Property II

Case Rules

AKG Real Estate, LLC v. Kosterman

[T]he owner of a servient estate cannot unilaterally relocate or terminate an express easement.

Alft v. Stewart

An easement will always be construed as an easement appurtenant rather than an easement in gross if such an interpretation is fair.

Blancett v. Blancett

Page 716, Bottom

An effective legal delivery of a deed requires

  1. intent by the grantor to make a present transfer and
  2. a transfer of dominion and control.

It is well settled in New Mexico that a grantor's intent is central and may be determined from words, actions or surrounding circumstances during, preceding or following the execution of a deed.

Bob's Ready to Wear, Inc. v. Weaver

  • To determine if there is an easement by implication, both tracts must have previously had a common ownership and the use of the servient tract must have been established while they had this common ownership.

    If this is found, there are five factors considered:

    Page 538, Bottom
    1. whether the claimant is the grantor or the grantee of the dominant tract;
    2. the extent of necessity of the easement to the claimant;
    3. whether reciprocal benefits accrue to both the grantor and grantee;
    4. the manner in which the land was used prior to conveyance; and
    5. whether the prior use was or might have been known to the parties to the present litigation.

  • Page 550

    As a general rule, a license is revocable at the will of the owner of the property subject to the license. However, an owner may be estopped to revoke the license when, with the knowledge of the owner, the licensee makes valuable improvements in reliance upon the continued existence of the license.

Boomer v. Atlantic Cement Co.

Page 832, Bottomish

[W]here a nuisance has been found and where there has been any substantial damage shown by the party complaining, an injunction will be granted.

Boyles v. Hausmann

  • Page 661, Paragraph 3

    Restrictive covenants are to be construed so as to give effect to the intention of the parties at the time they agreed to the covenants. If the language is unambiguous, the covenant shall be enforced according to its plain language, and the covenant shall not be subject to rules of interpretation or construction. An ambiguity exists when the instrument at issue is susceptible of two or more reasonable but conflicting interpretations or meanings. The fact that the parties have suggested opposing meanings of a disputed instrument does not necessarily compel the conclusion that the instrument is ambiguous.

  • Page 661–662

    Restrictive covenants are to be construed in connection with the surrounding circumstances at the time that the covenants were made to give effect to the intention of the parties. "covenants which restrict the use of land are not favored by the law, and, if ambiguous, they should be construed in a manner which allows the maximum unrestricted use of the property." If the language is unambiguous, the covenant should be enforced according to its plain language. If a restrictive covenant agreement also contains a provision which provides for future alteration, the language employed determines the extent of that provision. Further, under no circumstances shall restrictions on the use of land be extended by mere implication.

Bremmeyer Excavating, Inc. v. McKenna

For a covenant to run with the land:

Page 587
  1. [T]he covenants must have been enforceable between the original parties, such enforceability being a question of contract law except insofar as the covenant must satisfy the statute of frauds;
  2. the covenant must "touch and concern" both the land to be benefitted and the land to be burdened;
  3. the covenanting parties must have intended to bind their successors in interest;
  4. there must be vertical privity of estate, i.e., privity between the original parties to the covenant and the present disputants; and
  5. there must be horizontal privity of estate, or privity between the original parties.

Brown v. Voss

Page 565, Bottom

As a general rule, an easement appurtenant to one parcel of land may not be extended by the owner of the dominant estate to other parcels owned by him, whether adjoining or distinct tracts, to which the easement is not appurtenant.

Chrismon v. Guilford County

  • Spot zoning requires a clear showing of a reasonable basis therefore.


    Page 861, Paragraph 3

    Among the factors relevant to this judicial balancing are

    • the size of the tract in question;
    • the compatibility of the disputed zoning action with an existing comprehensive zoning plan;
    • the benefits and detriments resulting from the zoning action for the owner of the newly zoned property, his neighbors, and the surrounding community; and
    • the relationship between the uses envisioned under the new zoning and the uses currently present in adjacent tracts.

    See Also:

    Spot Zoning
  • Page 864

    [T]he principal differences between valid conditional use zoning and illegal contract zoning are related and are essentially two in number.

    1. First, valid conditional use zoning features merely a unilateral promise from the landowner to the local zoning authority as to the landowner's intended use of the land in question, while illegal contract zoning anticipates a bilateral contract in which the landowner and the zoning authority make reciprocal promises.
    2. Second, in the context of conditional use zoning, the local zoning authority maintains its independent decision-making authority, while in the contract zoning scenario, it abandons that authority by binding itself contractually with the landowner seeking a zoning amendment.

Cook v. University Plaza

Page 402, Paragraph 3

Whether a contract is a lease or a license is not to be determined from the language that the parties choose to call it but from the legal effect of its provisions

County of Wayne v. Hathcock

Page 898For the condemned property to be a public use, it must either:

  1. Involve extreme public necessity that only the government can effect,
  2. Be transferred to a private entity still accountable to the public in its use of the property, or
  3. Be selected based on public concern, not based on the subsequent use of the land.

DVM Co. v. Bricker

Arizona law allows a landlord to repossess from commercial lessees for any breach, material or not.

Daugherty Cattle Co. v. General Construction Co.

When a contract includes a forfeiture in the event of a breach, this can be avoided by making full compensation.

David Properties, Inc. v. Selk

Page 412, Paragraph 4

When a landlord demands a different rent for continued possession of property it owns, and a tenant receives that demand and thereafter continues on in possession without protest, the tenant impliedly agrees to pay the rent demanded.

Dolan v. City of Tigard

The necessary connection between the required dedication and the proposed development is should be judged by the "rough proportionality" test.

Page 963

No precise mathematical calculation is required for the rough proportionality test, but a 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.

Drake v. Hosley

  • Page 675, Top

    The traditional rule followed by a majority of jurisdictions is that a broker is entitled to a commission when he produces a buyer ready, willing and able to purchase the property on the seller's terms, even if the sale is not completed.

  • The minority says that "a real estate broker does not earn a commission unless the contract of sale is performed." "[I]t emphasizes that a broker has not produced a ready, willing and able buyer if the buyer refuses or is unable to perform at closing." It also says that "public policy requires the courts to read into every brokerage agreement or contract of sale a requirement that barring default by the seller, commissions shall not be deemed earned against him unless the contract of sale is performed."

Ernst v. Conditt

  • Justia LogoCaseMine LogoJustia LogoCaseMine LogoPage 427–428

    "If the instrument purports to transfer the lessee's estate for the entire remainder of his term it is an assignment, regardless of its form or of the parties' intention. Conversely, if the instrument purports to transfer the lessee's estate for less than the entire term—even for a day less—it is a sublease, regardless of its form or of the parties' intention."

  • Justia LogoCaseMine LogoJustia LogoCaseMine LogoPage 428

    "The cardinal rule to be followed in this state, in construing deeds and other written instruments, is to ascertain the intention of the parties."

Evergreen Highlands Association v. West

The subdivision is a common interest community by implication and petitioner has the implied power to levy assessments against lot owners for maintenance and improvement of common areas.

Fidelity Mutual Life Ins. Co. v. Kaminsky

Page 443, Top

In order to prevail on his claim that Fidelity constructively evicted him and thereby relieved him of his rent obligation, Dr. Kaminsky had to show the following:

  1. Fidelity intended that he no longer enjoy the premises, which intent the trier of fact could infer from the circumstances;
  2. Fidelity, or those acting for Fidelity or with its permission, committed a material act or omission which substantially interfered with use and enjoyment of the premises for their leased purpose, here an office for the practice of medicine;
  3. Fidelity's act or omission permanently deprived Dr. Kaminsky of the use and enjoyment of the premises; and
  4. Dr. Kaminsky abandoned the premises within a reasonable period of time after the act or omission.

Fink v. Miller

Page 648–649

Instead, a more appropriate test to determine abandonment of such a covenant requires the party seeking enforcement to prove that existing "violations are so great as to lead the mind of the average [person] to reasonably conclude that the restriction in question has been abandoned." In simplest terms, this test is met when the average person, upon inspection of a subdivision and knowing of a certain restriction, will readily observe sufficient violations so that he or she will logically infer that the property owners neither adhere to nor enforce the restriction.

In applying this test, courts consider the "'number, nature, and severity of the then existing violation[s], any prior acts of enforcement of the restriction, and whether it is still possible to realize to a substantial degree the benefits intended through the covenant.'"

To maximize the benefits of the essentially objective quality of this test, courts applying it should first analyze violations as to their number, nature, and severity. If these elements alone are sufficient to lead the average person to believe the covenant has been abandoned, it is not necessary to go further. However, if abandonment is still in doubt, courts should then consider the other two factors--namely, prior enforcement efforts and possible realization of benefits--to resolve the abandonment question.

Frenchtown Square Partnership v. Lenstone, Inc.

Landlords owe a duty to mitigate damages applies to all leases unless provided otherwise.

Frimberger v. Anzellotti

  • Page 773, Paragraph 3

    An encumbrance is defined as "every right to or interest in the land which may subsist in third persons, to the diminution of the value of the land, but consistent with the passing of the fee by the conveyance." All encumbrances may be classed as either

    1. a pecuniary charge against the premises, such as mortgages, judgment liens, tax liens, or assessments, or
    2. estates or interests in the property less than the fee, like leases, life estates or dower rights, or
    3. easements or servitudes on the land, such as rights of way, restrictive covenants and profits.

    It is important to note that the covenant against encumbrances operates in praesenti and cannot be breached unless the encumbrance existed at the time of the conveyance.

  • Page 775, Paragraph 2

    [F]or a deed to be free of all encumbrances there must be marketable title that can be sold "at a fair price to a reasonable purchaser or mortgaged to a person of reasonable prudence as a security for the loan of money." To render a title unmarketable, the defect must present a real and substantial probability of litigation or loss at the time of the conveyance.

Gabriel v. Cazier

Ambiguous terms in restrictive covenants must be interpreted according to the intent of the parties at the time the covenant was drafted.

Garland v. Rosenshein

Page 599, Paragraph 3

A restriction may be enforced only if it "is at the time of the proceeding of actual and substantial benefit to a person claiming rights of enforcement."

Gorman v. Ratliff

The provisions of the lease authorizing defendant's self-help remedy are invalid. Defendant's actions constituted a forcible entry and detainer.

Graves v. Dennis

  • Abandonment of an easement must have both exclusive use of the new right-of-way and nonuse of the old right-of-way.

  • Page 572, Paragraph 1

    A finding of abandonment is usually based on circumstantial evidence rather than on direct expressions of intent

Heydon v. MediaOne

Page 557, Paragraph 4

"Courts have generally concluded [however] that an easement in gross is capable of division when the instrument of creation so indicates or when the existence of an 'exclusive' easement gives rise to an inference that the servitude is apportionable." In this context, "exclusive" means that the "easement holder has the sole right to engage in the type of use authorized by the servitude." In other words, the grantor does not retain common rights with the easement holder to engage in the same activity for which the easement is granted.

Hickey v. Green

Page 680, Paragraph 2

A contract for the transfer of an interest in land may be specifically enforced notwithstanding failure to comply with the Statute of Frauds if it is established that the party seeking enforcement, in reasonable reliance on the contract and on the continuing assent of the party against whom enforcement is sought, has so changed his position that injustice can be avoided only by specific enforcement"

Hubble v. O'Connor

LexisNexis IconPage 816

[I]f there is doubt as to what was intended by the purchasers actions, that doubt is resolved in favor of avoiding a forfeiture of the contract

Janck v. Department of Housing & Urban Development

  • Page 513, Paragraph 2, Bottom

    [T]he statute is violated by "any ad that would discourage an ordinary reader of a particular [protected group] from answering it."

  • No showing of a subjective intent to discriminate is necessary to establish a violation, but evidence thereof does show whether the words in fact do so.

Johnson v. Davis

Page 693

In the state of Florida, relief for a fraudulent misrepresentation may be granted only when the following elements are present:

  1. a false statement concerning a material fact;
  2. the representor's knowledge that the representation is false;
  3. an intention that the representation induce another to act on it; and,
  4. consequent injury by the party acting in reliance on the representation.

Julian v. Christopher

When a lease gives the landlord the right to withhold consent to a transfer, the landlord must act reasonably.


Financial irresponsibility of the transferee or unsuitability of the intended use of the property by the transferee would be valid reasons to refuse a transfer.

Securing a rent increase would not.

Kelo v. City of New London

Yes, economic development is a public use of land that is seizable through eminent domain.

Lamden v. La Jolla Shores Clubdominium Homeowners Ass'n

Page 238 (not in casebook)

Where a duly constituted community association board, upon reasonable investigation, in good faith and with regard for the best interests of the community association and its members, exercises discretion within the scope of its authority under relevant statutes, covenants and restrictions to select among means for discharging an obligation to maintain and repair a development's common areas, courts should defer to the board's authority and presumed expertise. Thus, we adopt today for California courts a rule of judicial deference to community association board decisionmaking that applies, regardless of an association's corporate status, when owners in common interest developments seek to litigate ordinary maintenance decisions entrusted to the discretion of their associations' boards of directors.

Lohmeyer v. Bower

  • Page 760, Paragraph 2–3Municipal restrictions do not render a title unmerchantable, but private restrictions on what may be built on land do.

  • Page 761, Top

    "To render the title to real estate unmarketable, the defect of which the purchaser complains must be of a substantial character and one from which he may suffer injury. Mere immaterial defects which do not diminish in quantity, quality or value the property contracted for, constitute no ground upon which the purchaser may reject the title. Facts must be known at the time which fairly raise a reasonable doubt as to the title; a mere possibility or conjecture that such a state of facts may be developed at some future time is not sufficient."

Lucas v. South Carolina Coastal Council

  • Page 925

    While generally no rule exists for how far is too far for regulations to constitute a taking, regulatory actions are compensable without case-specific inquiry in two scenarios:

    1. Where regulations compel the property owner to suffer a physical "invasion" of his property.
    2. Where regulation denies all economically beneficial or productive use of land.


    Page 927

    "[L]and-use regulation does not effect a taking if it 'substantially advances legitimate state interests' . . . ."


    Page 929

    Any limitation so severe cannot be newly legislated or decreed (without compensation), but must inhere in the title itself, in the restrictions that background principles of the State's law of property and nuisance already place upon land ownership. A law or decree with such an effect must, in other words, do no more than duplicate the result that could have been achieved in the courts—by adjacent landowners (or other uniquely affected persons) under the State's law of private nuisance, or by the State under its complementary power to abate nuisances that affect the public generally, or otherwise.

Mahoney v. Tingley

Page 710, Bottom

"Unless it be demonstrated that provisions for liquidated damages are actually a penalty or are . . . otherwise unlawful, this court will sustain them."

Matthew v. Smith

Page 873, Top

[A]n applicant for a variance must prove:

  1. relief is necessary because of the unique character of the property rather than for personal considerations; and
  2. applying the strict letter of the ordinance would result in unnecessary hardship; and the
  3. imposition of such a hardship is not necessary for the preservation of the plan; and
  4. granting the variance will result in substantial justice to all.

Although all the requirements must be satisfied, it is generally held that "'[u]nnecessary hardship' is the principal bases on which a variance is granted."


Page 873, Bottom

Before the Board may exercise its discretion and grant a variance upon the ground of unnecessary hardship, the record must show that

  1. the land in question cannot yield a reasonable return if used only for a purpose allowed in that zone;
  2. that the plight of the owner is due to unique circumstances and not to the general conditions in the neighborhood which may reflect the unreasonableness of the zoning ordinance itself; and
  3. that the use to be authorized by the variance will not alter the essential character of the locality.


Lack of reasonable return requires that the owner is deprived of all beneficial use of the land.

Melendez v. Hintz

  • Page 544, Bottom

    A claimant, in order to acquire a prescriptive easement in Idaho, must present reasonably clear and convincing evidence of open, notorious, continuous, uninterrupted use, under a claim of right, with the knowledge of the owner of the servient estate for the prescriptive period.

  • A use of someone else's land is presumed to be adverse and under a claim of right. The burden is on the owner of servient tenement to show that use was permissive.


    • If the land was unimproved, its use is presumed to be permissive.

    • If the owner constructs a way over the land for his own use and convenience, others using it without interfering with his use is presumed to be permissive.

Nahrstedt v. Lakeside Village Condominium Ass'n, Inc.

Recorded use restrictions are presumed to be valid. It will only be invalid if the restriction is arbitrary, imposes burdens on the use of the land that substantially outweigh the restriction's benefits to the development's residents, or violates a fundamental public policy.

National Packaging Corporation v. Belmont

The doctrine of idem sonans states that where a name's sound is substantially preserve, bad spelling will not invalidate its effect.

Neponsit Property Owners' Ass'n, Inc. v. Emigrant Industrial Savings Bank

  • LexisNexis IconWestLaw LogoCaseMine LogoPage 592–593

    Regardless of the intention of the parties, a covenant will run with the land and will be enforceable against a subsequent purchaser of the land at the suit of one who claims the benefit of the covenant, only if the covenant complies with certain legal requirements. These requirements rest upon ancient rules and precedents. The age-old essentials of a real covenant, aside from the form of the covenant, may be summarily formulated as follows:

    1. it must appear that grantor and grantee intended that the covenant should run with the land;
    2. it must appear that the covenant is one "touching" or "concerning" the land with which it runs;
    3. it must appear that there is "privity of estate" between the promisee or party claiming the benefit of the covenant and the right to enforce it, and the promisor or party who rests under the burden of the covenant.
  • LexisNexis IconWestLaw LogoCaseMine LogoPage 594

    [A] covenant which runs with the land must affect the legal relations—the advantages and the burdens—of the parties to the covenant, as owners of particular parcels of land and not merely as members of the community in general, such as taxpayers or owners of other land.

Patterson v. Paul

  • A negative easement restricts the use of property, but gives no right to enter or use the property.

  • Page 527, Paragraph 2

    An affirmative easement "creates a nonpossessory right to enter and use land in the possession of another and obligates the possessor not to interfere with the uses authorized by the easement."

Penn Central Transportation Co. v. City of New York

Page 911

The economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment-backed expectations are, of course, relevant considerations. So, too, is the character of the governmental action. A "taking" may more readily be found when the interference with property can be characterized as a physical invasion by government than when interference arises from some public program adjusting the benefits and burdens of economic life to promote the common good.


The two interests must be balanced.

Poyck v. Bryant

Secondhand smoke from a neighbor can be grounds for constructive eviction.

Ransburg v. Richards

Indiana does allow exculpatory clauses. However, a court may declare a valid contract unenforceable if it contravenes the public policy of Indiana.

Courts refuse to enforce contracts on public policy grounds when:

  1. They contravene statute.
  2. They clearly tend to injure the public in some way.
  3. They are otherwise contrary to the declared public policy of Indiana.
    • In this case, five factors must be balanced:
      1. The nature of the subject matter of the contract
      2. The strength of the public policy underlying the statute
      3. The likelihood that refusal to enforce the bargain or term will further that policy
      4. How serious or deserved would be the forfeiture suffered by the party attempting to enforce the bargain
      5. The parties relative bargaining power and freedom to contract

Sanford v. Breidenbach

  • Page 702, Bottom

    "A decree for the specific performance of a contract is not a matter of right, but of grace, granted on equitable principles, and rests in the sound discretion of the court."

  • Page 703, Paragraph 5

    "Where contract for exchange of real estate contained no provision as to who should bear the loss in case any building on either of properties should be destroyed before deeds were executed, the purchaser must be regarded as equitable owner of property, and loss by reason of fire destroying building before execution of deed falls on him."

    Page 703, Paragraph 6

    In general, the rule under the doctrine of equitable conversion is that a contract to sell real property vests the equitable ownership of the property in the purchaser; and thus, where there is any loss by a destruction of the property through casualty during the pendency of the contract (neither party being guilty of causing the destruction), such loss must be borne by the purchaser.

    Page 703–704

    [E]quitable conversion by the purchaser, in a contract to convey real property, does become effective in those cases in which the vendor has fulfilled all conditions and is entitled to enforce specific performance, and the parties, by their contract, intend that title shall pass to the vendee upon the signing of the contract of purchase.

Schwalm v. Deanhardt

Justia LogoPage 751, Paragraph 2

"'[Notice] is implied when it consists of knowledge of facts so informing that a reasonably cautious person would be prompted to further inquiry, which further inquiry would inform him of the outstanding unrecorded conveyance.'"

Stop the Beach Renourishment, Inc. v. Florida Dept. of Envt'l Protection

At common law, a littoral owner (one who owns land adjacent to the shore) has the right to his property being modified by accretions and relictions—the gradual accumulations and erosions by the water. If the change in shoreline happens suddenly, it is an avulsion and the littoral owner's boundary line remains where it was.

Village of Euclid v. Ambler Realty Co.

Page 848, Bottom

[I]t must be said before the ordinance can be declared unconstitutional that such provisions are clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.

West Alameda Heights Homeowners Ass'n v. Board of County Commissioners

Changed Circumstances Doctrine

Page 653

"When the purpose for which the restriction was imposed has come to an end, and where the use of the tract of land for whose benefit it was established has so utterly changed that no party to the bill could be heard to enforce it in equity or would suffer any damage by its violation, . . . a proper case is made out for equitable relief."