on behalf of himself his successors and assigns to keep and maintain Blackacre as as a park uncovered with any buildings.
Elms conveys to x who conveys to Y who conveys to Moxhay (who does not agree to be bound, but who takes with notice of the covenant).
So, here is the problem--remember, the English common law rule was that covenants did not run with fee simple estates--only in leasehold estates and life estates:
English View--mutual or tenurial privity is required between the original covenanting parties. In other words, under the English view covenants would not run with the land in Fee Simple conveyances, only in landlord-tenant or life tenant/reversioner relationships.
Does that clear rule bother the Lord Chancellor sitting jn equity?
Questions to ponder:
1.Why didn't the covenant run with the land against defendant at law?
2. Why did the court believe it was inequitable for the original grantee, Elms, to sell the property to defendant free of the burden of the covenant? How is it inequitable for defendant to purchase land with notice of a covenant that, under the law, does not run with the land? Did Pl have a reasonable expectation that an unenforceable covenant would be enforced against remote grantees?
3. Why not instead say that it is inequitable for the Pl to attempt to contract for a covenant to run when he knows that under the law such covenants are not permitted to run? Isn't it a windfall for the Pl when a court of "equity" ignores the law and allows a non-running covenant to run as an "equitable servitude"? Isn't Pl the one who is unjustly enriched?
4. Suppose landlord-tenant law prohibits landlords from disclaiming liability for breach of the implied warranty of habitability (the landlord's obligation to repair the premises in order to maintain them in a habitable condition). Nevertheless, Sam Slumlord enters into a lease with Terrific Tenant that provides "Landlord has no obligation to make any repairs or to maintain the premises in a state of habitability." If Tenant sues Landlord for breach of the implied (and non-disclaimable) warranty of habitability, should the disclaimer clause in the lease be enforced? Is it equitable for the Tenant to agree to the clause and then argue it is not enforceable? Is it ethical for the Landlord's attorney to insert a clause in the lease that he knows is not enforceable under existing law?
Since under Tulk v. Moxhay equitable servitudes are not required to satisfy any requirement of horizontal privity, as one Hornbook observes "[t]hey have nearly replaced real covenants in the courts today. Recent court decisions rarely turn upon real covenant doctrine." Why litigate a real covenant when it is easier to establish an equitable servitude? Notice, however, that since equity normally does not grant money damages, you may need to establish a common law real covenant if you are seeking money damages instead of an injunction. By the way, there are not two separate promises in the deed, one called a real covenant and the other an equitable servitude. Just one promise with different rules in law and equity.
Notice, the touch and concern requirement does apply to equitable servitudes.
The privity requirement is gone, but the touch and concern requirement still applies.
And, at least in theory, an equitable servitude may be enforced against an adverse possessor who takes with notice. There is not much law on this point, but commentators usually take the position that, since privity (including vertical privity) is no longer required in equity, equitable servitudes are enforceable against anyone who comes into possession of the burdened land with notice of the covenant.
"The Constitution is not the law that governs us. [It] is the law that governs those who govern us." --Randy Barnett
Here is how a con law casebook explains this concept:
Introduction to the State Action Concept. With the exception of the thirteenth amendment the Constitution is a restraint on governmental action and does not provide one private citizen with rights against another. The Bill of Rights restrains the action of the federal government. The fourteenth amendment provides that “no state shall” deprive any person of due process or equal protection. The fifteenth amendment prohibits denial of voting rights “by the United States or by any State. . . . ”We will take only a very brief look at this concept. In most constitutional cases that arise, it is clearly the state that is acting in a way that raises issues of unconstitutionality. In my opinion, the most difficult issue today is whether there is state action when government partners with social media platforms to censor speech that government dislikes. The recent partnership between government and social media giants to censor accurate information about public health measures concerning covid is one huge area of concern. So too is the partnership between government officials and social media giants to censor the Hunter Biden laptop story in order to lock-down truthful information harmful to the Biden 2020 presidential campaign.
We will only scratch the surface of the state action doctrine, but I want to make sure you are aware of this issue and can spot it when it arises.
But here is how to think about this. Suppose I am an op-ed reporter for the New York Times. My editor, Perry White, asks me to write an editorial on the 303 Creative case. I write a great piece arguing that the public accommodations law as applied to wedding artists constitutes unconstitutional viewpoint-based compelled speech. Mr. White refuses to publish my piece, because he disagrees with my viewpoint. Does the Free Speech Clause apply?
But now assume that the government has passed a law forbidding the publication of any article that in any way criticizes public accommodation laws. Now does the First Amendment apply?
Now think about government pressure on Twitter to censor tweets criticizing government lockdowns and vax & mask mandates. State action? How much governmental pressure is necessary?
Many apartment buildings in London contain a little private park or green space that only tenants who lease flats in the building have access to. If you have seen the Julia Roberts-Hugh Grant movie Notting Hill, there is a scene where they climb the fence and sit on one of the benches in such a private little park. A warmly romantic scene, but never forget they are trespassing on private property!
Instead of a zoning ordinance, assume that a covenant running with the land defines a single-family the same way the zoning ordinance did in Moore:
Here is the single family zoning ordinance being enforced against Mrs. Moore in this case:
Section 1341.08 provides:
“‘Family’ means a number of individuals related to the nominal head of the household
or to the spouse of the nominal head of the household living as a single housekeeping unit in a
single dwelling unit, but limited to the following:
“(a) Husband or wife of the nominal head of the household.
“(b) Unmarried children of the nominal head of the household or of the spouse of the
nominal head of the household, provided, however, that such unmarried children have no
children residing with them.
“(c) Father or mother of the nominal head of the household or of the spouse of the
nominal head of the household.
“(d) Notwithstanding the provisions of subsection (b) hereof, a family may include not
more than one dependent married or unmarried child of the nominal head of the household or
of the spouse of the nominal head of the household and the spouse and dependent children of such dependent child. For the purpose of this subsection, a dependent person is one who has
more than fifty percent of his total support furnished for him by the nominal head of the
household and the spouse of the nominal head of the household.
“(e) A family may consist of one individual.”
Mrs. Moore (head of household)
Dale Sr. John (not residing with Mrs. M)
Dale Jr John Jr.
Mrs. Moore's family was outside the East Cleveland ordinance. Her grandson John
was considered an "illegal occupant" and Mrs. Moore was convicted and
sentenced to 5 days in jail plus a $25 fine. p.895
So, how does she win her case under the law of covenants?
Does the narrow definition of family Touch and concern the land?
If it runs under state law, is it unconstitutional under the state action doctrine as defined in Shelley v Kramer?
LONDON. Michaelmas Term lately over, and the Lord Chancellor sitting in Lincoln’s Inn Hall. Implacable November weather. As much mud in the streets as if the waters had but newly retired from the face of the earth, and it would not be wonderful to meet a Megalosaurus, forty feet long or so, waddling like an elephantine lizard up Holborn Hill. Smoke lowering down from chimney-pots, making a soft black drizzle, with flakes of soot in it as big as full-grown snow-flakes — gone into mourning, one might imagine, for the death of the sun. Dogs, undistinguishable in mire. Horses, scarcely better; splashed to their very blinkers. Foot passengers, jostling one another’s umbrellas in a general infection of ill-temper, and losing their foot-hold at street-corners, where tens of thousands of other foot passengers have been slipping and sliding since the day broke (if the day ever broke), adding new deposits to the crust upon crust of mud, sticking at those points tenaciously to the pavement, and accumulating at compound interest.From Bleak House
Fog everywhere. Fog up the river, where it flows among green aits [Brit word for small green islands in a river] and meadows; fog down the river, where it rolls defiled among the tiers of shipping and the waterside pollutions of a great (and dirty) city. Fog on the Essex marshes, fog on the Kentish heights. Fog creeping into the cabooses of collier-brigs; fog lying out on the yards, and hovering in the rigging of great ships; fog drooping on the gunwales of barges and small boats. Fog in the eyes and throats of ancient Greenwich pensioners, wheezing by the firesides of their wards; fog in the stem and bowl of the afternoon pipe of the wrathful skipper, down in his close cabin; fog cruelly pinching the toes and fingers of his shivering little ’prentice boy on deck. Chance people on the bridges peeping over the parapets into a nether sky of fog, with fog all round them, as if they were up in a balloon, and hanging in the misty clouds.
Gas looming through the fog in divers places in the streets, much as the sun may, from the spongey fields, be seen to loom by husbandman and ploughboy. Most of the shops lighted two hours before their time — as the gas seems to know, for it has a haggard and unwilling look.
The raw afternoon is rawest, and the dense fog is densest, and the muddy streets are muddiest near that leaden-headed old obstruction, appropriate ornament for the threshold of a leaden-headed old corporation, Temple Bar. And hard by Temple Bar, in Lincoln’s Inn Hall, at the very heart of the fog, sits the Lord High Chancellor in his High Court of Chancery.”
Attendance Policy: Live, in person class attendance is required. Zoom attendance will not be an option. I often use problems discussed in class as the clay from which I sculpt exam questions. Absences may be excused at my discretion, provided the student
seeks permission before or soon thereafter. If you miss class, you should get class notes from classmates for the class you missed.
Grading Policy: The exam for this course will be in person, in the classroom and on the day scheduled for the exam. The exam will be completely closed book/secure (closed) mode: no written or electronic materials will be allowed. Your
grade for the course will be based 100% upon your performance on the exam. The exam will be an objective exam--multiple choice and true-false. Your score for the exam will be based on the number of correct answers.
Class Blog: Please check the course blog regularly for class announcements and
substantive content. I will assume you have notice of anything posted
on the course blog. The blog address is:
http://hoorayproperty.blogspot.com/
Required Text:
1. Cribbet, Findley et al, Property: Cases and Materials (9th ed. 2008)(your "Casebook")
Assignments [subject to change]
First Possession
1. Casebook p. 1-18 (for background); Casebook p. 103-113 (Goddard and Eads)
2. Casebook p. 113-124 (Popov v. Hayahsi ); in class viewing of Up For Grabs, a documentary about this case. This will be a double class (i.e. 3 hours).
3. Casebook P.124-129; 131-133 (Armory; Bridges, Sharman, McAvoy); P. 138-140
Transfer of Ownership by Gift
4. Casebook p. 213-235 (gift) [probably take 2 classes to cover this assignment]
Estates and Future Interests
5. Casebook p. 237-248 (for background only); p. 251-267
6. Casebook p. 267-281
7. Casebook p. 281-297
8. Casebook P. 300-302
9. Casebook p. 307-323
10. Casebook p. 323 -328
11. Casebook p. 334-346 (background only); 346-350
12. Casebook p. 355-361; 366-370
Concurrent Ownership
13. Casebook p. 371-379; 385-405
14. Casebook P. 412-420
Constitutional Protection of Private Property: The Takings Clause
15. Casebook p. 791-807 (Public Use Requirement)
16. U.S. v. Causby (casebook p. 730-738); Casebook p. 807-810 (Physical Takings and Loretto);Cedar Point decision
17. Regulatory Takings: Mahon (casebook p. 811-816); Penn Central (casebook p. 820-836)
18. Euclid (casebook p.753-763); First English (casebook p. 816-820); Keystone, 480 US 470 (1987) (read it on Hein or WestLaw).
19. Lucas (casebook p. 836-849)
20. Nollan and Dolan (casebook p. 849-868); Sheetz v. County of El Dorado (2024): link
21. Palazzolo (casebook p. 868-879); Tahoe-Sierra (link); (casebook p. 879-881); Tyler v. Hennepin County, Minnesota (link) (read opinion at link 2)
Exclusionary Zoning and Equal Protection
23. Washington v. Davis (link); Casebook p. 883-896; Video of me on on Equal Laws vs Equal Results:
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https://unl.yuja.com/V/Video?v=6828169&node=29033592&a=134658278&autoplay=1 |
RLUIPA
(the Religious Land Use and Institutional Persons Act) is a recent
Federal Civil Rights law that protects religious land use--i.e., it is a
property law that protects the right of landowners to use their real
property for the purpose of religious exercise.
25. RLUIPA Materials (I will email them to you in PDF format)
The Recording System
26. Casebook p. 1129-1144
27. Casebook p. 1144-1158
28. Casebook p. 1158-1165
29. Casebook p. 1174-1188
Adverse Possession
30. Casebook p.156-191
Real Covenants and Equitable Servitudes
31. Casebook p. 617-628
32. Casebook p. 628-640
33. Casebook p. 91-98; Re-read Moore case (casebook p. 894-896)
34. Casebook p. 662-672
Landlord and Tenant: A Brief Introduction (with emphasis on Nebraska Law)35. 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.
If Time Permits:
V. Easements, Etc.
36. Casebook p. 559-571
37. Casebook p. 576-593
End of My (Duncan's) Syllabus: Now For Something Completely Different
____________________________________________________________________________
ABA Requirements for
Study: The ABA requires students to spend approximately two hours studying
out of class for every hour spent in class. I should not have to even mention
this—because you spend much more than 2 hours per class hour preparing for
class and studying the materials—but to satisfy the powers that be in the ABA,
I am hereby explicitly and emphatically requiring you to spend at least 2 hours studying this course for
each one hour spent in class. I anticipate that you will spend the out-of-class
time reading and re-reading class materials until you have mastered the issues
and reasoning of the cases and problems, thinking rigorously about the
materials, writing notes both before and after each class on the materials and
issues assigned for that class and discussed in class, reading and thinking
about the posts I write on our class blog and discussing materials with your
classmates. Obey the ABA!
"Learning Outcomes"
Property is a course that contains a great deal of
foundational legal vocabulary and concepts--such as first possession
& estates and future interests--but it also contains a great deal of
public law
and “social justice” content. Most of the latter will arise when we study constitutional property rights under the Takings Clause,
zoning restrictions on religious land use, and equal
protection under the 14th Amendment and exclusionary zoning.
All of this being said, here are the "learning outcomes" for this course. If you work hard to master the course, you will:
(1) learn how to derive
legal rules and standards from case law and to critically analyze judicial opinions and legal arguments.
--Casebook p.156-191
Real Covenants and Equitable Servitudes
--Casebook p. 617-634 (Don't worry too much about the complicated facts of Gallagher v Bell)
Holy Week Wednesday & Thursday April 1 & 2 no class (I am travelling to Nashville to attend Chris Tomlin's Good Friday worship service)
I live in the "Unpreserved" (across Pioneers from the Preserve). My house looks out on a lovely little pond and a wooded area. This "common area" includes a nice little path around the pond that homeowners in the development have access to. As a homeowner with access to this common area, I am subject to a covenant requiring each homeowner to pay an annual charge of about $300 to help pay for maintenance in this common area (mostly mowing, mulching, and weed control).
Does this annual payment touch and concern the land?
Now take a look at note 4 on page 633--there is a little bit of fog surrounding fees assessed on homeowners in country club developments. These are edge cases under touch and concern.
Mighty Katie Duncan at the BatIt seams we cannot easily avoid the tension between the alienability principle and the free contract... principle, and it is not clear how libertarian thought resolves this dispute. Several years ago my property law students discussed the problem faced by Justice Clarence Thomas’s father-in-law, Donald Lamp, when he posted an American flag from his condominium balcony after 9/11. The condominium association asked him to take it down because it had a rule against any external adornments on the building, including flags, banners, structures, wind chimes, etc. Lamp refused to do so. I asked my students what a libertarian would say about this issue. Luckily, I had two articulate libertarians in my class.
The first libertarian said that Lamp should take down the flag. He bought a home in a condominium and, in so doing, he implicitly promised to abide by the rules of the association. This is freedom of contract at work; there should be no government regulations limiting the packages of property rights one can create. Indeed, if this is so, the neighbors own the right to order him to take down the flag. If he refuses to take it down, he is violating the property rights of his neighbors, as well as breaking his own promise. Because libertarians are not anarchists, this student believes it was perfectly appropriate for the neighbors to call on the state to enforce their contract and property rights by suing him, getting a court order to take down the flag, and using state power to enforce their rights against him.
A second student—also a strong libertarian—became livid. “You mean to tell me,” he said, “that someone puts up an American flag on his own home after the nation has been attacked by foreign enemies, and you want the sheriff to come take it down? And you call yourself a libertarian?” To this second student, enforcing such a rule was akin to re-creating feudalism, allowing the neighbors to act like feudal lords, controlling the day-to-day life of tenants on the land, depriving them of autonomy, liberty, and equal rights. Indeed, in 2006, Congress passed a law agreeing with this second student. The statute prohibits enforcement of any condominium declaration or rule that bans a home owner from displaying the American flag.
It is not easy to resolve the conflict between these two views. Consider the case of my friend who rents an apartment in a duplex in Cambridge. She wanted to put an Obama sign in the front lawn, but the landlord refused to let her. The federal statute does not protect her. For one thing, the act protects the right to fly the American flag but not the right to support candidates for public office. But further, Congress apparently wanted to give rights to home owners but not to tenants. This suggests that the one who has the right of free speech is the “owner,” not the “possessor,” and that Congress views the unit owner as the “owner” in the condominium complex (rather than viewing the owner as the unit owners acting collectively through the condo association) and as the landlord in the leasehold situation. But determining who the “owner” is to determine whether a regulation of land use is an intrusion on property rights or a protection of them requires an exercise of judgment. And this judgment is not easily resolved by the libertarian injunction to deregulate property and promote freedom of contract.
We must make a qualitative judgment about whose interests the law should protect; the injunction to maximize “liberty” does not get us all the way to solving the problem or justifying one solution over another. The only way to resolve the problem is to make a normative judgment about the contours of our way of life. As Professor Purdy demonstrates, liberty is not the same as the state of nature; it describes a way of life that entails freedom within legitimate political, social, and economic institutions. Defining what it means to promote liberty requires qualitative judgments about human values, not merely conceptual analysis of what it means to harm others. Just as efficiency analysis reduces all human values to costs and benefits, libertarian analysis reduces all choices to freedom and coercion or to distinguishing what is and is not a harm.
Wisdom from a meme on X (Twitter):
"The fact that homeowners associations exist is wild to me. You buy an entire house and some lady a couple doors down can tell you that you're not allowed to display your antique frog statuette and you have to pay a fine? Insane."
Narrator: True.
Each lot in this area was 50-feet wide. The problem here is that a number of lots had been incorrectly surveyed so that the land described in their deeds of the landowners are off by exactly one 50-foot lot.
In other words, their houses stood on one lot and their deeds described the adjacent lot located to the immediate west. So Howard's deed described lot B, Moyers' deed described lot C, and Kuntos' deed described lot D.
So what did Howard do when he discovered this mess?
See page 179:
“When the Howard’s survey was completed, they discovered that they were the record owners of the land occupied by the Moyers and that the Moyers held record title to the land occupied by the Kuntos. Howard approached Moyer and in return for a conveyance of the land upon which the Moyers’ house stood, Moyer conveyed to the Howards record title to the land upon which the Kunto house stood.”
1960: Howard conveys lot B--->Moyers
Moyers convey lot C--->Howard
Okay. So after the smoke clears, the Moyers have both occupancy and record ownership of Lot B under the deed from Howard.
Howard has possession of Lot A and record title to Lot C.
The Kuntos have possession of Lot C, and record title to Lot D.
What is Howard up to here? What do you think?
My colleague, Frank Snyder, passes on the news that the European Court of Human Rights has ruled that -- at least in some circumstances -- the United Kingdom's law of adverse possession violates the European Convention on Human Rights. Here is a press release.
The facts of the case, J A Pye (Oxford) Ltd. v. United Kingdom, are complicated but, in a nutshell, the applicants alleged that the United Kingdom law on adverse possession, by which they lost land with development potential to a "neighbour," operated in violation of Article 1 of Protocol No. 1 in their case.
Now take a look at page 190-191—An Environmental Critique of Adverse Possession
Suppose the Sierra Club buys up large parcels of wild, unoccupied land for the purpose of preserving the land for posterity. This is the best kind of environmentalism—raising money to preserve land rather than regulating other people’s use of their land.
Now Grizzly Duncan enters into adverse possession of a large tract of land owned by the Sierra Club. I build a cabin, hunt, fish, and walk about a few thousand acres for 10 years.
Who owns the land now?
See generally page 190-191.