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Decision: Reversed. The original tenant on the lease was liable to the landlord for attorney fees
and costs incurred in evicting the subtenants. The lease clearly stated that the lessee would
Add. Case: Johnson v. Marcel (Sup. Ct., Va., 1996)--Johnson rented a townhouse from Marcel.
They did not get along. Marcel ordered Johnson to vacate the townhouse; she refused as the
lease was in effect. Marcel then began to harass her by calling at work and at home. She
changed the lock on the garage and would enter the premises when Johnson was out. One night
she entered the townhouse, ripped the phone off the wall, blocked their driveway, banged on the
walls and told Johnson to get out or be arrested. Fearful that Marcel was crazy, Johnson left;
Marcel kept the security deposit and prepaid rent. Johnson sued Marcel for common law
trespass. Trial court dismissed the case; Johnson appealed.
Decision: Reversed. “Although Marcel owned the premises, the plaintiff, as tenant, had the right
of possession ... under the circumstances of the present case, Marcel had no right to enter the
International Perspective: Americans Crossing into Mexico for Land
An estimated one million U.S. citizens live in Mexico; the number has been rising steadily.
Mexican property law is very different from U.S. law and people get tripped up. Foreigners may
own land only in certain locations; elsewhere they can only have a fifty year use right in trust. A
non-trivial number of Americans have paid for property only to learn they did not have title.
Mexican attorneys must be hired to help ensure due diligence.
Commercial Leases—Unlike landlord-tenant leases, which tend to be short and be controlled by
state statute, commercial leases are usually lengthy and highly particular. Most refer to terms
used by the Building Owners and Managers Association (BOMA) or other common parlance.
There are terms of art to be mastered. Who is responsible for what can vary widely and
presumptions cannot be made, as is true in residential leases.
CASE: Nielsen v. Gold’s Gym (S.Ct., Utah, 2003)—Nielsen was building a strip center.
Peterson signed a preprinted commercial lease agreement for a space to be used for a gym for
three years at a fix per square foot rate. A contractor told Peterson it would cost $168,000 to
finish out the shell he rented. He argued with Nielsen about who would pay for the
improvements and eventually walked away. Nielsen rented to someone else and sued Peterson
for breach. The trial court held the lease unenforceable. Nielsen appealed.
Decision: Affirmed. The building was a shell that had not yet been completed. None of the
details about electricity, plumbing, etc. had been determined, so the lease was not complete.
Questions: 1. The Utah high court held that no commercial lease was ever formed because key
terms to the lease were never set. Given that the building was still under construction, how could
they have set all these details?
That is not uncommon at all. Many contractors have space leased before construction starts and
the parties negotiate features—size, doors, etc. and the parties bargain over who pays for what.
2. Why did the court not make the lease work and assign the appropriate costs of the construction
to the parties?
Courts do not “reform” contracts, especially ones that were never close to being made. There
never was a contract for a lease here because too many key terms were missing. Nielsen leased
Add. Case: Circuit City Stores v. Rockville Pike J.V. (Ct. App., Md., 2003)--In 1987, Rockville
rented space in a retail center to Circuit City for 20 years. In 1996, Circuit City moved to
another location and hired a broker to find a subtenant for the space. Rockville rejected the new
tenants who were offered. Circuit City closed the store and vacated the premises. Rockville sued.
Decision: When a tenant abandons leased premises, the landlord accepts the surrender of the
lease and terminates it. The landlord takes possession of the property at that time and the tenant
had no authority to enter the premises. The landlord may rent the property again, and the tenant
Add. Case: Prodigy v. South Broad Assoc. (2nd Cir., 1995)--Prodigy rented space in a
commercial building owned by South Broad (SB) in which it stored computer equipment. Water
pipes in the ceiling of the building burst, damaging the computers. Prodigy sued SB for
negligence in maintaining the pipes. District court held for SB, holding that only damage to
persons, not property, was covered. Prodigy appealed.
Decision: Reversed. “When a landlord maintains control of any portion of a rented building, the
landlord owes ‘the duty to take reasonable care to keep that portion reasonably safe.’ ... When a
landlord agrees to make repairs in ... the rented premises and has the right to inspect the
Issue Spotter: Would Tighter Leases Help?
Landlords have dealt with such problems a long time and do what they can such as collect large
damage deposits and the last month rent in advance. They can also run credit checks on
prospective tenants. But it the rental market is competitive, landlords cannot demand too much in
up front cash. A common lease term is for the tenant to be liable for costs of enforcing the lease.
But most people who trash an apartment and skip out without paying are pretty much judgment
proof. Quick, decisive action can also help–knowing exactly what steps to take to force eviction.
PUBLIC CONTROL OF REAL PROPERTY—State (and local) statutes modify the common
law of real property. Some laws concern registration and proof of title and the recording of liens,
but governments have substantial power to take and regulate private property.
Eminent Domain—Governments have always been presumed to have the power of eminent
domain to take private property for public purpose. The 5th amendment requires just
compensation, so fair market value is paid when governments take land for building highways,
schools and such. Governments may also use eminent domain to buy property that is used to
benefit private parties, such as railroad rights-of-way and utility easements.
Add. Case: Felts v. Harris County (Sup. Ct., Tex., 1996)--Years after the Felts built a home the
county built a four lane highway that bordered his property. The value of the property fell by
$19,700 as a result of the traffic and noise. Felts sued for inverse condemnation. The Texas
constitution allows that just as it provides compensation in cases of eminent domain taking for
public use. The trial court awarded Felts $15,645. The appeals court reversed, holding that there
must be a physical intrusion onto property for it to be a taking, not just noise. Felts appealed.
Decision: Affirmed but modified. An actual taking or physical intrusion is not required for a
private property owner to get compensation for the taking of property via eminent domain or
inverse condemnation. If a house is in the flyway for a new airport, there may be compensation
Police Powers—This is a broad category to regulate property to promote the “general welfare,”
which is very broad. Health and safety measures are traditional, but environmental controls and
many other things fall under this rubric that gives governments great regulatory powers that
impacts on the value and use of property.
Add. Case: Village of Euclid v. Ambler Realty (S. Ct., 1926)--Ambler owned undeveloped
acreage in Euclid, Ohio. The town began zoning. It classified Ambler’s property for least
undesirable use, such as garbage dumps and penal institutions. This ruined Ambler’s plan to
develop the property for housing use. The property fell from $10,000 in value per acre to $2,500.
Ambler sued for taking property without due process. The district court agreed; the village
appealed.
Decision: The Supreme Court reversed, holding the zoning plan to be constitutional. The police
power of the state, to protect public welfare, is great. Zoning benefits residents of the village in
Add. Case: Hadacheck v. Sebastian (S. Ct., 1915)--Hadacheck (H) bought land outside of the
City of Los Angeles in 1902. It contained clay deposits that were fired in kilns to make bricks.
The land was later annexed by the City which then passed an ordinance making it illegal for
bricks to be made in that particular area. H was prosecuted and found guilty of violating the
ordinance by making bricks on his property. The Supreme Court of California ruled against him.
The land was worth $800,000 as a brick making operation, but its value for any other purpose
was $60,000, but no compensation was required. The court rejected H’s claim that the regulation
discriminated against him because other brickyards in more populated areas of the City were left
unregulated. The court said it did not matter that the ordinance only applied to a small, rural
area of the City. H could not prove that the regulation was not passed in good faith, so it was
allowed to stand. H appealed.
Decision: Affirmed. The regulation was under the proper police powers of the state. There was
no violation of due process. To hold for H “would preclude development and fix a city forever in
Zoning: A Police Power—Is the primary local land use control device under general state police
powers. All sorts of limits may be placed on what can be done with property.
CASE: Saadala v. East Brunswick Zoning Board of Adjustment (Super. Ct., NJ, 2010)—A
7-Eleven store wanted to expand by taking over an abandoned gas station next door to it and a
vacant lot. The store and gas station were grandfathered in as nonconforming uses of the land
initially. A zoning variance was required. Saadala, a neighbor, opposed the new classification that
was opposed by the Zoning Board and by the trial court. Saadala appealed.
Decision: Reversed. Under NJ law, nonconforming uses are not encouraged and are to be
eliminated as time progresses. Allowing 7-Eleven to expand would increase the extent of the
Questions: 1. Why would the people living nearby oppose this improved use of the land?
Increased traffic from a heavy-use gas station and mini-mart running either 24 hours a day or
2. What practical reasons might there be for the Zoning Board to approve the plan?
Possible increased tax revenues for the city from a larger commercial establishment; but do not
discount politics—zoning boards can be captured by one interest or another. Also, the Shell
Add. Case: Macon-Bibb County Planning and Zoning v. Vineville Neighborhood (Ct. App.,
Ga., 1996)—Zoning Comm. rezoned property so a developer could build a shopping center. The
land bordered a neighborhood; many residents objected to the development as causing too much
traffic and other problems. They sued the commission. The trial court held the commission
abused its discretion in approving the rezoning plan. Commission appealed.
Decision: Reversed. The neighbors do not have standing to contest the decision. They must be
able to show a substantial interest and be in danger of suffering some injury. The increase in
Add. Case: Kosalka v. Town of Georgetown (Sup. Ct., Me., 2000)--The Georgetown Zoning
Ordinance said that developments must “conserve natural beauty.”Kosalka applied to the
Planning Board for a permit to build a nine-trailer RV campground. The plan was rejected
because the Board held it did not conserve natural beauty. Kosalka challenged the
constitutionality of the “natural beauty” requirement. The trial court rejected the challenge.
Kosalka appealed.
Decision: Reversed. “Developers are entitled to know with reasonable clarity what they must do
under state or local land use control laws to obtain the permits or approvals they seek.”
“Conserve natural beauty” is unclear. “All development, to some extent, destroys or impairs
Add. Case: Pinecrest Lakes v. Shidel (Ct. App., Fla., 2001)--A developer began work on a
development that was subject to the county’s land use plan. After an area of homes had been
built, the developer petitioned to have the adjoining land re-zoned from single-family houses to
apartment buildings. The county commission approved the developer’s plans. A home owner who
lived next to the land being re-zoned sued, contending that the change in zoning was improper.
The trial court upheld the commission decision. The home owner appealed. The developer began
work on the apartment buildings immediately. The appeals court held that commission approval
was not proper and the matter had to be reconsidered. By the time the trial court reviewed the
case again, and held that the re-zoning violated the county’s land use plan, several buildings had
been completed and occupied. The trial court ordered that the apartment buildings had to be
torn down. The developer appealed, contending that the remedy was not proper, since the loss
would be $3.3 million, far greater than the estimated loss of $26,000 in property value by the
complaining home owner.
Decision: Affirmed. The change in the developer’s plan that was approved by the commission
was improper. The home owner was entitled to a remedy of injunction against further improper
TORTS AGAINST PROPERTY—Wrongs directed against property rights and interests, both
real and personal property. Again, there must be an intent to do the act that leads to the tort, even
if the intent was not to commit the tort itself.
Trespass to Land—The tort of unauthorized intrusion by a person or a thing on land belonging
to another. A defense is unauthorized entry to protect property or persons from danger. Mistake is
not a defense, such as someone who thought it was ok to go hunting on someone else’s property.
There does not have to be damage to the property, such as a trespass from shooting a bullet
across property.
CASE: Smith v. Kulig (Sup.Ct., ND, 2005)—Kulig owns a building with businesses on ground
floor and apartments above. The back of the building had a fire escape. Tenants were told not to
use it except in emergency. There were “No Trespassing” signs on it. Smith was visiting a friend
who lived in the building. He went out on the fire escape, which became loose and Smith fell to
his death. His estate sued Kulig. The trial court dismissed the suit.
Decision: Affirmed. Smith was a trespasser. The tenants knew not to use the fire escape and it
was posted against trespassers. Smith was invited to be in the building to see his friend, but not
Questions: 1. The North Dakota high court held the landlord had no duty to protect trespassers
about dangers on the property. Since Smith was a guest of Wolf, a tenant, why was he a
trespasser?
He was a guest of Wolf in his apartment, but had no right to be in other parts of the building,
2. The fire escape was in poor condition and may have collapsed if people had used it in case of
a fire. Why was that not a failure by the landlord to exercise due care?
That would be a separate matter had such an event occurred. Then there may have been liability,
but not in this case. One does not have a duty to make sure everything is in good condition so
Add. Case: Snow v. Columbia (Ct. App., S.C., 1991)--Homeowners sued City of Columbia for
damage done to their residence caused by a water main owned and maintained by the city that
broke and flooded their property.
Decision: Court of Appeals held that city could not be held liable in trespass. “To constitute an
actionable trespass . . . there must be an affirmative act, the invasion of land must be intentional,
Add. Case: Gatheridge v. Strata Corp. (8th Cir., 1997)--Gatheridge and others swam at a
water-filled gravel quarry owned by Strata. It was in an open and unfenced area. Strata knew
that people swam there; Gatheridge knew it was not public property. Gatheridge was paralyzed
when he dove off the edge and hit the bottom. He sued Strata for not fencing the area. The trial
court dismissed the suit; Gatheridge appealed.
Decision: Under Minnesota law, Gatheridge was a trespasser. A landowner has a duty to warn
Add. Case: Colmus v. Sergeeva (Ct. App., Ore., 2001)--Colmus lived next door to the Sergeevas
who owned a German shepherd, which they kept in a fenced yard that had “Beware of Dog”
signs on it. Colmus would pet the dog through the fence and once entered the yard to give the
dog some food. She told the Sergeevas about doing that. On July 4, when the Sergeevas were
gone and fireworks were being set off, Colmus saw the dog was upset by the noise. She petted the
dog over the fence. A firecracker exploded and the dog jumped and bit off the end of her nose.
She sued the Sergeevas for negligence and for failing to warn her of the dangers of the dog,
contending that they knew the dog to be dangerous. The trial court dismissed the suit; Colmus
appealed.
Decision: Affirmed. Colmus was a trespasser when she went on the property to pet the dog.
Consent may constitute a privilege to trespass if there is evidence of actual willingness by the
landowner to have the trespasser engage in the particular type of entry; such willingness may be
inferred from the landowner’s inaction, but only if the owner has knowledge of the trespasser’s
Nuisance (Private and Public)—A private nuisance is an activity that substantially and
unreasonably interferes with the use and enjoyment of land; public nuisance is interference with
a right held in common by the public. Nuisances can be physical—smoke, noise, odors, or other
offenses that impair the tranquil enjoyment of property. It may be barking dogs next door, drug
dealing next door, or obnoxious activities.
CASE: Sowers v. Forest Hills Subdivision (Sup. Ct., NV, 2013)—Sowers wanted to build a
wind turbine on his residential property to generate electricity. His neighbors opposed the
construction as a nuisance. District court granted injunction against construction. Sowers
appealed.
Decision: Affirmed. Many things can be a nuisance; some are per se, others depend on
Questions: 1. Why is this called a nuisance in fact instead of a nuisance per se?
Because a wind turbine is not a nuisance in all places. As the court notes, something is a
2. If public policy support the production of renewable energy, should that be allowed to
overcome the objections?
The legislature could overrule this and say public need is dominant, but this is a turbine to
Add. Case: Atkinson v. City of Pierre (S.Ct., SD, 2005)—Atkinson lived in an apartment
across the street from an ice making plant. Her complaints to the plant and the city about the
noise it made were ignored so she sued for nuisance. Trial court held for defendants. She
appealed.
Decision: There are both statutory and common-law definitions of nuisance. A public nuisance is
generally one that affects a community or neighborhood with an annoyance that damages
Add. Case: Pendoley v. Ferreira (Sup. Ct., Mass., 1963)--Ferreira started a pig farm on 25
acres in 1949 in a sparsely populated area. By 1960, it had about 1000 pigs and there were 30
houses within smelling distance of the farm. Pendoley and other home owners sued in nuisance,
asking for damages from the smell and for an injunction against the farm. Court awarded
plaintiffs $300 each and issued an injunction against a piggery that “materially interferes with
the reasonable enjoyment of the property of large number of people.” Parties appealed.
Decision: Remanded. Damages alone will no remedy the situation. Nauseating odors create “a
substantial, unreasonable interference with the proper enjoyment of their residences,” which
Add. Case: Lever Brothers v. Langdoc (Ct. App, Ind., 1995)--Lever Brothers, in violation of a
city ordinance, dumped 8,000 gallons of used oil into the city sewer system. It oil clogged the
system. When a thunderstorm hit, filling the drains, and there was a power outage, over 600
basements of homes located downstream of the Lever plant were flooded. Langdoc and others
sued Lever for trespass and nuisance and won at trial. Lever appealed.
Decision: Lever Brothers did trespass: “A trespass action will exist if there is a direct causal
relation between the conduct of the actor and the intrusion of a foreign matter upon the
Add. Case: Bennett v. Stanley (Sup. Ct., Ohio, 2001)--A mother died trying to rescue her
drowning son who had fallen into a neighbor’s swimming pool. Survivors sued the neighbor for
negligence for having an unfenced pool. Trial and appeals court held for the property owner.
Plaintiffs appealed.
Decision: Reversed. A landowner owes no duty except to refrain from willful, wanton or reckless
conduct likely to injure a trespasser. However, children are owed special duties. Ohio uses the
attractive nuisance doctrine of the Restatement (Second) of Torts, which provides that the
Add. Case: Butler v. Newark Country Club (Sup. Ct., Del., 2006)--Children played at a
community center located next to a golf course (NCC). NCC has an irrigation pond next to the
community center that supplies water to the golf course. The children, age 8, 11, and 13, climbed
over a split rail fence, ignoring the "No Trespassing" and "No Skating" signs and went on the
ice-covered pond. The eight-year-old fell through and drowned. His mother sued NCC for
negligence, contending that the pond is an attractive nuisance. The trial court held for NCC.
Plaintiff appealed.
Decision: Affirmed. Landowners only duty to trespassers is not to intentionally, willfully, or
wantonly injure them. However, a possessor of land can be liable for injuries to trespassing
children if 1) the place where the condition exists is one upon which the possessor knows or has
reason to know that children are likely to trespass, and 2) the condition is one of which the
