This website provides updated information about the course
and assignments. It also contains links to the handouts and materials used in
the course, as well as links to sites on the web. Feel free to contact me if
you have any questions.
Please note: All materials on this web site are protected by copyright and intended for use only by students enrolled in Property II at California Western School of Law. Students enrolled in the class may copy these materials to their own computers. However, these materials may not be transferred to others or posted on publicly accessible web sites.
We will be using two resources:
(1) Ehrlich, Supplement; Free Download via Google. I will email instructions. If you want a hard copy, you can order a printed copy through RedShelf for approximately $11.
(2) Dukeminier, Property (8th ed). You can purchase one of the following:
a. Bound hard copy
b. Looseleaf hard copy
c. Digital copy
Password for Documents: There is a password for some documents on this website. It will be announced in class and emailed to you. Some web browsers (such as Safari & some versions of Internet Explorer) will not open password protected PDF files. To open the files, download them to your computer and use Adobe Acrobat or a PDF-compatible browser.
Class Assignments: Below are the day-to-day assignments for the course. Hit the “Refresh” button on your browser to assure you are viewing the most recent updates. As the semester moves forward, you can find earlier assignments previously posted here by clicking on this link: Past Assignments.
1. For Tuesday, January 23:
a. Review the Model Answer to the Covenants & Servitudes Hypothetical. Copies were handed out in class or can be found here.
b. Scope & Interpretation: Read the “Family Guy” HOA letter. Why did the tenant get to keep his Family Guy cutout in the window?
1. Suppose that the covenant in Hill stated the following:
a. No home may be occupied except by a single family related by blood, adoption or marriage, or
b. No home may be occupied except by Christians?
c. No home may be occupied except by members of the Buddhist faith?
d. No home may be occupied except by members of the National Rifle Association?
2. Would these covenants “touch & concern” land and be enforced against successors in New Mexico? Should they be enforceable against successors?
d. Read “Methods of Terminating Easements & Covenants” in the Supplement at pages 32-33.
e. Western Land v. Truskolaski at pages 927-931. When reading Western Land keep in mind that it is a termination case. In class we will focus on the touch and concern element and divide our inquiry into two questions:
1. Did the covenant/servitude touch and concern when it was created?
2. Does the covenant/servitude continue to touch and concern at the time of the case, if circumstances have changed?
2. For Thursday, January 25:
1. Read Rick v. West on pages 931-933 with a critical eye.
a. Did the trial judge reach the correct result? Does the covenant made by Rick to use the retained land “touch & concern” by enhancing the objective value of the land of the party seeking to enforce the covenant? Keep in mind the following:
b. Suppose that Mrs. West’s land is worth $50,000 if the surrounding vacant land is restricted to residential use but Mrs. West’s land is worth $75,000 if the restriction is not enforceable by or against her.
c. Does it make sense to enforce the covenant against successors to Mr. Rick? Does it “touch and concern” by enhancing the objective value of land and stabilizing land use so as to allow for real estate investment and development?
d. If the covenant is not enforced against Rick’s successors, can Mrs. West still get damages from Rick for breach of covenant? What would be the amount of her damages if her land increases in value as a result of the non-enforcement of the restriction on surrounding land?
e. Read the New York statute on page 934 with great care and identify the purpose of each statutory provision. A copy of the statute is at this link: New York Statute
b. Waiver & Estoppel: Review Supplement pages 32-33. What is the doctrine of waiver? How is the doctrine of estoppel different from the doctrine of waiver?
1. Hypo #1: Assume there is a beautiful residential neighborhood in wooded & spacious suburban area. There are 1,000 lots all restricted to residential uses in uniform CC&R’s that govern all 100 lots. In 2006 at a major intersection, Corner Lot A is purchased by a Christian congregation which builds a church. None of the 999 other owners objects. In 2008 Corner Lot B is purchased by a Jewish congregation which builds a synagogue. None of the 999 other owners objects. In 2010 Corner Lot C is purchased by a Buddhist congregation which builds a temple. None of the 999 other owners objects. In 2014 Corner Lot D is purchased by a Muslim congregation which begins to build a mosque. Many owners bring an action for an injunction to enforce the residential covenant.
a. Should the court enforce the residential restriction, or should the doctrine of waiver apply.
b. Should the outcome be different if the proposed structure is a Hindu religious group that wants to build a temple on a cul-de-sac at the end of a small dead end lane.
2. Hypo #2: Same subdivision. About 20 homes have doctor’s offices. Is waiver applicable if:
a. A lawyer wants to use his/her home as an office?
b. A businesswoman wants to build a 7/11 convenience store?
3. Estoppel Hypo: Mrs. Dogood resides in a large residential subdivision outside of San Diego. All homes currently used for residential purposes. Many children live in the subdivision. Dogood proposes to the Homeowner’s Association that she be allowed to modify her home for use as a day-care center for children. The Homeowner’s Association agrees that her proposal is a great idea and grants oral permission. Mrs. Dogood spends $40,000 in preparation. After that, a new Homeowner’s Association board is elected. The new board of the Homeowner’s Association serves a “Notice of Non-Compliance” (or some homeowners bring an action seeking injunction & damages). Do the doctrines of waiver or estoppel apply?
c. Condominiums and Other Common Interest Communities:
1. Pages 937 and Nahrstedt v. Lakeside Village Condominium Association, Inc. at pages 940-951 and the notes following the case.
d. Wrap Up & Review Easements & Covenants:
1. The essay exam from Spring 2002 (covering covenants & servitudes) and a model answer are available on line in the Links section below. This weekend would be a good time to organize the material and then take the exam under normal, exam-style conditions. You can then use the model answer to double check whether or not you have mastered the material covered on that exam.
3. For Tuesday, January 30:
a. Introduction to Public Land Use Control:
1. Review Supplement pages 4-9.
2. Read Supplement pages 34-35 and "The Zoning Process" at Supplement pages 36-43. These materials cover substantial portions of the subject matter of zoning that we will examine in far greater detail over the next few weeks. Read this material carefully now. Review it from time to time and use it as a resource throughout our discussions of zoning.
a. Read D&K pages 967-971 and 982-987. Review the chart at page 41 of the Supplement to Class. We will use the chart as a road map throughout our discussions of zoning.
3. Read Village of Euclid v. Ambler Realty Co. at pages 971-979 and the notes 1-5 following the case.
a. In Village of Euclid v. Ambler Realty Co., the U.S. Supreme Court focuses on the “due process” clause of the 5th and 14th Amendments to the U.S. Constitution. The Court faces the question of whether or not a comprehensive zoning scheme that allocates land within a town to different uses (single residential v. two-family residential) is a deprivation of property without due process of law. The Due Process clause of the 5th and 14th Amendments provides that “No person shall … be deprived of life, liberty, or property, without due process of law.” In Civil Procedure class you studied the procedural aspects of the Due Process Clause, requiring that parties in civil and criminal litigation be granted notice, right to be heard, public forum etc. In the context of land use regulation, the Due Process clause has a different meaning. The enactment of regulations is done legislatively, not in courtrooms. Therefore, there are no procedural protections for individual citizens such as notice, right to be heard, confrontation of witnesses, etc. On the other hand, the Due Process clause imposes substantive requirements on legislation – the legislation must be in furtherance of the public health safety and welfare. This is the aspect of the Due Process Clause being discussed in Euclid.
b. What legal test(s) does the Court apply in answering the question: Is a comprehensive zoning scheme that allocates land within a town to different uses (single residential v. two-family residential) a deprivation of property without due process of law?
2. Link to California Tenant Rights Website
This section contains a link to questions posed by students - and answers posted by Prof. Ehrlich. If you have a question that you would like answered, e-mail Prof. Ehrlich at: email@example.com. Your name will not be posted, just the question & answer. Click here to view Questions & Answers.
Office: Room 313, Administration Building (225 Cedar St.)
Tuesday, Wednesday and Thursday
I’m often available, please knock.