I. What is Property?

A. Trespass and the Bundle of Rights

1. Cases: Theofel v. Farey-Jones. Intel v. Hamidi. Jacques v. Steenberg
a. Theofel v. Farey-Jones (9th Cir. 2009) [Database is like trespass]
i. Issue: At what point does an authorized entry into database records turn into a
trespass of property?
ii. Ruling: Permission to access a stored communication does not
constitute valid authorization if it would not defeat a trespass claim in
analogous circumstances
1. Trespass: an unprivileged, intentional intrusion on property
possessed by another. Gist is injury to possession
a. Essentially, Trespass is interference with one’s
interests in exclusive possession.
b. Contrast with Nuisance: nuisance deals with privilege of
use, trespass deals with right of possession.
b. Intel Corporation v. Hamidi (Cal. 2003)
i. Issue: Does an unauthorized electronic contact with a computer system
constitute a trespass to chattels?
ii. Ruling: Trespass to chattels occurs only when an intentional interference
with the possession of personal property causes some actual injury to
the property.
1. I.e., causing damage to the computer system or impairing its
functioning.
iii. Trespass to Chattels: Trespass to chattels is a tort whereby the infringing
party has intentionally interfered with another person's lawful possession of
a chattel (movable personal property). Requires injury to the chattels or to the
owner’s rights in it.
c. Jacque v. Steenberg Homes, Inc. (Wis. 1997) [Intentional Trespass with
no harm]
i. Issue: May a jury award punitive damages without compensatory damages in
an intentional trespass case? Yes.
ii. Issue: Does the “bundle of rights” also include the right to exclude, even when
no damage is done?
1. Yes. “The right to exclude is one of the most essential sticks in the
bundle of rights…” Dolan v. City of Tigard (1994)
iii. Ruling: Punitive damages may be awarded for an intentional trespass
even when no compensatory damages are awarded.
1. Stands for the importance of punitive damages in invasions of
personal rights.
2. Although some scholars criticize it for not promoting purpose of
the law: “Care for one’s own neihbors.”

Supplemental Material:
B. Exclusion and its Limits
 1. Cases: Lloyd Corp v. Tanner. State v. Shack. Commonwealth v. Magadini.
Prager University
a. Lloyd Corp v. Tanner (1972) [Shopping Mall Handbills]
i. Issue: May a private shopping center constitutionally prevent individuals
from passing out handbills from its premises?
1. Yes. When the handbills are unrelated to the center’s operations.
ii. Ruling: A private business may constitutionally exclude the
distribution of handbills on its property when those handbills are
completely unrelated to the business’ functions, and there are
alternative means for distributors to relay their message.
1. Since Lloyd Corp wasn’t acting as local govt. (Marsh v Alabama)
nor were the handbills directly related to the store, i.e. protesting a
store (Logan Valley Plaza), then OK to exclude.
2. Also, since the mall’s invitation is only to patrons of their stores,
the mall doesn’t amount to become a dedicated public space.
b. State v. Shack (N.J. 1971) [Lawyer Consult with Farm Workers]
i. Issue: Does a landowner have an absolute right to prohibit all individuals
from entering his property?
ii. Ruling: No. Rights in real property are not absolute and are limited
by the maintenance of the well-being of those people that the owner
permits on his land.
1. Property Rights balanced by conflicting individual and societal
interests.
2. “The more you open up your land, the more rights you are giving
away.”
c. Commonwealth v. Magadini [Homeless Necessity]
i. Issue: Can the defense of necessity apply to a homeless individual who
has trespassed on a private property in order to find safe shelter in winter
conditions? Yes.
ii. Ruling: Necessity is sometimes a proper defense to intentional
trespass.
iii. Necessity Defense: Requires (1) A clear and imminent danger, (2) A
reasonable expectation that one’s actions will directly help in abating the
danger, (3) Lack of effective legal alternatives, (4) not precluded by
statute.
d. Prager University [YouTube “censorship”]
i. Issue: Can YouTube infringe upon your rights by denying or restricting
your videos?
ii. Ruling: Because the First Amendment governs only governmental
restrictions on speech, a plaintiff typically cannot state a cause
of action against a private entity that creates its own video-sharing
social media website and make decisions about whether and how to
regulate content that has been uploaded on that website.
1. Also, YouTube does not amount to one of the “very few” public
functions that were traditionally “exclusively reserved to the State.”

Supplemental Material:

II. Acquiring Property

A. Possession & Capture
1. Cases: Pierson v. Post; Popov v Hayashi; Elliff v. Texon Drilling
a. Pierson v. Post (N.Y. 1805) [Fox Hunt]
i. Issue: Can a person obtain property rights over a wild animal merely by
chasing it during the hunt?
ii. Ruling: Pursuit of a wild animal does not confer property rights over
that wild animal to the hunter.
iii. Majority Rule: Possession of wild animal = unequivocal intention of
appropriating the animal to his individual use + deprivation of its
liberty + brought under the hunter's control.
b. Popov v. Hayashi (Cal. 2002) [Home Run Ball Catch]
i. Issue: Does someone have a right to possess abandoned property if the
person takes significant steps toward possession but is interrupted by the
unlawful acts of others?
ii. Ruling: When a person completes a significant portion of the steps
to achieve possession of an item, but is thwarted due to the
unlawful conduct of another, that person is entitled to a pre-
possessory interest of the item.
1. Pre-possessory interest when (1) Takes steps toward
possession but (2) prevented by unlawful acts of others.
a. Pre-possessory interest is qualified or limited by any other
possessory interests.
b. Here, the ball is split 50/50 to their equally strong claims.
c. Elliff v. Texon Drilling (Tex. 1948) [Texas Oil Drilling Mishap]
i. Issue: Whether the law of capture absolves respondents of any liability for
negligent waste or destruction of petitioner's gas/distillate, even though
substantially all of the waste or destruction occurred after the minerals
had been drained from the lands.
ii. Ruling: Negligent waste or destruction of gas and distillate drained
from a neighboring well under the law of capture is not a legal
appropriation of those minerals.
1. The law of capture does not apply in cases of negligent or
malicious misappropriation of resources.
2. Wrongful dissipation of resources deprives the owners the right
and opportunity to use them.

Supplemental Material:
B. Finders
1. Cases: Willcox v. Stroup; Armory v. Delamirie; Charrier v. Bell
a. Willcox v. Stroup (4th Cir. 2006) [Old Civil War Records]
i. Issue: When there is no other evidence available may a court use the
common law of possession to establish ownership?
ii. Ruling: When there is not enough evidence available to establish
title to an object, there is a presumption that an individual in
possession of the object is the rightful owner.
 1. Other potential forms of evidence: (1) Chain of title, (2) witness
testimony, (3) documentary evidence
2. "That possession is nine-tenths of the law is a truism hardly
bearing repetition." – Judge Harvie Wilkinson III
3. Allowing the State to claim ownership without overcoming
presumption creates litigation and disrupts expectations of
scholars and institutions.
b. Armory v. Delamirie (1702) [Chimney Sweep Finds a Jewel]
i. Issue: Does finding an item entitle the finder to sue for its return when
another party takes it from him?
ii. Ruling: A person who finds a piece of chattel has a possessory
property interest in the chattel, which may be enforced against
anyone except the true owner of the chattel.
1. True owner of the chattel considered to have a greater ownership
interest.
c. Charrier v. Bell (La. Ct. App. 1986) [Abandoned Burial Artifacts?]
i. Issue: Does the burial of artifacts or other objects with the deceased
result in abandonment of those artifacts?
ii. Ruling: Burying artifacts or other objects with the deceased is not
an intention to relinquish ownership of those objects.
1. Property is abandoned when an owner relinquishes ownership
with the intent to relinquish ownership.

Supplemental Material:
C. Adverse Possession and “Discovery”
1. Cases: Brown v. Gobble, Nome 2000 v. Faegstrom, Johnson v. M’intosh
a. Brown v. Gobble (W.Va. 1996) [Fence, Property Dispute] [Tacking]
[Spite Fences] [Adverse Possession]
i. Issue: May a party claiming title to land by adverse possession tack the
time that previous owners possessed the land to the time the party has
possessed the land?
ii. Ruling: One who seeks to assert title in land by adverse possession
must prove each of the following for the statutory period: that he
has held the land adversely and that the possession has been
actual, open and notorious, exclusive, continuous, and under a
claim of title or color of title.
a. Tacking allowed [adding up non-consecutive years]
iii. Adverse Possession; 6 elements: (1) Actual Possession, (2) Has held
track adversely or hostilely [this is intent], (3) Possession has been open
and notorious [known], (4) Possession has been exclusive, (5)
Possession has been continuous, (6) Possession is under claim of title
or color of title. OCEANS (Open, Continuous, etc.)
a. (2) can be met with either a claim thru Color of Title or
Claim of Title. See Case in OneNote.
b. Nome 2000 v. Fagerstrom (Alaska 1990) [Alaskan Indians living on North
Parcel]
 i. Issue: Can a party obtain title to land by adverse possession through
seasonal use during the entire statutory period and without intending to
claim the land as the party’s own?
ii. Ruling: The actions required for adverse possession depend on the
character of the land in question, and the requirements will be met
if the land is used for the statutory period as an average owner of
similar property would use it.
a. Otherwise put, adverse possession isn’t susceptible to
fixed standards. Quality/Quantity of acts to support
ownership depend on the land.
c. Johnson v. M’Intosh (1823) [More Indian Land Ownership – U.S. Gov.
Dominance – See OneNote] [“Discovery”]
i. Issue: Is a land grant by the United States Government superior to a
Native American land grant? Yes.
ii. Ruling: Land title transfers are only valid when made under the rule
of the currently prevailing government.
a. Confirms superiority of land grants issued by the U.S.
Supplemental Material:

III. Subject Matter of Property

A. Intellectual Property
1. Cases: Feist Publications; SunTrust Bank; Association for Molecular Pathology;
eBay v. MercExchange; Qualitex; White v. Samsung
a. Feist Publications, Inc. v. Rural Telephone Service Co. (1991) [Feist
steals Rural’s phonebook information] [Copyright]
i. Issue: Can a telephone directory’s white pages listings be copyrighted?
ii. Ruling: Even a directory that contains absolutely no protectible
written expression, only facts, meets the constitutional minimum for
copyright protection if it features an original selection or
arrangement.
1. But even if a work as a whole is copyrighted, not every
element of the work may be.
2. Copyright protections may extend only to those
components of a work that are original to the author.
iii. Quimbee: To merit copyright protection, a compilation of facts must
be selected, coordinated, and arranged in an original manner.
1. The essence of copyright law is originality.
a. Here, because Rural simply placed their listings in
alphabetical order, not enough originality to
protect the work.
b. No more “sweat of the brow” doctrine.
b. SunTrust Bank v. Houghton Mifflin Co. (11 Cir. 2001) [Fair Use] [Gone
with the Wind parody]
i. Issue: Should a book that uses characters, plotlines, and major scenes
from a copyrighted work to critique an aspect of that work be enjoined
from publication based on copyright infringement?
 ii. Ruling: Use of a copyrighted work may not be copyright
infringement where the use is for purposes of critique, comment, or
parody.
iii. Fair Use defense? Courts look at following factors: (1) The purpose and
character of the work, (2) The nature of the copyrighted work, (3) The
amount and substantiality of the portion used, (4) The effect on the
market value of the original work.
1. (1) For comment/critique? Then fair use. (2) The original is
an original work of fiction? Against fair use. (3) Here, it’s
neutral. (4) No effect on market value? Then fair use.
c. Association for Molecular Pathology v. Myriad Genetics, Inc. (2013)
[Patents] [A patent for a gene?]
i. Issue: Is a naturally occurring DNA segment patentable merely because it
has been isolated? No.
ii. Ruling: A naturally occurring DNA segment is not patentable merely
because it has been isolated.
1. Certain kinds of subject matter, like natural
phenomena, laws of nature and abstract ideas are non-
patentable
2. Here, Myriad did not “create” anything new, but merely
discovered something naturally occurring in a pair of
genes. “Groundbreaking discovery does not by itself
satisfy the standard.” – Justice Thomas
a. See OneNote for U.S.C. language for granting
patents… “new and useful…”
d. eBay Inc. v. MercExchange, L.L.C. (2006) [Patents and Injunctions]
[No injunction against eBay]
i. Issue: Is a plaintiff in a patent infringement case entitled to a permanent
injunction following a determination of infringement, absent exceptional
circumstances?
ii. Ruling: The decision whether to grant or deny injunctive relief rests
within the equitable discretion of the district courts, and that such
discretion must be exercised consistent with traditional principles of
equity, in patent disputes no less than in other cases governed by
such standards.
1. Overturns previous rule that generally gives injunctions to
patentees. Now 4-factor test.
iii. Four-Factor Test for Injunction under Patent Act. (1) that it has
suffered an irreparable injury; (2) that remedies available at law, such as
monetary damages, are inadequate to compensate for that injury; (3) that,
considering the balance of hardships between the plaintiff and defendant,
a remedy in equity is warranted; and (4) that the public interest would not
be disserved by a permanent injunction.
1. (^ Also just justifications for injunctions in general.
Same equity considerations)
2. Minor point: In lower courts, no showing of irreparable harm
because they willingly licensed their patent. Even though
overturned, good point to keep in mind.
 e. Qualitex Co. v. Jacobsen Products (1995) [Trademark] [Green-gold
drycleaner pads]
i. Issue: Does the Lanham Act permit the registration of a trademark that
consists, purely and simply, of a color?
ii. Ruling: As long as its developed a secondary meaning and identifies
a specific brand [trademark requirements], a color alone may be
trademarked.
1. A color may carry as much meaning as a particular shape,
such as a Coca-Cola bottle
iii. Trademark: A symbol used as a mark to identify and distinguish the
producer’s goods from those manufactured or sold by others, and to
indicate their source.
1. Functionality Doctrine: Trademark law prohibits
trademarking of functional features that are essential to a
product’s use or that affects the quality/cost of the item.
a. Here, Color is not an “essential feature.”
f. White v. Samsung [Dissent only] [Vanna White’s robotic likeness in a
Samsung’s commercial] [Likeness]
i. Issue: Does the common-law right of publicity protect a celebrity's identity
from unauthorized commercial exploitation?
ii. Ruling: The balance inherent in publicity rights may protect a
celebrity’s identity from unauthorized commercial exploitation
1. Dissent: The majority errs. It broadens publicity rights for
celebrities, fails to recognize a parody exception and also
infringers on Samsung’s 1st amendment.
2. Here, found to be infringing on Vanna White’s likeness.
But the focus should be on the balance to be found.
Feist shows that other’s labors may be used without
compensation – that’s how progress continues.

Supplemental Material:
B. Bodies
1. Cases: Moore v. Regents of the University of California; Flynn v. Holder; in Re
Baby M
a. Moore v. Regents (Cal. 1990) [Informed Consent] [Benefitting from
Moore’s cells by exploiting them]
i. Issue: (1) Must a doctor inform a patient of the doctor’s commercial
interest in the patient’s cells? (2) Does the tort of conversion extend to the
use of a patient’s cells in medical research?
ii. Ruling: (1) A physician has a fiduciary duty to disclose all material
personal interests that may influence her professional judgment
before securing a patient’s informed consent to medical treatment.
(2) Once cells leave a patient’s body, they are no longer that
patient’s property.
iii. Tort of Conversion: wrongful interference with possessory and
ownership interests in personal property
1. Here, no conversion as discarded cells are considered medical
waste.
 b. Flynn v. Holder (9th Cir. 2012) [Bone Marrow] [Interstate trade of
organs?] [Rational Basis for Bodies]
i. Issue: Should human organs be considered viable trade goods?
ii. Ruling: A prohibition on the sale of organs is justified on policy and
philosophical concerns, which supply a sufficiently rational basis
for the National Organ Transplant Act (which bans trading of organs
for interstate commerce).
1. Apheresis transplants OK because it's not actually taking the bone
marrow
2. Rational Basis policy concerns in OneNote.
c. In the Matter of Baby M (N.J. 1988) [Custody Disputes, Surrogacy]
[Surrogate mother “can’t part with child.”] [a “body” that can’t take care of
itself]
i. Issue: Are surrogacy contracts valid?
ii. Ruling: Surrogacy contracts involving the exchange of money for a
binding agreement by the surrogate to surrender her child upon
birth are against public policy and void as a matter of law.
1. I.E., New Jersey Law (1) prohibits exchange of money in
adoptions, (2) confers rules for terminating parental rights, and (3)
still gives surrendering parents the right to revoke.
a. Here, none followed. Likely, similar considerations in other
jurisdictions.
2. Public policy? The Child’s best interests. That’s why the
child here still went to the contracting family.

Supplemental Material:

IV. Concurrent Ownership

A. Co-ownership and Marriage
1. Cases: Sawada; O’Brien; Watts; Ark Land Co.; Dobbs v. Wiggins; Boomer v.
Atlantic Cement Co.; Johnson v. Paynesville Farmers Union Cooperative Oil Co.;
a. Sawada v. Endo (Haw. 1977) [Marital Property] [Can creditors recover
from your wife after your death?]
i. Issue: Is the interest of one spouse in a tenancy by the entirety subject to
the claims of that spouse’s individual creditors?
ii. Ruling: The interest of a husband or wife in a tenancy by the entirety
is not subject to the claims of his or her individual creditors during
the joint lives of the spouses.
1. Tenancy by the entirety: A form of shared property ownership.
Each spouse has an equal and undivided interest in the property.
a. Can’t be dissolved except by joint action.
2. Fairness concerns.
a. To the spouses? Family solidarity. Cannot demean the
widow’s property rights
b. To creditors? They can always ask for an interest on the
property if a debt arises.
b. O’Brien v. O’Brien (NY 1985) [Marrying a future doctor] [Medical degree
= martial assets]
 i. Issue: Is a medical license acquired by one spouse during marriage
considered marital property subject to equitable distribution?
ii. Ruling: In making an equitable distribution of marital property, the
court considers any direct or indirect contribution to the acquisition
of the property.
1. What is Marital Property? More than just those things normally
considered property under the common law.
a. Marriage is an economic partnership.
i. Licenses fall under this categorization. Here,
Loretta made serious concessions to help her
husband.
b. But also a partnership of contributions made to the other
spouse.
i. Financial Contributions, like paying for food/home.
ii. AND nonfinancial contributions, such as caring for
the home.
c. Watts v. Watts (Wis. 1987) [unmarried cohabitants] [“Marriage-like”
relationships]
i. Issue: Can someone in a nonmarital, cohabiting relationship claim a
share of property accumulated during the relationship?
ii. Ruling: Unmarried cohabitants may each be entitled to a share of
the wealth jointly accumulated during the cohabitation.
1. What kind of claims can an unmarried cohabitant bring? 1)
breach of contract, 2) unjust enrichment, 3) partition.
a. Breach of contract? Here, parties implied by their
conduct that they had an “agreement.”
i. Consideration? Must be something significant, like
childbearing or domestic services (the case here).
Sexual relations do not count as consideration.
d. Ark Land Co. v. Harper (W.Va. 2004) [Caudill Property] [Partition in Kind
vs. Partition by Sale]
i. Issue: Should partition decisions be based solely on the economic
interest of the parties?
ii. Ruling: In determining whether to partition land by sale or by kind,
the court must consider economic value as well as other values, like
evidence of longstanding ownership or a sentimental/emotional
interest in the land.
1. Partition by Sale? See requirements for in OneNote,
Consolidated Gas Supply Corp.
a. 1) Property cannot be conveniently partitioned in kind
b. 2) Interest of one or more parties will be promoted by the
sale
c. 3) The interest of the other parties won’t be prejudiced by
the sale.
2. Partition in Kind is Favored by the common law. Unlike
Partition by sale, usually no harsh consequences for parties that
do not want to sell.

Supplemental Material:
B. Nuisance
1. Cases: Fontainebleau Hotel Corp. v. Forty-Five Twenty-Five Inc.; Prah v. Maretti;
Myrick v. Peck
a. Dobbs v. Wiggins (Ill. 2010) [100 dogs barking] [Private Nuisance]
i. Issue: To maintain a claim for private nuisance, must a plaintiff prove that
the alleged invasion of the plaintiff’s right to use or enjoy his or her
property is substantial, intentional or negligent, and unreasonable?
ii. Ruling: To maintain a claim for private nuisance, a plaintiff must
prove that the alleged invasion of the plaintiff’s right to use or enjoy
his or her property is substantial, intentional, or negligent, and
unreasonable.
1. 1) Substantial, 2) Intentional/Negligent, 3) Unreasonable
2. Private Nuisance: A substantial invasion of another person’s
interest in the use/enjoyment of his own land.
3. Woods v. Khan: 5 factors for consideration if "unreasonable":
a. Are defendants engaged in a useful enterprise?
b. Is this area well suited for the enterprise?
c. Which came first?
d. Can the nuisance be reduced?
e. Is modification practical?
b. Boomer v. Atlantic Cement Co. (NY 1970) [Cement blaster bothers
community] [Private/Public Nuisance]
i. Issue: What is the appropriate remedy for an ongoing nuisance if an
injunction would cause more economic harm than the nuisance itself?
ii. Ruling: Permanent damages, rather than an injunction, are
appropriate when the damages resulting from a nuisance are
significantly less than the economic benefit derived from the party
causing the harm.
1. Nuisance exists? If not economically feasible to grant injunction,
then a temporary injunction is granted until permanent damages
are paid.
a. Fairness to plaintiff? Property owners are compensated.
b. Fairness to manufacturer? Plant stays open and jobs are
saved.
2. The Rejected approach. Court decided would be unfair to
postpone injunction until Atlantic’s technology caught up. This is 1)
too uncertain, 2) doesn’t stop the pollution problems, 3) unfair to
punish only Atlantic, and not other cement plants
3. Permanent damages: monetary relief that compensates for past
harm and for future expected harms.
4. Federal environmental regulations: Usually make injunctions
the default remedy. For federal issues.
c. Johnson v. Paynesville Farmers Union Cooperative Oil Co. (Minn.
2012) [Trespass of non-organic pesticides] [Nuisance or Trespass]
i. Issue: When the invasion of a plaintiff’s land is committed by an intangible
agency, such as particulate matter, does such invasion constitute
trespass?
ii. Ruling: When the invasion of a plaintiff’s land is committed by an
intangible agency, such as particulate matter, such invasion does
not constitute trespass.
 1. Here, the case is remanded. Implies that non-organic pesticide
drift can be considered a nuisance.
2. Why not trespass?
a. Such invasion does not force the landowner to share
possession of his land like the invasion of physical matter
does
3. Why nuisance?
a. Still interferes with their use/enjoyment of land.
d. Fontainebleau Hotel Corp. v. Forty-Five Twenty-Five Inc. (Fl. 1959)
[Hotel bullies smaller next-door hotel]
i. Issue: Can a property owner be prevented from using his property in a
way that causes injury to a neighboring landowner, such as blocking
sunlight?
ii. Ruling: A property owner may be prevented only from causing injury
to a neighbor’s legal right.
1. No property rights to the free flow of air and light resulting on your
property.
2. sic utere tuo ut alienum non laedas:
a. Use your own property in such a way that you do not injure
another’s property.
i. Specifically, protects legally-recognized rights.
3. Could there be a legal right to light and air? Yes, actually.
Through:
a. 1) Easement OR
b. 2) Contractual/Statutory entitlements
e. Prah v. Maretti (Wis. 1982) [Sunlight access to solar collectors]
i. Issue: Can private nuisance law be applied to a dispute over a
landowner’s access to sunlight?
ii. Ruling: Private Nuisance law is applicable in cases where a
defendant's possible conduct could interfere with plaintiff's
use/enjoyment of sunlight.
1. Use/enjoyment of light is a potentially defendable right in today's
society. The reasons for against ancient lights doctrine are not so
easily applicable.
2. Why the change in approach to sunlight?
a. Land-use regulation is more common. It’s more acceptable
to limit an owner’s use of land if it affects others
b. Access to sunlight has become more important. Here, for
example, sunlight is an energy source.
c. The need for unrestricted land development is less
pressing now than it was in earlier times.
f. Myrick v. Peck (Vt. 2017) [The Teddy-Bear House]
i. Issue:
ii. Ruling: Private Nuisance claims are improper in claims based on
preference of aesthetics, or emotional distress due to aesthetics.
1. “The unsightliness of a thing, without more, does not render it a
nuisance under the law.”
2. Why?
a. Aesthetics are an unreasonable standard.
 b. The appearance of a neighboring property does not affect
citizen’s use/enjoyment of their land.
3. Woodstock Burial Ass'n v. Hager (1896)
a. "[t]he law will not declare a thing a nuisance because it is
unsightly and disfigured, nor because it is not in a proper
and suitable condition, nor because it is unpleasant to the
eye, and a violation of the rules of propriety and good
taste, nor because the property of another is rendered less
valuable."

Supplemental Material:
C. Landlord / Tenant
1. Cases: Sommer v. Kridel; Minjak Co. v. Randolph; 3000 B.C. v. Bowman
Properties Ltd.; Javins
a. Sommer v. Kridel [landlord takes a broke law student to court] [Duty to
Mitigate Damages]
i. Issue: Does a residential landlord have a duty to mitigate damages when
a tenant breaks a lease?
ii. Ruling: A landlord has a duty to mitigate damages where he seeks
to recover rents due from a defaulting tenant.
1. If so, burden of proof is on landlord, as they are in a better position
to demonstrate reasonable diligence in attempting to re-let
premises.
2. Why? Notions of fairness and equity.
a. Residential leases today are less like estates in land and
more like contracts.
i. I.e., not so much “interest in the land” as
“somewhere to live.”
b. Housing is important; fairness dictates some leeway
between landlords and tenants.
b. Minjak Co. v. Randolph (N.Y. 1988) [Constructive Eviction] [Japanese
musician can’t work in clouds of dust]
i. Issue: may a tenant assert a defense of constructive eviction as defense
to nonpayment of rent if they haven’t abandoned the entire rental
property?
ii. Ruling: Social Fairness dictates that we must allow a former tenant
to defend against nonpayment by asserting the doctrine of
constructive eviction, even if he or she has abandoned only a
portion of the demised premises.
1. Constructive Eviction is an affirmative defense.
2. Punitive Damages. They were applied here. Why?
a. The determining factor is "the moral culpability of
defendant," and whether the conduct implies a
"criminal indifference to civil obligations. “Here, we find
sufficient moral culpability in plaintiff-landlord.
i. Landlord permitted workers to work in
offensive/dangerous manner
 1. Like how for the stair demolition, no warning
signs were posted.
ii. Disregard for safety of others
1. Landlord never responded to complaints of
dust/sand/water problems.
iii. Disregard for the rights of others
c. 3000 B.C. v. Bowman Properties Ltd. (Penn. 2008) [Professional spa
bothered by construction] [Constructive Eviction] [Covenant of Quiet
Enjoyment]
i. Issue: Does the proper measure of damages for a breach of the covenant
of quiet enjoyment include all loses that can be proven to be a result of
the breach? Yes. All losses than can be proved.
ii. Ruling: A landlord violates its tenant’s implied right of quiet
enjoyment of the premises if the landlord’s conduct substantially
and fundamentally impairs the utility of the premises for the tenant.
1. Damages = all loses that can be proved.
2. Covenant of Quiet Enjoyment
a. Breached if landlord’s actions interfere with tenant’s
possession of property
b. A breach may result in constructive eviction if such
action substantially and fundamentally impairs the
property’s utility to the renter.
3. Types of damages to recover:
a. 1) increased rental payments, 2) lost profits, 3)
moving/other expenses, 4) atty fees, 5) lost good will.
d. Javins v. First National Realty Corp. (D.C. 1970) [Tenant Rights]
[Warranty of Habitability]
i. Issue: Does a landlord have a contractual duty to provide tenants with
habitable premises?
ii. Ruling: An implied warranty of habitability is read into residential
leases and breach of that warranty frees tenants from the obligation
to pay rent.
1. Modern approach to renters: Residential leases are more like
contracts than conveyances of land. (like Sommer reasoning)
a. Here, court argues that the contract warranties on the
sales of goods should equally apply to residential leases.
2. Implied Warrant of Habitability. Implied by the law in all
residential housing leases, within scope of city regulations.
a. Gives assurance to renters that their house will be 1) safe
and 2) livable.

Supplemental Material:
D. Fair Housing
1. Cases: Javins; Roommates.com; Quigley
a. Javins (see above)
b. Fair Housing Council of San Fernando Valley v. Roommates.com,
LLC (9th Cir. 2012) [Fair housing in choosing roommates]
i. Issue: Does the Fair Housing Act apply to shared living situations?
 ii. Ruling: The antidiscrimination provisions of the Fair Housing Act do
not apply to the selection of roommates. (or to the sharing of living
units)
1. Fair Housing Act. 42 U.S.C. §3604. Provisions in OneNote,
C13.
a. Dwelling: A building/other living unit designed or intended
for occupancy by a family. Includes amenities, like
bathroom, sleeping space, common areas.
2. Right to Intimate Association. Protected by the bill of rights as a
fundamental right.
a. Because it exists, there also is implied a right to exclude.
i. Choosing roommates should be done carefully,
ii. As it involves careful privacy considerations.
iii. They have access to one another and each other’s
property at their most vulnerable times (like sleep)
iv. Roommates are exposed to another’s habits,
belongings and activity.
v. And roommates of different religious or ideological
standings might not be a good match.
c. Quigley v. Winter (8th. Cir. 2010) [Hostile Housing Environment]
[Sexual Harassment from a landlord]
i. Issue: Is a claim for hostile housing environment created by sexual
harassment cognizable under the Fair Housing Act?
ii. Ruling: A claim for hostile housing environment created by sexual
harassment can be proven if a preponderance of the evidence
shows that the victim was subjected to unwelcome sexual
harassment and the harassment was sufficiently severe or pervasive
so as to interfere with or deprive the victim of her right to use or
enjoy her home.

Supplemental Material:

IV. Concurrent Ownership

A. Future Interests & Descent
1. Cases: Problems on Canvas; TBD
a. Future Interests and Descendants pgs. 737-755
i. Issue:
ii. Ruling:

Supplemental Material:
B. Intergenerational Transfers
1. Cases: Hodel v. Irving; Litevich v. Probate Court; Estate of Guidotti
a. Hodel v. Irving (1987) [Numerous Indian heirs owning .1% of land
interest] [Escheat] [Freedom of Disposition]
i. Issue: May the government abolish a property owner’s right to pass
property upon death, both by will and through intestate succession,
without providing just compensation?
 ii. Ruling: Abrogation of the rights to pass on property (gift, descent,
devise) must be tempered by considerations of (1) economic impact,
(2) interference with investment backed expectations, (3) nature of
governmental action.
1. Quimbee: An escheatment provision that completely abrogates
the right to devise a class of property interests constitutes a taking
without compensation in violation of the United States
Constitution.
2. Escheat: The reversion of property to the State on the owner’s
dying without any legal heirs.
3. This case Stands for: broad govt. power in modifying
descent/devise of property, tempered by considerations above.
b. Litevich v. Probate Court [Rational Basis] [Yale Doctor’s Will (no
family)] [Signing a will with Legalzoom] [Will – Statutes]
i. Issue: Does an online will made through Legalzoom satisfy a proper will
statute?
ii. Ruling: Rational Basis and Harmless Error Analysis
1. Rational Basis: A will statute fails its purpose if it is arbitrary in
light of its purpose, therefore failing rational basis scrutiny.
Analysis:
a. (1) There is a plausible policy reason for the classification.
b. (2) The legislative facts on which the classification is based
may have considered to be true by the governmental
decisionmaker.
(3) The relationship of the classification to its goal is not so
attenuated as to render the distinction arbitrary or
irrational.
2. Harmless Error: A doctrine that a will is not invalid for failing to
comply with statutory formalities if clear/convincing evidence
shows the decedent adopted the document as their will. What’s
the test?
a. "Whether the evidence regarding the overall conduct of the
testator establishes, in clear and convincing manner, that
the testator adopted the document as his or her will.
b. Restatement, third: "The trend toward excusing harmless
errors is based on a growing acceptance of the broader
principle that mistake… should not be allowed to defeat
intention nor to work unjust enrichment."
3. In general, this is the MODERN APPROACH to wills. Some
leniency
c. Estate of Guidotti (Cal. 2001) [Restraint on Marriage]
i. Issue: Is the testator’s intent the paramount rule in determining whether a
trust condition imposing restraints upon marriage is void?
ii. Ruling: The testator’s intent is the paramount rule in determining
whether a trust condition imposing restraints upon marriage is void.
1. When is a restraint on marriage not void? A condition is not
void if the intent of the condition was not to restrain marriage, but
to give the use of something until marriage.

Supplemental Material:
C. Dead Hand Control and the Rule Against Perpetuities
1. Cases: Evans; pgs. 783-795
a. Evans v. Abney (1970) [Cy Pres] [Baconsfield park trust modified – no
longer for whites only]
i. Issue: May a state court terminate a private person’s racially
discriminatory trust rather than apply cy pres to make the trust
nondiscriminatory?
ii. Ruling: The interpretation of wills, and application of the cy pres
doctrine, is governed by state law.
1. Cy Pres (Doctrine): When a settlor establishes a charitable trust
but its purpose becomes impracticable or impossible to achieve,
courts apply this form of equitable reform to modify the purpose of
the trust.
a. Ultimately, the court and locality will decide whether to
apply.
2. Here, even though the trust was specifically a park for “white
people,” the Cy Pres could allow for modification of its original
terms.
a. Modifiable as long as there is a reasonable ground to
modify. Here, easy to move from whites only -> people of
all colors.
b. Still, no modification in this case. State Court’s decision to
close the park also served goals of removing
discrimination.
3. Also, See Brennan’s dissent. Even though Cy Pres did not need
to be applied, he argued that it should have because state action
impermissibly allows the discrimination
b. Pgs. 783-795 [Rule Against Perpetuities] [Dead Hand Control]
i. Rule Against Perpetuities: ***See OneNote For Analysis***
ii. Dead Hand Control: When the owner of an estate continues to control
property and beneficiaries even after death.
1. Bad. Courts try to limit it.

Supplemental Material:
D. Real Estate Transactions
1. Cases: Johnson v. Davis; Stambovsky v. Ackley; Sabo
a. Johnson v. Davis (Fla. 1985) [Caveat Emptor] [New home’s roof isn’t
watertight]
i. Issue: Does a seller of a house have a duty to disclose facts that
materially affect the value of the house, are not readily observable and
are not known to the buyer?
ii. Ruling: We hold that where the seller of a home knows of facts
materially affecting the value of the property which are not readily
observable and are not known to the buyer, the seller is under a
duty to disclose them to the buyer.
1. "This duty is applicable to all forms of real property, new and
used."
 2. Fraud? Here, the court said the sellers’ conduct amounted to
fraudulent concealment: in FL, relief for fraudulent
misrepresentation requires four elements:
a. A false statement concerning a material fact
b. The representor's knowledge that the presentation is false
c. An intention that the representation induce another to act
on it
d. Consequent injury by the party acting in reliance on the
representation.
3. Where is caveat emptor today? The recent trend is to restrict
rather than expand.
a. "The law seems to be working toward the ultimate
conclusion that full disclosure of all material facts must be
made whenever elementary fair conduct demands it."
i. See also Lingsch v. Savage (Cal. 1963), Posner
v. Davis (Ill. 1979)
b. Stambovsky v. Ackley (NY 1991) [“As a matter of law, this house is
haunted”]
i. Issue: Does a seller have a duty to disclose a condition created by the
seller that decreases the value of a contract and is unlikely to be
discovered by the buyer?
ii. Ruling: If a seller creates a condition that materially impairs the
value of a contract and is within the knowledge of the seller or
unlikely to be discovered by a prudent purchaser exercising due
care, nondisclosure of the condition constitutes a basis for
rescission of the contract.
1. Why? Fairness concerns. A seller should not be allowed to take
advantage of a buyer through a condition created by the seller.
c. Sabo v. Horvath (Ala. 1976) [Chain of Title] [The Recording System]
[A “wild deed”]
i. Issue: Does a deed recorded outside the chain of title provide
constructive notice to prospective purchasers of a prior interest in the
land?
ii. Ruling: A purchaser has notice only of recorded deeds within his
chain of title, so the purchaser prevails as against any deed that was
previously recorded outside his chain of title of which he did not
have knowledge.
1. A properly recorded deed needs to afford constructive notice to
potential purchasers.
2. Chain of Title: succession of grantors and grantees on the land
records that have transferred the property.
3. A “wild deed”: One that isn’t able to be found in the county
recorder, and thus cannot serve as constructive notice to a
potential buyer.
4. A Balancing Act
a. A higher burden on Sabo (the later purchaser)? While
the burden of requiring Sabos to look further may not have
been great here, as a general rule, requiring title checks
beyond the chain of title could add significant burden and
uncertainty to real estate purchases.
 i. Rules against Horvath, on balance.
b. A higher burden on Horvath (wild deed purchaser)? As
a general rule, rerecording an interest once title passes is
less of a burden than requiring property purchasers to
check indefinitely beyond the chain of title.
i. Rules against Horvath, compared to situation
above.
5. What about the original seller? This was Lowery’s fault
ultimately for his double conveyance of title. Issues like this will
come up.

Supplemental Material:

V. Servitudes
A. Easements
1. Cases: Green v. Lupo; Henley; Granite Properties; Lobato v. Taylor; Community
Feed Stores; Finn v. Williams
a. Servitude: A right or an obligation that “runs with the land,” meaning
that it passes automatically to subsequent owners/possessors of land.
i. Easement: Essentially an affirmative servitude, or rights to use
another’s land for a limited purpose.
1. I.e., right of way: right to use another’s land for ingress or
egress (enter/leave a property)
ii. Covenant: Essentially a negative servitude, or obligations
regarding land held by one who does not own land.
1. I.e.,
b. Green v. Lupo (Wash. 1992) [Easements Appurtenant] [Lupos won’t
allow bike races on their land]
i. Issue: Is an express easement presumptively appurtenant to the land
when the grant doesn’t characterize the easement as either appurtenant
or in gross?
ii. Ruling: There is a presumption that an easement is appurtenant to a
parcel of land and not an easement in gross.
1. Easement Appurtenant: Right that attaches to the land and
remains on the land if conveyed.
a. I.e., “we give right of way for this part of the property”
2. Easement in Gross: Right that’s personal between a grantor and
a grantee
a. I.e., “we give right of way in this part of property specifically
only for the Green’s personal use and enjoyment.”
b. Today, utility easements are considered to be held in
gross.
3. Here, why Appurtenant? Even though the document designated
the Greens as the easement holders (provides support for in
gross), it is still presumptively appurtenant, as it is for ingress,
egress and utilities.
c. Henley v. Continental Cablevision of St. Louis County, Inc. (MO.
1985) [Can Bell Co. move its easement to the next company?]
[Transferring Easements]
i. Issue: May the holder of an easement in gross for constructing poles and
wires to provide telephone and electric services share the easement with
a television company so that it may hang similar wires?
ii. Ruling: Easements are exclusive to the easement holder and
therefore devisable if the easement grantor does not maintain or
reserve an interest in exercising the right granted.
1. An easement holder may apportion (share with/divide with) others
to use their easement, as long as the use is consistent with the
use originally granted.
2. An easement of the same kind? This case may also cut on
prudential lines – if we allow phone lines by easement, we should
also allow TV lines.
d. Granite Properties limited Partnership v. Manns [Implied Easements]
[Easement by Necessity] [Easement by Prior Use] [Delivery drivers
used driveways before Manns owned it]
i. Issue: May an implied easement arise from a preexisting use of property,
even if the easement isn’t absolutely necessary for the beneficial use and
enjoyment of the property retained by the grantor?
ii. Ruling: An implied easement may arise from a grantor's continuous
and apparent preexisting use of property conveyed by the grantor,
even if the easement is not absolutely necessary for the beneficial
use and enjoyment of the property retained by the grantor.
1. 3 Conditions for Easement by Prior Use:
a. 1) There must have been common ownership of the
dominant and servient parcels, and a conveyance
separating that ownership.
i. I.e., used to be a single owner.
b. 2) Before the conveyance, the grantor must have used
part of the parcel to benefit another part of the parcel in a
way that was apparent, obvious, continuous, and
permanent.
i. I.e., parcel was used to benefit, and it is obvious to
others.
c. 3) The claimed easement must be necessary and
beneficial to the enjoyment of the parcel retained by
grantor.
2. How do we determine an implied easement? In general, courts
do this by determining the intent of the parties.
a. Continuous and apparent prior use. If the land was used
before, that provides affirmative evidence that party
intended to provide an easement.
b. Degree of Necessity? the higher the level of proof, the
less degree of necessity needed to determine an
easement.
 i. I.E., if it was very obvious an easement was
intended, then maybe no need for the land to be
“necessary.”
c. Easement by Necessity. Touched upon by the case. May
also be an easement if no alternatives.
i. See OneNote
e. Lobato v. Taylor (Colo. 2002) [Easement by Estoppel] [Mexican land
grant inhabitants can stay]
i. Issue: Under what conditions may a court imply an easement by
estoppel?
ii. Ruling: A court can imply an easement created by estoppel when
the landowner permitted another party to use the land under
circumstances in which it was reasonably foreseeable that 1) the
user would substantially change position believing that the
permission would not be revoked, 2) the user substantially changed
position in reasonable reliance on that belief, and 3) injustice can be
avoided only by establishment of a servitude.
1. Reasonably foreseeable reliance? Here, the people lived for a
hundred years on the land and needed its food and firewood for
survival.
f. Community Feed Stores, Inc. v. Northeastern Culvert Corp. (Vt. 1989)
[Prescriptive Easement] [Store uses gravel lot for many decades]
i. Issue: 1) Can a party that shows long-term use of a specifically defined
piece of property belonging to another claim a prescriptive easement to
it? Yes. 2) Does the geographic extent of a use of land have to be exactly
measurable to establish a prescriptive easement? No.
ii. Ruling: Where one claiming a prescriptive easement proves the
general outlines of the area of his continuous, adverse, and
notorious use with reasonable certainty, that is sufficient to
establish the claim.
1. Elements to prove prescriptive easement: Same as those for
adverse possession. Note: 15-year period.
a. The difference is that adverse possession claims an
interest in fee, while prescriptive easements claim a nonfee
interest
g. Finn v. Williams (Ill. 1941) [Landlocked parcel] [Easement by
Necessity] [Time limit to easements]
i. Issue: Does an easement by necessity transfer with the benefited land
when the right of use hasn’t been exercised by the landowner in many
years?
ii. Ruling: An easement by necessity may lie dormant through
transfers of the benefited land but it passes with each transfer and
may be exercised at any time.
1. Easement by necessity
a. They are always appurtenant to the estate
b. Some cases where an easement by necessity
definitely exists
i. Like here, where a neighbor has no access to a
highway except over landowner’s land (a
landlocked landowner)
Supplemental Material:
B. Covenants
1. Cases: Neponsit v. Emigrant; Evans v. Pollock; Narhstedt; Woodside Village;
Shelley v. Kraemer; El Di v. Town of Bethany Beach
a. Neponsit v. Emigrant (NY 1938) [HOA has a covenant to pay on new
homeowners] [Passing of Covenants]
i. Issue: 1) If a deed’s covenant requires the original grantee to pay money
to a third party, is it enforceable against successors in the interest? Yes.
2) Does a property owner’s association have privity of estate with
property owners whose deeds contain covenants requiring the payment
of fees to the association? Yes.
ii. Ruling: (1) A covenant contained in a deed requiring the payment of
money “touches and concerns” the land if it substantially affects the
rights of the parties as landowners. (2) Privity of estate will exist in
substance if not in form between property owners and an owners’
association when the association is acting as a medium through
which enjoyment of a common right is preserved.
1. 3-Part test: Does a covenant run with the land?
a. 1) The original grantor and must’ve intended that the
covenant run with the land
b. 2) The covenant must touch and concern the land
c. 3) Privity of estate must exist between the party asserting
the right to enforce the covenant and the party with the
burden under the covenant
2. Privity of Estate: a "mutual or successive relation to the same
right in property" such as the relationship between a landlord and
tenant.
b. Evans v. Pollock (Tx. 1990) [Sub-dividing up lake property]
i. Issue: Does the general development plan furthered in an implied
restrictive negative easement in a subdivision always apply to the entire
subdivision?
ii. Ruling: Restrictive covenants implied in subdivisions do not
necessarily apply to the whole subdivision.
1. So here, just because no commercial activity was allowed directly
on lakefront through a covenant, it was allowed in the upper
parcels (not lakefront). The same covenant does not necessarily
apply to all divisions of property.
a. Facts of the case: Likely that grantors did not intend
covenant to apply to all sections as they deliberately
created distinctions between lakeside/hilltop properties.
c. Nahrstedt v. Lakeside Village Condominium Ass’n, Inc. (Cal. 1994)
[Cats not allowed] [Common-Interest Property]
i. Issue: If pet restrictions are contained in the recorded declaration of a
common-interest property such as a condominium, are they enforceable
against an owner?
ii. Ruling: California law provides that common interest development
use restrictions are enforceable unless unreasonable.
1. Burden for challenging use restriction rests with the challenger
 2. Is a particular burden unreasonable?
a. First, it is only unreasonable if it is unreasonable to the
entire development, not based on specifics of an individual
owner.
i. I.e., furthering the interest of the common interest
b. See case in OneNote for guidance
d. Woodside Village (Fla. 2002) [Amending HOA rules]
i. Issue: Can a condominium association amend governing declarations to
restrict a condominium owner’s right to lease the owner’s property? Yes.
ii. Ruling: Amendments to a declaration of condominium are valid if
they are reasonable and do not violate public policy or the condo
owners’ constitutional rights.
1. Why? Condominiums are often close together and include much
shared property. Associations are generally entitled to a greater
degree of control in the uses of any individual unit.
e. Shelley v. Kraemer (1948) [Black couple denied a home]
i. Issue:
ii. Ruling: State court enforcement of a racially restrictive covenant
constitutes state action that violates the Equal Protection Clause of
the Fourteenth Amendment.
1. State Action. Technically, 14th doesn’t apply to strictly private
actors. But, because judicial enforcement of private action may be
considered State Action, the 14th may apply.
f. El Di, Inc. v. Town of Bethany Beach (Del. 1984) [Restaurant tries to
sell alcohol, everybody else already does]
i. Issue: Is a covenant prohibiting the sale of alcohol enforceable against a
restaurant in a town that has transitioned from a quiet beach town when
the restriction was enacted to a tourist hotspot where consumption of
alcohol occurs regardless of the restriction?
ii. Ruling: A court will not enforce a restrictive covenant where a
fundamental change has occurred in the neighborhood such that the
benefits of the restriction are rendered futile.
1. Why? No more benefits to the dominant estate.

Supplemental Material:
C. Zoning
1. Cases: Town of Belleville; NAACP v. Mt. Laurel; Village of Belle Terre; Moore;
Kelo
a. Town of Belleville (NJ 1980) [Bar -> Nightclub] [Substantial Change in
Zoning]
i. Issue: Should a nonconforming use of premises be allowed to continue if
the use has changed substantially from the use that existed when the
zoning ordinance has passed?
ii. Ruling: For a nonconforming use of premises to be allowed to
continue, it must be substantially the same kind of use that existed
when the zoning ordinance was passed.
1. Nonconforming use: A use that conflicts with an existing zoning
regulation.
 a. For those that existed prior to zoning laws, such use is
acceptable as long as it doesn’t extend the use.
b. Essentially, it’s a sort of limit on nonconforming uses, as
long as they don’t substantially change the use.
2. “Impermissible” Substantially change?
a. Courts must analyze the character of the use before and
after the change.
i. Focus on how the use affects neighborhood and
zoning plan
b. Court Standards. If there are any doubts whether a
change in use is “substantial,” courts should disapprove of
the change.
3. Here, substantial change from restaurant (Focus on catering +
dining with occasional music and dancing) to nightclub (focus on
music and dancing with occasional catering and dining). Also
hours changed.
a. Also community complaining demonstrates “impermissible”
substantial change.
b. Southern Burlington County NAACP v. Township of Mt. Laurel (NJ
1975) [Exclusionary Zoning]
i. Issue: May a town effectively prevent low-to-moderate income persons
from residing there through a system of zoning regulations?
ii. Ruling: A town, through enactment of land use regulations, must
provide the opportunity for low and moderate families to live in the
town and may not constructively prevent them from doing so.
1. Why? Zoning regulations are established under the States’ police
power. State police power regulations must promote:
a. Public Health
b. Safety
c. Morals
d. And the General Welfare
i. Here, determinant. Having adequate and sufficient
housing concerns the general welfare. Proper
regulations for housing for all categories of people
are essential in the promotion of the general
welfare.
c. Village of Belle Terre v. Boraas (1974) [City ordinance only allowed
“families”] [Zoning in General]
i. Issue: Is a zoning ordinance prohibiting unrelated persons from living
together an appropriate use of state police powers?
ii. Ruling: Zoning regulations may be used to enhance and preserve
public welfare.
1. “Presumptively valid”: Zoning rules are presumptively valid if
the law reflects a plausible attempt to improve the residents’
quality of life.
2. Economic/Social Regulations: To be upheld if the law is 1)
reasonable, 2) not arbitrary, 3) and bears a rational relationship to
a permissible state objective.
d. Moore v. City of East Cleveland (1977) [Grandma won’t evict her
grandson]
 i. Issue: Does a housing ordinance that narrowly defines the term family to
include only a few categories of related individuals violate the Fourteenth
Amendment’s (14th) Due Process Clause?
ii. Ruling: The right of related family members to live together is
fundamental and protected by the Due Process Clause, and
necessarily encompasses a broader definition of “family” than just
members of the nuclear family.
1. Economic/Social Regulations: To be upheld if the law is 1)
reasonable, 2) not arbitrary, 3) and bears a rational relationship to
a permissible state objective.
a. Here, no rational relationship to the goal. If the purpose
was to reduce traffic and financial burden on schools, the
statute does not accomplish that.
2. DPC: Protects more than just the nuclear family.
a. “There’s a private realm of family life which the state
cannot enter.”

Supplemental Material:
C. Eminent Domain
1. Cases: Kelo; Penn Central; PruneYard
a. Kelo v. City of New London (2005) [Public Use] [Takings Clause of 5 th
Amendment]
i. Issue: Does a city’s decision to take private property for economic
development by another private entity satisfy the 5th Amendment’s public-
use requirement?
ii. Ruling: A state’s use of eminent domain to condemn property from
private individuals and redistribute it to other private individuals
constitutes a “public use” under the Fifth Amendment if it is
rationally related to a conceivable public purpose.
1. Potential economic benefits conferred on the public are sufficient
to satisfy the 5th’s public-use requirement.
2. Standards. We 1) defer to legislative judgement about whether
a taking will serve the public good.
a. And we 2) look at the plan as a whole
3. Eminent Domain: the right of a government or its agent to
expropriate private property for public use, with payment of
compensation.
b. Pruneyard
i. Ruling: In deciding on whether a taking has occurred, courts look to
the character of the governmental action and the economic impact
of the restriction in terms of the investment-backed rate of return of
the owner.
c. Penn Central
i. Ruling: In determining whether a state regulation constitutes a
taking under the Fifth and Fourteenth Amendments, courts should
consider the economic impact of the regulation on the owner, the
extent to which the regulation has interfered with the owner’s
 reasonable investment-backed expectations, and the character of
the government action involved in the regulation.
d. Loretto
i. Ruling: A permanent physical occupation authorized by government
is a taking requiring the payment of just compensation without
regard to the public interests that it may serve or the fact that it only
has a minimal economic impact on the property owner.
e. Hawaii housing authority v midkiff
i. Ruling: A state may use the eminent domain process to take
property that is heavily concentrated in the hands of a few private
landowners and redistribute it among the general population of
private individuals.