b'\x0cProperty II\n\nby\n\nChristian Turner\nAssistant Professor of Law\nUniversity of Georgia School of Law\n\neLangdell Press\n\n2012\n\nii\n\n\x0cTable of Contents\nProperty II........................................................................................................................................................... ii\nAbout the Author .......................................................................................................................................... v\nNotices ........................................................................................................................................................... vi\n1. More on Adverse Possession .................................................................................................................. 1\n1.1. Personal Property .............................................................................................................................. 1\n1.2. Encroachments ................................................................................................................................14\n1.3. Improving Trespassers ...................................................................................................................19\n1.4. Problem.............................................................................................................................................26\n2. Temporal Sharing of Land .....................................................................................................................39\n2.1. Estates in Land ................................................................................................................................39\n2.1.1. Introduction ..................................................................................................................................39\n2.1.2. Interpretation ................................................................................................................................50\n2.1.3. Problems ........................................................................................................................................61\n2.2. Rule Against Perpetuities................................................................................................................68\n2.3. Restraints on Marriage ....................................................................................................................78\n2.4. Waste .................................................................................................................................................83\n3. Leaseholds ................................................................................................................................................96\n3.1. Eviction.............................................................................................................................................96\n3.2. Tenant Duties ............................................................................................................................... 105\n3.3. Landlord Duties ............................................................................................................................ 120\n3.4. Problems ........................................................................................................................................ 146\n4. Shared Ownership................................................................................................................................ 148\n4.1. Tenancies in Common................................................................................................................. 153\n4.2. Joint Tenancies ............................................................................................................................. 161\n4.3. Tenancies by the Entirety ............................................................................................................ 172\n4.4. Relationships and Property ......................................................................................................... 180\n4.4.1. Marriage and Divorce ............................................................................................................... 180\n4.4.2. Professional Degrees................................................................................................................. 189\n4.4.3. Unmarried Partners ................................................................................................................... 205\n4.4.4. Children\'s Claims on Family Assets........................................................................................ 222\n5. Easements ............................................................................................................................................. 228\nAN INTRODUCTION TO SERVITUDES ................................................................................. 228\n5.1. Easements by Estoppel ............................................................................................................... 232\n5.2. Easements by Implication ........................................................................................................... 244\n5.3. Easements by Necessity .............................................................................................................. 250\n5.4. Scope and Overburdening .......................................................................................................... 253\n5.5. Easements in Gross ..................................................................................................................... 262\n6. Covenants .............................................................................................................................................. 269\nAN INTRODUCTION TO SERVITUDES, Part II ................................................................... 269\n6.1. Formation ...................................................................................................................................... 274\n6.1.1. Written Covenants and Running with the Land ................................................................... 274\n6.1.2. Implied Covenants .................................................................................................................... 291\n1. Covenants and Equitable Servitudes ................................................................................................. 296\n1. California Cases .................................................................................................................................... 299\n2. The Current Uncertainties .................................................................................................................. 301\n3. The Solution.......................................................................................................................................... 303\niii\n\n\x0c4. Resolution of this Case........................................................................................................................ 305\n6.2. Changed Conditions..................................................................................................................... 307\n6.3. Regulation ...................................................................................................................................... 315\n6.3.1. Restraints on Alienation ........................................................................................................... 315\nDISCUSSION .......................................................................................................................................... 320\n6.3.2. Racist Conditions ...................................................................................................................... 329\n6.4. Review Problems .......................................................................................................................... 349\n7. Sovereigns and Individuals ................................................................................................................. 352\n7.1. Sovereignty .................................................................................................................................... 353\n7.2. Private Government..................................................................................................................... 363\n7.3. Public Accommodations ............................................................................................................. 389\n7.3.1. Common Law ............................................................................................................................ 389\n7.3. Public Accommodations ............................................................................................................. 400\n7.3.1. Common Law ............................................................................................................................ 400\n7.3.2. Civil Rights Acts ........................................................................................................................ 415\n1.Place of Public Accommodation ........................................................................................................ 417\n2.LAD Exceptions ................................................................................................................................... 422\n7.3.2. Civil Rights Acts ........................................................................................................................ 428\n1.Place of Public Accommodation ........................................................................................................ 430\n2.LAD Exceptions ................................................................................................................................... 435\n7.3.3. Americans with Disabilities Act .............................................................................................. 442\n7.4. Takings ........................................................................................................................................... 470\n7.4.1. Eminent Domain....................................................................................................................... 470\nIV ................................................................................................................................................................ 492\n7.4.2. Regulatory Takings .................................................................................................................... 499\n7.4.2.1. Ad hoc Takings....................................................................................................................... 499\n7.4.2.2. Per se Takings ......................................................................................................................... 507\n\niv\n\n\x0cAbout the Author\nChristian Turner teaches courses in property, land use, legal theory, and the regulation of\ninformation. His research interests are in the public/private distinction and institutional analysis.\nDrawing from his mathematical training, he is interested in both the logic and illogic of the law -and in understanding seemingly complex and diverse legal principles as consequences of basic, transsubstantive ideas.\nPrior to joining the faculty at the University of Georgia, Christian was a Visiting Assistant\nProfessor at Fordham Law School, worked at Wiggin and Dana law firm in New Haven, and clerked\nfor Judge Guido Calabresi on the Second Circuit. He is a graduate of Stanford Law School and\nholds a Ph.D. in mathematics from Texas A&M University.\n\nv\n\n\x0cNotices\nPermission to include "Economic Analysis of "Takings" of Private Property,"\nhttp://cyber.law.harvard.edu/bridge/LawEconomics/takings.htm, from Professor William Fisher.\nPermission to include \xe2\x80\x9cHousing Complex Owners Vote to Ban Smoking\xe2\x80\x9d by Mr. Emerson\nand the Leader-Telegram newspaper, Eau Claire, Wis.\nEduardo M. Pe\xc3\xb1alver, Property as Entrance, 91 Va. L. Rev. 1889 (2005); Copyright is owned\nby the Virginia Law Review Association and the article is used by permission of the Virginia Law\nReview Association.\nMark Kelman, Market Discrimination and Groups, 53 Stan. L. Rev. 833, 840 (2001),\nreprinted with permission of the Stanford Law Review.\nThis work by Christian Turner licensed and published by CALI eLangdell Press under a\nCreative Commons Attribution-NonCommercial-ShareAlike 3.0 Unported License. CALI and CALI\neLangdell Press reserve under copyright all rights not expressly granted by this Creative Commons\nlicense. CALI and CALI eLangdell Press do not assert copyright in US Government works or other\npublic domain material included herein. Permissions beyond the scope of this license may be\navailable through feedback@cali.org.\n\nIn brief, the terms of that license are that you may copy, distribute, and display this work, or\nmake derivative works, so long as\nyou give CALI eLangdell Press and the author credit;\nyou do not use this work for commercial purposes; and\nyou distribute any works derived from this one under the same licensing terms as this.\nSuggested attribution format for original work:\nChristian Turner, Property II, Published by CALI eLangdell Press. Available under a\nCreative Commons BY-NC-SA 3.0 License.\nCALI\xc2\xae and eLangdell\xc2\xae are United States federally registered trademarks owned by the\nCenter for Computer-Assisted Legal Instruction. The cover art design is a copyrighted work of\nCALI, all rights reserved. The CALI graphical logo is a trademark and may not be used without\npermission.\nShould you create derivative works based on the text of this book or other Creative\nCommons materials therein, you may not use this book\xe2\x80\x99s cover art and the aforementioned logos, or\nany derivative thereof, to imply endorsement or otherwise without written permission from CALI.\nThis material does not contain nor is intended to be legal advice. Users seeking legal advice\nshould consult with a licensed attorney in their jurisdiction. The editors have endeavored to provide\ncomplete and accurate information in this book. However, CALI does not warrant that the\ninformation provided is complete and accurate. CALI disclaims all liability to any person for any loss\ncaused by errors or omissions in this collection of information.\nVersion 1.0 - June 14, 2012\nvi\n\n\x0c1. More on Adverse Possession\n\n1.1. Personal Property\nO\xe2\x80\x99Keeffe v. Snyder,\n83 N.J. 478 (1980)\n\nJoel H. Sterns, Trenton, for defendant-appellant Barry Snyder, d/b/a Princeton Gallery of\nFine Art (Sterns, Herbert & Weinroth, Trenton, attorneys; Mark D. Schorr and William J. Bigham,\nTrenton, on briefs).\nThomas C. Jamieson, Jr., Trenton, for third party defendant-appellant Ulrich A. Frank\n(Jamieson, McCardell, Moore, Peskin & Spicer, Trenton, attorneys).\nRoger A. Lowenstein, Roseland, for plaintiff-respondent (Lowenstein, Sandler, Brochin,\nKohl, Fisher & Boylan, Roseland, attorneys; Roger A. Lowenstein and Lee Hilles Wertheim,\nRoseland, on briefs).\nPollock, J.\nThis is an appeal from an order of the Appellate Division granting summary judgment to\nplaintiff, Georgia O\xe2\x80\x99Keeffe, against defendant, Barry Snyder, d/b/a Princeton Gallery of Fine Art,\nfor replevin of three small pictures painted by O\xe2\x80\x99Keeffe. In her complaint, filed in March, 1976,\nO\xe2\x80\x99Keeffe alleged she was the owner of the paintings and that they were stolen from a New York art\ngallery in 1946. Snyder asserted he was a purchaser for value of the paintings, he had title by adverse\npossession, and O\xe2\x80\x99Keeffe\xe2\x80\x99s action was barred by the expiration of the six-year period of limitations\nprovided by N.J.S.A. 2A:14-1 pertaining to an action in replevin. Snyder impleaded third party\ndefendant, Ulrich A. Frank, from whom Snyder purchased the paintings in 1975 for $35,000.\nThe trial court granted summary judgment for Snyder on the ground that O\xe2\x80\x99Keeffe\xe2\x80\x99s action\nwas barred because it was not commenced within six years of the alleged theft. The Appellate\nDivision reversed and entered judgment for O\xe2\x80\x99Keeffe. A majority of that court concluded that the\npaintings were stolen, the defenses of expiration of the statute of limitations and title by adverse\npossession were identical, and Snyder had not proved the elements of adverse possession.\nConsequently, the majority ruled that O\xe2\x80\x99Keeffe could still enforce her right to possession of the\npaintings.\n\xe2\x80\xa6 . We reverse and remand the matter for a plenary hearing in accordance with this opinion.\nI\n\n1\n\n\x0cThe record, limited to pleadings, affidavits, answers to interrogatories, and depositions, is\nfraught with factual conflict. Apart from the creation of the paintings by O\xe2\x80\x99Keeffe and their\ndiscovery in Snyder\xe2\x80\x99s gallery in 1976, the parties agree on little else.\nO\xe2\x80\x99Keeffe contended the paintings were stolen in 1946 from a gallery, An American Place.\nThe gallery was operated by her late husband, the famous photographer Alfred Stieglitz.\n\xe2\x80\xa6 . . In 1946, Stieglitz arranged an exhibit which included an O\xe2\x80\x99Keeffe painting, identified\nas Cliffs. According to O\xe2\x80\x99Keeffe, one day in March, 1946, she and Stieglitz discovered Cliffs was\nmissing from the wall of the exhibit. O\xe2\x80\x99Keeffe estimates the value of the painting at the time of the\nalleged theft to have been about $150.\nAbout two weeks later, O\xe2\x80\x99Keeffe noticed that two other paintings, Seaweed and Fragments,\nwere missing from a storage room at An American Place. She did not tell anyone, even Stieglitz,\nabout the missing paintings, since she did not want to upset him.\nBefore the date when O\xe2\x80\x99Keeffe discovered the disappearance of Seaweed, she had already\nsold it (apparently for a string of amber beads) to a Mrs. Weiner, now deceased. Following the grant\nof the motion for summary judgment by the trial court in favor of Snyder, O\xe2\x80\x99Keeffe submitted a\nrelease from the legatees of Mrs. Weiner purportedly assigning to O\xe2\x80\x99Keeffe their interest in the sale.\nO\xe2\x80\x99Keeffe testified on depositions that at about the same time as the disappearance of her\npaintings, 12 or 13 miniature paintings by Marin also were stolen from An American Place.\nAccording to O\xe2\x80\x99Keeffe, a man named Estrick took the Marin paintings and \xe2\x80\x9cmaybe a few other\nthings.\xe2\x80\x9d Estrick distributed the Marin paintings to members of the theater world who, when\nconfronted by Stieglitz, returned them. However, neither Stieglitz nor O\xe2\x80\x99Keeffe confronted Estrick\nwith the loss of any of the O\xe2\x80\x99Keeffe paintings.\nThere was no evidence of a break and entry at An American Place on the dates when\nO\xe2\x80\x99Keeffe discovered the disappearance of her paintings. Neither Stieglitz nor O\xe2\x80\x99Keeffe reported\nthem missing to the New York Police Department or any other law enforcement agency. Apparently\nthe paintings were uninsured, and O\xe2\x80\x99Keeffe did not seek reimbursement from an insurance\ncompany. Similarly, neither O\xe2\x80\x99Keeffe nor Stieglitz advertised the loss of the paintings in Art News\nor any other publication. Nonetheless, they discussed it with associates in the art world and later\nO\xe2\x80\x99Keeffe mentioned the loss to the director of the Art Institute of Chicago, but she did not ask him\nto do anything because \xe2\x80\x9cit wouldn\xe2\x80\x99t have been my way.\xe2\x80\x9d O\xe2\x80\x99Keeffe does not contend that Frank or\nSnyder had actual knowledge of the alleged theft.\nStieglitz died in the summer of 1946, and O\xe2\x80\x99Keeffe explains she did not pursue her efforts to\nlocate the paintings because she was settling his estate. In 1947, she retained the services of Doris\nBry to help settle the estate. Bry urged O\xe2\x80\x99Keeffe to report the loss of the paintings, but O\xe2\x80\x99Keeffe\ndeclined because \xe2\x80\x9cthey never got anything back by reporting it.\xe2\x80\x9d Finally, in 1972, O\xe2\x80\x99Keeffe\nauthorized Bry to report the theft to the Art Dealers Association of America, Inc., which maintains\nfor its members a registry of stolen paintings. The record does not indicate whether such a registry\nexisted at the time the paintings disappeared.\nIn September, 1975, O\xe2\x80\x99Keeffe learned that the paintings were in the Andrew Crispo Gallery\nin New York on consignment from Bernard Danenberg Galleries. On February 11, 1976, O\xe2\x80\x99Keeffe\ndiscovered that Ulrich A. Frank had sold the paintings to Barry Snyder, d/b/a Princeton Gallery of\nFine Art. She demanded their return and, following Snyder\xe2\x80\x99s refusal, instituted this action for\nreplevin.\nFrank traces his possession of the paintings to his father, Dr. Frank, who died in 1968. He\nclaims there is a family relationship by marriage between his family and the Stieglitz family, a\ncontention that O\xe2\x80\x99Keeffe disputes. Frank does not know how his father acquired the paintings, but\nhe recalls seeing them in his father\xe2\x80\x99s apartment in New Hampshire as early as 1941-1943, a period\nthat precedes the alleged theft. Consequently, Frank\xe2\x80\x99s factual contentions are inconsistent with\n2\n\n\x0cO\xe2\x80\x99Keeffe\xe2\x80\x99s allegation of theft. Until 1965, Dr. Frank occasionally lent the paintings to Ulrich Frank.\nIn 1965, Dr. and Mrs. Frank formally gave the paintings to Ulrich Frank, who kept them in his\nresidences in Yardley, Pennsylvania and Princeton, New Jersey. In 1968, he exhibited anonymously\nCliffs and Fragments in a one day art show in the Jewish Community Center in Trenton. All of these\nevents precede O\xe2\x80\x99Keeffe\xe2\x80\x99s listing of the paintings as stolen with the Art Dealers Association of\nAmerica, Inc. in 1972.\nFrank claims continuous possession of the paintings through his father for over thirty years\nand admits selling the paintings to Snyder. Snyder and Frank do not trace their provenance, or\nhistory of possession of the paintings, back to O\xe2\x80\x99Keeffe.\nAs indicated, Snyder moved for summary judgment on the theory that O\xe2\x80\x99Keeffe\xe2\x80\x99s action was\nbarred by the statute of limitations and title had vested in Frank by adverse possession. For purposes\nof his motion, Snyder conceded that the paintings had been stolen. On her cross motion, O\xe2\x80\x99Keeffe\nurged that the paintings were stolen, the statute of limitations had not run, and title to the paintings\nremained in her.\nII\n[The Court held that there were disputed issues of material fact regarding, among other\nthings, whether the paintings were stolen. The case was, therefore, remanded for trial.]\nIII\nOn the limited record before us, we cannot determine now who has title to the paintings.\nThat determination will depend on the evidence adduced at trial. Nonetheless, we believe it may aid\nthe trial court and the parties to resolve questions of law that may become relevant at trial.\nOur decision begins with the principle that, generally speaking, if the paintings were stolen,\nthe thief acquired no title and could not transfer good title to others regardless of their good faith\nand ignorance of the theft. Proof of theft would advance O\xe2\x80\x99Keeffe\xe2\x80\x99s right to possession of the\npaintings absent other considerations such as expiration of the statute of limitations.\nAnother issue that may become relevant at trial is whether Frank or his father acquired a\n\xe2\x80\x9cvoidable title\xe2\x80\x9d to the paintings under N.J.S.A. 12A:2-403(1). That section, part of the Uniform\nCommercial Code (U.C.C.), does not change the basic principle that a mere possessor cannot\ntransfer good title. Nonetheless, the U.C.C. permits a person with voidable title to transfer good title\nto a good faith purchaser for value in certain circumstances. N.J.S.A. 12A:2-403(1). If the facts\ndeveloped at trial merit application of that section, then Frank may have transferred good title to\nSnyder, thereby providing a defense to O\xe2\x80\x99Keeffe\xe2\x80\x99s action. No party on this appeal has urged factual\nor legal contentions concerning the applicability of the U.C.C. Consequently, a more complete\ndiscussion of the U.C.C. would be premature, particularly in light of our decision to remand the\nmatter for trial.\nOn this appeal, the critical legal question is when O\xe2\x80\x99Keeffe\xe2\x80\x99s cause of action accrued. The\nfulcrum on which the outcome turns is the statute of limitations in N.J.S.A. 2A:14-1, which provides\nthat an action for replevin of goods or chattels must be commenced within six years after the accrual\nof the cause of action.\nThe trial court found that O\xe2\x80\x99Keeffe\xe2\x80\x99s cause of action accrued on the date of the alleged theft,\n3\n\n\x0cMarch, 1946, and concluded that her action was barred. The Appellate Division found that an action\nmight have accrued more than six years before the date of suit if possession by the defendant or his\npredecessors satisfied the elements of adverse possession. As indicated, the Appellate Division\nconcluded that Snyder had not established those elements and that the O\xe2\x80\x99Keeffe action was not\nbarred by the statute of limitations.\nSince the alleged theft occurred in New York, a preliminary question is whether the statute\nof limitations of New York or New Jersey applies. The New York statute, N.Y. Civ. Prac. Law \xc2\xa7 214\n(McKinney), has been interpreted so that the statute of limitations on a cause of action for replevin\ndoes not begin to run until after refusal upon demand for the return of the goods. Here, O\xe2\x80\x99Keeffe\ndemanded return of the paintings in February, 1976. If the New York statute applied, her action\nwould have been commenced within the period of limitations.\n[The Court concluded, based on a balance of interests, that New Jersey\xe2\x80\x99s statute would likely\napply but left further consideration and factfinding to the trial court.]\nIV\nOn the assumption that New Jersey law will apply, we shall consider significant questions\nraised about the interpretation of N.J.S.A. 2A:14-1. The purpose of a statute of limitations is to\n\xe2\x80\x9cstimulate to activity and punish negligence\xe2\x80\x9d and \xe2\x80\x9cpromote repose by giving security and stability to\nhuman affairs.\xe2\x80\x9d A statute of limitations achieves those purposes by barring a cause of action after\nthe statutory period. In certain instances, this Court has ruled that the literal language of a statute of\nlimitations should yield to other considerations.\nTo avoid harsh results from the mechanical application of the statute, the courts have\ndeveloped a concept known as the discovery rule. The discovery rule provides that, in an\nappropriate case, a cause of action will not accrue until the injured party discovers, or by exercise of\nreasonable diligence and intelligence should have discovered, facts which form the basis of a cause\nof action. The rule is essentially a principle of equity, the purpose of which is to mitigate unjust\nresults that otherwise might flow from strict adherence to a rule of law.\nThis Court first announced the discovery rule in [Fernandi v. Strully, 35 N.J. 434 (1961)]. In\nFernandi, a wing nut was left in a patient\xe2\x80\x99s abdomen following surgery and was not discovered for\nthree years. The majority held that fairness and justice mandated that the statute of limitations\nshould not have commenced running until the plaintiff knew or had reason to know of the presence\nof the foreign object in her body. The discovery rule has since been extended to other areas of\nmedical malpractice.\nIncreasing acceptance of the principle of the discovery rule has extended the doctrine to\ncontexts unrelated to medical malpractice. [The Court cites cases dealing with negligence in conduit\ninstallation, surveying, union representation, and defective products.]\nThe statute of limitations before us, N.J.S.A. 2A:14-1, has been held subject to the discovery\nrule in an action for wrongful detention of shares of stock. Federal Insurance Co. v. Hausler, 108\nN.J.Super. 421, 426, 261 A.2d 671 (App. Div. 1970). In Hausler, the defendant purchased preferred\nstock of a corporation through a stockbroker. On March 9, 1961, the broker erroneously sent to the\ncustomer a certificate for common stock of greater value. The broker discovered the error in\nDecember, 1961, but did not learn the identity of the customer\xe2\x80\x99s account in which the error was\nmade until November, 1962. Defendants refused to exchange the common stock for the preferred\nstock. Plaintiff, a bonding company subrogated to the broker\xe2\x80\x99s rights, instituted an action on July 2,\n1968, within six years of the date on which the broker learned the identity of the defendants as the\n4\n\n\x0ccustomers who wrongfully received the common stock, but more than six years after the broker\nknew it had a cause of action. Judge Goldmann, writing for a unanimous court, reversed the grant of\na summary judgment for defendants and remanded the matter for a full trial to determine whether\n(1) the broker knew or reasonably should have known of the error and the defendants\xe2\x80\x99 identity in\nDecember, 1961 and (2) defendants knew of the mistake from the beginning and fraudulently\nconcealed it. Overruling the trial court which had concluded \xe2\x80\x9c(t)his is not a good case in which to\napply the discovery rule,\xe2\x80\x9d Judge Goldmann found the discovery rule applicable.\nSimilarly, we conclude that the discovery rule applies to an action for replevin of a painting\nunder N.J.S.A. 2A:14-1. O\xe2\x80\x99Keeffe\xe2\x80\x99s cause of action accrued when she first knew, or reasonably\nshould have known through the exercise of due diligence, of the cause of action, including the\nidentity of the possessor of the paintings. See N. Ward, Adverse Possession of Loaned or Stolen Objects: Is\nPossession Still 9/10 ths of the law?, published in Legal Problems of Museum Administration (ALI-ABA\n1980) at 89-90.\n\xe2\x80\xa6.\nIn determining whether O\xe2\x80\x99Keeffe is entitled to the benefit of the discovery rule, the trial\ncourt should consider, among others, the following issues: (1) whether O\xe2\x80\x99Keeffe used due diligence\nto recover the paintings at the time of the alleged theft and thereafter; (2) whether at the time of the\nalleged theft there was an effective method, other than talking to her colleagues, for O\xe2\x80\x99Keeffe to\nalert the art world; and (3) whether registering paintings with the Art Dealers Association of\nAmerica, Inc. or any other organization would put a reasonably prudent purchaser of art on\nconstructive notice that someone other than the possessor was the true owner.\nV\nThe acquisition of title to real and personal property by adverse possession is based on the\nexpiration of a statute of limitations. Adverse possession does not create title by prescription apart\nfrom the statute of limitations. Walsh, Title by Adverse Possession, 17 N.Y.U.L.Q.Rev. 44, 82 (1939)\n(Walsh); see Developments in the Law Statutes of Limitations, 63 Harv.L.Rev. 1177 (1950) (Developments).\nTo establish title by adverse possession to chattels, the rule of law has been that the\npossession must be hostile, actual, visible, exclusive, and continuous. Redmond v. New Jersey Historical\nSociety, 132 N.J.Eq. 464, 474, 28A.2d 189 (E. & A. 1942). Redmond involved a portrait of Captain\nJames Lawrence by Gilbert Stuart, which was bequeathed by its owner to her son with a provision\nthat if he should die leaving no descendants, it should go to the New Jersey Historical Society. The\nowner died in 1887, when her son was 14, and her executors delivered the painting to the Historical\nSociety. The painting remained in the possession of the Historical Society for over 50 years, until\n1938, when the son died and his children, the legatees under his will, demanded its return. The\nHistorical Society refused, and the legatees instituted a replevin action.\nThe Historical Society argued that the applicable statute of limitations, the predecessor of\nN.J.S.A. 2A:14-1, had run and that plaintiffs\xe2\x80\x99 action was barred. The Court of Errors and Appeals\nheld that the doctrine of adverse possession applied to chattels as well as to real property, Redmond,\nsupra, 132 N.J.Eq. at 473, 28 A.2d 189, and that the statute of limitations would not begin to run\nagainst the true owner until possession became adverse. Id. at 475, 28 A.2d 189. The Court found\nthat the Historical Society had done nothing inconsistent with the theory that the painting was a\n\xe2\x80\x9cvoluntary bailment or gratuitous loan\xe2\x80\x9d and had \xe2\x80\x9cutterly failed to prove that its possession of the\nportrait was \xe2\x80\x98adversary,\xe2\x80\x99 \xe2\x80\x98hostile.\xe2\x80\x99\xe2\x80\x9d The Court found further that the Historical Society had not\nasserted ownership until 1938, when it refused to deliver the painting to plaintiff, and that the statute\n5\n\n\x0cdid not begin to run until that date. Consequently, the Court ordered the painting to be returned to\nplaintiffs.\nThe only other New Jersey case applying adverse possession to chattels is Joseph v. Lesnevich,\n56 N.J.Super. 340, 153 A.2d 349 (App. Div. 1949). In Lesnevich, several negotiable bearer bonds were\nstolen from plaintiff in 1951. In October, 1951, Lesnevich received an envelope containing the\nbonds. On October 21, 1951, Lesnevich and his business partner pledged the bonds with a credit\ncompany. They failed to pay the loan secured by the bonds and requested the credit company to sell\nthe bonds to pay the loan. On August 1, 1952, the president of the credit company purchased the\nbonds and sold them to his son. In 1958, within one day of the expiration of six years from the date\nof the purchase, the owner of the bonds sued the credit company and its president, among others,\nfor conversion of the bonds. The Appellate Division found that the credit company and its\npresident held the bonds \xe2\x80\x9cas openly and notoriously as the nature of the property would permit.\xe2\x80\x9d\nLesnevich, supra, 56 N.J.Super. at 355, 153 A.2d at 357. The pledge of the bonds with the credit\ncompany was considered to be open possession.\nAs Lesnevich demonstrates, there is an inherent problem with many kinds of personal\nproperty that will raise questions whether their possession has been open, visible, and notorious. In\nLesnevich, the court strained to conclude that in holding bonds as collateral, a credit company\nsatisfied the requirement of open, visible, and notorious possession.\nOther problems with the requirement of visible, open, and notorious possession readily\ncome to mind. For example, if jewelry is stolen from a municipality in one county in New Jersey, it is\nunlikely that the owner would learn that someone is openly wearing that jewelry in another county\nor even in the same municipality. Open and visible possession of personal property, such as jewelry,\nmay not be sufficient to put the original owner on actual or constructive notice of the identity of the\npossessor.\nThe problem is even more acute with works of art. Like many kinds of personal property,\nworks of art are readily moved and easily concealed. O\xe2\x80\x99Keeffe argues that nothing short of public\ndisplay should be sufficient to alert the true owner and start the statute running. Although there is\nmerit in that contention from the perspective of the original owner, the effect is to impose a heavy\nburden on the purchasers of paintings who wish to enjoy the paintings in the privacy of their homes.\nIn the present case, the trial court and Appellate Division concluded that the paintings,\nwhich allegedly had been kept in the private residences of the Frank family, had not been held\nvisibly, openly, and notoriously. Notwithstanding that conclusion, the trial court ruled that the\nstatute of limitations began to run at the time of the theft and had expired before the\ncommencement of suit. The Appellate Division determined it was bound by the rules in Redmond\nand reversed the trial court on the theory that the defenses of adverse possession and expiration of\nthe statute of limitations were identical. Nonetheless, for different reasons, the majority and\ndissenting judges in the Appellate Division acknowledged deficiencies in identifying the statute of\nlimitations with adverse possession. The majority stated that, as a practical matter, requiring\ncompliance with adverse possession would preclude barring stale claims and acquiring title to\npersonal property. The dissenting judge feared that identifying the statutes of limitations with\nadverse possession would lead to a \xe2\x80\x9chandbook for larceny.\xe2\x80\x9d The divergent conclusions of the lower\ncourts suggest that the doctrine of adverse possession no longer provides a fair and reasonable\nmeans of resolving this kind of dispute.\nThe problem is serious. According to an affidavit submitted in this matter by the president\nof the International Foundation for Art Research, there has been an \xe2\x80\x9cexplosion in art thefts\xe2\x80\x9d and\nthere is a \xe2\x80\x9cworldwide phenomenon of art theft which has reached epidemic proportions.\xe2\x80\x9d\nThe limited record before us provides a brief glimpse into the arcane world of sales of art,\nwhere paintings worth vast sums of money sometimes are bought without inquiry about their\n6\n\n\x0cprovenance. There does not appear to be a reasonably available method for an owner of art to\nrecord the ownership or theft of paintings. Similarly, there are no reasonable means readily available\nto a purchaser to ascertain the provenance of a painting. It may be time for the art world to establish\na means by which a good faith purchaser may reasonably obtain the provenance of a painting. An\nefficient registry of original works of art might better serve the interests of artists, owners of art, and\nbona fide purchasers than the law of adverse possession with all of its uncertainties. Although we\ncannot mandate the initiation of a registration system, we can develop a rule for the commencement\nand running of the statute of limitations that is more responsive to the needs of the art world than\nthe doctrine of adverse possession.\nWe are persuaded that the introduction of equitable considerations through the discovery\nrule provides a more satisfactory response than the doctrine of adverse possession. The discovery\nrule shifts the emphasis from the conduct of the possessor to the conduct of the owner. The focus\nof the inquiry will no longer be whether the possessor has met the tests of adverse possession, but\nwhether the owner has acted with due diligence in pursuing his or her personal property.\nFor example, under the discovery rule, if an artist diligently seeks the recovery of a lost or\nstolen painting, but cannot find it or discover the identity of the possessor, the statute of limitations\nwill not begin to run. The rule permits an artist who uses reasonable efforts to report, investigate,\nand recover a painting to preserve the rights of title and possession.\nProperly interpreted, the discovery rule becomes a vehicle for transporting equitable\nconsiderations into the statute of limitations for replevin, N.J.S.A. 2A:14-1. In determining whether\nthe discovery rule should apply, a court should identify, evaluate, and weigh the equitable claims of\nall parties. If a chattel is concealed from the true owner, fairness compels tolling the statute during\nthe period of concealment. That conclusion is consistent with tolling the statute of limitations in a\nmedical malpractice action where the physician is guilty of fraudulent concealment.\nIt is consistent also with the law of replevin as it has developed apart from the discovery\nrule. In an action for replevin, the period of limitations ordinarily will run against the owner of lost\nor stolen property from the time of the wrongful taking, absent fraud or concealment. Where the\nchattel is fraudulently concealed, the general rule is that the statute is tolled.\nA purchaser from a private party would be well-advised to inquire whether a work of art has\nbeen reported as lost or stolen. However, a bona fide purchaser who purchases in the ordinary\ncourse of business a painting entrusted to an art dealer should be able to acquire good title against\nthe true owner. Under the U.C.C. entrusting possession of goods to a merchant who deals in that\nkind of goods gives the merchant the power to transfer all the rights of the entruster to a buyer in\nthe ordinary course of business. In a transaction under that statute, a merchant may vest good title in\nthe buyer as against the original owner. The interplay between the statute of limitations as modified\nby the discovery rule and the U.C.C. should encourage good faith purchases from legitimate art\ndealers and discourage trafficking in stolen art without frustrating an artist\xe2\x80\x99s ability to recover stolen\nart works.\nThe discovery rule will fulfill the purposes of a statute of limitations and accord greater\nprotection to the innocent owner of personal property whose goods are lost or stolen. Accordingly,\nwe overrule Redmond v. New Jersey Historical Society, supra, and Joseph v. Lesnevich, supra, to the extent that\nthey hold that the doctrine of adverse possession applies to chattels.\nBy diligently pursuing their goods, owners may prevent the statute of limitations from\nrunning. The meaning of due diligence will vary with the facts of each case, including the nature and\nvalue of the personal property. For example, with respect to jewelry of moderate value, it may be\nsufficient if the owner reports the theft to the police. With respect to art work of greater value, it\nmay be reasonable to expect an owner to do more. In practice, our ruling should contribute to more\ncareful practices concerning the purchase of art.\n7\n\n\x0cThe considerations are different with real estate, and there is no reason to disturb the\napplication of the doctrine of adverse possession to real estate. Real estate is fixed and cannot be\nmoved or concealed. The owner of real property knows or should know where his property is\nlocated and reasonably can be expected to be aware of open, notorious, visible, hostile, continuous\nacts of possession on it.\nOur ruling not only changes the requirements for acquiring title to personal property after an\nalleged unlawful taking, but also shifts the burden of proof at trial. Under the doctrine of adverse\npossession, the burden is on the possessor to prove the elements of adverse possession. Under the\ndiscovery rule, the burden is on the owner as the one seeking the benefit of the rule to establish facts\nthat would justify deferring the beginning of the period of limitations.\nVI\n[The Court then held that the running of the statute of limitations not only cuts of the\noriginal owner\xe2\x80\x99s replevin remedy but also vests title in the possessor.] In the past, adverse possession\nhas described the nature of the conduct that will vest title of a chattel at the end of the statutory\nperiod. Our adoption of the discovery rule does not change the conclusion that at the end of the\nstatutory period title will vest in the possessor.\nVII\nWe next consider the effect of transfers of a chattel from one possessor to another during\nthe period of limitation under the discovery rule. Under the discovery rule, the statute of limitations\non an action for replevin begins to run when the owner knows or reasonably should know of his\ncause of action and the identity of the possessor of the chattel. Subsequent transfers of the chattel\nare part of the continuous dispossession of the chattel from the original owner. The important point\nis not that there has been a substitution of possessors, but that there has been a continuous\ndispossession of the former owner.\nProfessor Ballantine explains:\nWhere the same claim of title has been consistently asserted for the statutory period by\npersons in privity with each other, there is the same reason to quiet and establish the title as where\none person has held. The same flag has been kept flying for the whole period. It is the same ouster\nand disseisin. If the statute runs, it quiets a title which has been consistently asserted and exercised as\nagainst the true owner, and the possession of the prior holder justly enures to the benefit of the last.\n(H. Ballantine, Title by Adverse Possession, 32 Harv.L.Rev. 135, 158 (1919))\n\xe2\x80\xa6.\nFor the purpose of evaluating the due diligence of an owner, the dispossession of his chattel\nis a continuum not susceptible to separation into distinct acts. Nonetheless, subsequent transfers of\nthe chattel may affect the degree of difficulty encountered by a diligent owner seeking to recover his\ngoods. To that extent, subsequent transfers and their potential for frustrating diligence are relevant\nin applying the discovery rule. An owner who diligently seeks his chattel should be entitled to the\nbenefit of the discovery rule although it may have passed through many hands. Conversely an owner\nwho sleeps on his rights may be denied the benefit of the discovery rule although the chattel may\nhave been possessed by only one person.\n8\n\n\x0cWe reject the alternative of treating subsequent transfers of a chattel as separate acts of\nconversion that would start the statute of limitations running anew. At common law, apart from the\nstatute of limitations, a subsequent transfer of a converted chattel was considered to be a separate\nact of conversion. In his dissent, Justice Handler seeks to extend the rule so that it would apply even\nif the period of limitations had expired before the subsequent transfer. Nonetheless, the dissent does\nnot cite any authority that supports the position that the statute of limitations should run anew on\nan act of conversion already barred by the statute of limitations. Adoption of that alternative would\ntend to undermine the purpose of the statute in quieting titles and protecting against stale claims.\nThe majority and better view is to permit tacking, the accumulation of consecutive periods\nof possession by parties in privity with each other.\nAs explained by Professor Walsh:\nThe doctrine of tacking applies as in corresponding cases of successive adverse possessions\nof land where privity exists between such possessors. Uncertainty is created by cases which hold that\neach successive purchaser is subject to a new cause of action against which the statute begins to run\nfrom that time, in this way indefinitely extending the time when the title will be quieted by operation\nof the statute. It should be entirely clear that the purposes of statutes of limitation are the same\nwhether they relate to land or chattels, and therefore the same reasons exist for tacking successive\npossessions as the prevailing cases hold. Nevertheless, under the cases, new actions in conversion\narise against successive purchases of the converted property, and there is strong reason back of the\nargument that the statute runs anew against each succeeding cause of action. No doubt the\nprevailing rule recognizing privity in these cases may be based upon the argument that the\npossessory title is transferred on each successive sale of the converted chattel, subject to the owner\xe2\x80\x99s\naction to recover the property, and the action of replevin which is his proprietory action, continues\nin effect against succeeding possessors so that the statute bars the action after the successive\npossessions amount to the statutory period.\n(Walsh, supra at 83-84)\nIn New Jersey tacking is firmly embedded in the law of real property. The rule has been\napplied also to personal property\xe2\x80\xa6 . .\nTreating subsequent transfers as separate acts of conversion could lead to absurd results. As\nexplained by Dean Ames:\nThe decisions in the case of chattels are few. As a matter of principle, it is submitted this rule\nof tacking is as applicable to chattels as to land. A denial of the right to tack would, furthermore,\nlead to this result. If a converter were to sell the chattel, five years after its conversion, to one\nignorant of the seller\xe2\x80\x99s tort, the disposed owner\xe2\x80\x99s right to recover the chattel from the purchaser\nwould continue five years longer than his right to recover from the converter would have lasted if\nthere had been no sale. In other words, an innocent purchaser from a wrongdoer would be in a\nworse position than the wrongdoer himself, a conclusion as shocking in point of justice as it would\nbe anomalous in law.\nIt is more sensible to recognize that on expiration of the period of limitations, title passes\nfrom the former owner by operation of the statute. Needless uncertainty would result from starting\nthe statute running anew merely because of a subsequent transfer. It is not necessary to strain\nequitable principles, as suggested by the dissent, to arrive at a just and reasonable determination of\nthe rights of the parties. The discovery rule permits an equitable accommodation of the rights of the\nparties without establishing a rule of law fraught with uncertainty.\nVIII\n9\n\n\x0cWe recognize the possible relevancy of claims of common law and statutory copyright and\nrelated questions of infringement\xe2\x80\xa6 . . For present purposes, it is sufficient to note that there are\nvaluable rights in a work of art, apart from the right to title and possession; such as, the rights of\nreproduction, distribution, and display. Those rights, assembled under the rubric of a copyright, are\nnot involved in this appeal.\n\xe2\x80\xa6.\nWe reverse the judgment of the Appellate Division in favor of O\xe2\x80\x99Keeffe and remand the\nmatter for trial in accordance with this opinion.\nSullivan, J.., dissenting.\n[Justice Sullivan believed that the uncontested facts were sufficient to grant summary\njudgment to O\xe2\x80\x99Keeffe but did not dissent from the majority\xe2\x80\x99s legal holdings.]\nHandler, J., dissenting.\nThe Court today rules that if a work of art has been stolen from an artist, the artist\xe2\x80\x99s right to\nrecover his or her work from a subsequent possessor would be barred by the statute of limitations if\nthe action were not brought within six years after the original theft. This can happen even though\nthe artist may have been totally innocent and wholly ignorant of the identity of the thief or of any\nintervening receivers or possessors of the stolen art. The Court would grudgingly grant some\nmeasure of relief from this horrendous result and allow the artist to bring suit provided he or she\ncan sustain the burden of proving \xe2\x80\x9cdue diligence\xe2\x80\x9d in earlier attempting to retrieve the stolen\nartwork. No similar duty of diligence or vigilance, however, is placed upon the subsequent receiver\nor possessor, who, innocently or not, has actually trafficked in the stolen art. Despite ritualistic\ndisavowals, the Court\xe2\x80\x99s holding does little to discourage art thievery. Rather, by making it relatively\nmore easy for the receiver or possessor of an artwork with a \xe2\x80\x9ccheckered background\xe2\x80\x9d to gain\nsecurity and title than for the artist or true owner to reacquire it, it seems as though the Court surely\nwill stimulate and legitimatize art thievery.\nI believe that there is a much sounder approach in this sort of case than one that requires the\nparties to become enmeshed in duplicate or cumulative hearings that focus on the essentially\ncollateral issues of the statute of limitations and its possible tolling by an extended application of the\ndiscovery doctrine. The better approach, I would suggest, is one that enables the parties to get to the\nmerits of the controversy. It would recognize an artist\xe2\x80\x99s or owner\xe2\x80\x99s right to assert a claim against a\nnewly-revealed receiver or possessor of stolen art as well as the correlative right of such a possessor\nto assert all equitable and legal defenses. This would enable the parties to concentrate directly upon\nentitlement to the artwork rather than entitlement to bring a lawsuit. By dealing with the merits of\nthe claims instead of the right to sue, such an approach would be more conducive to reconciling the\ndemands for individual justice with societal needs to discourage art thievery. In addition, such a rule\nwould comport more closely with traditional common law values emphasizing the paramountcy of\nthe rights of a true owner of chattels as against others whose possession is derived from theft.\nSimultaneously, it would acknowledge that the claims of the true owner as against subsequent\nconverters may in appropriate circumstances be counterbalanced by equitable considerations.\nI therefore dissent.\nI\n10\n\n\x0cBy virtue of cross-motions for summary judgment, the posture of the case as it comes to us\nis that the paintings were stolen from their true owner, plaintiff O\xe2\x80\x99Keeffe, and that defendant Snyder\nacted in good faith in purchasing the paintings. Hence, we are presented for purposes of this appeal\nwith the classic confrontation between a true owner of property and a subsequent bona fide\npurchaser for value, each of whom is relatively innocent and each of whom has been victimized by a\nthief. The true owner here is the artist who created the paintings, and she seeks to recover them\nthrough an action for replevin.\nAn action brought for replevin is a proper means for an owner to regain possession of\nchattels lost through conversion. The statute of limitations applicable to replevin actions is six years.\nN.J.S.A. 2A:14-1. A fundamental miscalculation by the majority, however, is its assumption that this\nsix-year limitations statute is applicable to O\xe2\x80\x99Keeffe\xe2\x80\x99s claims. The statute of limitations defense was\nraised by defendant Snyder, but it is not available here because Snyder\xe2\x80\x99s acts of conversion his\npurchase of the paintings from third-party defendant Frank and his refusal to return them to\nplaintiff O\xe2\x80\x99Keeffe upon demand constituted independent tortious acts each of which occurred well\nwithin six years of the commencement of plaintiff\xe2\x80\x99s lawsuit. Hence, there is no reason not to permit\nO\xe2\x80\x99Keeffe\xe2\x80\x99s lawsuit and allow the parties to proceed to the heart of the controversy.\nIn averting a direct confrontation with the merits of the dispute, the majority ignores some\nrather fundamental law. It rejects the doctrine that the acquisition of a stolen chattel, or a refusal to\nreturn it upon demand, itself constitutes a tortious conversion as against the true owner.\n\xe2\x80\xa6.\nII\nThe holding of the majority, which involves a convoluted rendition of the law of statutes of\nlimitations and adverse possession, in my respectful opinion, not only espouses an erroneous\nperception of the proper public policy to be achieved, but is actually unneeded even to secure the\nvalues endorsed by the Court. There is no reason why the concerns of the majority cannot be\nreasonably and fully accommodated by traditional doctrines that would, in a case such as this, lead us\nto a thorough consideration and careful balancing of all the equities as they bear directly upon the\nmerits of the controversy.\nIt is the general rule that \xe2\x80\x9ca bona fide purchaser of personal property taken tortiously or\nwrongfully, as by trespass or theft, does not acquire a title good against the true owner.\xe2\x80\x9d \xe2\x80\xa6 .\nThis rule is not a recent development. As noted by Judge Fritz in his dissenting opinion\nbelow, it has a long and distinguished history and was recognized by Lord Blackstone as a\nfundamental principle of English law with respect to chattels or personal property. This basic rule as\nto nonpassage of title to stolen personalty, viz, \xe2\x80\x9c(i)f a person steal (sic) goods and sell (sic) them, the\ntitle is not transferred, but remains in the original owner, and he may reclaim them,\xe2\x80\x9d was adopted in\nthis country. Early cases in the United States followed this rule that good title could not be acquired\nfrom a thief, even by a bona fide purchaser.\n\xe2\x80\xa6.\nIt follows from this well-established principle that, generally, as between the true owner who\nhas lost personal property through theft and a subsequent good faith purchaser for value, the former\nis entitled to the goods over the latter. Title remains in the true owner rather than flowing to the\nbona fide purchaser when \xe2\x80\x9c\xe2\x80\x98the wrongdoer sells the chattel to (such) innocent purchaser \xe2\x80\xa6 because\n11\n\n\x0cthe wrongdoer had (no title) to give.\xe2\x80\x99\xe2\x80\x9d\nThese basic tenets are fully applicable to creative works of art and govern ownership claims\nin the case of the theft or wrongful appropriation of artistic creations such as those involved in this\ncase.\nConsequently, if we were to view this record as presenting only the undisputed fact that the\npaintings were stolen and could thus not be validly transferred thereafter to Snyder as a bona fide\npurchaser, plaintiff O\xe2\x80\x99Keeffe would clearly be entitled to prevail. And, in that posture, I would\nsubscribe to the result urged in the dissenting opinion of Justice Sullivan, namely, a reversal and\nentry of judgment in favor of plaintiff. Under all of the circumstances, however, I do not believe\nthat such a disposition would be appropriate and would instead counsel a remand, albeit with a\nfocus and under guidelines very different from those expressed in the majority opinion.\nIII\n\xe2\x80\x9cAs a general rule, a defendant in a replevin action may interpose any defense which\nquestions the plaintiff\xe2\x80\x99s title or right to possession, or upholds his own taking or unlawful\ndetention.\xe2\x80\x9d While the fundamental principle is that a wrongdoer cannot, as against the true owner,\nconvey good title even to a bona fide purchaser, that precept is not absolute. Some exceptions to\nthis common law rule are derived from judicial rulings, others, from statutes. Dobbs, supra, \xc2\xa7 4.7 at\n282, 286; N.J.S.A. 12A:2-403(2) (U.C.C. s 2-403(2)) (U.C.C. codifies the common law notion of\nvoidable or equitable title where goods have been \xe2\x80\x9centrusted\xe2\x80\x9d by the owner \xe2\x80\x9cto a merchant who\ndeals in goods of that kind\xe2\x80\x9d).\nAside from specialized defenses peculiar to sales transactions, there are also general equitable\ndefenses such as laches, unclean hands, estoppel or mistake cognizable in equity actions or in other\nactions in which such defenses may be raised. Notwithstanding in this case a failure to denominate\neach and every equitable defense which might be available to him, defendant Snyder has adequately\ninvoked the defenses which would be germane in addressing plaintiff\xe2\x80\x99s claim for the return of the\npaintings\xe2\x80\xa6 . .\n\xe2\x80\xa6.\nEquitable considerations have special pertinency in the instant proceedings. They\nappropriately require the fullest exposure of all facets of the controversy: the uniqueness of the\nchattels paintings created by a renowned artist whose artworks have in general grown greatly in\nvalue; the theft or mysterious disappearance of these paintings several decades ago; the subsequent\npossession and enjoyment of the paintings by the Frank family; Frank\xe2\x80\x99s subsequent attempts to sell\nthe paintings, and their eventual acquisition by Snyder; the experience and status of Snyder in the art\nworld, and whether he sufficiently investigated the provenance of the O\xe2\x80\x99Keeffe paintings and acted\nwith commensurate due care and reasonable prudence when he purchased them.1 The difficulties\ncaused by the lengthy interim between the original disappearance of the paintings and their ultimate\nsurfacing in Snyder\xe2\x80\x99s gallery also has a definite bearing upon the equities in this case.2 These\nconsiderations, I believe, should be given direct application as constituent elements of the primary\nclaims and the affirmative defenses of the parties rather than be given at most, as required by the\nmajority opinion, oblique application as an aspect of the discovery rule relevant only as to whether\nO\xe2\x80\x99Keeffe is entitled to assert a claim for the stolen paintings.\nIV\n12\n\n\x0cI am mindful that the majority is concerned with the importance of the policy of repose and\nthe discouragement of stale claims. At times, however, these policies must yield to other equally\nimportant policies. The majority has in this case gone well beyond a simple and understandable\ndesire for quietude in litigation. It has actually placed the entire burden of proof as to the absence of\ncomparative fault upon the original owner-artist, albeit in the sheep\xe2\x80\x99s clothing of the discovery\nrule\xe2\x80\xa6 . .\nAuthority relied on here by the majority recognizes the responsibilities of experienced and\nknowledgeable persons in the art world, viz: If the object is a work of a living artist(,) it may be that\nno one can be an innocent purchaser from a seller who lacks a provenance without at least calling\nthe artist.\xe2\x80\x9d Ward, Adverse Possession of Loaned and Stolen Objects: Is Possession Still 9/10 ths of the Law?, in\nLegal Problems of Museum Administration 83, 96 (ALI-ABA 1980). Moreover, \xe2\x80\x9c(a)s experts(,) the court\nwill expect (museums) to be more familiar with how to go about this (checking the \xe2\x80\x9cusual sources\xe2\x80\x9d\nto see if the work of art is stolen) than the average innocent purchaser. Ibid. \xe2\x86\xa9\nThere is no compelling reason why courts or parties should suffer the \xe2\x80\x9cAmes anomaly\xe2\x80\x9d\nreferred to by the majority in support of its thesis. Ames, The Disseisin of Chattels, 3 Harv.L.Rev. 313,\n323 (1890). Ante at 876. To the extent that it appears that O\xe2\x80\x99Keeffe\xe2\x80\x99s claims against any person in\npossession prior to Snyder would have been barred under the statute of limitations, this factor\nwould constitute a potent, if not dispositive, equity in favor of Snyder. \xe2\x86\xa9\n\n13\n\n\x0c1.2. Encroachments\nPile v. Pedrick,\n31 A. 646 (Penn. 1895).\n\nJohn Sparhawk, Jr., and Melick & Potter, for appellants.\nE. H. Hanson and J. M. Pile, for appellees.\nWilliam, J.\nThe learned judge of the court below was right in holding that the wall in controversy was\nnot a party wall. It was not intended to be. The defendants were building a factory, and, under the\nadvice of their architect, decided to build within their own lines, in order to avoid the danger of\ninjury to others from vibration which might result from the use of their machinery. They called\nupon the district surveyor to locate their line, and built within it, as so ascertained. Subsequent\nsurveys by city surveyors have determined that the line was not accurately located at first, but was\nabout 1 1/2 inches over on the plaintiffs\xe2\x80\x99. This leaves the ends of the stones used in the foundation\nwall projecting into the plaintiffs\xe2\x80\x99 lands, below the surface, 1 3/8 inches. This unintentional intrusion\ninto the plaintiffs\xe2\x80\x99 close is the narrow foundation on which this bill in equity rests. The wall resting\non the stone foundation is conceded to be within the defendants\xe2\x80\x99 line. The defendants offered,\nnevertheless, to make it a party wall, by agreement, and give to plaintiffs the free use of it, as such,\non condition that the windows on the third and fourth floors should remain open until the plaintiffs\nshould desire to use the wall. This offer was declined. The trespass was then to be remedied in one\nof two ways: It could be treated, with the plaintiffs\xe2\x80\x99 consent, as a permanent trespass, and\ncompensated for in damages, or the defendants could be compelled to remove the offending ends\nof the stones to the other side of the line. The plaintiffs insisted upon the latter course, and the\ncourt below has, by its decree, ordered that this should be done. The defendants then sought\npermission to go on the plaintiffs\xe2\x80\x99 side of the line and chip off the projecting ends, offering to pay\nfor all inconvenience or injury the plaintiffs or their tenants might suffer by their so doing. This they\nrefused. Nothing remained but to take down and rebuild the entire wall from the defendants\xe2\x80\x99 side,\nand with their building resting on it. This the decree requires, but in view of the course of the\nlitigation the learned judge divided the costs. This is the chief ground of complaint on this appeal.\nCosts are not of course, in equity. They may be given or withheld as equity and good conscience\nrequire. It often happens that a chancellor is constrained to enforce a legal right under circumstances\nthat involve hardship to the defendant, and in such cases it is, as it should be, common to dispose of\nthe costs upon a consideration of all the circumstances, and the position and conduct of the parties.\nThe costs in this case were within the power of the chancellor. They were disposed of in the exercise\nof his official discretion, and we see no reason to doubt that they were disposed of properly. The\ndecree is affirmed; the costs of this appeal to be paid by the appellants.\n\n14\n\n\x0cGolden Press, Inc. v. Rylands,\n235 P.2d 592 (Colo. 1951).\n\nArthur A. Brooks, Jr., Lee W. Kennedy, Denver, for plaintiff in error.\nHoward Roepnack, Robert J. Sullivan, Denver, for defendants in error.\nStone, Justice.\nPlaintiffs Rylands and Reid owned a parcel of land fronting on West Colfax Avenue,\nJefferson County, upon which were located their residence and garage and some rental cottages.\nDefendant Golden Press, Inc., constructed a one-story brick and cinder block business building on\nits property which adjoined plaintiffs\xe2\x80\x99 property on the east. According to plaintiffs\xe2\x80\x99 survey here\nunchallenged, the west wall of defendant\xe2\x80\x99s building is two inches clear of the lot line at the front or\nsouth end, is exactly on the line at the north end, and is approximately 160 feet in length.\nIn the action here involved, plaintiffs allege that in contructing the building defendant\ncaused its foundation and footings to extend from two to three and a half inches upon plaintiffs\xe2\x80\x99\nland. They further allege that during its construction defendant trespassed upon plaintiffs\xe2\x80\x99 property\nby permitting an I-beam to fall on their garage roof; by destroying a flower bed and line fence; by\ndisturbing a graveled driveway, and by walking upon and digging into plaintiffs\xe2\x80\x99 land. They allege still\nfurther that \xe2\x80\x98in the operation of the defendant\xe2\x80\x99s business and rental operation, the defendant\npermits, causes and occasions people to drive into and across the premises of the plaintiff by\ndirecting people to park in the rear and failing to disclose to the people an entrance to the east of the\nbuilding, and the patrons of the store are misled by the signs directing them to park in the\nrear.\xe2\x80\x99Plaintiffs prayed for injunction requiring that defendant remove all footings and foundations\nupon their property and that defendant, its servants, agents and customers be enjoined from\ntrespassing upon their property and for damages in the sum of $1750 and exemplary damages. Upon\nissue raised by general denial the case was tried to a jury as to the issue of damages alleged by\ntrespass, the court reserving the determination of the issue of injunction. On the issue of damages\nthe jury returned a verdict in favor of the defendant. The court then found encroachment as alleged\nand granted mandatory injunction requiring that defendant\xe2\x80\x99s projecting footings be removed from\nplaintiffs\xe2\x80\x99 property, and further decreed \xe2\x80\x98that the defendant take action to properly direct drivers of\nvehicles where they should drive and park so as to stay on defendant\xe2\x80\x99s property, and the defendant\nshall remove any signs and directions that tend to confuse drivers of vehicles and lead them to\nbelieve that they are to drive or park on the property of plaintiffs\xe2\x80\x99; then by separate order set aside\nthe verdict of the jury and sustained plaintiffs\xe2\x80\x99 motion for a new trial, on the ground that there was\nno evidence to support it.\nDefendant specifies and argues error in setting aside the verdict of the jury and ordering a\nnew trial as to the issue of actual and exemplary damages. However, that order was discretionary and\nnot a final judgment to which a writ of error lies, and there was no election to stand on the case\nmade as in Mooney v. Carter, 114 Colo. 267, 160 P.2d 390.\nChallenge is also raised as to expert witness fees allowed to plaintiffs\xe2\x80\x99 surveyor Coberly and\nhis assistant, on the ground that there was no evidence as to the services performed or their value.\nThe court was advised by the testimony of these witnesses as to their qualifications and the work\nwhich they had performed, and had knowledge of the time spent in giving testimony. The fees\nallowed were reasonable for their services in attending and testifying at the trial; their testimony was\n15\n\n\x0cessential to establishing the property line between the parties and the amount of encroachment, and,\nunder our statute there was no error in the allowance made therefor.\nError is specified to the portion of the injunctive decree requiring defendants to take action\nto direct drivers and to remove signs tending to confuse drivers. As to this issue the only evidence as\nto signs or instructions after the completion of the building was related to signs apparently issued by\ntenants rather than by defendant, and that evidence diclosed no sign directing people to park on\nplaintiffs\xe2\x80\x99 land or properly tending to mislead the public. Moreover, a judgment must be definite and\ncertain in itself.\xe2\x80\x99It must fix clearly the rights and liabilities of the respective parties to the cause, and\nbe such as defendant may readily understand and be capable of performing\xe2\x80\x99.49 C.J.S., Judgments, s\n72, p. 191.\xe2\x80\x99The rights of the parties under a mandatory judgment whereby they may be subjected to\npunishment as contemnors for a violation of its provisions, should not rest upon implication or\nconjecture, but the language declaring such rights or imposing burdens should be clear, specific and\nunequivocal so that the parties may not be misled thereby.\xe2\x80\x99 Plummer v. Superior Court, 20 Cal.2d\n158, 124 P.2d 5, 8. Lacking in this essential requirement, the portion of the decree above referred to\nmay not stand.\nThere remains for consideration the portion of the decree requiring defendant to remove the\nfootings of its building where they encroach upon the property of the plaintiffs. Ordinarily,\nmandatory injunction will issue to compel removal of encroaching structures, but it is not to be\nissued as a matter of course. On appeal to the court for an equitable remedy, the court must\nconsider the peculiar equities of the case. A study of many decisions discloses no specific and\nuniversally-accepted rule as to encroachments. Even in jurisdictions like Massachusetts, in which it\nhas been declared that mandatory injunction for removal of encroachment can only be denied where\nestoppel or laches is shown, Beaudoin v. Sinodinos, 313 Mass. 511, 48 N.E.2d 19, there are\nnumerous cases where injunction has been refused in the absence of those defenses. See cases cited\nas exceptional in Gerogosian v. Un. Realty Co., 289 Mass. 104, 193 N.E. 726, 96 A.L.R. 1282.\nGenerally in other jurisdictions such harsh rule is not followed. Sometimes a slight and harmless\nencroachment is held to be within the rule \xe2\x80\x98de minimis,\xe2\x80\x99 as in Tramonte v. Colarusso, 256 Mass. 299,\n152 N.E. 90, and McKean v. Alliance Land Co., 200 Cal. 396, 253 P. 134, and generally the courts\nrequire that he who seeks equity should do equity and come with clean hands.Tramonte v.\nColarusso, supra; McKee v. Fields, 187 Or. 323, 210 P.2d 115.\nWhere the encroachment is deliberate and constitutes a willful and intentional taking of\nanother\xe2\x80\x99s land, equity may well require its restoration regardless of the expense of removal as\ncompared with damage suffered therefrom; but where the encroachment was in good faith, we think\nthe court should weigh the circumstances so that it shall not act oppressively. 5 Pomeroy\xe2\x80\x99 Equity\nJurisprudence, page 852, s 508. While the mere balance of convenience is not the proper test, yet\nrelative hardship may properly be considered and the court should not become a party to\nextortion.Restatement of the Law, Torts, s 941. Where defendant\xe2\x80\x99s encroachment is unintentional\nand slight, plaintiff\xe2\x80\x99s use not affected and his damage small and fairly compensable, while the cost of\nremoval is so great as to cause grave hardship or otherwise make its removal unconscionable,\nmandatory injunction may properly be denied and plaintiff relegated to compensation in damages.\nOwenson v. Bradley, 50 N.D. 741, 197 N.W. 885, 31 A.L.R. 1296, Ann. 14 A.L.R. 831, 31 A.L.R.\n1302, 76 A.L.R. 1287; Nebel v. Guyer, 99 Cal.App.2d 30, 221 P.2d 337; Mary Jane Stevens Co. v.\nFirst Nat\xe2\x80\x99l Bldg. Co., 89 Utah 456, 57 P.2d 1099.\nIn the case before us issue was raised in the argument as to whether or not the\nencroachment was intentional. There was no finding on this issue by the trial court and the decree is\nnot necessarily predicated upon intent. In the absence of proof to the contrary there is a\npresumption that men act in good faith and that they intend to do what they have the right to do.\nPrior to the building of the wall, plaintiffs and defendant each employed a surveyor, but neither was\n16\n\n\x0ccalled as a witness and the results of their surveys are not disclosed except that, as stated by plaintiff\nReid, before there was any digging done plaintiff\xe2\x80\x99s employed Prouty to survey and defendants\nemployed Linn to survey \xe2\x80\x98and there semed to be a little difficulty in their agreeing. Mr. Prouty came\nout and made another survey, and Mr. Linn came out and made another survey and, of course, all\nthis time the building was progressing.\xe2\x80\x99Plaintiff Rylands testified that she called Prouty to survey\ntwice \xe2\x80\x98because there was trouble between the lines. They had called their surveyor, and they weren\xe2\x80\x99t\nsatisfied, and we weren\xe2\x80\x99t satisfied, and Mr. Prouty was called back to resurvey, to look the figures\nover, and the lines,\xe2\x80\x99 during the course of construction. There is no indication from the record as to\nwhether or not these surveyors agreed after their resurveys. Plaintiffs rely entirely as to the location\nof the line upon the survey by Coberly and his assistant, who were employed by plaintiffs and made\ntheir survey just prior to the trial and long after the wall was completed. Plaintiff Rylands\xe2\x80\x99 brother,\nThomas P. Nother, upon whom plaintiffs relied to show knowledge and intent as to the line on the\npart of defendant\xe2\x80\x99s agents, testified as to Coberly\xe2\x80\x99s survey: \xe2\x80\x98He found out their north end of their\nbuilding was right on the line, and the south end of their building was a little bit inside the line, that\nis how I determined that they were over with their footings so far.\xe2\x80\x99With reference to the earlier\nsurveys, witness Nother testified that before the concrete was poured for the foundation, he\ninformed Mr. Ernst who was superintendent of construction that his building was about eight inches\nover the line and Ernst replied, \xe2\x80\x98You\xe2\x80\x99re wrong, we have got our own surveyor. He has put us on the\nline\xe2\x80\x99; that witness answered, \xe2\x80\x98Well, I am not going to argue about it, I am warning you, you are over\nyour line,\xe2\x80\x99 and that thereupon the superintendent had the laborers move the forms over.\nDefendant\xe2\x80\x99s witness Argo, who had charge of constructing the wall, testified that he had a\nsurvey line run by Linn and they dug the hole for the footings right straight down to the property\nline; that the lady next door had made a statement that they were on her property and they had\nanother survey run and \xe2\x80\x98the surveyor told us we better move over, as I remember, two inches, and\nwe did.\xe2\x80\x99 He further testified, \xe2\x80\x98We weren\xe2\x80\x99t going to form that footing, and then the people next door\nmade a little fuss about us being on their property, so we put a form in for that footing, so it would\nbe on our side.\xe2\x80\x99\nThere is disclosed continued argument by plaintiffs with representatives of defendant during\nconstruction of the wall as to trespassing on their lands, but we find no evidence from the record\nchallenging the good faith of defendant\xe2\x80\x99s representative in locating the footings.\nAgain we note that while plaintiffs were continually complaining as to trespass of the\nworkmen on their property, they took no steps for injunction or other legal determination of the\ndisputed line until after both the foundation and upper wall were completed.\nFurther, we note that the encroachment here complained of is very slight. It is conceded that\nthe wall above the foundation does not project over the property line and that the only\nencroachment consists of a projection of the footings a distance of two inches at the middle,\nincreasing to three and a half inches at the north end. The top of these footings is about seven feet\nbelow the surface of the ground and they go down to nine feet below the surface. They constitute\nno interference whatever with plaintiffs\xe2\x80\x99 present use of the property as a driveway and iris bed, and\nthe only testimony as to future damage was to the effect that if plaintiffs wished to build to their line\nwith a basement, they would have to detour around this slight projection of defendant\xe2\x80\x99s footings.\nThe testimony indicates that the value of plaintiffs\xe2\x80\x99 lands is approximately $200 per front\nfoot, so that if defendant had taken the entire strip of three and a half inches both at and below the\nsurface, its value would have been only about $55, and the value of the portions extending from\nseven to nine feet below the surface and only along the rear eighty feet of wall would appear to be\nvery small. Plaintiffs, at the trial, refused defendant permission to enter upon their property for the\npurpose of chipping off the encroaching footings with a jack hammer, and demanded that they be\nremoved from defendant\xe2\x80\x99s side of the land, if necessary by tearing down the wall. The expense and\n17\n\n\x0chardship of such removal would be so great in comparison with any advantage of plaintiffs to be\ngained thereby that we think it would be unconscionable to require it, and that under all the\ncircumstances disclosed mandatory injunction should have been denied by the trial court, with\npermission for plaintiffs to proceed, if desired, in damages.\nAccordingly, the injunctive decree is reversed and the case remanded for further\nproceedings, if desired, consistent herewith.\nHilliard, J., not participating.\n\n18\n\n\x0c1.3. Improving Trespassers\nSomerville v. Jacobs,\n170 S.E.2d 805 (W. Va. 1969)\n\nRichard F. Pence, Parkersburg, for appellants.\nWilson & Hill, George W. Hill, Jr., Burk & Bayley, Robert W. Burk, McDougle, Davis &\nMorris, Fred L. Davis, Parkersburg, for appellees.\nHaymond, President:\nThe plaintiffs, W. J. Somerville and Hazel M. Somerville, \xe2\x80\xa6 , the owners of Lots 44, 45 and\n46 in the Homeland Addition to the city of Parkersburg, in Wood County, believing that they were\nerecting a warehouse building on Lot 46 which they owned, mistakenly constructed the building on\nLot 47 owned by the defendants, William L. Jacobs and Marjorie S. Jacobs, \xe2\x80\xa6 . Construction of the\nbuilding was completed in January 1967 and by deed dated January 14, 1967 the Somervilles\nconveyed Lots 44, 45 and 46 to the plaintiffs Fred C. Engle and Jimmy C. Pappas who subsequently\nleased the building to the Parkersburg Coca-Cola Bottling Company, a corporation. Soon after the\nbuilding was completed but not until then, the defendants learned that the building was on their\nproperty and claimed ownership of the building and its fixtures on the theory of annexation. The\nplaintiffs then instituted this proceeding for equitable relief in the Circuit Court of Wood County\nand in their complaint prayed, among other things, for judgment in favor of the Somervilles for\n$20,500.00 as the value of the improvements made on Lot 47, or, in the alternative, that the\ndefendants be ordered to convey their interest in Lot 47 to the Somervilles for a fair consideration\xe2\x80\xa6\n. . [Both parties moved for summary judgment after discovery and stipulations.]\nBy final judgment rendered June 11, 1968, the circuit court required the defendants within\n60 days to elect whether they would (1) retain the building and pay W. J. Somerville $17,500.00 or\nsuffer judgment against themselves in his favor in that amount, or (2) convey title to Lot 47 of\nHomeland Addition to W. J. Somerville for the sum of $2,000.00 cash\xe2\x80\xa6 . .\nThis case was submitted for decision upon the record of proceedings in the trial court and\nthe briefs and the oral arguments in behalf of the defendants. The brief in behalf of the plaintiffs,\nnot having been filed within the time required by the provisions of Rule VI of this Court and the\ndefendants having refused to waive the requirement of the rule, oral argument in behalf of the\nplaintiffs was not permitted upon the submission of the case.\n\xe2\x80\xa6.\nThe controlling question for decision is whether a court of equity can award compensation\nto an improver for improvements which he has placed upon land not owned by him, which, because\nof mistake, he had reason to believe he owned, which improvements were not known to the owner\nuntil after their completion and were not induced or permitted by such owner, who is not guilty of\nany fraud or inequitable conduct, and require the owner to pay the fair value of such improvements\nor, in the alternative, to convey the land so improved to the improver upon his payment to the\nowner of the fair value of the land less the value of the improvements.\n\xe2\x80\xa6.\n19\n\n\x0cThough the precise question here involved has not been considered and determined in any\nprior decision of this Court, the question has been considered by appellate courts in other\njurisdictions and though the cases are conflicting the decisions in some jurisdictions, upon particular\nfacts, recognize and sustain the jurisdiction of a court of equity to award compensation to the\nimprover to prevent unjust enrichment to the owner and in the alternative to require the owner to\nconvey the land to the improver upon his payment to the owner of the fair value of the land less the\nimprovements.\nIn the early case of Bright v. Boyd, 4 Fed.Cas. p. 127, a Federal trial court held in an opinion\nby Justice Story that an improving occupant could institute and maintain a suit in equity to secure\ncompensation for his improvements on land of the owner and that as a doctrine of equity an\ninnocent purchaser for valuable consideration, without notice of any infirmity in his title, who by his\nimprovements added to the permanent value of the owner is entitled to compensation for the value\nof the improvements and to a lien upon the land which its owner must discharge before he can be\nrestored to his original rights in the land.\nIn the early Kentucky case of Thomas v. Thomas\xe2\x80\x99 Executor, 55 Ky. (16 B. Mon.) 420, the\ncourt recognized the equitable principle that one who acquires title to land bona fide, and enters\nupon and improves it, supposing it to be his own, is entitled to compensation for improvements.\nIn the leading case of Union Hall Association v. Morrison, 39 Md. 281, a plaintiff who\nclaimed title to a small lot, entered by mistake into possession of other land in the neighborhood of\nsuch lot and erected on such land a valuable building and who, after having been ousted from the\npossession of the land in an action by its owner, instituted a suit in equity for compensation for the\nimprovements. In that case the court held that although there was nothing in the conduct of the\ndefendant owner which created an equitable estoppel as he had been ignorant of his rights, the\nplaintiff, whose good faith was beyond question, had an equitable right to compensation for the\nimprovements; that the defendant should have the option of accepting from the plaintiff payment\nfor the lot for its value without the improvements and conveying the lot to the plaintiff, or of\nholding the lot with the improvements upon payment to the plaintiff their actual value to the extent\nthat they enhanced the value of his lot, and that the plaintiff was entitled to a lien for the value of\nthe improvements and, upon default in the payment for such improvements, the property should be\nsold to enforce such payment. In discussing the relief to which the plaintiff was entitled the opinion\ncontains this language:\nWith respect to the nature and terms of the decree it will be proper that the appellee shall\nhave the option to accept from the appellant payment for the lot of ground, estimated at its just\nvalue, without the improvements thereon, and be required on the payment thereof with interest, to\nconvey the same to the appellant, by a sufficient deed. Or at his election to take and hold the lot\nwith improvements, paying to the appellant the actual value of the improvements, to the extent of\nthe additional value which they have conferred upon the land, and in default of such payment, the\nsame ought to be declared to be a lien, and charge on the property, and the lot and improvements\nshould be decreed to be sold for the payment thereof.\n[The court reviews a large number of cases from other states where courts recognized an\nequitable interest in a good-faith, improving trespasser in the land improved or the value of the\nimprovements.]\nFrom the foregoing authorities it is manifest that equity has jurisdiction to, and will, grant\nrelief to one who, through a reasonable mistake of fact and in good faith, places permanent\nimprovements upon land of another, with reason to believe that the land so improved is that of the\none who makes the improvements, and that the plaintiffs are entitled to the relief which they seek in\nthis proceeding.\nThe undisputed facts \xe2\x80\xa6 is [sic] that the plaintiff W. J. Somerville in placing the warehouse\n20\n\n\x0cbuilding upon Lot 47 entertained a reasonable belief based on the report of the surveyor that it was\nLot 46, which he owned, and that the building was constructed by him because of a reasonable\nmistake of fact and in the good faith belief that he was constructing a building on his own property\nand he did not discover his mistake until after the building was completed. It is equally clear that the\ndefendants who spent little if any time in the neighborhood were unaware of the construction of the\nbuilding until after it was completed and were not at any time or in any way guilty of any fraud or\ninequitable conduct or of any act that would constitute an estoppel. In short, the narrow issue here\nis between two innocent parties and the solution of the question requires the application of\nprinciples of equity and fair dealing between them.\nIt is clear that the defendants claim the ownership of the building. Under the common law\ndoctrine of annexation, the improvements passed to them as part of the land. Dawson v. Grow, 29\nW.Va. 333, 1 S.E. 564; Bailey v. Gardner, 31 W.Va. 94, 5 S.E. 636, 13 Am.St.Rep. 847. This is\nconceded by the plaintiffs but they assert that the defendants can not keep and retain it without\ncompensating them for the value of the improvements, and it is clear from the testimony of the\ndefendant William L. Jacobs in his deposition that the defendants intend to keep and retain the\nimprovements and refuse to compensate the plaintiffs for their value. The record does not disclose\nany express request by the plaintiffs for permission to remove the building from the premises if that\ncould be done without its destruction, which is extremely doubtful as the building was constructed\nof solid concrete blocks on a concrete slab, and it is reasonably clear, from the claim of the\ndefendants of their ownership of the building and their insistence that certain fixtures which have\nbeen removed from the building be replaced, that the defendants will not consent to the removal of\nthe building even if that could be done.\nIn that situation if the defendants retain the building and refuse to pay any sum as\ncompensation to the plaintiff W. J. Somerville they will be unjustly enriched in the amount of\n$17,500.00, the agreed value of the building, which is more than eight and one-half times the agreed\n$2,000.00 value of the lot of the defendants on which it is located, and by the retention of the\nbuilding by the defendants the plaintiff W. J. Somerville will suffer a total loss of the amount of the\nvalue of the building. If, however, the defendants are unable or unwilling to pay for the building\nwhich they intend to keep but, in the alternative, would convey the lot upon which the building is\nconstructed to the plaintiff W. J. Somerville upon payment of the sum of $2,000.00, the agreed value\nof the lot without the improvements, the plaintiffs would not lose the building and the defendants\nwould suffer no financial loss because they would obtain payment for the agreed full value of the lot\nand the only hardship imposed upon the defendants, if this were required, would be to order them\nto do something which they are unwilling to do voluntarily. To compel the performance of such an\nact by litigants is not uncommon in litigation in which the rights of the parties are involved and are\nsubject to determination by equitable principles. And the right to require the defendants to convey\nthe lot to the plaintiff W. J. Somerville is recognized and sustained by numerous cases cited earlier in\nthis opinion. Under the facts and circumstances of this case, if the defendants refuse and are not\nrequired to exercise their option either to pay W. J. Somerville the value of the improvements or to\nconvey to him the lot on which they are located upon his payment of the agreed value, the\ndefendants will be unduly and unjustly enriched at the expense of the plaintiff W. J. Somerville who\nwill suffer the complete loss of the warehouse building which by bona fide mistake of fact he\nconstructed upon the land of the defendants. Here, in that situation, to use the language of the\nSupreme Court of Michigan in Hardy v. Burroughs, 251 Mich. 578, 232 N.W. 200, \xe2\x80\x9cIt is not\nequitable * that defendants profit by plaintiffs\xe2\x80\x99 innocent mistake, that defendants take all and\nplaintiffs nothing.\xe2\x80\x9d\nTo prevent such unjust enrichment of the defendants, and to do equity between the parties,\nthis Court holds that an improver of land owned by another, who through a reasonable mistake of\n21\n\n\x0cfact and in good faith erects a building entirely upon the land of the owner, with reasonable belief\nthat such land was owned by the improver, is entitled to recover the value of the improvements\nfrom the landowner and to a lien upon such property which may be sold to enforce the payment of\nsuch lien, or, in the alternative, to purchase the land so improved upon payment to the landowner of\nthe value of the land less the improvements and such landowner, even though free from any\ninequitable conduct in connection with the construction of the building upon his land, who,\nhowever, retains but refuses to pay for the improvements, must, within a reasonable time, either pay\nthe improver the amount by which the value of his land has been improved or convey such land to\nthe improver upon the payment by the improver to the landowner of the value of the land without\nthe improvements.\nIt is pertinent to observe that, in cases involving the right to recover for improvements\nplaced by mistake upon land owned by one other than the improver, the solution of the questions\ninvolved depends largely upon the circumstances and the equities involved in each particular case.\nHere, under the facts as stipulated by the parties, the equities which control the decision are clearly\nin favor of the plaintiffs.\nTo reverse the judgment of the circuit court the defendants cite and rely upon several cases\nwhich are clearly distinguishable upon their facts from the case at bar and are not applicable to or\ncontrolling of the decision in the instant proceeding.\nIn Dawson v. Grow, 29 W.Va. 333, 1 S.E. 564, the improver was guilty of negligence in not\nconsulting the registration records, which would have informed her that the property which she\nclaimed had been previously conveyed to another by deed of record, and because of her negligence\nshe was held not to be entitled to compensation for improvements. In Hall v. Hall, 30 W.Va. 779, 5\nS.E. 260 [and other cases] the title of the improver in each instance to the land improved was\nquestionable and the improvements in each instance were made under a mistake of law concerning\nsuch title against which, as stated in the Hall case, \xe2\x80\x9ccourts cannot relieve.\xe2\x80\x9d, and for that reason\ncompensation for improvements was denied. In [other cases] questions of estoppel were involved\nwhich are not presented in the case at bar. In Harrison v. Miller, 124 W.Va. 550, 21 S.E.2d 674, a\nconstructive trustee of real estate placed improvements upon it with his individual funds. At the\ntime he did so he was chargeable with knowledge that others were beneficially entitled to such land\nand for that reason he was not entitled to charge the land with the money which he had expended\nfor such improvements.\nIn Cautley v. Morgan, 51 W.Va. 304, 41 S.E. 201, the defendants Morgan and Huling and\nthe plaintiff Cautley were owners of adjoining lots fronting on Quarrier Street in Charleston, West\nVirginia. The plaintiff, being desirous of building a party wall between the lots for a business\nbuilding on her lot, entered into an agreement with the defendants by which, among other things,\nshe was given the right to construct the wall to the extent of ten inches upon the lot of the\ndefendants. In constructing the wall the plaintiff, by mistake, built it six inches farther on the land of\nthe defendants than the ten inches provided for in the contract. The wall was completed in 1893 and\nin the fall of 1899 the defendants, desiring to use the wall, discovered the mistake. They notified the\nplaintiff and, after unsuccessful efforts were made to adjust the matter, the defendants instituted an\naction of ejectment against the plaintiff to recover the land on which the plaintiff had encroached in\nthe construction of the wall. In a suit by the plaintiff to enjoin the prosecution of the action of\nejectment, the court refused the injunction and dismissed the bill with costs. In the opinion the\ncourt said: \xe2\x80\x9cIt seems to be one of those cases where there was no intentional fault upon the part of\neither, but by the improper action, though unintentional of one of the parties a mistake was made,\nwhereby one party or the other must suffer a hardship. This being the case, it is held: That that\nparty, upon whom a duty devolves and by whom the mistake was made, should suffer the hardship\nrather than he who had no duty to perform and was no party to the mistake.\xe2\x80\x9d It appears, however,\n22\n\n\x0cfrom the facts that the plaintiff, in undertaking to build the wall and assuming the responsibility of\nfixing the location herself, had the duty to see that it was properly located and that she had sufficient\ndata to enable her to avoid the mistake if she had used the data with proper care. In other words the\nplaintiff, by not making proper use of the available data, was guilty of careless or negligent conduct\nin making the mistake. She was limited by the contract to place the wall upon only ten inches of the\ndefendants\xe2\x80\x99 property and in making an encroachment of more than ten inches she was also guilty of\nbreach of the contract. Accordingly she was not entitled to equitable relief and the case is\ndistinguishable from the case at bar for those reasons and for the additional reason that the loss of a\nportion of the wall of the width of only six inches would be a relatively insignificant hardship\ncompared to the complete loss here involved of an entire building of the admitted value of\n$17,500.00.\nIn reaching the conclusion to deny the injunction, the court followed closely the case of\nKirchner v. Miller, 39 N.J.Eq. 355, \xe2\x80\xa6 . In that case, as so indicated, the plaintiff and the defendant\nwere owners of adjoining lots, the plaintiff employed a surveyor to fix the dividing line which he\nmislocated, and the plaintiff, supposing that he was building on his own land, inadvertently placed\nhis house a few inches on the lot of the defendant who was not aware of the encroachment. The\ncourt held that equity would not enjoin an action of ejectment by the defendant against the plaintiff\nto recover possession of the strip of land on which he built the house in question. In that case it\nappeared, also as previously indicated, that the plaintiff could have removed the part of the building\non the lot of the defendant at an expense of $75.00 and the defendant admitted that the loss of the\nstrip would cause no injury to his house but would reduce the value of the lot in the amount of\n$150.00. It is evident that the court in the Kirchner case was influenced by the lack of hardship\nsustained by the plaintiff by reason of his mistake, for in the opinion the court said \xe2\x80\x9cWhere there is\nno hardship there is no ground for interference. This case is not one for the application of the\ndoctrine.\xe2\x80\x9d In the Kirchner case, in commenting upon the holding in McKelway v. Armour, 10 N.J.Eq.\n(2 Stock.) 115, in which it was held that the plaintiff was entitled to be paid for the improvements by\nthe landowner or that the landowner was required to sell his property to the plaintiff at a price to be\nfixed by the court or to exchange properties with him, the court, by way of dictum, said: \xe2\x80\x9cThe\nexercise of such a judicial power, unless based upon some actual or implied culpability on the part of\nthe party subjected to it, is a violation of constitutional right.\xe2\x80\x9d The same statement, also by way of\ndictum, appears in the opinion in the Cautley case and it also appears, as a citation from the Kirchner\ncase, in the opinion in Olin v. Reinecke, 336 Ill. 530, 168 N.E. 676. In no other of the many cases\nthat have been considered does any such statement appear. Such statement, being mere dictum, is\ncontrary to the holdings in numerous cases previously cited in this opinion, in which the conveyance\nof the improved property by the landowner was required and held to be proper. Of course, in an\nordinary situation, no court could or would undertake to require a person to convey his land to\nanother who might desire it, but such conveyance may properly be required in litigation in which the\nrights of the parties, including such landowner, are involved and which are subject to determination\nupon principles of equity.\nThe judgment of the Circuit Court of Wood County is affirmed.\nAffirmed.\nCaplan, Judge, dissenting:\nRespectfully, but firmly, I dissent from the decision of the majority in this case. Although the\nmajority expresses a view which it says would result in equitable treatment for both parties, I am of\n23\n\n\x0cthe opinion that such view is clearly contrary to law and to the principles of equity and that such\nholding, if carried into effect, will establish a dangerous precedent.\nBasically, I believe that the principles expressed in Cautley v. Morgan, 51 W.Va. 304, 41 S.E.\n201, reflect my view of this matter and that that case cannot realistically be distinguished from the\ninstant case, as was attempted in the majority opinion. In that opinion it was said that the plaintiff\nwho encroached upon the defendant\xe2\x80\x99s property was guilty of \xe2\x80\x9ccareless or negligent conduct in\nmaking the mistake.\xe2\x80\x9d The opinion reasoned that the plaintiff had the duty to see that the wall was\nproperly located and that she had sufficient data to enable her to avoid the mistake if she had used\nthe data with proper care. Certainly, in the instant case the plaintiff, had he caused to be made a\nproper survey and had exercised proper care, would have constructed the subject building on his\nown property rather than on that of the defendant. It occurs to me that the failure to use proper\ncare is more evident in this case than it was in Cautley.\nThe majority opinion appears to rely on McKelway v. Armour, 2 Stock. (10 N.J.Eq.) 115 for\nthe proposition that the owner of property upon which a building was mistakenly built must either\npurchase the building or sell his property. This case, decided in 1854, was substantially overruled\nsome thirty years later by Kirchner v. Miller, 39 N.J.Eq. 355 wherein the court said of the decision in\nMcKelway, \xe2\x80\x9c[t]he exercise of such a judicial power, unless based upon some actual or implied\nculpability on the part of the party subjected to it, is a violation of constitutional right. No tribunal\nhas the power to take private property for private use. The Legislature itself cannot do it.\xe2\x80\x9d This\nprecise language was used by the Court in Cautley in rejecting the view taken in McKelway. In Cautley\nthe Court held: \xe2\x80\x9cThat that party, upon whom a duty devolves and by whom the mistake was made,\nshould suffer the hardship rather than he who had no duty to perform and was no party to the\nmistake.\xe2\x80\x9d See 7 M.J., Equity, Section 25.\nI am of the opinion that the Cautley case is not distinguishable from the instant case and that\nthe language which says that such taking of property violates a constitutional right is not mere\ndictum as expressed in the majority opinion.\nI am aware of the apparent alarmist posture of my statements asserting that the adoption of\nthe majority view will establish a dangerous precedent. Nonetheless, I believe just that and feel that\nmy apprehension is justified. On the basis of unjust enrichment and equity, the majority has decided\nthat the errant party who, without improper design, has encroached upon an innocent owner\xe2\x80\x99s\nproperty is entitled to equitable treatment. That is, that he should be made whole. How is this\naccomplished? It is accomplished by requiring the owner of the property to buy the building\nerroneously constructed on his property or by forcing (by court edict) such owner to sell his\nproperty for an amount to be determined by the court.\nWhat of the property owner\xe2\x80\x99s right? The solution offered by the majority is designed to\nfavor the plaintiff, the only party who had a duty to determine which lot was the proper one and\nwho made a mistake. The defendants in this case, the owners of the property, had no duty to\nperform and were not parties to the mistake. Does equity protect only the errant and ignore the\nfaultless? Certainly not.\nIt is not unusual for a property owner to have long range plans for his property. He should\nbe permitted to feel secure in the ownership of such property by virtue of placing his deed therefor\non record. He should be permitted to feel secure in his future plans for such property. However, if\nthe decision expressed in the majority opinion is effectuated then security of ownership in property\nbecomes a fleeting thing. It is very likely that a property owner in the circumstances of the instant\ncase either cannot readily afford the building mistakenly built on his land or that such building does\nnot suit his purpose. Having been entirely without fault, he should not be forced to purchase the\nbuilding.\nIn my opinion for the court to permit the plaintiff to force the defendants to sell their\n24\n\n\x0cproperty contrary to their wishes is unthinkable and unpardonable. This is nothing less than\ncondemnation of private property by private parties for private use. Condemnation of property\n(eminent domain) is reserved for government or such entities as may be designated by the\nlegislature. Under no theory of law or equity should an individual be permitted to acquire property\nby condemnation. The majority would allow just that.\nI am aware of the doctrine that equity frowns on unjust enrichment. However, contrary to\nthe view expressed by the majority, I am of the opinion that the circumstances of this case do not\nwarrant the application of such doctrine. It clearly is the accepted law that as between two parties in\nthe circumstances of this case he who made the mistake must suffer the hardship rather than he who\nwas without fault. Cautley v. Morgan, supra.\nI would reverse the judgment of the Circuit Court of Wood County and remand the case to\nthat court with directions that the trial court give the defendant, Jacobs, the party without fault, the\nelection of purchasing the building, of selling the property, or of requiring the plaintiff to remove the\nbuilding from defendant\xe2\x80\x99s property.\nI am authorized to say that Judge Berry concurs in the views expressed in this dissenting\nopinion.\n\n25\n\n\x0c1.4. Problem\nProblem related to Adverse Possession\n\nFor fifteen years, Marty Spelunker has offered to the public caving expeditions in \xe2\x80\x9cMarty\nCaverns,\xe2\x80\x9d as he advertises them. In the beginning, Marty supplied all the necessary equipment and\nled small groups into the caverns through a small entrance in the northwest corner of his property \xe2\x80\x93\nall for $20 per person for a day trip and $60 per person for a three-day expedition.\nWhen word got around the spelunking community about some of the rare features in Marty\nCaverns, business picked up. Marty began charging a bit more and hired additional guides. Five years\nago, a story about Marty Caverns appeared in Outside Magazine. Marty increased his staff further\nbut still could not keep up with demand. At the same time, Marty constructed walkways around\nsome of the more delicate parts of the cave, and in another part placed a souvenir and photo stand \xe2\x80\x93\nboth at considerable expense.\nA year ago, Nancy Neighbor was forced to extend the depth of her water well. On doing so,\nshe unwittingly drilled into Marty Caverns. Marty went to talk with Nancy, explaining the fragility of\nthe cave ecosystem and urging her to find another source for her water rather than attempting to\ndrill wells on her property.\nAfter talking with a lawyer, Nancy wrote a letter to Marty demanding rental income for\nconducting \xe2\x80\x9congoing expeditions on my property.\xe2\x80\x9d Marty immediately calls you, his lawyer, for\nadvice. What is your analysis of this situation and what do you tell Marty? Suppose that the statutory\nperiod for adverse possession is ten years in this jurisdiction.\nDiscussion\nThis problem is based on an actual case, Marengo Cave Co. v. Ross, 212 Ind. 624, 10 N.E.2d\n917 (Ind. 1937). The central issue there, and the focus of the casebooks that discuss the case, is the\n\xe2\x80\x9copen and notorious\xe2\x80\x9d element of the adverse possession doctrine. As we\xe2\x80\x99ll see, though, it\xe2\x80\x99s not the\nonly concept that is taxed by the facts in this case.\n\nDoes Nancy Own the Caves Below Her Land?\nIn the problem, Nancy is demanding payment for Marty\xe2\x80\x99s use of \xe2\x80\x9cher\xe2\x80\x9d land. Her theory\nmust be that her right to exclude extends laterally over all the lands to which she has title and\ndownward from the surface to the center of the Earth - the old common law doctrine, ad coelum ad\ninfernos (from the heavens to the depths).\nWe\xe2\x80\x99ve discussed briefly in class how this doctrine was severely limited after the invention of\nthe airplane and the development of transcontinental air travel. If individual property owners could\nenforce their rights to exclude against overflying airplanes (or satellites), then airlines would be\nforced to acquire licenses to overfly land. It isn\xe2\x80\x99t too difficult to see that this would be a mess, at\nleast without some extremely careful and innovative market devices. Even if there were no holdouts,\nthe transaction costs associated with acquisition of overflight rights would be enormous. Yet,\nwithout these transaction costs, we\xe2\x80\x99re confident the deals would go through. That is, in general,\n26\n\n\x0cairlines value overflight rights much more than most individuals actually value the extent to which\nthe sanctity of the airspace over their property would be diminished by overflying airplanes. But\neven though there might be some landowners who really would not sell to the airlines, it might still be\nbetter to place the initial entitlement in the airlines, on the theory that we\xe2\x80\x99re better off if those few\nindividuals who wish to exclude airplanes must pay off the small collection of airlines than if the\nairlines had to buy entitlements from everybody. I won\xe2\x80\x99t go any further in this analysis except to note\nthat this shift in entitlements has uneven distributional effects: people near airports have faced\ndiminution in the value of their property (at least as residential property) not encountered by the\nfarmer in Iowa whose property is overflown by the occasional transcontinental jet at 35,000 feet.\nThe neighbors of airports really might have held out for a high price, but in lieu of granting them\nrights to block, we\xe2\x80\x99ve built up a fair amount of legal machinery aimed at minimizing noise, pollution,\netc, though these efforts to mitigate may disproportionately benefit wealthy landowners.\nAll that\xe2\x80\x99s an aside but one that helps frame an initial question not dealt with by the court in\nMarengo Cave Co.: why not limit a landowner to surface rights, creating a commons in subterranean\nexploration and recreation, just as there is a regulated commons in airspace?\nPut differently, is there a good reason to continue the common law rule that landowners can\nexclude others from the space below their property when we have dramatically curtailed their right to\nexclude from the space above their property? If we recognized a commons in the underground, then\nMarty would win this case.\nBut, of course, the underground, at least the immediate underground, is relevantly different\nfrom the sky. First, there is a long history not only of formal recognition of property interests in the\nunderground, but also of actual use and appropriation from the underground - think oil, gas, and\nother minerals. When we expropriated landowner\xe2\x80\x99s rights to exclude planes, we took away certain\nnon-use interests, and only to a very limited extent, but if we expropriate subterranean rights, we\xe2\x80\x99re\ntaking away something of tangible and, sometimes, high value. Second, there isn\xe2\x80\x99t really a publicly\nimportant industry that depends on gaining underground rights in a manner that might be frustrated\nby forcing it to buy such rights from willing sellers. Even with something like oil, a holdout is not\nmuch of a problem. The worry for airlines was that random holdouts would create a patchwork of\nno-fly zones that necessitated wasteful (if not impossible) routing. A route is a continuous line, and\nonce rights are obtained along much of a route someone else along the route could engage in\nstrategic bargaining to try to capture profits from the route. Put differently, overflight rights are path\ndependent and location-sensitive, whereas mineral rights are not.\nWe\xe2\x80\x99re probably not worried that spelunking will become prohibitively expensive or be\nblocked entirely by holdouts. It\xe2\x80\x99s (a) not as important an industry as air travel so that blocking is\nboth less likely and less of a concern and (b) more like oil in that owners are less likely to engage in\nstrategic bargaining because most underlying caverns do not become dramatically more valuable as\nother caverns are acquired. (Though not exactly like oil: imagine a large, ecologically significant\nperhaps, cave system the continuity of which depends on a few passageways all underlying the land\nof a single owner. The ability to use the caverns might be significantly impeded without rights to use\nthe passageways, and so the owner might be in a position to hold out.) You might think of other\nreasons in addition that argue in favor of keeping the ad inferno part of the old doctrine, even as we\nhave jettisoned a substantial aspect of the ad coelum part.\nTo end this rather long detour, the court will certainly conclude that Nancy \xe2\x80\x9cowns\xe2\x80\x9d all the\nunderground below her land. The question is whether she has lost this property, either in part or in\ntotal.\n\nHas Nancy Lost Her Subterranean Interest?\n27\n\n\x0cWe\xe2\x80\x99ve studied a couple of ways this loss can occur. First, adverse possession vests title in\nadverse possessors automatically at the end of the relevant limitations period. Second, we\xe2\x80\x99ve studied\ncases that attempt to limit forfeiture when improvements either encroach on or lie entirely on the\nland of another.\nAdverse Possession\nIn any adverse possession problem, we should start by listing the elements and then just\nmarch through them - as the court did in the Marengo Cave case. Any decent lawyer or judge would\ndo that. But the resolution of these elements in hard cases requires a bit more. Here, we\xe2\x80\x99re going to\nget hung up on \xe2\x80\x9copen and notorious,\xe2\x80\x9d and a satisfying reult probably cannot be reached just by\nthinking hard about what those words mean.\nHere are the elements: (1) Actual possession, (2) Open and notorious, (3) Exclusive, (4)\nHostile, (5) Continuous, (6) for the statutory period. These can be arranged in any order to yield a\nmore or less memorable acronym - feel free. Some courts also include \xe2\x80\x9cunder a claim of right\xe2\x80\x9d and\npayment of taxes. If you discussed the role of property taxes in this case, that\xe2\x80\x99s fine. But many courts\ndo not require it, and I won\xe2\x80\x99t assume the court in this hypothetical jurisdiction does.\nActual possession: Here, the caverns were used just as we\xe2\x80\x99d expect a true owner of the caverns\nto use them. It doesn\xe2\x80\x99t matter that Marty hasn\xe2\x80\x99t constructed a dwelling in the caverns. Some courts\nformulate the standard as whether the property was possessed in a manner that gives notice. As to\nthis question, courts split on questions such as whether adverse possession of rural land requires less\npresence (on the theory that true owners of rural lands tend to occupy their land less intensely) or\nmore presence (on the theory that more activity is necessary to give notice to the true owner of rural\nlands). required on rural land. You could discuss the major issue in this problem with respect to this\nelement, but the \xe2\x80\x9copen and notorious\xe2\x80\x9d element appears better suited to probe whether the\npossession was sufficient to give notice. This case is interesting in part because it is clear that there\nwas \xe2\x80\x9cpossession\xe2\x80\x9d but at the same time questionable whether it was \xe2\x80\x9copen\xe2\x80\x9d that the possession was\nof the true owner\xe2\x80\x99s land. In most other cases, these two elements are less distinct.\nExclusive: There is no question that Marty has not shared his asserted rights to the caverns\nwith others. He has been charging admission after all.\nHostile: The general rule is that only objective hostility to the record owner\xe2\x80\x99s formal interests\nis required. That\xe2\x80\x99s certainly met here. Marty would not win in a jurisdiction that required the APor to\nknow that the land was not his (only land pirates win). But Marty would likely satisfy this element in\nthose few jurisdictions that impose a good faith requirement. Note also that there is no evidence of\nany permission from Nancy. And even if we were in a jurisdiction that presumed permission on land\nlike this, that presumption could be rebutted here, where it\xe2\x80\x99s relatively clear from her conduct that\nNancy had no idea that she owned any of portion of the caverns - or at least, we\xe2\x80\x99re pretty confident\nthat additional facts can be marshaled to rebut the presumption..\nContinuous: As with actual possession, we only require as much continuity as a record owner\nwould exhibit. Seasonal occupancy is fine, for example, on land that is typically occupied seasonally.\nHere, Marty doesn\xe2\x80\x99t live in the caverns, but it\xe2\x80\x99s clear that he makes regular use of them - likely even\nto a greater extent than average cave-owners make.\nStatutory period: The instructions tell us that the limitations period is 10 years in this\njurisdiction. Marty has been operating the cave (from an entrance on his property) for 15 years. The\n28\n\n\x0cevidence seems to be that he has met the above-listed elements for that long.\nThe question though is how long Marty\xe2\x80\x99s possession of the caves has been \xe2\x80\x9copen and notorious\xe2\x80\x9d and that question might be resolved differently for the first ten years than for the last five. For the\nlast 5 years, Marty has been operating the caverns under greater publicity and has added\nimprovements. But five years is not enough, and so unless the possession was open and notorious\nbefore these improvements and publicity, Marty will lose on an AP claim.\nOpen and notorious: Here\xe2\x80\x99s the rub. Recall in the Gobble case that evidence concerning the\nreputation in the community was used to support the possessors\xe2\x80\x99 claim on this element. Neighbors\ntestified that they thought the possessors were the owners of the land in question. But what exactly\nare we probing here? Whether the possession was out in the open enough that a reasonable owner\nwould have discovered it? That seems to be what most courts say, and it fits with the \xe2\x80\x9cowner\nnegligence\xe2\x80\x9d theory of adverse possession. Indeed, the Marengo Caves case is explicit about this:\n\xe2\x80\x9cWhere there has been no actual notice, it is necessary to show that the possession of the disseisor\nwas so open, notorious, and visible as to warrant the inference that the owner must or should have\nknown of it.\xe2\x80\x9d\nThe court in Marengo Caves cashes this out as a question whether a common observer would\nassume the land belonged to the possessor - much like the Gobble court relied on community\nreputation. The Marengo Caves court separately inquired into \xe2\x80\x9cnotoriety\xe2\x80\x9d and explicitly tied this\nelement to community reputation - stating that APors\xe2\x80\x99 possession must be \xe2\x80\x9cmanifest to the\ncommunity.\xe2\x80\x9d\nThe cave cases force us to draw a distinction between the questions whether the possession\nitself was \xe2\x80\x9copen and notorious\xe2\x80\x9d and whether it was \xe2\x80\x9copen and notorious\xe2\x80\x9d that the possession was of\na particular parcel of land. This is the most important issue in this problem: Here, there is little\nquestion that Marty\xe2\x80\x99s operation of the caves was open and notorious; the issue is whether it was\nopen and notorious that his possessory interest burdened the particular overlying parcel at issue.\nYou could give a fine answer by arguing this issue either way. But we won\xe2\x80\x99t find a way out of this\ndilemma just by thinking about what the words \xe2\x80\x9copen and notorious\xe2\x80\x9d mean. Instead, we\xe2\x80\x99ll have to\nconsider the purpose of adverse possession doctrine to discover how a court is likely to rule or\nshould rule.\nIf adverse possession is about punishing O\xe2\x80\x99s negligence, then it will be more difficult to\nconclude that adverse possession occurred here. We\xe2\x80\x99ll have to think about whether it\xe2\x80\x99s negligent for\nan owner near a large (famous?) underground cave system to fail to undertake measures to discover\nwhether any part of the caves underlie her property. (We ask this question with respect to this\nelement, because the open and notorious element most closely resembles this inquiry.) The Marengo\nCaves court is an exemplar of this mode of interpretation and concluded that there was no way\nabsent a survey that the true owner could have known about the intrusion. That may be, but the\nsame might be said of any number of garden variety boundary disputes. The question is whether we\nthink owners in such circumstances ought to get surveys if they value their property enough to fight\nan AP claim. We do so believe as to boundary disputes, and it doesn\xe2\x80\x99t seem too radical to suggest\nthat those residing near large, well-known cave systems ought to get a survey to determine their\nownership rights if they\xe2\x80\x99d like to claim a piece of the caves.\nYou could, of course, disagree, and side with the Marengo Caves court.\nBut we might wish to emphasize the other justifications for adverse possession, especially if\nwe\xe2\x80\x99re Marty\xe2\x80\x99s lawyer. (See notes - efficiency improvements - including encouraging use, encouraging\nmonitoring, reducing transaction costs - reliance, endowment effect.) If AP is not about punishing\nnegligent Os, then we might construe the open and notorious requirement as demanding only that\nthe possession itself not be hidden - not that the possession be clearly tied to an identifiable surface\nparcel. Even if it wouldn\xe2\x80\x99t be negligent for an owner to fail to ascertain whether the possession is\n29\n\n\x0cadverse, we would still, under these other theories, recognize the adverse possession. If you made\nthis argument, you\xe2\x80\x99d want to tie it to specific theories from the list above.\nNote finally the odd asymmetry this case exposes. Adverse possession of the overlying land\nwould almost certainly give title to both the surface and the underground - even without actual\npossession of the underground. Here, on the other hand, if Marty wins he certainly won\xe2\x80\x99t be\nawarded both the caverns and the surface. So the AP theory must be that Marty has effected a\nseverance: he gets the underground, while Nancy keeps the surface - like adverse possession of a\nhedgerow gives the possessor only title to the hedgerow, not all of the adjoining land.\nThis somewhat problematic distinction is probably what led some of you to wonder whether\nMarty really ought to take only a prescriptive easement for continued use of the underground,\narguing that the caverns are more like a trail on the surface. Perhaps - the line between \xe2\x80\x9cuse\xe2\x80\x9d and\n\xe2\x80\x9cpossession\xe2\x80\x9d is not free of ambiguity. But it seems to me that Marty\xe2\x80\x99s use is at least as \xe2\x80\x9cpossessory\xe2\x80\x9d\nas the Fagerstroms\xe2\x80\x99 in Nome 2000. True, they spent the night on their \xe2\x80\x9cclaim\xe2\x80\x9d on a regular, if not\nfrequent, basis. But, to me, Marty\xe2\x80\x99s intensive commercial use and overnight expeditions put this case\non the \xe2\x80\x9cpossession\xe2\x80\x9d side rather than the \xe2\x80\x9cuse\xe2\x80\x9d side. You could argue otherwise.\nImproving Trespasser\nFinally, if Marty loses, might he still have a claim for the value of his improvements.\nRecall that people who have encroached on other\xe2\x80\x99s land, or built structures entirely on neighboring\nland, may get something even if they do not meet the requirements of adverse possession. The old\ncommon law doctrine held that the true owner could always demand that the encroacher tear down\nthe encroaching structure. These days, most courts follow the relative hardship doctrine. Under this\ndoctrine, encroachers still don\xe2\x80\x99t get title free of charge, as they would under adverse possession. But\nthey do gain the right to force the sale of either the land underlying the encroachment or of an\neasement. The doctrine is applied only when three elements are met. (You should not invoke this\ndoctrine in your answer without discussing these elements.) The encroachment must be (1) in good\nfaith, (2) an insubstantial interference with the true owner\xe2\x80\x99s rights, and (3) expensive to remove.\nThe fact pattern is not clear as to whether any of the physical improvements in the cave\nmerely encroach on Nancy\xe2\x80\x99s land (without benefiting that land) or lie entirely on Nancy\xe2\x80\x99s land in a\nway that they could be called improvements. If the former, then the relative hardship doctrine might\napply, but it\xe2\x80\x99s not easy to see how. First, the easy part: Marty is clearly a good faith encroacher if he\nis an encroacher at all. So, if the walkways lie only partly on Nancy\xe2\x80\x99s property, in such a way that\nthey cannot reasonably be moved or removed, then perhaps the doctrine will work to permit Marty\nto force a sale of that portion of the caves on which the encroaching portion of the walkways lie. It\xe2\x80\x99s\nnot at all clear how a court might resolve the question of whether the interference is substantial, and\nin any event would require us to know a lot more about the physical layout of the caverns and the\nwalkways. We also don\xe2\x80\x99t know where the souvenir stand is. If it merely encroaches on Nancy\xe2\x80\x99s\nproperty, rather than being located entirely on it, then perhaps the doctrine could apply. We\xe2\x80\x99ll face\nthe same fact-bound inquiry discussed above. It\xe2\x80\x99s hard to imagine, though, that moving or removal\nof the stand would be prohibitively expensive.\nIf the walkways and/or stand lie entirely on Nancy\xe2\x80\x99s property, so that they can be said to be\nimprovements of Nancy\xe2\x80\x99s land, then we\xe2\x80\x99re in the Somerville v. Jacobs realm. You could cite the\nmajority opinion (where the court decided that the improving trespasser, here Marty, can force a sale\nof the land if the owner chooses not to pay the encroacher the court-determined value of the\nimproving structure) or the dissent (holding that each side should be given the right to tear down the\n30\n\n\x0cstructure, leading - hopefully - to ex post bargaining).\nThe major focus of this problem was adverse possession, and a fine answer need not have\nspent much time at all on the encroachment issue except perhaps to note that the value involved\nwas quite limited. I leave it to you think about what, if anything, to do about the\nbenefits Marty has conferred on the caverns through mapping, development, and publicity. Is it fair,\nif he cannot take by adverse possession, to permit Nancy to reap those benefits?\n\n31\n\n\x0cMarengo Cave Co. v. Ross,\n10 N.E.2d 917 (Ind. 1937)\n\nJohn H. Luckett, of English, and Walter Bulleit, of New Albany, for appellant.\nConnor D. Ross, of Indianapolis, and H. W. Mock, of English, for appellee.\nRoll, Judge.\nAppellee and appellant were the owners of adjoining land in Crawford county, Ind. On\nappellant\xe2\x80\x99s land was located the opening to a subterranean cavity known as \xe2\x80\x98Marengo Cave.\xe2\x80\x99 This\ncave extended under a considerable portion of appellant\xe2\x80\x99s land, and the southeastern portion thereof\nextended under lands owned by appellee. This action arose out of a dispute as to the ownership of\nthat part of the cave that extended under appellee\xe2\x80\x99s land. Appellant was claiming title to all the cave\nand davities, including that portion underlying appellee\xe2\x80\x99s land. Appellee instituted this action to quiet\nhis title as by a general denial and filed a crosscomplaint by a general denial and filed a\ncrosscomplaint wherein he sought to quiet its title to all the cave, including that portion underlying\nappellee\xe2\x80\x99s land. There was a trial by jury which returned a verdict for the appellee. Appellant filed its\nmotion for a new trial which was overruled by the court, and this the only error assigned on appeal.\nAppellant assigns as grounds for a new trial that the verdict of the jury is not sustained by sufficient\nevidence, and is contrary to law. These are the only grounds urged for a reversal of this cause.\nThe facts as shown by the record are substantially as follows: In 1883 one Stewart owned the\nreal estate now owned by appellant, and in September of that year some young people who were\nupon that land discovered what afterwards proved to be the entrance to the cavern since known as\nMarengo Cave, this entrance being approximately 700 feet from the boundary line between the lands\nnow owned by appellant and appellee, and the only entrance to said cave. Within a week after\ndiscovery of the cave, it was explored, and the fact of its existence received wide publicity through\nnewspaper articles, and otherwise. Shortly thereafter the then owner of the real estate upon which\nthe entrance was located took complete possession of the entire cave as now occupied by appellant\nand used for exhibition purposes, and began to charge an admission fee to those who desired to\nenter and view the cave, and to exclude therefrom those who were unwilling to pay for admission.\nThis practice continued from 1883, except in some few instances when persons were permitted by\nthe persons claiming to own said cave to enter same without payment of the usual required fee, and\nduring the following years the successive owners of the land upon which the entrance to the cave\nwas located, advertised the existence of said cave through newspapers, magazines, posters, and\notherwise, in order to attract visitors thereto; also made improvements within the cave, including the\nbuilding of concrete walks, and concrete steps where there was a difference in elevation of said\ncavern, widened and heightened portions of passageways; had available and furnished guides, all in\norder to make the cave more easily accessibly to visitors desiring to view the same; and continuously,\nduring all this time, without asking or obtaining consent from any one, but claiming a right so to do,\nheld and possessed said subterranean passages constituting said cave, excluding therefrom the\n\xe2\x80\x98whole world,\xe2\x80\x99 except such persons as entered after paying admission for the privilege of so doing, or\nby permission.\nAppellee has lived in the vicinity of said cave since 1903, and purchased the real estate which\nhe now owns in 1908. He first visited the cave in 1895, paying an admission fee for the privilege,\nand has visited said cave several times since. He has never, at any time, occupied or been in\n32\n\n\x0cpossession of any of the subterranean passages or cavities of which the cave consists, and the\npossession and use of the cave by those who have done so has never interfered with his use and\nenjoyment of the lands owned by him. For a period of approximately 25 years prior to the time\nappellee purchased his land, and for a period of 21 years afterwards, exclusive possession of the cave\nhas been held by appellant, its immediate and remote grantors.\nThe cave, as such, has never been listed for taxation separately from the real estate wherein it\nis located, and the owners of the respective tracts of land have paid the taxes assessed against said\ntracts.\nA part of said cave at the time of its discovery and exploration extended beneath real estate\nnow owned by appellee, but this fact was not ascertained until the year 1932, when the boundary\nline between the respective tracts through the cave was established by means of a survey made by a\ncivil engineer pursuant to an order of court entered in this cause. Previous to this survey neither of\nthe parties to this appeal, nor any of their predecessors in title, knew that any part of the cave was in\nfact beneath the surface of a portion of the land now owned by appellee. Possession of the cave was\ntaken and held by appellant\xe2\x80\x99s remote and immediate grantors, improvements made, and control\nexercised, with the belief on the part of such grantors that the entire cave as it was explored and held\nwas under the surface of lands owned by them. There is no evidence of and dispute as to ownership\nof the cave, or any portion thereof, prior to the time when in 1929 appellee requested a survey,\nwhich was approximately 46 years after discovery of the cave and the exercise of complete dominion\nthereover by appellant and its predecessors in title.1\nIt is appellant\xe2\x80\x99s contention that it has a fee-simple title to all of the cave; that it owns that\npart underlying appellee\xe2\x80\x99s land by adverse possession.Section 2-602, Burns\xe2\x80\x99 Ann.St.1933, section 61,\nBaldwin\xe2\x80\x99s Ind.St.1934, provides as follows: \xe2\x80\x98The following actions shall be commenced within the\nperiods herein prescribed after the cause of action has accrued, and not afterward: * Sixth. Upon\ncontracts in writing other than those for the payment of money, on judgments of courts of record,\nand for the recovery of the possession of real estate, within twenty (20) years.\xe2\x80\x99\nIt will be noted that appellee nor his predecessors in title had never effected a severance of\nthe cave from the surface estate. Therefore the title of the appellee extends from the surface to the\ncenter but actual possession is confined to the surface. Appellee and his immediate and remote\ngrantors have been in possession of the land and estate here in question at all times, unless it can be\nsaid that the possession of the cave by appellant as shown by the evidence above set out has met all\nthe requirements of the law relating to the acquisition of land by adverse possession. A record title\nmay be defeated by adverse possession. All the authorities agree that, before the owner of the legal\ntitle can be deprived of his land by another\xe2\x80\x99s possession, through the operation of the statute of\nlimitation, the possession must have been actual, visible, notorious, exclusive, under claim of\nownership and hostile to the owner of the legal title and to the world at large (except only the\ngovernment), and continuous for the full period prescribed by the statute. The rule is not always\nstated in exactly the same words in the many cases dealing with the subject of adverse possession,\nyet the rule is so thoroughly settled that there is no doubt as to what elements are essential to\nestablish a title by adverse possession. Craven v. Craven (1913) 181 Ind. 553, 103 N.E. 333,105 N.E.\n41; Rennert v. Shirk (1904) 163 Ind. 542, 72 N.E. 546;Vandalia R. Co. v. Wheeler (1914) 181 Ind.\n424, 103 N.E. 1069; Tolley v. Thomas (1910) 46 Ind.App. 559, 93 N.E. 181; McBeth v. Wetnight\n(1914) 57 Ind.App. 47, 106 N.E. 407. Let us examine the various elements that are essential to\nestablish title by adverse possession and apply them to the facts that are established by the\nundisputed facts in this case.\n(1) The possession must be actual. It must be conceded that appellant in the operation of the\n\xe2\x80\x98Marengo Cave\xe2\x80\x99 used not only the cavern under its own land but also that part of the cavern that\nunderlaid appellee\xe2\x80\x99s land, and assumed dominion over all of it. Yet it must also be conceded that\n33\n\n\x0cduring all of the time appellee was in constructive possession, as the only constructive possession\nknown to the law is that which inheres in the legal title and with which the owner of that title is\nalways endowed. Morrison v. Kelly (1859) 22 Ill. 609, 610, 74 Am.Dec. 169; Cook v. Clinton (1887)\n64 Mich. 309, 31 N.W. 317,8 Am.St.Rep. 816; Ables v. Webb (1905) 186 Mo. 233, 85 S.W. 383, 105\nAm.St.Rep. 610;1 R.C.L. 692; 2 C.J. 51 et seq. and authorities there cited. Whether the possession\nwas actual under the peculiar facts in this case we need not decide.\n(2) The possession must be visible. The owner of land who, having notice of the fact that it\nis occupied by another who is claiming dominion over it, nevertheless stands by during the entire\nstatutory period and makes no effort to eject the claimant or otherwise protect his title, ought not to\nbe permitted, for reasons of public policy, thereafter to maintain an action for the recovery of his\nland. But, the authorities assert, in order that the possession of the occupying claimant may\nconstitute notice in law, it must be visible and open to the common observer so that the owner or\nhis agent on visiting the premises might readily see that the owner\xe2\x80\x99s rights are being invaded.\nHolcroft v. Hunter (1832) 3 Blackf. 147; Towle v. Quante (1910) 246 Ill. 568, 92 N.E. 967; Tinker v.\nBessel (1912) 213 Mass. 74, 99 N.E. 946; Jasperson v. Scharnikow (1907) 150 F. 571, 80 C.C.A. 373,\n15 L.R.A. (N.S.) 1178 and note. What constitutes open and visible possession has been stated in\ngeneral terms, thus; it is necessary and sufficient if its nature and character is such as is calculated to\napprise the world that the land is occupied and who the occupant is; Dempsey v. Burns (1917) 281\nIll. 644, 118 N.E. 193, and such an appropriation of the land by claimant as to apprise, or convey\nvisible notice to the community or neighborhood in which it is situated that it is in his exclusive use\nand enjoyment. Goodrich v. Mortimer (1919) 44 Cal.App. 576, 186 P. 844. It has been declared that\nthe disseisor \xe2\x80\x98must unfurl his flag\xe2\x80\x99 on the land, and \xe2\x80\x98keep it flying,\xe2\x80\x99 so that the owner may see, if he\nwill, that an enemy has invaded his domains, and planted the standard of conquest. Robin v. Brown\n(1932) 308 Pa. 123, 162 A. 161; Willamette Real Estate Co. v. Hendrix (1895) 28 Or. 485, 42 P.\n514,52 Am.St.Rep. 800; People\xe2\x80\x99s Savings Bank v. Bufford (1916) 90 Wash. 204, 155 P. 1068; 1\nAmer.Juris. p. 865.\n(3) The possession must be open and notorious. The mere possession of the land is not\nenough. It is knowledge, either actual or imputed, of the possession of his lands by another, claiming\nto own them bona fide and openly, that affects the legal owner thereof. Where there has been no\nactual notice, it is necessary to show that the possession of the disseisor was so open, notorious, and\nvisible as to warrant the inference that the owner must or should have known of it. In Philbin v.\nCarr (1920) 75 Ind.App. 560, 129 N.E. 19, 29, 706, it was said:\nHowever, in order that the possession of the occupying claimant may constitute notice in\nlaw, it must be visible and open to the common observer so that the owner or his agent on visiting\nthe premises might readily see that the owner\xe2\x80\x99s rights are being invaded. In accordance with the\ngeneral rule applicable to the subject of constructive notice, before possession can operate as such\nnotice, it must be clear and unequivocal.\nHolcroft v. Hunter (1832) 3 Blackf. 147; Towle v. Quante supra.\nAnd again, the possession must be notorious. It must be so conspicuous that it is generally\nknown and talked of by the public. \xe2\x80\x98It must be manifest to the community.\xe2\x80\x99 Thus, the Appellate\nCourt said in Philbin v. Carr supra, that:\nWhere the persons who have passed frequently over and along the premises have been\nunable to see any evidence of occupancy, evidently the possession has not been of the character\nrequired by the rule. The purpose of this requirement is to support the principle that a legal title will\nnot be extinguished on flimsy and uncertain evidence. Hence, where there has been no actual notice,\nthe possession must have been so notorious as to warrant the inference that the owner ought to\nhave known that a stranger was asserting dominion over his land. Insidious, desultory, and fugitive\nacts will not serve that purpose. To have that effect the possession should be clear and satisfactory,\n34\n\n\x0cnot doubtful and equivocal.\nSee cases there cited on page 585 of 75 Ind.App.,129 N.E. 19, 28, 706.\n(4) The possession must be exclusive. It is evident that two or more persons cannot hold\none tract of land adversely to each other at the same time.\nIt is essential that the possession of one who claims adversely must be of such an exclusive\ncharacter that it will operate as an ouster of the owner of the legal title; because, in the absence of\nouster the legal title draws to itself the constructive possession of the land. A possession which does\nnot amount to an ouster or disseisin is not sufficient.\nPhilbin v. Carr, supra. See cases cited on page 585 of 75 Ind.App.,129 N.E. 19, 28, 706.\nThe facts as set out above show that appellee and his predecessors in title have been in\nactual and continuous possession of his real estate since the cave was discovered in 1883. At no time\nwere they aware that any one was trespassing upon their land. No one was claiming to be in\npossession of appellee\xe2\x80\x99s land. It is true that appellant was asserting possession of the \xe2\x80\x98Marengo\nCave.\xe2\x80\x99 There would seem to be quite a difference in making claim to the \xe2\x80\x98Marengo Cave,\xe2\x80\x99 and\nmaking claim to a portion of appellee\xe2\x80\x99s land, even though a portion of the cave extended under\nappellee\xe2\x80\x99s land, when this latter fact was unknown to any one. The evidence on both sides of this\ncase is to the effect that the \xe2\x80\x98Marengo Cave\xe2\x80\x99 was thought to be altogether under the land owned by\nappellant, and this erroneous supposition was not revealed until a survey was made at the request of\nappellee and ordered by the court in this case. It seems to us that the following excerpt from Lewey\nv. H. C. Frick Coke Co. (1895) 166 Pa. 536, 31 A. 261, 263,28 L.R.A. 283, 45 Am.St.Rep. 684, is\npeculiarly applicable to the situation here presented, inasmuch as we are dealing with an\nunderground cavity. It was stated in the above case:\nThe title of the plaintiff extends from the surface to the center, but actual possession is\nconfined to the surface. Upon the surface he must be held to know all that the most careful\nobservation by himself and his employes could reveal, unless his ignorance is induced by the\nfraudulent conduct of the wrongdoer. But in the coal veins, deep down in the earth, he cannot see.\nNeither in person nor by his servants nor employes can he explore their recesses in seach for an\nintruder. If an adjoining owner goes beyond his own boundaries in the course of his mining\noperations, the owner on whom he enters has no means of knowledge within his reach. Nothing\nshort of an accurate survey of the interior of his neighbor\xe2\x80\x99s mines would enable him to ascertain the\nfact. This would require the services of a competent mining engineer and his assistants, inside the\nmines of another, which he would have no right to insist upon. To require an owner, under such\ncircumstances, to take notice of a trespass upon his underlying coal at the time it takes place, is to\nrequire an impossibility; and to hold that the statute begins to run at the date of the trespass is in\nmost cases to take away the remedy of the injured party before he can know that an injury has been\ndone him. A result so absurd and so unjust ought not to be possible. *\nThe reason for the distinction exists in the nature of things. The owner of land may be\npresent by himself or his servants on the surface of his possessions, no matter how extensive they\nmay be. He is for this reason held to be constructively present wherever his title extends. He cannot\nbe present in the interior of the earth. No amount of vigilance will enable him to detect the\napproach of a trespasser who may be working his way through the coal seams underlying adjoining\nlands. His senses cannot inform him of the encroachment by such trespasser upon the coal that is\nhidden in the rocks under his feet. He cannot reasonably be held to be constructively present where\nhis presence is, in the nature of things, impossible. He must learn of such a trespass by other means\nthan such as are within his own control, and, until these come within his reach, he is necessarily\nignorant of his loss. He cannot reasonably be required to act until knowledge that action is needed is\npossible to him.\n35\n\n\x0cWe are not persuaded that this case falls within the rule of mistaken boundary as announced\nin Rennert v. Shirk (1904) 163 Ind. 542, 72 N.E. 546, 549, wherein this court said:\nAppellant insists, however, that, if one takes and holds possession of real estate under a\nmistake as to where the true boundary line is, such possession cannot ripen into a title. In this state,\nwhen an owner of land, by mistake as to the boundary line of his land, takes actual, visible, and\nexclusive possession of another\xe2\x80\x99s land, and holds it as his own continuously for the statutory period\nof 20 years, he thereby acquires the title as against the real owner. The possession is regarded as\nadverse, without reference to the fact that it is based on mistake; it being prima facie sufficient that\nactual, visible, and exclusive possession is taken under a claim of right.\nThe reason for the above rule is obvious. Under such circumstances appellant was in\npossession of the necessary means of ascertaining the true boundary line, and to hold that a mere\nmisapprehension on the part of appellant as to the true boundary line would nullify the wellestablished law on adverse possession. In that case appellee had actual, visible, notorious, and\nexclusive possession. The facts in the present case are far different. Here the possession of appellant\nwas not visible. No one could see below the earth\xe2\x80\x99s surface and determine that appellant was\ntrespassing upon appellee\xe2\x80\x99s lands. This fact could not be determined by going into the cave. Only by\na survey could this fact be made known. The same undisputed facts clearly show that appellant\xe2\x80\x99s\npossession was not notorious. Not even appellant itself nor any of its remote grantors knew that any\npart of the \xe2\x80\x98Marengo Cave\xe2\x80\x99 extended beyond its own boundaries, and they at no time even down to\nthe time appellee instituted this action made any claim to appellee\xe2\x80\x99s lands. Appellee and his\npredecessors in title at all times have been in possession of the land which he is now claiming. No\nseverance by deed or written instrument was ever made to the cave, from the surface. In the absence\nof a separate estate could appellant be in the exclusive possession of the cave that underlies\nappellee\xe2\x80\x99s land.\n\xe2\x80\x98If there is no severance, an entry upon the surface will extend downward, and draw to it a\ntitle to the underlying minerals; so that he who disseises another, and acquires title by the statute of\nlimitations, will succeed to the estate of him upon whose possession he has entered.\xe2\x80\x99 Delaware &\nHudson Canal Co. v. Hughes (1897) 183 Pa. 66, 38 A. 568, 570,38 L.R.A. 826, 63 Am.St.Rep. 743.\nEven though it could be said that appellant\xe2\x80\x99s possession has been actual, exclusive, and\ncontinuous all these years, we would still be of the opinion that appellee has not lost his land. It has\nbeen the uniform rule in equity that the statute of limitation does not begin to run until the injured\nparty discovers, or with reasonable diligence might have discovered, the facts constituting the injury\nand cause of action. Until then the owner cannot know that his possession has been invaded. Until\nhe has knowledge, or ought to have such knowledge, he is not called upon to act, for he does not\nknow that action in the premises is necessary and the law does not require absurd or impossible\nthings of any one. Lewey v. Frick Coke Co. (1895) 166 Pa. 536, 31 A. 261,28 L.R.A. 283, 45\nAm.St.Rep. 684; Delaware & Hudson Canal Co. v. Hughes, supra.\nIn the case of Bailey v. Glover (1874) 21 Wall. (88 U.S.) 342, 348, 22 L.Ed. 636, the court\nsaid:\nWe also think that in suits in equity the decided weight of authority is in favor of the\nproposition that where the party injured by the fraud remains in ignorance of it without any fault or\nwant of diligence or care on his part, the bar of the statute does not begin to run until the fraud is\ndiscovered, though there be no special circumstances or efforts on the part of the party committing\nthe fraud to conceal it from the knowledge of the other party. *\nTo hold that by concealing a fraud, or by committing a fraud in a manner that it concealed\n36\n\n\x0citself until such time as the party committing the fraud could plead the statute of limitations to\nprotect it, is to make the law which was designed to prevent fraud the means by which it is made\nsuccessful and secure.\nIn Livingston v. Rawyards (1880) L.R. 5 App.Cas. 34, Lord Hatherly treats an underground\ntrespass as a species of fraud. While there is no active fraud shown in this case, yet the facts come\nclearly within the case of Lightner Mining Co. v. Lane (1911) 161 Cal. 689, 120 P. 771, 776, and\ncases cited on page 776, Ann.Cas. 1913C, 1093. The following excerpt from this opinion clearly sets\nforth our view:\nIn the English decisions the willful and secret taking of coal from a neighbor\xe2\x80\x99s mine is\nusually characterized as fraudulent. Hilton v. Woods, L.R. 4 Eq.Cas. 440; Dean v. Thwaite, 21 Beav.\n623; Ecclesiastical Coms. v. North E. Ry. Co., L.R. 4, Ch.Div. 860; Trotter v. McLean, L.R. 13,\nCh.Div. 586. Such an act, so committed, has all the substantial elements of fraud. Where one by\nmisrepresentation induces another knowingly to part with his property, because his mind is so\nbeclouded by the falsehood that he is unaware of the wrong done him, it is called a fraud. It is a\ntaking of another\xe2\x80\x99s property without his knowledge of the fact that it is really taken from him. The\nignorance in that case is produced by artifice. Where one betrays a trust and appropriates trust\nproperty to his own use, it is called a fraud. The injured party allows the other to have the\npossession and the opportunity to convert the property secretly, because of faith and confidence in\nthe wrongdoer. In the case of underground mining of a neighbor\xe2\x80\x99s ore, nature has supplied the\nsituation which gives the opportunity to the trespasser to take it secretly and causes the ignorance of\nthe owner. Relying upon this ignorance, he takes an unfair advantage of his natural opportunities,\nand thereby clandestinely appropriates another\xe2\x80\x99s property while appearing to be making only a\nlawful use of his own. The act in its very nature constitutes the deceit which makes it a fraud.\nSo in the case at bar, appellant pretended to use the \xe2\x80\x98Marengo Cave\xe2\x80\x99 as his property and all\nthe time he was committing a trespass upon appellee\xe2\x80\x99s land. After 20 years of secret user, he now\nurges the statute of limitation, section 2-602, Burns\xe2\x80\x99 St.1933, section 61, Baldwin\xe2\x80\x99s Ind.St.1934, as a\nbar to appellee\xe2\x80\x99s action. Appellee did not know of the trespass of appellant, and had no reasonable\nmeans of discovering the fact. It is true that appellant took no active measures to prevent the\ndiscovery, except to deny appellee the right to enter the cave for the purpose of making a survey,\nand disclaiming any use of appellee\xe2\x80\x99s lands, but nature furnished the concealment, or where the\nwrong conceals itself. It amounts to the taking of another\xe2\x80\x99s property without his knowledge of the\nfact that it is really being taken from him. In most cases the ignorance is produced by artifice. But in\nthis case nature has supplied the situation which gives the trespasser the opportunity to occupy the\nrecesses on appellee\xe2\x80\x99s land and caused the ignorance of appellee which he now seeks to avail\nhimself. We cannot assent to the doctrine that would enable one to trespass upon another\xe2\x80\x99s property\nthrough a subterranean passage and under such circumstances that the owner does not know, or by\nthe exercise of reasonable care could not know, of such secret occupancy, for 20 years or more and\nby so doing obtained a fee-simple title as against the holder of the legal title. The fact that appellee\nhad knowledge that appellant was claiming to be the owner of the \xe2\x80\x98Marengo Cave,\xe2\x80\x99 and advertised it\nto the general public, was no knowledge to him that it was in possession of appellee\xe2\x80\x99s land or any\npart of it. We are of the opinion that appellant\xe2\x80\x99s possession for 20 years or more of that part of\n\xe2\x80\x98Marengo Cave\xe2\x80\x99 underlying appellee\xe2\x80\x99s land was not open, notorious, or exclusive, as required by the\nlaw applicable to obtaining title to land by adverse possession.\nWe cannot say that the evidence is not sufficient to support the verdict or that the verdict is\n37\n\n\x0ccontrary to law.\nJudgment affirmed.\nThe above facts are quoted from Appellate Court\xe2\x80\x99s opinion. See 7 N.E.(2d) 59. \xe2\x86\xa9\n\n38\n\n\x0c2. Temporal Sharing of Land\n2.1. Estates in Land\n2.1.1. Introduction\nA TAXONOMY OF PRESENT AND FUTURE INTERESTS\n\nWe have already discussed a few situations in which property is transferred from one party\nto another. What used to belong to O now, after the transaction, belongs to A. We now consider\nland transactions in which O desires to grant property to A but, perhaps, not forever. Maybe O\nwants A to have the property for awhile before turning it over to B. Perhaps O wants A to have the\nproperty, maybe even forever, but if certain events occur the property should go to B.\nThe law permits O to grant property with conditions and time limits. As we will see, and\nlater consider more deeply, it restricts such arrangements to a small number of types. Our immediate\ntask is to determine from the language of a grant which type of arrangement we have. Think of it as\nlearning to identify animals in a park. There may be only a few different animals, and our task is to\ndistinguish one from the other based on identifying characteristics. So too here. Grantors can and\ndo use a wide variety of language and may specify all sorts of temporal relationships, but the law\nrequires us to reduce this language, to map it onto, the small set of permissible relationships.\nA warning: some property courses delve deeply into various accounts of the medieval history\nof these arrangements. This is not such a course. Nor will we be concerned with being able to\nunravel the most complex of temporal divisions or the most obscure doctrines. Our goal is only to\ngain familiarity with the basics of the common law system of estates in land, being able to identify\nthe elements of traditional grants and to understand typical disputes that arise from such grants.\nFirst things first: The grants that we will consider look more or less like the following\nO to A [condition] then to B.\nWhat this grant by O does is to give the property to A for awhile and then, maybe, to B. A\nhas the present interest. B holds what is called the future interest. Makes sense: at the time of the grant, A\nhas the property now, and B will take the property, if at all, later. So this grant creates a present\ninterest and a future interest. This is what I meant above by \xe2\x80\x9ctypes of relationship.\xe2\x80\x9d What present\ninterest and what future interests are created by the grant? That\xe2\x80\x99s the initial question we will be trying to\nanswer when we read a grant.\n\nDistinguishing fee simple interests from everything else\nWe now ask several questions, each with two answers. Answering this series of questions will\ntell use precisely what present and future interests we have. Let\xe2\x80\x99s take these questions one by one,\nand we\xe2\x80\x99ll return to them to summarize.\n\n39\n\n\x0cQuestion 1: Is the present interest possibly infinite or definitely finite in duration?\nThat is, might A retain the property, under the grant, forever, or is A guaranteed not to retain\nthe property forever under the grant? Now, of course A won\xe2\x80\x99t really live on the property for all\ntime, but the question here is whether the grant will definitely cut off A\xe2\x80\x99s ownership, and thus that of\nanyone who has taken from A by will or grant, involuntarily.\nIf the present interest is possibly infinite in duration, we call it a fee simple. If the present\ninterest is definitely finite, it is either a life estate or leasehold. This distinction is typically, though not\nalways, easy to discern in a grant. A life estate will almost always state that A\xe2\x80\x99s interest is only \xe2\x80\x9cfor\nlife,\xe2\x80\x9d and a leasehold will almost always set out a fixed time limit. By contrast, a fee simple will not\nbe so limited. Traditionally, a fee simple would be created by language such as\nO to A and his heirs [with perhaps some conditions here].\nThe \xe2\x80\x9cand his heirs\xe2\x80\x9d part is meant to indicate that A\xe2\x80\x99s interest should not expire and revert to\nO or go to some other party on A\xe2\x80\x99s death. These days, however, using such language or explicitly\nstating that the grant is \xe2\x80\x9cin fee simple\xe2\x80\x9d is unnecessary. Courts will presume a fee simple in the\nabsence of clear language otherwise.\n\nDistinguishing types of fee simple interests and their corresponding future interests\nWe will ask three questions to distinguish the three types of defeasible fees.\nQuestion 2: Is the present interest definitely infinite or is it possibly finite?\nIf there is no condition in the grant that could cause A to lose the property to someone else,\nthen A has a fee simple absolute. There is obviously no future interest following a fee simple absolute,\nsince nothing in the grant could lead to someone else becoming the owner. A fee simple absolute is\ncreated by simple language\nO to A.\nYou could get fancy and write something like: O to A and his heirs; or O to A in fee simple\nabsolute. But this isn\xe2\x80\x99t necessary. The law has a strong presumption in favor of interpreting language\nto grant the biggest present interest possible, and there isn\xe2\x80\x99t anything bigger than the fee simple\nabsolute. If we find a fee simple absolute we\xe2\x80\x99re done.\nIf, on the other hand, the grant contains a condition that could cause A to lose the property\nto someone else, then we say that A has a defeasible fee (which I like to think of as a fee that can be\n\xe2\x80\x9cde-feed\xe2\x80\x9d). The \xe2\x80\x9csomeone else\xe2\x80\x9d who could get the property has a future interest. Because A has a\nfee, though, this other person\xe2\x80\x99s future interest may never become possessory. At the time of the\ngrant, we just don\xe2\x80\x99t know what\xe2\x80\x99s going to happen. There are three kinds of defeasible fees, each with\na corresponding future interest. They are: (1) the fee simple subject to an executory interest (the \xe2\x80\x9csomeone\nelse\xe2\x80\x9d has, surprise, an executory interest), (2) the fee simple determinable (the \xe2\x80\x9csomeone else\xe2\x80\x9d has a possibility\nof reverter), and (3) the fee simple subject to a condition subsequent (the \xe2\x80\x9csomeone else\xe2\x80\x9d has a right of entry).\nThose are all the types of defeasible fees and their corresponding future interests. Now let\xe2\x80\x99s figure\nout how to tell them apart.\n40\n\n\x0cQuestion 3: Is the future interest in the grantor, O, or someone else?\nIf it\xe2\x80\x99s in someone else, we\xe2\x80\x99re pretty much done. Such a grant would look like\nO to A, but if something happens, then to B.\nHere A has a defeasible fee so long as it\xe2\x80\x99s uncertain whether this something will ever\nhappen. But if that thing does happen, then the grant specified that B should get the property. In\nother words, the future interest is in B. B is not the grantor.\nIn this case, we say that A has a fee simple subject to an executory interest and that B has an\nexecutory interest. In particular, we may say that B has a shifting executory interest, because the\nhappening of the condition will shift ownership from one person who is not the grantor to another\nperson who is not the grantor.\nIf the future interest is in the grantor, then we have a further question to ask in order to\nname the interests. Note that unless the grant mentions a third party, we assume the future interest\nis in the grantor. We\xe2\x80\x99ll look at some sample language below.\nQuestion 4: Where the future interest is in the grantor, will the happening of the condition\nvest ownership in the grantor automatically or only if the grantor asserts his or her right to retake\nthe property?\nIf it\xe2\x80\x99s automatic, we have a fee simple determinable in A and a possibility of reverter in O. Courts\ndiffer on whether this alternative is presumed. But a guaranteed way to specify that reversion to the\ngrantor should be automatic is to use what is often called \xe2\x80\x9cdurational language.\xe2\x80\x9d For example,\nO to A so long as the property is only used for residential purposes.\nO to A until alcohol is consumed on the premises.\n\xe2\x80\x9cSo long as,\xe2\x80\x9d \xe2\x80\x9cwhile,\xe2\x80\x9d \xe2\x80\x9cuntil,\xe2\x80\x9d and the like are key words that all courts will interpret as an\nintent to specify an automatic reversion to O and thus an intent to create a fee simple determinable /\npossibility of reverter.\nIf the reversion is not automatic, we call the present interest a fee simple subject to a condition\nsubsequent and the future interest a right of entry. Some courts will insist on something approaching an\nexplicit reference to a \xe2\x80\x9cright of entry\xe2\x80\x9d or \xe2\x80\x9cright to enter and retake.\xe2\x80\x9d Some look for a non-durational\nformulation of the condition - \xe2\x80\x9cbut if\xe2\x80\x9d or \xe2\x80\x9cupon condition that.\xe2\x80\x9d And still others will presume that\nreversion is not automatic unless it\xe2\x80\x99s absolutely clear the grantor intended otherwise. The following\nwill surely create a FSSC / Right of Entry:\nO to A, but if alcohol is ever served on the property, then I shall have a right of entry.\nNote that this distinction does not arise with executory interests. For whatever reason, if the\nfuture interest is in someone other then O, the property transfers automatically on the happening of\nthe condition.\nSummary\nIt may take awhile to explain and to read through this initially, but distinguishing fee interests\n41\n\n\x0cis not very difficult. We ask four questions:\nPotentially infinite? Yes = fee simple (FS). No = something else.\nIf potentially infinite, is it possibly finite? Yes = defeasible fee. No = FS absolute (done).\nIf defeasible fee simple, future interest in someone other than the grantor? Yes = FS subject to\nexecutory interest / executory interest (done). No = go to question 4.\nIf in the grantor, forfeiture automatic? Yes = FSD / POR (done). No = FSSCS / ROE\n(done).\nIf you are a chart person, you may want to refer to (or make) a flow chart from this. The\nonly trick, once you have this down, is figuring out from the language of the grant what the answers\nto these questions are. That\xe2\x80\x99s done through a variety of presumptions and interpretive techniques,\nsome of which we will see in the cases that follow.\n*\nThat\xe2\x80\x99s it for fee interests. You now know enough so that, with a little practice and after\nresolving any ambiguities in the language a grantor chose, you will be able to name the fee interest\ncontained in a grant. Now, to return to our metaphor at the beginning of this section, you can name\nat least some of the animals you run across in the park. However, unlike the inherent joy some take\nin identifying the denizens of the natural world, no sensible person would delight in distinguishing\none type of land grant from another unless tangible consequences flowed from the distinction.\nIndeed, the law does treat these types differently. Indeed the law does treat these interests somewhat\ndifferently.\nFor example, what happens if a condition in a defeasible fee is violated but the present\ninterest holder stays on? Suppose the grant was to A so long as alcohol is never sold on the\nproperty, but, wouldn\xe2\x80\x99t you know it, A sold alcohol on the property. The grant described is a fee\nsimple determinable with possibility of reverter in the grantor. We know that the grantor becomes\nthe owner of the property immediately upon the violation of the condition. If A continues to occupy\nthe property after the violation, he or she is a trespasser. And if one trespasses in the right way, for\nlong enough, one can take property by adverse possession. So if A sells alcohol and then continues\non as the apparent owner of the property for the statutory period, A will indeed become the owner\nagain, by adverse possession, and, this time, free of the condition.\nContrast this with what happens if the grant were toA but if alcohol is ever sold on the\nproperty then the grantor has a right of entry. Now if A sells alcohol on the property, the grantor\ndoes not immediately become the owner of the property. Rather, the grantor has the right to retake the\nproperty. But until the grantor reclaims the property, A continues to be the rightful owner and is not\na trespasser. Therefore, the adverse possession period does not start immediately on the violation of\nthe condition. Paradoxically, this could be worse for A, since a lengthy period of violation won\xe2\x80\x99t\nnecessarily serve to free A of the condition: grantor may return and retake at any time.\nThis distinction isn\xe2\x80\x99t as stark as it appears. In fact, the equitable doctrine of laches or a\nstatute may prevent the grantor from showing up to retake too long after a violation of the\ncondition. As is often the case with these somewhat ancient forms, what looks formally like it might\nmake a difference may not make much of a practical one.\n\nLife estates and remainder interests\n42\n\n\x0cWe now take up grants that create present interests that will definitely terminate. Some\nspecify durations of fixed periods. These would be leaseholds, which in many places are not\nconsidered interests in land at all but only a type of contractual arrangement regarding possession.\nWe will consider leaseholds later. For now we focus on a particular kind of definitely finite present\ninterest: the life estate. These look like:\nO to A for life, [then possibly to someone else].\nUnfortunately for all of us, it is certain that the condition of A\xe2\x80\x99s ownership, that he or she be\nalive, will one day no longer be satisfied. Thus, we know this cannot be a kind of fee simple interest.\nIndeed, we call all such interests life estates. Because everyone will one day die, all life estates have\ncorresponding future interests. It is these future interests we must distinguish. To do so, we ask\nanother series of questions.\nQuestion 1: Is the future interest, the one following the life estate, in the grantor or someone\nelse?\nIf it\xe2\x80\x99s in the grantor, then we call the future interest a reversion. The simplest example:\nO to A for life.\nA is the present interest holder. He or she has a life estate. When A dies, what happens? If\nnothing else is said, the property reverts to O. O, the grantor, has a reversion.\nIf, on the other hand, the future interest is in someone else, we call the interest a remainder. A\nremainder is the name of the interest in a third party that immediately follows a life estate. There can\nbe no gap. An example:\nO to A for life, then to B.\nHere, A has a life estate. B has a remainder interest, and O has nothing. By the way, one who\nhas a remainder interest is sometimes called a remainderman, a word that strikes me as even more\nridiculous than \xe2\x80\x9ctortfeasor.\xe2\x80\x9d\nQuestion 2: Is there any uncertainty in who, exactly, has the remainder interest or in whether\nconditions on the remainder interest will be met?\nIf an identifiable person or group of people is certain to take the property on expiration of\nthe life estate, then their future interest is called an absolutely vested remainder or, synonymously,\nindefeasibly vested remainder. The example of a remainder interest above is the quintessential absolutely\nvested remainder. B is an identified person, and there are no conditions on B\xe2\x80\x99s taking the property.\nContrast this with the following:\nO to A, then to A\xe2\x80\x99s oldest living child.\nO to A, then to B if B graduates from college.\nO to A, then to O\xe2\x80\x99s grandchildren.\nIn each of these grants, A has the present interest, a life estate. Each also specifies that a\nthird party, meaning someone other than the grantor, should take when A dies. Thus, each creates a\nkind of remainder interest. But in each we either do not know who will take when A dies or do not\nknow whether the specified remaindermen will take when A dies. We don\xe2\x80\x99t have an absolutely\nvested remainder in any of these grants. So what do we have?\n43\n\n\x0cThere are three other types of remainder, and the last part of our job in this section will be\nto distinguish these three types. (1) The contingent remainder; (2) the vested remainder subject to divestment;\n(3) the vested remainder subject to open.\nQuestion 3: If the remainder interest is in an uncertain person or class of people, is at least\none member of that class identified and certain to take?\nIf so, then we have a vested remainder subject to open. That identified person is guaranteed to take\nat least a share of the property. Others may later join the class of remaindermen, and so we cannot\nsay that we know with certainty exactly what the identified person will take until this class closes. An\nexample may help:\nO to A for life, then to B\xe2\x80\x99s children. Suppose that B has at least one child, C, at the time of\nthe grant.\nLet\xe2\x80\x99s start with the easy part. A has a life estate, the present interest created by this grant.\nWho has the future interest? Certainly C will be entitled to take the property when A dies. But\nothers might as well. If B is dead at the time of the grant, then we know with certainty who all of B\xe2\x80\x99s\nchildren are.1 And so this grant uses the phrase B\xe2\x80\x99s children to refer to an identified group of\nindividuals - not a class that could expand in the future. And so the children would have an\nabsolutely vested remainder.\nIf B is alive at the time of the grant, then he or she might well have more children after the\ngrant.2 And so C\xe2\x80\x99s share of the property will diminish as more children are born. We know C will get\nsomething, but we don\xe2\x80\x99t exactly know what. C has a vested remainder subject to open, sometimes\ncalled a vested remainder subject to partial defeasance, a phrase reflecting the fact that C\xe2\x80\x99s share of the\nproperty will diminish if new individuals join the class.\nAt some point, though, this has to stop. C needs to know what portion of the property C\nhas. In general, we try to determine when the grantor intended the class to close, meaning when no\nnew individuals, even if they satisfy the condition, should be able to share in the grant. Often\ngrantors may not specify this time, and so there are two common ways that classes close.\nNaturally: There may come a point at which it\xe2\x80\x99s no longer physically possible for there to be\nnew class members. For example, if the remainder is in B\xe2\x80\x99s children, the class closes, at the latest,\nwhen B dies.\nThe Rule of Convenience: We close the class, unless grantor\xe2\x80\x99s intent is to the contrary,\nwhen a member of the class is entitled to demand possession. This typically happens when the life\ntenant dies. And so, using our example, where the remainder is in B\xe2\x80\x99s children, when the the life\ntenant dies, C and any other living children of B will be entitled to take possession, and the class will\nclose. If B has children at some later time, those children will not be entitled to a share of the\nproperty.\nAll of the above went to defining the vested remainder subject to open, the remainder interest we\nwould find if we answer this question: Yes. If, on the other hand, we answer negatively, that there is\nno one at the time of the grant who is certain to take the property upon the death of the life tenant,\nthen the grant to this unascertained person or group of people is called a contingent remainder. We just\ndon\xe2\x80\x99t know who, if anyone, will take the property upon the death of the life tenant. An example:\nO to A for life, then to A\xe2\x80\x99s children. Assume A has no children at the time of the grant.\nIn this example, A has a life estate, and the class of A\xe2\x80\x99s children has a contingent remainder.\nThis is because while we know how to determine whether someone is in that class, there is no one in\nthat class now, and there may never be.\n44\n\n\x0cQuestion 4: If the remainder interest contains a condition on the remainderman\xe2\x80\x99s taking the\nproperty, did the grantor intend that the remainderman had to satisfy the condition before having a\nvested interest or that the remainderman\xe2\x80\x99s vested interest could be taken away if the condition is\nsatisfied?\nThis is, conceptually, the toughest distinction of the lot. And frankly it often makes little\nsense. Luckily there\xe2\x80\x99s an easy way to distinguish a vested remainder subject to divestment from a contingent\nremainder. So let\xe2\x80\x99s rephrase the question to make it easier to answer, though perhaps less substantive:\nQuestion 4: Is the condition part of the clause granting the remainder, or is the condition\nseparated from the remainder grant by a comma and words like \xe2\x80\x9cbut if\xe2\x80\x9d?\nOk, so this \xe2\x80\x9ccomma rule\xe2\x80\x9d won\xe2\x80\x99t prevail if there is contrary grantor intent, but it resolves\nalmost all of the cases. Examples are the only way to understand this:\nO to A for life, then to B if B graduates from law school.\nHere, we have a contingent remainder, because \xe2\x80\x9cif B graduates from law school\xe2\x80\x9d is part of the\n\xe2\x80\x9cthen to B\xe2\x80\x9d clause, and is not separated by a comma. We don\xe2\x80\x99t know if B will ever graduate from\nlaw school, even though we do know who B is. Contrast this with:\nO to A for life, then to B, but if B does not graduate from law school, then back to O.\nSame effect, but different name. Because the condition is separated by a comma from the\n\xe2\x80\x9cthen to B\xe2\x80\x9d clause, most courts would interpret this remainder interest in B to be a vested remainder\nsubject to divestment.\nFormally this distinction turns on whether the condition is precedent to the remainderman\xe2\x80\x99s\nownership, i.e. the condition must be satisfied before we can say that the remainderman has anything\nat all. Or whether the remainderman has been granted something that subsequently may be taken\naway, perhaps even after the remainderman has taken possession, if the condition is violated. But\npractically, it can be difficult to determine which of these grantor meant, and in many cases it\ndoesn\xe2\x80\x99t matter.\nImportantly, though, the rule against perpetuities, which is a rule that can invalidate grants\nthat remain uncertain too far into the future, applies to contingent remainders but not to vested\nremainders subject to divestment. So the classification of these very similar types of remainders can\nhave dramatic consequences.\nSummary\nDistinguishing remainder interests is a little more involved than distinguishing fees and their\nfuture interests. But a little practice makes it easy. If we have a life estate, we\xe2\x80\x99re going to ask what\nkind of future interest is created. We ask the following questions to decide:\nFuture interest in grantor? Yes = reversion (done). No = remainder.\nUncertain condition and/or unascertained remaindermen? Yes = go to next question. No =\nabsolutely vested remiander (done).\nIf unascertained remaindermen, is there at least one who is certain to take? Yes = vested\nremainder subject to open (done). No = contingent remainder and reversion in O (done).\nIf condition, separated by comma? Yes = vested remainder subject to divestment (done). No =\ncontingent remainder and reversion in O (done).\n45\n\n\x0cThere it is - not as hard as all the above explanation may have seemed.\nA few more notes on remainders\nFirst, let\xe2\x80\x99s clean up one loose end by classifying all of the interests in the following grant:\nO to A for life, then to the first child of A to graduate from law school. Assume A has no\nchildren at the time of the grant.\nAside from setting up an unhealthy intra-family dynamic, this is a grant of a life estate to A.\nImmediately on A\xe2\x80\x99s death the child, if any, of A that has satisfied the condition will take the\nproperty. Thus, there is a remainder interest here. But we don\xe2\x80\x99t know who this child might be and\nwhether any child will exist or satisfy the condition. This is a contingent remainder.\nWhat happens if A dies, but no child of A has graduated from law school? The answer is\nthat the property reverts to O. In fact, any contingent remainder also creates a reversion in O. So to\nclassify fully the interests created, we\xe2\x80\x99d say that A has a life estate, that there is a contingent\nremainder in one who might satisfy the condition, and that O has a reversion.\nSecond, remainders, like all future interests can be limited in time themselves. It\xe2\x80\x99s best not to\nthink about this until you have the hang of the classifications above. But once you do, this possibility\nisn\xe2\x80\x99t really more complex. The upshot is that grants like this one are fine:\nO to A for life, then to B for life, then to C.\nAll of the examples we have discussed so far have involved future interests that will become\nfee simple interests - and in fact fee simple absolute interests - once they become possessory. In this\ngrant, A has a life estate, the present interest, B has an absolutely vested remainder for life, and C\nhas an absolutely vested remainder (in fee simple). Similarly, life estates can be terminated early like\nfees. So we could have a life estate determinable, for example.\nThird, contingent remainders can be granted in the alternative. Here\xe2\x80\x99s an example:\nO to A for life, then to B if B survives C, otherwise to C.\nB and C have alternative contingent remainders. It\xe2\x80\x99s easy to see that each has a contingent\nremainder, since each must satisfy a condition in order to take. It certainly seems as though there is\nno way that one or the other will not succeed A in ownership. Still, though, we would say O has a\nreversion, because there is no vested remainder specified in the grant.\nThis example brings up a fourth note. It used to be that if a contingent remainder did not\nvest, i.e. the condition was not satisfied or person not ascertained before the termination of the life\nestate, then the contingent remainder was destroyed. So in the following grant:\nO to A for life, then to B if B graduates from law school,\nif A died before B has graduated from law school, the property would revert to O\n(remembering that O always has a reversion when there is a contingent remainder) and stay with O\nin fee simple absolute. The law would say that the contingent remainder was destroyed when A died.\nThese days, most courts do not hold contingent remainders to be destructible. Rather, they\nare converted into springing executory interests. To explain what this means, consider the above grant. If\nA died before B graduated, the grant would be converted to a fee simple in O subject to B\xe2\x80\x99s\nexecutory interest. If B graduates from law school, the property will spring from the grantor to B.\nIt\xe2\x80\x99s called a springing executory interest because meeting the condition divests the grantor, rather\nthan a third party. When it divests a third party, we call it a shifting executory interest, and we have\nalready covered these above.\nFifth, a life estate may grant possession to A but be set to expire not on A\xe2\x80\x99s death but on\nB\xe2\x80\x99s. This is called a life estate per autre vie. Here\xe2\x80\x99s an example:\n46\n\n\x0cO to A for the life of B.\nA has the present interest, which will expire when B dies. At that point, the property reverts\nto O, even if A is still alive.\nSome interpretive doctrines\nIn addition to more modern regulations of the kinds of conditions that can be placed in\ngrants, there are two old interpretive rules worth knowing. Each was once a widely adopted and\nabsolute rule, meaning that they guided the interpretation of grants no matter how apparent the\ngrantor\xe2\x80\x99s intent to the contrary. Today, in most jurisdictions, each is only a rule of construction,\nmeaning that the grantor\xe2\x80\x99s intent will be followed if it clearly differs from the interpretations these\nrules would yield.\nThe Doctrine of Worthier Title\nThis doctrine applies to the following grant:\nO to A for life, remainder in O\xe2\x80\x99s heirs.\nWe have not yet discussed what an \xe2\x80\x9cheir\xe2\x80\x9d is, though you have doubtless heard the term and\nhave some idea of its meaning. These days we mean by heir an individual who is legally entitled, by\nstatute or by will, to inherit a decedent\xe2\x80\x99s estate. People who die without wills are said to die intestate,\nand state statutes prescribe how their property is to be distributed on death. The most important\nthing to remember, though, is that a living person has no heirs. Until an individual dies, we do not\nknow (a) who the living relatives are who would be entitled to take under an intestacy statute or (b)\nwhat the individual\xe2\x80\x99s last will directs. Remember that a new will can be drafted at anytime, leaving\nthe old one to have no effect.\nThe upshot is that the remainder in O\xe2\x80\x99s heirs is, until O dies, a contingent remainder. We\ndon\xe2\x80\x99t know who those people are. This means that once O makes this grant, there\xe2\x80\x99s no one we can\nbuy the remainder from, to get back to a fee, until O dies and the heirs become identifiable. There is\na strong policy against leaving property divided in such a state that it is impossible, or even\nextremely difficult, to consolidate into a fee. And so, there is some justification for interpreting the\ngrant above as:\nO to A for life.\nThis of course gives O a reversion and removes the remainder interest in the unascertained\nheirs. This interpretation is the doctrine of worthier title.\nThe Rule in Shelley\xe2\x80\x99s Case\nHere, we are concerned with the following grant:\nO to A for life, remainder to A\xe2\x80\x99s heirs.\nThe Rule in Shelley\xe2\x80\x99s case converts this grant to:\nO to A for life, remainder in A.\nThis grant invokes another rule, known as the merger doctrine, which provides that when\ntwo successive estates are owned by the same person, the two estates are merged, yielding whatever\ntype of interest results. Here, if we merge the life estate and the remainder, that is, well, everything.\n47\n\n\x0cSo A has a fee simple absolute. Note that the rule would still operate, again as a rule of construction\nonly, even if the two estates could not be merged. For example:\nO to A for life, then to B for life, and then to A\xe2\x80\x99s heirs.\nThe rule would turn this into:\nO to A for life, then to B for life, then to A.\nThe merger doctrine does not apply, and this grant cannot be made simpler.\nQuestions to Be Resolved\nJust because we now know how to reduce ideally phrased grant language into the discrete\nforms of the traditional estates, it does not follow that we have resolved every problem that can arise\nwith grantor\xe2\x80\x99s efforts to divide the timeline of future ownership. We will discuss three kinds of\nissues that can arise.\nFirst is adjudicative: When we divide the timeline of ownership, those who occupy the\nproperty now may use it to the disadvantage of those will occupy later. What if the present owner\nwants or needs to sell the property but the future owner doesn\xe2\x80\x99t want it sold? What if the present\nowner doesn\xe2\x80\x99t maintain the property? Anytime property is owned by more than one human being,\ndisagreements about how to use and care for that property are bound to arise.\nSecond is interpretive: Grantors can and do use odd, ambiguous, and contradictory language.\nWe have to interpret their words and figure out which of the estates they meant to convey. This is\naccomplished using both standard issue interpretive canons (e.g. give words their plain meaning but\ninterpret ambiguous phrases in the context of the whole document) and policy-laden presumptions\n(e.g., interpret restrictive conditions narrowly, and interpret to avoid forfeiture where possible).\nThird is regulatory: Even if we know what grantor meant to do, we may not wish to allow it.\nThere are three broad categories of regulation: (1) those meant to resolve disputes between owners\nof various slices of the timeline (usually a future interest holder suing to stop damage to the property\nby the present interest holder), (2) those concerned with preventing too much \xe2\x80\x9cdead-hand control,\xe2\x80\x9d\nand (3) those applying public policies that would apply generally but which may take on more\nsalience in land transactions.\nWith respect to the second, it is important to remember that the ability to dictate how\nproperty should be distributed and on what conditions confers on a grantor some control over the\nfuture. Through a grant, O can dictate that alcohol not be served on the premises or that the\nproperty only be used for residential purposes. This regulatory power that will continue to be felt\nwhen O is long dead, thus the phrase \xe2\x80\x9cdead-hand control,\xe2\x80\x9d represents an instance of the problem\nlaw faces when adjudicating between the needs of the present and the prerogative of the future. The\nability to grant property in this way is an incentive to acquire it and use it wisely. This benefits the\npresent. But the chains it places on the future are, often, a cost. Some balance, it would seem, needs\nto be struck.\nThis account of dead-hand control is a tad misleading. After all O has no actual regulatory\npower over the property once it is granted away. If A\xe2\x80\x99s ownership is limited by a condition that\nwould see the property revert or go to some other party, A could always purchase that executory\ninterest, merge the estates, and do as he or she pleases. O generally cannot dictate what happens on\nthe property, but O can make it inconvenient or uneconomical to disobey his or her wishes. And as\nthe number of parties with future interests rise and as they become difficult to ascertain, the\ntransaction costs, setting aside the purchase prices, rise. Thus, dead-hand control is a concern,\nbecause O can indeed grant property in ways that make it extremely difficult to alienate and,\n48\n\n\x0ctherefore, extremely difficult to use as the present owner sees fit.\nIn the next sections, we will wrestle with these interpretive and regulatory issues.\nA child in utero counts as a child alive at the time of the grant. \xe2\x86\xa9\nWe do not consider B\xe2\x80\x99s actual capacity to have children when labeling the grant. It doesn\xe2\x80\x99t\nmatter if B is 102 years old or physically disabled from having children. Even as a practical matter, B\ncould adopt, and these days adopted children count as \xe2\x80\x9cchildren\xe2\x80\x9d in a grant, unless the grantor\nmakes clear an intent otherwise. \xe2\x86\xa9\n\n49\n\n\x0c2.1.2. Interpretation\nWood v. Board of County Commissioners of Fremont County,\n759 P.2d 1250 (Wyo. 1988)\n\nDavid B. Hooper and Kenneth E. Spurrier of Hooper Law Associates, P.C., Riverton, for\nappellants.\nStuart R. Day of Williams, Porter, Day & Neville, P.C., Casper, for appellee.\nBefore Brown, C.J., Thomas, Cardine and Macy, JJ., and Rooney, J. Retired.\nBrown, Chief Justice.1\nAppellants Cecil and Edna Wood, husband and wife, appeal summary judgment favoring\nappellee, the Board of County Commissioners for Fremont County, Wyoming. By a 1948 warranty\ndeed appellants conveyed land in Riverton, Wyoming, to Fremont County for the construction of a\ncounty hospital. They now contend that language in the deed created either a fee simple\ndeterminable or a fee simple subject to a condition subsequent with a right of reversion in them if\nthe land ceased to be used for the hospital. They present three issues:\nA. Whether the district court erred by granting appellee\xe2\x80\x99s motion for summary judgment.\nB. Whether the district court erred by failing to grant appellant\xe2\x80\x99s motion for partial summary\njudgment.\nC. Whether cessation of appellee\xe2\x80\x99s hospital operation by sale of public hospital facilities to a\nprivate company constituted the occurrence of an event which divested appellee of its estate in\nproperty conditionally conveyed by appellants.\nThe trial court found that appellants retained no interest in the land surrounding and under\nthe old county hospital as a matter of law. We affirm.\nOn September 1, 1948, by warranty deed, appellants conveyed\n[a] tract of land situated in the SE 1/4 SW 1/4, Sec. 26, Township 1, North Range 4 East,\nW.R.M., Fremont County, Wyoming, described * as follows: Beginning at the Southwest corner of\nsaid SE 1/4 SW 1/4, Sec. 26, aforesaid, thence east along the South line of said Section 310 feet,\nthence North at right angles to said South line 297 feet, thence West on a line parallel to said South\nline 310 feet, thence South 297 feet to the point of beginning, containing 2.1 acres *. Said tract is\nconveyed to Fremont County for the purpose of constructing and maintaining thereon a County Hospital in\nmemorial to the gallant men of the Armed Forces of the United States of America from Fremont County, Wyoming\n*. (Emphasis added.)\nThis deed was recorded in the Fremont County Clerk\xe2\x80\x99s Office on December 14, 1948.\nAppellee constructed a hospital on the land and operated it there until November 18, 1983. At that\ntime appellee sold the land and the original hospital facility to a private company. The buyer\noperated a hospital on the premises until September, 1984, at which time it moved the operation to\na newly constructed facility. The private company then put the premises up for sale.\nAppellants filed their complaint in this case on January 16, 1986, seeking recovery of the\nvalue of the land they conveyed to the county in 1948. Appellee answered, and after discovery, filed\na motion for summary judgment on October 14, 1987. Appellants filed their own motion for partial\n50\n\n\x0csummary judgment on December 11, 1987. The trial court heard the motions on December 15,\n1987, and granted summary judgment favoring appellees on January 13, 1988. This appeal followed.\nThe facts in this case are not in dispute and we review this order for summary judgment as a\nmatter of law. Fitch v. Buffalo Federal Savings and Loan Association, 751 P.2d 1309, 1311 (Wyo. 1988).\nAppellants\xe2\x80\x99 argument boils down to whether or not the language \xe2\x80\x9c * for the purpose of\nconstructing and maintaining thereon a County Hospital in memorial to the gallant men of the\nArmed Forces of the United States of America from Fremont County, Wyoming *\xe2\x80\x9d in the 1948\nwarranty deed is sufficient limiting language to create either 1) a fee simple determinable, or 2) a fee\nsimple subject to a condition subsequent giving appellants title to the land. We review disputed\nlanguage in a deed to determine the intent of the parties to it from the plain language in the deed\nconsidered as a whole. Samuel Mares Post No. 8, American Legion, Department of Wyoming v. Board of\nCounty Commissioners of the County of Converse, 697 P.2d 1040, 1043 (Wyo. 1985) (quoting Knadler v.\nAdams, 661 P.2d 1052, 1053 (Wyo. 1983)). Also, W.S. 34-2-101 (1977) provides, in pertinent part:\n[E]very conveyance of real estate shall pass all the estate of the grantor * unless the intent\nto pass a less estate shall expressly appear or be necessarily implied in the terms of the grant.\nA fee simple estate in land that automatically expires upon the happening of a stated event, not\ncertain to occur, is a fee simple determinable. Restatement of Property \xc2\xa7 44 at 121 (1936). In\nWilliams v. Watt, 668 P.2d 620, 627 (Wyo. 1983), we said:\nThe existence of an estate in fee simple determinable requires the presence of special\nlimitations. Restatement of the Law of Property, \xc2\xa7 44, p. 121. The term \xe2\x80\x98special limitation\xe2\x80\x99 denotes\nthat part of the language of a conveyance which causes the created interest automatically to expire\nupon the occurrence of the stated event. Restatement of the Law of Property, \xc2\xa7 23, p. 55. An estate\nin fee simple determinable may be created so as to be defeasible upon the occurrence of an event\nwhich is not certain ever to occur. Restatement of the Law of Property, \xc2\xa7 44, p. 125.\nWords such as \xe2\x80\x9cso long as,\xe2\x80\x9d \xe2\x80\x9cuntil,\xe2\x80\x9d or \xe2\x80\x9cduring\xe2\x80\x9d are commonly used in a conveyance to\ndenote the presence of this type of special limitation. Lacer v. Navajo County, 141 Ariz. 396, 687 P.2d\n404, 408-409 (App. 1983). See also Restatement of Property \xc2\xa7 44 at 128 (1936). The critical\nrequirement is that the language of special limitation must clearly state the particular circumstances\nunder which the fee simple estate conveyed might expire. See T. Bergin and P. Haskell, Preface to\nEstates in Land and Future Interests 48 (2d ed. 1984). Language of conveyance that grants a fee simple\nestate in land for a special purpose, without stating the special circumstances that could trigger\nexpiration of the estate, is not sufficient to create a fee simple determinable. Lacer v. Navajo County,\n687 P.2d at 408 (quoting Restatement of Property \xc2\xa7 44 comment m at 129-130 (1936)).\nThe plain language in the 1948 deed, stating that appellants conveyed the land to Fremont\nCounty for the purpose of constructing a county hospital, does not clearly state that the estate\nconveyed will expire automatically if the land is not used for the stated purpose. As such, it does not\nevidence an intent of the grantors to convey a fee simple determinable, and we hold that no fee\nsimple determinable was created when the land was conveyed.\nUse of the language conveying the land in \xe2\x80\x9cmemorial\xe2\x80\x9d similarly fails to create a fee simple\ndeterminable. \xe2\x80\x9cMemorial\xe2\x80\x9d is defined in Webster\xe2\x80\x99s Third New International Dictionary 1409 (1971)\nas\n[s]omething that serves to preserve memory or knowledge of an individual or event.\nThe time for which the hospital should serve to \xe2\x80\x9cpreserve\xe2\x80\x9d the memory or knowledge is not\nstated in the deed, just as the time for maintaining the hospital is not there stated. The language of\nconveyance fails to designate the time at which the hospital must be constructed as well as the time\nduring which it must be maintained or during which the indicated memory must be preserved. The\nomission of such limiting language evidences an intent not to convey a fee simple determinable.\nSimilar reasoning applies to appellants\xe2\x80\x99 assertion that the language of conveyance created a\n51\n\n\x0cfee simple subject to a condition subsequent. A fee simple subject to a condition subsequent is a fee\nsimple estate in land that gives the grantor a discretionary power to terminate the grantee\xe2\x80\x99s estate after\nthe happening of a stated event, not certain to occur. Restatement of Property \xc2\xa7 45 at 133 (1936 &\nSupp. 1948). This type of interest is similar to the fee simple determinable in that the language of\nconveyance must clearly state the grantor\xe2\x80\x99s intent to create a discretionary power to terminate the\nestate he conveys. Lacer v. Navajo County, 687 P.2d at 409 (quoting Restatement of Property \xc2\xa7 45\ncomments i and j at 138-139 (1936 & Supp. 1948). Words commonly used in a conveyance to\ndenote the presence of a fee simple estate subject to a condition subsequent include \xe2\x80\x9cupon express\ncondition that,\xe2\x80\x9d \xe2\x80\x9cupon condition that,\xe2\x80\x9d \xe2\x80\x9cprovided that,\xe2\x80\x9d or \xe2\x80\x9cif.\xe2\x80\x9d Restatement of Property \xc2\xa7 45\ncomments j through o at 139-143 (1936). In J.M. Carey & Brother v. City of Casper, 66 Wyo. 437, 213\nP.2d 263, 268 (1950), we quoted 19 Am.Jur. Estates \xc2\xa7 65 at 527 (1939), which said:\nIt is a well-settled rule that conditions tending to destroy estates, such as conditions\nsubsequent, are not favored in law. They are strictly construed. Accordingly, no provision will be\ninterpreted to create such a condition if the language will bear any other reasonable interpretation, or\nunless the language, used unequivocally, indicates an intention upon the part of the grantor or\ndevisor to that effect and plainly admits of such construction. [Citations.]\nThat rule has not lost its potency. Applying it to this case, we hold that the plain language of\nthe 1948 warranty deed, while articulating that the land conveyed was to be used for a county\nhospital, does not clearly state an intent of the grantors to retain a discretionary power to reenter the\nland if the land ceased to be used for the stated purpose. Appellants did not convey a fee simple\nsubject to a condition subsequent, and we will not create one by construction some forty years after\nthe conveyance took place.\nSummary judgment is affirmed.\nChief Justice, Retired, June 30, 1988. \xe2\x86\xa9\n\n52\n\n\x0cWhite v. Brown,\n559 S.W.2d 938 (Tenn. 1977)\n\nTed H. Lowe, Knoxville, for appellants.\nWallace F. Burroughs, Charles H. Child, Knoxville, E. T. Hollins, Jr., Nashville, for\nappellees.\nBrock, Justice.\nThis is a suit for the construction of a will. The Chancellor held that the will passed a life\nestate, but not the remainder, in certain realty, leaving the remainder to pass by inheritance to the\ntestatrix\xe2\x80\x99s heirs at law. The Court of Appeals affirmed.\nMrs. Jessie Lide died on February 15, 1973, leaving a holographic will which, in its entirety,\nreads as follows:\nApril 19, 1972\nI, Jessie Lide, being in sound mind declare this to be my last will and testament. I appoint my\nniece Sandra White Perry to be the executrix of my estate. I wish Evelyn White to have my home to\nlive in and not to be sold.\nI also leave my personal property to Sandra White Perry. My house is not to be sold.\n(Underscoring by testatrix).\nMrs. Lide was a widow and had no children. Although she had nine brothers and sisters,\nonly two sisters residing in Ohio survived her. These two sisters quitclaimed any interest they might\nhave in the residence to Mrs. White. The nieces and nephews of the testatrix, her heirs at law, are\ndefendants in this action.\nMrs. White, her husband, who was the testatrix\xe2\x80\x99s brother, and her daughter, Sandra White\nPerry, lived with Mrs. Lide as a family for some twenty-five years. After Sandra married in 1969 and\nMrs. White\xe2\x80\x99s husband died in 1971, Evelyn White continued to live with Mrs. Lide until Mrs. Lide\xe2\x80\x99s\ndeath in 1973 at age 88.\nMrs. White, joined by her daughter as executrix, filed this action to obtain construction of\nthe will, alleging that she is vested with a fee simple title to the home. The defendants contend that\nthe will conveyed only a life estate to Mrs. White, leaving the remainder to go to them under our\nlaws of intestate succession. The Chancellor held that the will unambiguously conveyed only a life\ninterest in the home to Mrs. White and refused to consider extrinsic evidence concerning Mrs. Lide\xe2\x80\x99s\nrelationship with her surviving relatives. Due to the debilitated condition of the property and in\naccordance with the desire of all parties, the Chancellor ordered the property sold with the proceeds\ndistributed in designated shares among the beneficiaries.\nI.\nOur cases have repeatedly acknowledged that the intention of the testator is to be\nascertained from the language of the entire instrument when read in the light of surrounding\ncircumstances. See, e.g., Harris v. Bittikofer, 541 S.W.2d 372, 384 (Tenn. 1976); Martin v. Taylor, 521\nS.W.2d 581, 584 (Tenn. 1975); Hoggatt v. Clopton, 142 Tenn. 184, 192, 217 S.W. 657, 659 (1919). But,\n53\n\n\x0cthe practical difficulty in this case, as in so many other cases involving wills drafted by lay persons, is\nthat the words chosen by the testatrix are not specific enough to clearly state her intent. Thus, in our\nopinion, it is not clear whether Mrs. Lide intended to convey a life estate in the home to Mrs. White,\nleaving the remainder interest to descend by operation of law, or a fee interest with a restraint on\nalienation. Moreover, the will might even be read as conveying a fee interest subject to a condition\nsubsequent (Mrs. White\xe2\x80\x99s failure to live in the home).\nIn such ambiguous cases it is obvious that rules of construction, always yielding to the\ncardinal rule of the testator\xe2\x80\x99s intent, must be employed as auxiliary aids in the courts\xe2\x80\x99 endeavor to\nascertain the testator\xe2\x80\x99s intent.\nIn 1851 our General Assembly enacted two such statutes of construction, thereby creating a\nstatutory presumption against partial intestacy.\nChapter 33 of the Public Acts of 1851 (now codified as T.C.A. ss 64-101 and 64-501)\nreversed the common law presumption1 that a life estate was intended unless the intent to pass a fee\nsimple was clearly expressed in the instrument.T.C.A. \xc2\xa7 64-501 provides:\nEvery grant or devise of real estate, or any interest therein, shall pass all the estate or interest\nof the grantor or devisor, unless the intent to pass a less estate or interest shall appear by express\nterms, or be necessarily implied in the terms of the instrument.\nChapter 180, Section 2 of the Public Acts of 1851 (now codified as T.C.A. \xc2\xa7 32-301) was\nspecifically directed to the operation of a devise. In relevant part, T.C.A. s 32-301 provides:\nA will \xe2\x80\xa6 shall convey all the real estate belonging to (the testator) or in which he had any\ninterest at his decease, unless a contrary intention appear by its words and context.\nThus, under our law, unless the \xe2\x80\x9cwords and context\xe2\x80\x9d of Mrs. Lide\xe2\x80\x99s will clearly evidence her\nintention to convey only a life estate to Mrs. White, the will should be construed as passing the\nhome to Mrs. White in fee. \xe2\x80\x9c\xe2\x80\x98If the expression in the will is doubtful, the doubt is resolved against\nthe limitation and in favor of the absolute estate.\xe2\x80\x99\xe2\x80\x9d Meacham v. Graham, 98 Tenn. 190, 206, 39 S.W.\n12, 15 (1897) (quoting Washbon v. Cope, 144 N.Y. 287, 39 N.E. 388); Weiss v. Broadway Nat\xe2\x80\x99l Bank, 204\nTenn. 563, 322 S.W.2d 427 (1959); Cannon v. Cannon, 182 Tenn. 1, 184 S.W.2d 35 (1945).\nSeveral of our cases demonstrate the effect of these statutory presumptions against intestacy\nby construing language which might seem to convey an estate for life, without provision for a gift\nover after the termination of such life estate, as passing a fee simple instead. In Green v. Young, 163\nTenn. 16, 40 S.W.2d 793 (1931), the testatrix\xe2\x80\x99s disposition of all of her property to her husband \xe2\x80\x9cto\nbe used by him for his support and comfort during his life\xe2\x80\x9d was held to pass a fee estate. Similarly,\nin Williams v. Williams, 167 Tenn. 26, 65 S.W.2d 561 (1933), the testator\xe2\x80\x99s devise of real property to\nhis children \xe2\x80\x9cfor and during their natural lives\xe2\x80\x9d without provision for a gift over was held to convey\na fee. And, in Webb v. Webb, 53 Tenn. App. 609, 385 S.W.2d 295 (1964), a devise of personal\nproperty to the testator\xe2\x80\x99s wife \xe2\x80\x9cfor her maintenance, support and comfort, for the full period of her\nnatural life\xe2\x80\x9d with complete powers of alienation but without provision for the remainder passed\nabsolute title to the widow.\nII.\nThus, if the sole question for our determination were whether the will\xe2\x80\x99s conveyance of the\n54\n\n\x0chome to Mrs. White \xe2\x80\x9cto live in\xe2\x80\x9d gave her a life interest or a fee in the home, a conclusion favoring\nthe absolute estate would be clearly required. The question, however, is complicated somewhat by\nthe caveat contained in the will that the home is \xe2\x80\x9cnot to be sold\xe2\x80\x9d a restriction conflicting with the\nfree alienation of property, one of the most significant incidents of fee ownership. We must\ndetermine, therefore, whether Mrs. Lide\xe2\x80\x99s will, when taken as a whole, clearly evidences her intent to\nconvey only a life estate in her home to Mrs. White.\nUnder ordinary circumstances a person makes a will to dispose of his or her entire estate. If,\ntherefore, a will is susceptible of two constructions, by one of which the testator disposes of the\nwhole of his estate and by the other of which he disposes of only a part of his estate, dying intestate\nas to the remainder, this Court has always preferred that construction which disposes of the whole\nof the testator\xe2\x80\x99s estate if that construction is reasonable and consistent with the general scope and\nprovisions of the will. See Ledbetter v. Ledbetter, 188 Tenn. 44, 216 S.W.2d 718 (1949); Cannon v.\nCannon, supra; Williams v. Williams, supra; Jarnagin v. Conway, 21 Tenn. 50 (1840); 4 Page, Wills \xc2\xa7 30.14\n(3d ed. 1961). A construction which results in partial intestacy will not be adopted unless such\nintention clearly appears. Bedford v. Bedford, 38 Tenn. App. 370, 274 S.W.2d 528 (1954); Martin v. Hale,\n167 Tenn. 438, 71 S.W.2d 211 (1934). It has been said that the courts will prefer any reasonable\nconstruction or any construction which does not do violence to a testator\xe2\x80\x99s language, to a\nconstruction which results in partial intestacy.Ledbetter, supra.\nThe intent to create a fee simple or other absolute interest and, at the same time to impose a\nrestraint upon its alienation can be clearly expressed. If the testator specifically declares that he\ndevises land to A \xe2\x80\x9cin fee simple\xe2\x80\x9d or to A \xe2\x80\x9cand his heirs\xe2\x80\x9d but that A shall not have the power to\nalienate the land, there is but one tenable construction, viz., the testator\xe2\x80\x99s intent is to impose a\nrestraint upon a fee simple. To construe such language to create a life estate would conflict with the\nexpress specification of a fee simple as well as with the presumption of intent to make a complete\ntestamentary disposition of all of a testator\xe2\x80\x99s property. By extension, as noted by Professor Casner in\nhis treatise on the law of real property:\nSince it is now generally presumed that a conveyor intends to transfer his whole interest in\nthe property, it may be reasonable to adopt the same construction, (conveyance of a fee simple) even\nin the absence of words of inheritance, if there is no language that can be construed to create a\nremainder.\n6 American Law of Property \xc2\xa7 26.58 (A. J. Casner ed. 1952).\nIn our opinion, testatrix\xe2\x80\x99s apparent testamentary restraint on the alienation of the home\ndevised to Mrs. White does not evidence such a clear intent to pass only a life estate as is sufficient\nto overcome the law\xe2\x80\x99s strong presumption that a fee simple interest was conveyed.\nAccordingly, we conclude that Mrs. Lide\xe2\x80\x99s will passed a fee simple absolute in the home to\nMrs. White. Her attempted restraint on alienation must be declared void as inconsistent with the\nincidents and nature of the estate devised and contrary to public policy. Nashville C & S.L. Ry. v. Bell,\n162 Tenn. 661, 39 S.W.2d 1026 (1931).\nThe decrees of the Court of Appeals and the trial court are reversed and the cause is\nremanded to the chancery court for such further proceedings as may be necessary, consistent with\nthis opinion. Costs are taxed against appellees.\nHarbison, Justice, dissenting.\nWith deference to the views of the majority, and recognizing the principles of law contained\nin the majority opinion, I am unable to agree that the language of the will of Mrs. Lide did or was\nintended to convey a fee simple interest in her residence to her sister-in-law, Mrs. Evelyn White.\nThe testatrix expressed the wish that Mrs. White was \xe2\x80\x9cto have my home to live in and not to\n55\n\n\x0cbe sold.\xe2\x80\x9d The emphasis is that of the testatrix, and her desire that Mrs. White was not to have an\nunlimited estate in the property was reiterated in the last sentence of the will, to wit: \xe2\x80\x9cMy house is\nnot to be sold.\xe2\x80\x9d\nThe testatrix appointed her niece, Mrs. Perry, executrix and made an outright bequest to her\nof all personal property.\nThe will does not seem to me to be particularly ambiguous, and like the Chancellor and the\nCourt of Appeals, I am of the opinion that the testatrix gave Mrs. White a life estate only, and that\nupon the death of Mrs. White the remainder will pass to the heirs at law of the testatrix.\nThe cases cited by petitioners in support of their contention that a fee simple was conveyed\nare not persuasive, in my opinion. Possibly the strongest case cited by the appellants is Green v.\nYoung, 163 Tenn. 16, 40 S.W.2d 793 (1931), in which the testatrix bequeathed all of her real and\npersonal property to her husband \xe2\x80\x9cto be used by him for his support and comfort during his life.\xe2\x80\x9d\nThe will expressly stated that it included all of the property, real and personal, which the testatrix\nowned at the time of her death. There was no limitation whatever upon the power of the husband to\nuse, consume, or dispose of the property, and the Court concluded that a fee simple was intended.\nIn the case of Williams v. Williams, 167 Tenn. 26, 65 S.W.2d 561 (1933), a father devised\nproperty to his children \xe2\x80\x9cfor and during their natural lives\xe2\x80\x9d but the will contained other provisions\nnot mentioned in the majority opinion which seem to me to distinguish the case. Unlike the\nprovisions of the present will, other clauses in the Williams will contained provisions that these same\nchildren were to have \xe2\x80\x9call the residue of my estate personal or mixed of which I shall die possessed\nor seized, or to which I shall be entitled at the time of my decease, to have and to hold the same to\nthem and their executors and administrators and assigns forever.\xe2\x80\x9d\nFurther, following some specific gifts to grandchildren, there was another bequest of the\nremainder of the testator\xe2\x80\x99s money to these same three children. The language used by the testator in\nthat case was held to convey the fee simple interest in real estate to the children, but its provisions\nhardly seem analogous to the language employed by the testatrix in the instant case.\nIn the case of Webb v. Webb, 53 Tenn. App. 609, 385 S.W.2d 295 (1964), the testator gave his\nwife all the residue of his property with a clear, unqualified and unrestricted power of use, sale or\ndisposition. Thereafter he attempted to limit her interest to a life estate, with a gift over to his heirs\nof any unconsumed property. Again, under settled rules of construction and interpretation, the wife\nwas found to have a fee simple estate, but, unlike the present case, there was no limitation whatever\nupon the power of use or disposition of the property by the beneficiary.\nOn the other hand, in the case of Magevney v. Karsch, 167 Tenn. 32, 65 S.W.2d 562 (1933), a\ngift of the residue of the large estate of the testator to his daughter, with power \xe2\x80\x9cat her demise (to)\ndispose of it as she pleases \xe2\x80\xa6 .\xe2\x80\x9d was held to create only a life estate with a power of appointment,\nand not an absolute gift of the residue. In other portions of the will the testator had given another\nbeneficiary a power to use and dispose of property, and the Court concluded that he appreciated the\ndistinction between a life estate and an absolute estate, recognizing that a life tenant could not\ndispose of property and use the proceeds as she pleased. 167 Tenn. at 57, 65 S.W.2d at 569.\nIn the present case the testatrix knew how to make an outright gift, if desired. She left all of\nher personal property to her niece without restraint or limitation. As to her sister-in-law, however,\nshe merely wished the latter have her house \xe2\x80\x9cto live in\xe2\x80\x9d, and expressly withheld from her any power\nof sale.\nThe majority opinion holds that the testatrix violated a rule of law by attempting to restrict\nthe power of the donee to dispose of the real estate. Only by thus striking a portion of the will, and\nholding it inoperative, is the conclusion reached that an unlimited estate resulted.\nIn my opinion, this interpretation conflicts more greatly with the apparent intention of the\ntestatrix than did the conclusion of the courts below, limiting the gift to Mrs. White to a life estate. I\n56\n\n\x0chave serious doubt that the testatrix intended to create any illegal restraint on alienation or to violate\nany other rules of law. It seems to me that she rather emphatically intended to provide that her\nsister-in-law was not to be able to sell the house during the lifetime of the latter a result which is\nboth legal and consistent with the creation of a life estate.\nIn my opinion the judgment of the courts below was correct and I would affirm.\nI am authorized to state that Chief Justice HENRY joins in this opinion.\nBecause the feudal lord granted land solely as compensation for personal services, the grant\nwas for no longer than the life of the grantee. Later the grant was extended to the sons and other\nissue of the grantee under the designation of \xe2\x80\x9cheirs.\xe2\x80\x9d Heirs were thus entitled to stand in the place\nof their ancestor after his death if mentioned in the grant but only if specifically mentioned.\nThereafter, the word \xe2\x80\x9cheirs,\xe2\x80\x9d when used in a conveyance to a man \xe2\x80\x9cand his heirs,\xe2\x80\x9d came to include\ncollateral as well as lineal heirs, ultimately indicating that such grantee took an estate which would\npass to his heirs or the heirs of anyone to whom he aliened it. That is, \xe2\x80\x9cheirs\xe2\x80\x9d ceased to be a word of\npurchase and became a word of limitation. 1 Tiffany, Real Property \xc2\xa7 28 (3d ed. 1939). \xe2\x86\xa9\n\n57\n\n\x0cJohn R. Edwards, Individually and as Executor, etc., et al. v. Beverly E. Bradley,\n315 S.E.2d 196 (Va. 1984)\n\nDaniel Hartnett, Accomac (Ayres, Hartnett & Custis, Accomac, on briefs), for appellants.\nWilliam King Mapp, Keller (Mapp & Mapp, Keller, on brief), for appellee.\nBefore Carrico, C.J., and Cochran, Poff, Compton, Stephenson, Russell and Thomas, JJ.\nCochran, Justice.\nIn this appeal, the question presented to us is whether by certain provisions in her will a\ntestatrix devised a fee simple estate or a life estate in real property therein described.\nViva Parker Lilliston died testate in 1969. Her will dated January 12, 1957, duly probated\nwith a 1958 codicil irrelevant to this case, provided in part as follows:\nItem Twelve: I give and devise my farm situated on the Seaside from Locustville, in the\nCounty of Accomack, State of Virginia \xe2\x80\xa6 to my daughter, Margaret Lilliston Edwards, upon the\nconditions, set out in Item Fourteen\xe2\x80\xa6.\n\xe2\x80\xa6.\nItem Fourteen: all gifts made to my daughter, Margaret L. Edwards, individually and\npersonally, under Items Eleven and Twelve of this Will, whether personal estate or real estate, are\nconditioned upon the said Margaret L. Edwards keeping the gift or devise herein free from\nencumbrances of every description, and in the event the said Margaret L. Edwards shall attempt to\nencumber same or sell her interest, or in the event any creditor or creditors of said Margaret L.\nEdwards shall attempt to subject her interest in the gift or devise herein made to the payment of the\ndebts of the said Margaret L. Edwards, then and in that event the interest of said Margaret L.\nEdwards therein shall immediately cease and determine, and the gift or devise shall at once become\nvested in her children, viz: Betty Belle Branch, Beverly Bradley, John R. Edwards, Bruce C.\nEdwards, Jill A. Edwards and Jackie L. Edwards, in equal shares in fee simple\xe2\x80\xa6.\nMargaret L. Jones, formerly Margaret L. Edwards, qualified as executrix under her mother\xe2\x80\x99s\nwill. In 1979, Jones sought to have her children and their spouses execute an agreement to consent\nto her selling the farm devised to her. Only a daughter, Beverly Bradley, and the latter\xe2\x80\x99s husband\ndeclined to execute the agreement. In 1980, Jones died testate; in her will, executed in 1979, she left\nBradley $1.00, and directed that the farm be sold and the proceeds distributed equally among her\nother children. The executors named in the will duly qualified. Bradley filed a bill of complaint in the\ntrial court against these personal representatives and her five brothers and sisters,1 alleging that\nunder the Lilliston will a life estate was devised to Jones with remainder to Jones\xe2\x80\x99s children. Bradley\nsought to enjoin the sale or encumbrance of the farm without her consent and asked that her\ninterest therein be determined.\nAfter hearing evidence presented by Bradley, the trial court determined that Jones had not\nviolated any of the conditions specified in the Lilliston will. Edwards presented no evidence. The\ntrial judge issued a letter opinion in which he stated his conclusion that under the Lilliston will a life\nestate in the farm was devised to Jones with remainder to her six named children in fee simple. A\nfinal decree, incorporating the opinion by reference, was entered March 25, 1981. On appeal,\nEdwards argued before us that Jones had fee simple title subject to valid conditions subsequent or\n58\n\n\x0cconditional limitations2 and, having not violated the conditions, could freely dispose of the farm by\nwill as she chose. Edwards argued in the alternative on brief that if the conditions were invalid Jones\nwas vested with fee simple title without restrictions or conditions even though such unconditional\nvesting would have been contrary to her mother\xe2\x80\x99s intent to protect the farm from Jones\xe2\x80\x99s creditors.\nThere is no conflict in the evidence. Jones was in financial difficulties when the Lilliston will\nwas executed. The will was prepared by an experienced attorney. One provision, referring\nspecifically to the enabling statute, established a spendthrift trust for the benefit of another child of\nthe testatrix.\nThe trial judge, in his opinion, noted that the \xe2\x80\x9cable and experienced\xe2\x80\x9d draftsman had used the\nwords \xe2\x80\x9cfee simple\xe2\x80\x9d at least seven times in the will and codicil. Apparently, the judge reasoned that if\na fee simple estate had been intended for Jones, the draftsman would have used that terminology in\nItem Twelve. Moreover, the judge stated that under Edwards\xe2\x80\x99s theory that Jones died vested with\nfee simple title, a creditor could then bring a creditor\xe2\x80\x99s suit to subject the land to the satisfaction of\nthe debt contrary to the testamentary conditions and the intent of Lilliston. The judge further stated\nthat the conditions set forth in Item Fourteen were repugnant to a fee simple estate but not to an\nestate for life. For these reasons, he ruled that a life estate was created under the Lilliston will.\nAs a general rule, a condition totally prohibiting the alienation of a vested fee simple estate\nor requiring a forfeiture upon alienation is void. See Dunlop v. Dunlop\xe2\x80\x99s Ex\xe2\x80\x99rs, 144 Va. 297, 132 S.E.\n351 (1926); Hutchinson v. Maxwell, 100 Va. 169, 40 S.E. 655 (1902); In Re Anderson\xe2\x80\x99s Estate, 267 Minn.\n264, 126 N.W.2d 250 (1964); 1 Minor \xc2\xa7 553; Restatement of Property, \xc2\xa7 406 (1944). As an exception\nto the rule, conditions prohibiting alienation of land granted to corporate entities for their special\npurposes are valid. 1 Minor \xc2\xa7 557; see Fairfax Park Authority v. Brundage, 208 Va. 622, 159 S.E.2d 831\n(1968). A conditional limitation imposed upon a life estate, however, is valid. Mears v. Taylor, 142 Va.\n824, 128 S.E. 264 (1925); Camp v. Cleary, 76 Va. 140 (1882); 1 Minor \xc2\xa7 559. See also Restatement on\nProperty \xc2\xa7 409 (1944), where such limitations, therein classified as forfeiture restraints, are said to be\nvalid as to life estates.\nIt is apparent, therefore, that if Lilliston\xe2\x80\x99s will vested fee simple title to the farm in Jones, the\nunqualified restraint on alienation would be invalid and the property from the time of vesting would\nbe subject to sale, encumbrance, or devise by her and subject to the claims of her creditors, results\ncontrary to the express intent of the testatrix. On the other hand, if Lilliston\xe2\x80\x99s will vested a life estate\nin Jones, the unqualified restraint on alienation imposed by the testatrix would be valid. Jones could\nnot acquire, as Edwards suggested, a life estate which, upon compliance with the testamentary\nconditions, became a fee simple estate at the time of her death. Jones acquired under the Lilliston\nwill either a fee simple estate free of conditions and thus inconsistent with the testatrix\xe2\x80\x99s intent or a\nlife estate subject to conditions and thus consistent with such intent.\nThe draftsman of the Lilliston will carefully avoided using in either Item Twelve or Item\nFourteen the words \xe2\x80\x9cfee simple\xe2\x80\x9d which he had used elsewhere in the instrument. It is true, as\nEdwards observed, that he also did not use the words \xe2\x80\x9clife estate\xe2\x80\x9d in those clauses of the will. Under\nCode \xc2\xa7 55-11 it is not necessary to use the words \xe2\x80\x9cin fee simple\xe2\x80\x9d to create a fee simple estate where\nreal estate is devised without words of limitation unless a contrary intention shall appear by the will.\nIn the present case, however, the real estate was devised with words of limitation and a contrary\nintention appears in the will. Moreover, unless there is a power of disposal in the first taker (Code \xc2\xa7\n55-7), a life estate may be created by implication as well as by explicit language, provided the will\nshows the requisite intent. Robinson v. Caldwell, 200 Va. 353, 105 S.E.2d 852 (1958).\nSince the testatrix established a spendthrift trust in another provision of her will, she was\naware of the availability of that device but did not choose to use it for the benefit of Jones.\nMoreover, under Code \xc2\xa7 55-7, the testatrix could have devised the land to Jones for life with a\npower of appointment under which Jones could have disposed of the property by will. She did not\n59\n\n\x0cdo so.\nThe intention of the testatrix is to be upheld if the will can be reasonably construed to\neffectuate such intent and if it is not inconsistent with an established rule of law. Powell v. Holland,\n224 Va. 609, 615, 299 S.E.2d 509, 512 (1983); Hurt v. Hurt, 121 Va. 413, 420, 93 S.E. 672, 674\n(1917). In addition, the language of the will is \xe2\x80\x9cto be understood in the sense in which the\ncircumstances of the case show\xe2\x80\x9d that the testatrix intended. Gray v. Francis, 139 Va. 350, 361-62, 124\nS.E. 446, 450 (1924). Here, the testatrix intended that Jones have the use and benefit of the real\nestate free of the claims of her creditors. The ultimate beneficiaries were Jones\xe2\x80\x99s children. Although\nthe will did not expressly designate the children as remaindermen, the conditional limitation to them\nindicated that they were intended to take the farm when their mother\xe2\x80\x99s interest terminated, whether\nby violation of the conditions or otherwise. Accordingly, we conclude that the trial court properly\nruled that Jones acquired a life estate in the property with remainder at her death in fee simple to her\nsix children.\nWe will affirm the decree of the trial court.\nAffirmed.\nNamed as defendants were John R. Edwards, individually and as executor of the estate of\nMargaret L. Jones; Betty Belle Branch, individually and as executrix of the estate of Margaret L.\nJones; Henry P. Custis, Jr., executor of the estate of Margaret L. Jones; Bruce E. Edwards, Jill E.\nGodwin, and Jackie L. Spicer. They will be referred to herein collectively as Edwards. \xe2\x86\xa9\nThe terms \xe2\x80\x9ccondition subsequent\xe2\x80\x9d and \xe2\x80\x9cconditional limitation\xe2\x80\x9d are not interchangeable. A\nconditional limitation provides for the future estate of freehold vested in one person to shift to\nanother upon the happening of a contingency. An estate upon condition subsequent terminates\nupon the happening of a contingency, but instead of shifting to another, it returns to the grantor. 1\nMinor on Real Property \xc2\xa7 526 (2d ed. Ribble 1928) (hereinafter Minor). Thus, we are dealing with\nconditional limitations in the present case. \xe2\x86\xa9\n\n60\n\n\x0c2.1.3. Problems\nEstates Problems\n\nIn each problem, identify the interests. You may also practice applying the Rule Against\nPerpetuities and reform the grant if necessary. If the name of the interest or its validity depends on\ninformation not supplied, state what information is needed and how it would affect your answer.\nO to A so long as A stays in school.\nO to A for life, then to B if B survives A.\nO to A for life, then to B and his children.\nI grant Blackacre to A so that he may raise his children there.\nI grant Blackacre to A, but if A dies in the next twenty years, I want the property to go to B.\nTo A and his heirs so long as used as a residence.\nTo A, but if A dies, then to B.\nTo A for life when A marries, then to A\xe2\x80\x99s widow for life if she survives A, otherwise to B\nfor life, then to C.\nTo A for so long as A lives on the property.\nTo A for life, then to B if B lives at least one year after A\xe2\x80\x99s death.\nI give Blackacre to A and his heirs, but if A ever drinks or smokes, then Blackacre is to go\nto B.\nTo A so long as illegal drugs are not used on the premises, and if illegal drugs are used on\nthe premises, then to B.\nTo A, but if illegal drugs are ever used on the premises, then to B.\nTo A, but if illegal drugs are used on the premises within 21 years of the death of Ewan\nMcGregor, then to B.\nTo A, but if illegal drugs are used on the premises within 21 years of the death of the last\nsurviving member of the cast and crew of Star Wars Episode Three, then to B.\nTo A for life, then to any of A\xe2\x80\x99s children who graduate from high school.\nAfter a long life blessed with good fortune, I feel it is time to give something back. Thus, I\nleave Blackacre to the United Way. However, if Blackacre is ever used for commercial gain, the\nUnited Way\xe2\x80\x99s interest will terminate.\nIn a (long) will: Blackacre has been in my family for 200 years. It is my honor to leave this\nproperty to my good friend Melinda Marsh so that she can raise her children there. All interests not\nspecifically devised above are to go to the Red Cross, but if the Red Cross ever engages in lobbying,\nthen to UNICEF.\nTo A for life, then to A\xe2\x80\x99s children for life, then, after all of A\xe2\x80\x99s children have died, to\nHabitat for Humanity for housing volunteers. A has no children at the time of the grant.\nTo A for life, then to such of A\xe2\x80\x99s children who graduate from college before A\xe2\x80\x99s death for\ntheir lives, then to the first child born to my daughter C.\nTo A for five years, then to my oldest great-grandchild then living for life, then to B.\nTo A for life so long as no trees are cleared from the grounds, then to B, but if B clears\ntrees from the grounds, then to C and his heirs.\nTo A for life, then to A\xe2\x80\x99s children for life, then to ACME Corp.\nAnswers to Estates Problems\n\n61\n\n\x0c1. O to A so long as A stays in school.\nA has a fee simple determinable, and (therefore) O has a possibility of reverter. The \xe2\x80\x9cso long\nas\xe2\x80\x9d durational language is interpreted as a clear intent to create a fee simple determinable.\nThat said, one might argue that A can only stay in school during A\xe2\x80\x99s life - and so this is at\nmost a life estate. If that were the case, we\xe2\x80\x99d have a life estate determinable in A, a possibility of\nreverter in O (becoming possessory on violation of the condition), and a reversion in O (becoming\npossessory on A\xe2\x80\x99s death). I\xe2\x80\x99d give credit for this.\nBut I think the court\xe2\x80\x99s presumption in favor of a fee simple interest would lead a court to\ninterpret this grant as meaning that A could keep the property if he or she did not drop out of\nschool. That is, dropping out would be a condition that should terminate the A\xe2\x80\x99s interest.\n2. O to A for life, then to B if B survives A.\nA has a life estate. B has a contingent remainder (there\xe2\x80\x99s a condition precedent to B\xe2\x80\x99s taking,\nand the \xe2\x80\x9cif B survives A\xe2\x80\x9d bit is part of the \xe2\x80\x9cto B\xe2\x80\x9d clause, not separate). But that\xe2\x80\x99s not all! O has a\nreversion. (To see this, think about what happens if B does not survive A.)\n3. O to A for life, then to B and his children.\nA has a life estate. B and any of B\xe2\x80\x99s children alive at the time of the grant have a vested\nremainder subject to open. (B\xe2\x80\x99s alive and named - he or she will definitely get something when A\ndies. But that something may become less as B has more children.)\n4. I grant Blackacre to A so that he may raise his children there.\nA has a fee simple absolute. The extra language is just a statement of purpose and desire. It\nis not explicit enough, in light of the presumption against conditions, to conclude that grantor\nintended to create a condition that could lead to termination of A\xe2\x80\x99s ownership. In other words, the\nextra language is precatory, and as in Wood will not be interpreted to create a defeasible fee.\n5. I grant Blackacre to A, but if A dies in the next twenty years, I want the property to\ngo to B.\nA has a fee simple subject to B\xe2\x80\x99s shifting executory interest. Note that A has more than a life\nestate. If A does not die in the next twenty years, the property will never go to B. Just because the\ncondition involves A\xe2\x80\x99s death does not automatically turn this into a life estate.\n6. To A and his heirs so long as used as a residence.\nA has a fee simple determinable. O has a possibility of reverter. (I\xe2\x80\x99ll use O to refer to the\ngrantor throughout.)\n62\n\n\x0c7. To A, but if A dies, then to B.\nThis grant has the form of a fee simple subject to an executory limitation. But a fee simple is\nan estate of potentially infinite duration, whereas A\xe2\x80\x99s interest will terminate when A dies presumably an event certain to happen within a finite amount of time. This grant will be interpreted\nas a life estate in A with an indefeasibly vested remainder in B.\n8. To A for life when A marries, then to A\xe2\x80\x99s widow for life if she survives A, otherwise\nto B for life, then to C.\nA has a springing executory interest for life. Note that O has the fee simple at the time of\nthe grant and that A only takes when A marries. Taking the grant in order, we next have a\ncontingent remainder for life in A\xe2\x80\x99s widow. We don\xe2\x80\x99t know who this person might be or whether\nthis person will satisfy the condition of surviving A. B has an alternative contingent remainder for\nlife and only takes if A\xe2\x80\x99s widow fails to survive A. C has an indefeasibly vested remainder, since\nwhether A\xe2\x80\x99s widow or B takes after A dies, C is sure to take after their deaths.\nAn aside: the merger doctrine will result in the destruction of a contingent remainder in the\nfollowing circumstance. When a vested estate and the next vested estate following are owned by the\nsame person, the estates are merged, destroying an intervening contingent remainder - unless the\ntwo vested interests were placed in the same person by the same grant. Upshot. O to A for life, then\nto the first child of A to graduate high school before A\xe2\x80\x99s death for life, then to C. If C later acquires\nA\xe2\x80\x99s life estate, or if A later acquires C\xe2\x80\x99s absolutely vested remainder, the life estate and vested\nremainder are merged into a fee simple absolute, and the contingent remainder is destroyed. I won\xe2\x80\x99t\nask you to apply this doctrine, but I wanted to flag the issue here.\n9. To A for so long as A lives on the property.\nWhat did O intend to give A? One way to read this is as a fee simple determinable (with\ncorresponding possibility of reverter in O). If A lives on the property A\xe2\x80\x99s whole life, then A will\nhave continuously satisfied the condition, and the property will be distributed on A\xe2\x80\x99s death\naccording to A\xe2\x80\x99s will - free of the condition. After all, once A dies, it will not be possible for A to\nlive anywhere else.\nOn the other hand, the grant could be read to give to A the property but only while A lives\non it and no longer. So A would get a life estate determinable, as if the grant had said: To A for life\nso long as A lives on the property. O has a reversion (remember that a \xe2\x80\x9cremainder\xe2\x80\x9d in the grantor is\ncalled a reversion) and a possibility of reverter (the interest that will cut short A\xe2\x80\x99s life estate if A\nviolates the condition).\n10. To A for life, then to B if B lives at least one year after A\xe2\x80\x99s death.\nA has a life estate. B has what looks like a contingent remainder. However, B will not take\nimmediately on A\xe2\x80\x99s death. A remainder interest is that interest that follows immediately after the end\nof the prior life estate. Here there\xe2\x80\x99s a gap, and that\xe2\x80\x99s enough to make this interest something other\n63\n\n\x0cthan a remainder.\nThinking about what will happen here, we see that A has a life estate, then O has a reversion\n\xe2\x80\x93 We know that O (or O\xe2\x80\x99s heirs) will get the property back for at least a year. B has a springing\nexecutory interest, with B cutting short O\xe2\x80\x99s ownership if B satisfies the condition of surviving A by\nat least one year.\n11. I give Blackacre to A and his heirs, but if A ever drinks or smokes, then Blackacre\nis to go to B.\nA has a fee simple subject to B\xe2\x80\x99s shifting executory interest.\n12. To A so long as illegal drugs are not used on the premises, and if illegal drugs are\nused on the premises, then to B.\nA has a fee simple subject to B\xe2\x80\x99s shifting executory interest.\n13. To A, but if illegal drugs are ever used on the premises, then to B.\nThe interests are identical to those in problems 6 and 7, but the language of the grant is\ndifferent. These three problems are mainly interesting for their treatment under the Rule Against\nPerpetuities.\n14. To A, but if illegal drugs are used on the premises within 21 years of the death of\nEwan McGregor, then to B.\nSame.\n15. To A, but if illegal drugs are used on the premises within 21 years of the death of\nthe last surviving member of the cast and crew of Jaws, then to B.\nSame.\n16. To A for life, then to any of A\xe2\x80\x99s children who graduate from high school.\nThis grant could arise in several factual circumstances.\n(1) A has no children alive at the time of the grant. Then, A has a life estate, and there is a\ncontingent remainder in A\xe2\x80\x99s children. O has a reversion. (Though one might be tempted to label the\nfuture interest in O a \xe2\x80\x9cpossibility of reverter,\xe2\x80\x9d since it will only be realized in possession if the\ncondition is satisfied, the texts refer to O\xe2\x80\x99s interest, like all interests in grantors following life estates,\nas a reversion. I suppose the idea is that the happening of the contingency would divest O\xe2\x80\x99s\nreversion interest.)\n(2) A has a child at the time of the grant, but the child has not yet graduated from high\n64\n\n\x0cschool. The remainder is still contingent.\n(3) At the time of the grant, A has a child, B, who has graduated high school. In this case, A\nhas a life estate, and B has a vested remainder subject to open (also called a vested remainder subject\nto partial defeasance).\n17. After a long life blessed with good fortune, I feel it is time to give something\nback. Thus, I leave Blackacre to the United Way. However, if Blackacre is ever used for\ncommercial gain, the United Way\xe2\x80\x99s interest will terminate.\nThe second sentence appears to leave Blackacre to the United Way in fee simple absolute.\nThe third sentence then sets out a condition under which that interest may terminate. As we\xe2\x80\x99ve seen,\nmany courts read grants with a presumption against automatic forfeiture - and so might even\ninterpret grants that use the durational language characteristic of fee simple determinable grants as\nfees simple subject to conditions subsequent.\nHowever, this grant makes pretty clear that the interest will terminate immediately on\nviolation of the condition. In other words, there is language in the grant indicating grantor intended\nforfeiture. So I would interpret this as a fee simple determinable in the United Way. O retains a\npossibility of reverter. However, it\xe2\x80\x99s possible to argue that the grant did not say \xe2\x80\x9cimmediately\xe2\x80\x9d or\nthat magic words like \xe2\x80\x9cso long as\xe2\x80\x9d or \xe2\x80\x9cuntil\xe2\x80\x9d were not used to describe the present interest. So you\ncould argue that we have a f.s.s.c / right of entry here.\n18. In a (long) will: Blackacre has been in my family for 200 years. It is my honor to\nleave this property to my good friend Melinda Marsh so that she can raise her children\nthere. All interests not specifically devised above are to go to the Red Cross, but if the Red\nCross ever engages in lobbying, then to UNICEF.\nThe issue in this problem is whether the phrase \xe2\x80\x9cso that she can raise her children there\xe2\x80\x9d is\nmerely precatory or is meant to have substantive bite. If it\xe2\x80\x99s precatory, then Melinda takes a fee\nsimple absolute. The language disposing of any residual property doesn\xe2\x80\x99t apply to this grant (but\nperhaps to other interests in other property devised in this \xe2\x80\x9clong\xe2\x80\x9d will). Grantor\xe2\x80\x99s indications of\nhope or purpose are not read to limit the interest conveyed unless an intent to limit is found. There\xe2\x80\x99s\na good argument that here the grantor was merely explaining why Melinda got Blackacre. It would\nbe helpful to compare this grant with others in the \xe2\x80\x9clong\xe2\x80\x9d will to see whether this was grantor\xe2\x80\x99s\nstyle. If you called this precatory and stopped here, that would be fine.\nAn argument could also be made, though by far the weaker one unless a look at the whole\nwill makes this intent clearer, that the gift of Blackacre was saddled with the condition that Melinda\nraise her children there. If this were a condition, so that the phrase is read to mean: To Melinda\nwhile she raises her children there - then Melinda might have a fee simple determinable with a\npossibility of reverter in O. But there are two problems with this. First, the fee simple is an estate of\npotentially infinite duration. Melinda cannot possibly raise her children on Blackacre after her death.\nSo the grant is better read as a life estate - subject to earlier defeasance if Melinda stops raising\nchildren on the property. Second, the residual clause gives all undevised interests to the Red Cross.\nSo grantor, under this interpretation, probably intended for the Red Cross to take both the\nremainder and the shifting executory interest. Let\xe2\x80\x99s rewrite the grant according to these\ninterpretations:\nTo Melinda for life and while she raises her children there, but if she stops raising children\n65\n\n\x0cthere or if she dies, then to the Red Cross, but if the Red Cross ever engages in lobbying then to\nUNICEF.\nI think this is a far less plausible reading of grantor\xe2\x80\x99s intent than the \xe2\x80\x9cprecatory\ninterpretation\xe2\x80\x9d above, but let\xe2\x80\x99s analyze it nonetheless just to get practice. Melinda has a life estate\nsubject to Red Cross\xe2\x80\x99s shifting executory interest. Red Cross has, in addition to the shifting\nexecutory interest, a vested remainder subject to divestment, and UNICEF has a shifting executory\ninterest.\n19. To A for life, then to A\xe2\x80\x99s children for life, then, after all of A\xe2\x80\x99s children have died,\nto Habitat for Humanity for housing volunteers. A has no children at the time of the grant.\nA has a life estate. There is a contingent remainder in A\xe2\x80\x99s children, because A has no\nchildren now but could in the future. Habitat Humanity has a vested remainder - whether it\xe2\x80\x99s\nindefeasibly vested or subject to divestment depends on whether the \xe2\x80\x9cfor housing volunteers\xe2\x80\x9d\nlanguage is precatory. I think it would be so considered.\n20. To A for life, then to such of A\xe2\x80\x99s children who graduate from college before A\xe2\x80\x99s\ndeath for their lives, then to the first child born to my daughter C.\nA has a life estate. The gift to A\xe2\x80\x99s children is either a contingent remainder or a vested\nremainder subject to open (if there\xe2\x80\x99s at least one child who has met the condition).\nIf C already has a child at the time of the grant, then that (first) child has an indefeasibly\nvested remainder. If the child dies, the child\xe2\x80\x99s heirs will take - even if C has subsequent children\nbefore the remainder becomes possessory.\nIf C has no children at the time of the grant, then there is contingent remainder in the\nunascertained child.\n21. To A for five years, then to my oldest great-grandchild then living for life, then to\nB.\nWe haven\xe2\x80\x99t covered the kind of interest A has yet. But you do know enough to know what it\nis not. It is not a kind of fee interest. Fees are estates of potentially infinite duration. This is an estate\nof finite duration. It is also not a life estate. Instead, it\xe2\x80\x99s a term of years.\nThere is a contingent remainder for life in the oldest great-grandchild then living. It\xe2\x80\x99s a\nremainder interest because it follows the natural termination of the prior estate. (And it\xe2\x80\x99s a\nremainder rather than a reversion because it\xe2\x80\x99s in someone other than the grantor.) It\xe2\x80\x99s contingent\nbecause the grant is to an unascertained person. We don\xe2\x80\x99t know who the oldest great-grandchild will\nbe after the five-year period, or even if there will be any great-grandchild alive at that time.\nB has an indefeasibly vested remainder.\n22. To A for life so long as no trees are cleared from the grounds, then to B, but if B\nclears trees from the grounds, then to C and his heirs.\nThis grant is a little tricky to interpret. A has a life estate subject to a condition. But what did\ngrantor intend to happen upon violation of the condition? The phrase \xe2\x80\x9cthen to B\xe2\x80\x9d might indicate\n66\n\n\x0cthat B gets the remainder or that B has an executory interest - or both.\nIn my mind, the most natural reading is that A has a life estate subject to B\xe2\x80\x99s executory\nlimitation and B has, in addition, a vested remainder subject to divestment. C has an executory\ninterest. That is, A has a life estate, but if the condition is violated, then the property goes to B, and\nin any event B gets the property at A\xe2\x80\x99s death.\nC\xe2\x80\x99s executory interest is also tricky to interpret. Does C take if anyone clears trees or only if\nB clears trees? We might argue that grantor clearly intended that no one should clear trees. But if\nthat\xe2\x80\x99s the case why did grantor write \xe2\x80\x9cif B clears trees\xe2\x80\x9d in the condition on B\xe2\x80\x99s estate but not \xe2\x80\x9cif A\nclears trees\xe2\x80\x9d in the condition on A\xe2\x80\x99s estate?\nTo see why grantor probably did this, we first need to know how to apply the Rule Against\nPerpetuities. As in the Edwards v. Bradley case, a court is likely to interpret a grant to avoid a rule\nviolation where possible.\n23. To A for life, then to A\xe2\x80\x99s children for life, then to ACME Corp.\nA has a life estate. The remainder interest in A\xe2\x80\x99s children is either contingent or a vested\nremainder subject to open (if A has children at the time of the grant). ACME Corp. has an\nabsolutely vested remainder.\n\n67\n\n\x0c2.2. Rule Against Perpetuities\nOld Port Cove Holdings, Inc. v. Old Port Cove Condominium Association One, Inc.,\n986 So.2d 1279 (Fla. 2008)\n\nJack J. Aiello and Nicole K. Atkinson of Gunster, Yoakley and Stewart, P.A., West Palm\nBeach, FL, for Petitioners.\nDaniel S. Rosenbaum, Richard Valuntas and John M. Siracusa of Becker and Poliakoff, P.A.,\nWest Palm Beach, FL, for Respondent.\nCantero, J.\nWe consider the parameters of a doctrine that has been \xe2\x80\x9clong cherished by law school\nprofessors and dreaded by most law students: the infamous rule against perpetuities.\xe2\x80\x9d Byke Constr.\nCo. v. Miller, 140 Ariz. 57, 680 P.2d 193, 194 (Ct.App.1984); see also Shaver v. Clanton, 26 Cal.App.4th\n568, 31 Cal.Rptr.2d 595, 596 (1994) (describing the rule against perpetuities as \xe2\x80\x9cevery first-year law\nstudent\xe2\x80\x99s worst nightmare\xe2\x80\x9d). Specifically, we must decide whether section 689.225, Florida Statutes\n(2000), which addresses the same rule, retroactively abrogated the common law rule. We also\nconsider whether the rule applies to rights of first refusal, which are at issue here\xe2\x80\xa6 . .\nI. FACTS AND PROCEDURAL HISTORY\nThis case stems from an agreement (\xe2\x80\x9cthe Agreement\xe2\x80\x9d) executed over thirty years ago (in\n1977) in which Old Port Cove Investment granted Old Port Cove Condominium Association One,\nInc. (\xe2\x80\x9cthe Association\xe2\x80\x9d) a right of first refusal in a parcel of property. The Agreement provides, in\npertinent part:\nIn the event that OPCI elects to sell the real property \xe2\x80\xa6 other than to the persons or\ncorporations which form the OPCI JOINT VENTURE, or to any corporation or other entity\nowned or controlled by OPCI or by any member of said JOINT VENTURE, or a successor or\nsuccessors \xe2\x80\x9cto the interest of any member in the JOINT VENTURE\xe2\x80\x9d, the ASSOCIATION shall\nhave the right of first refusal for the purchase of said real property upon the same terms and\nconditions as are proposed for its sale and purchase by OPCI, said right of first refusal to be\nexercised by the ASSOCIATION within thirty (30) days following written notice to it of such\nproposed sale, following which said right of first refusal shall terminate.\nOld Port Cove Holdings, Inc. and Old Port Cove Equities, Inc. (\xe2\x80\x9cOwners\xe2\x80\x9d) the successorsin-interest to the OPCI Joint Venture, now own the property, which is used as a parking lot for an\nadjacent marina they own.\nTwenty-five years after the Agreement, in 2002, the Owners sued to obtain a declaratory\njudgment and to quiet title to the property, arguing that the right of first refusal violates the\n68\n\n\x0ccommon law rule against perpetuities. The Association contested the suit, raising several defenses\nand counterclaiming for a declaratory judgment and reformation of the Agreement. The trial court\ndeclared the right of first refusal void ab initio and quieted title in the Owners\xe2\x80\x99 favor\xe2\x80\xa6 . . On appeal,\nthe Fourth District Court of Appeal reversed. Old Port Cove, 954 So.2d at 743\xe2\x80\xa6 . .\nII. THE HISTORY OF THE RULE AGAINST PERPETUITIES\nThe rule against perpetuities developed through a series of English cases beginning in 1682\nand spanning about 150 years. See 10 Richard R. Powell, Powell on Real Property \xc2\xa7 71.02 (Michael Allan\nWolf ed.2007). At one time, the common law rule was a part of the law of nearly every jurisdiction\nin the United States. Id. \xc2\xa7 71.03. By the end of the twentieth century, however, only a handful of\njurisdictions still followed it. Id. Today, perpetuities law varies from state to state. See Lynn Foster,\nFifty-One Flowers: Post-Perpetuities War Law and Arkansas\xe2\x80\x99s Adoption of USRAP, 29 U. Ark. Little Rock\nL.Rev. 411, 411-13 (2007); Frederick R. Schneider, A Rule Against Perpetuities for the Twenty-First\nCentury, 41 Real Prop. Prob. & Tr. J. 743, 747-48 (2007).\nIn Florida, the rule has had a rocky history. It was first adopted judicially, as part of the\ncommon law. It was later adopted legislatively, then replaced with a uniform rule, and now it has\nbeen legislatively abolished. To provide context for our discussion, we briefly discuss this history.\nA. The Common Law Rule against Perpetuities\nThe rule against perpetuities is generally stated with deceptive simplicity as follows: \xe2\x80\x9cNo\ninterest is good unless it must vest, if at all, not later than twenty-one years after some life in being at\nthe creation of the interest.\xe2\x80\x9d Iglehart v. Phillips, 383 So.2d 610, 614 (Fla.1980) (quoting John Chipman\nGray, The Rule Against Perpetuities, \xc2\xa7 201 (4th ed.1942)). The rule \xe2\x80\x9cwas designed to prevent the\nperpetual entailment of estates and give them over to free and unhampered conveyance.\xe2\x80\x9d Story v.\nFirst Nat\xe2\x80\x99l Bank & Trust Co., 115 Fla. 436, 156 So. 101, 104 (1934); see also Iglehart, 383 So.2d at 613\n(recognizing that the rule\xe2\x80\x99s \xe2\x80\x9cpurpose is to ensure that property is reasonably available for\ndevelopment by prohibiting restraints that remove property from a beneficial use for an extended\nperiod of time\xe2\x80\x9d). We have explained that the rule is \xe2\x80\x9cmore accurately speaking, the rule against\nremoteness or remote vesting of an estate or interest therein.\xe2\x80\x9d Adams v. Vidal, 60 So.2d 545, 549\n(Fla.1952). \xe2\x80\x9cIt is not a rule that invalidates interests which last too long, but interests which vest too\nremotely. In other words, the rule is concerned not with the duration of estates but with the time of\ntheir vesting.\xe2\x80\x9d Iglehart, 383 So.2d at 614.\nB. The Statutory Rule and Its Various Amendments\nThe rule against perpetuities has been adopted by statute, amended, and later abrogated. The\nLegislature first codified the rule in 1977. The statutory rule provided:\nSTATEMENT OF THE RULE. \xe2\x80\x93 No interest in real or personal property is valid unless it\nmust vest, if at all, not later than 21 years after one or more lives in being at the creation of the\ninterest and any period of gestation involved. The lives measuring the permissible period of vesting\n69\n\n\x0cmust not be so numerous or designated in such a manner as to make proof of their end\nunreasonably difficult.\nCh. 77-23, \xc2\xa7 1, Laws of Fla. (codified at \xc2\xa7 689.22(1), Fla. Stat. (1979)). The statute exempted\nvarious interests, including \xe2\x80\x9c[o]ptions to purchase in gross or in a lease or preemptive rights in the\nnature of a right of first refusal,\xe2\x80\x9d but limited them to forty years. Ch. 77-23, \xc2\xa7 1, Laws of Fla.\n(codified at \xc2\xa7 689.22(3)(a)(7) (1979)).1\nIn 1988, the Legislature \xe2\x80\x9creplac[ed] the existing statutory rule with the \xe2\x80\x98Florida Uniform\nStatutory Rule Against Perpetuities.\xe2\x80\x99\xe2\x80\x9d Ch. 88-40, Laws of Fla. It states the rule as follows:\n(2) STATEMENT OF THE RULE.\xe2\x80\x93\n(a) A nonvested property interest in real or personal property is invalid unless:\n1. When the interest is created, it is certain to vest or terminate no later than 21 years after\nthe death of an individual then alive; or\n2. The interest either vests or terminates within 90 years after its creation.\nId. \xc2\xa7 1 (codified at \xc2\xa7 689.225(2), Fla. Stat. (1989)). With eight exceptions, the statute excludes\nnonvested property interests and powers of appointment arising out of \xe2\x80\x9ca nondonative transfer.\xe2\x80\x9d Id.\n(codified at \xc2\xa7 689.225(5)(a), Fla. Stat. (1989)). The law also added, among other things, a provision\nthrough which interests created before October 1, 1988, that violate the rule against perpetuities\ncould be reformed \xe2\x80\x9cin the manner that most closely approximates the transferor\xe2\x80\x99s manifested plan\n\xe2\x80\xa6 and is within the limits of the rule against perpetuities applicable when the nonvested property\ninterest or power of appointment was created.\xe2\x80\x9d Id. (codified at \xc2\xa7 689.225(6)(c), Fla. Stat. (1989)).\nIn 2000, the Legislature added the following language to section 689.225(7): \xe2\x80\x9cThis section is\nthe sole expression of any rule against perpetuities or remoteness in vesting in this state. No\ncommon-law rule against perpetuities or remoteness in vesting shall exist with respect to any interest\nor power regardless of whether such interest or power is governed by this section.\xe2\x80\x9d Ch. 2000-245, \xc2\xa7\n1, Laws of Fla. (codified at \xc2\xa7 689.225(7), Fla. Stat. (2001)). The Fourth District relied primarily on\nthis language to conclude that \xe2\x80\x9c[r]etroactive application could hardly have been stated more clearly.\xe2\x80\x9d\nOld Port Cove, 954 So.2d at 745.\nHaving explained the history of the rule in Florida, we now address the issues presented.\nIII. ANALYSIS\nWe address two issues involving the rule against perpetuities. The first \xe2\x80\x93 the issue on which\nthe district court certified conflict \xe2\x80\x93 is whether the legislative abrogation of the rule applies\nretroactively. We resolve the conflict by holding that, based on the language of the statute itself,\nabrogation of the rule does not apply retroactively. The second issue, on which conflict also exists\n(albeit in dictum), is whether the common law rule against perpetuities even applies to rights of first\nrefusal. On that issue, we conclude that, because the same concerns about remote vesting do not\nexist with respect to rights of first refusal, the rule does not apply to such rights.\nA. Retroactive Abrogation\n\xe2\x80\xa6.\nIn the absence of clear legislative intent to the contrary, a law is presumed to operate\nprospectively. State v. Lavazzoli, 434 So.2d 321, 323 (Fla.1983); see also Metro. Dade County v. Chase Fed.\n70\n\n\x0cHous. Corp., 737 So.2d 494, 499 (Fla.1999) (\xe2\x80\x9c[R]equiring clear intent assures that [the legislature] has\nitself affirmatively considered the potential unfairness of retroactive application and determined that\nit is an acceptable price to pay for the countervailing benefits.\xe2\x80\x9d (quoting Arrow Air, Inc. v. Walsh, 645\nSo.2d 422, 425 (Fla.1994))). In determining whether a statute applies retroactively, we consider two\nfactors: (1) whether the statute itself expresses an intent that it apply retroactively; and, if so, (2)\nwhether retroactive application is constitutional. See, e.g., Chase Fed., 737 So.2d at 499. We conclude\nthat the plain language of section 689.225 does not evince an intent that the statute apply\nretroactively. We therefore need not address the second prong. See, e.g., Memorial Hosp.-W. Volusia,\nInc. v. News-Journal Corp., 784 So.2d 438, 441 (Fla.2001) (finding it unnecessary to reach the second\nprong of the retroactivity analysis absent clear legislative intent to apply the statute retroactively).\n\xe2\x80\xa6.\nB. The Rule Against Perpetuities Does Not Apply to Rights of First Refusal\nWhile we have resolved the certified conflict, the decisive question in this case is whether\nrights of first refusal are subject to the common law rule in the first place. Rights of first refusal are\nnot subject to the statutory rule. See \xc2\xa7 689.225(5)(a), Fla. Stat. (2007). We conclude they are not\nsubject to the common law rule, either.\nTo decide whether a right of first refusal violates the rule, we must first define a right of first\nrefusal. As one court has explained it,\nA right of first refusal is a right to elect to take specified property at the same price and on\nthe same terms and conditions as those contained in a good faith offer by a third person if the\nowner manifests a willingness to accept the offer. The right of first refusal ripens into an option\nonce an owner manifests a willingness to accept a good faith offer.\nPearson v. Fulton, 497 So.2d 898, 900 (Fla. 2d DCA 1986). Rights of first refusal are also\nknown as preemptive rights. See 6 Am. L. Prop. \xc2\xa7 26.66 (1952). Such rights vary in form: some\nrequire offering the property at a fixed price (or some price below market value), while others (like\nthe one here) simply allow the holder to purchase the property on the same terms as a third party.\nSee Shiver v. Benton, 251 Ga. 284, 304 S.E.2d 903, 905 (1983). They are akin to \xe2\x80\x93 and sometimes\nconfused with \xe2\x80\x93 options. See Steinberg v. Sachs, 837 So.2d 503, 505 (Fla. 3d DCA 2003); Points v.\nBarnes, 301 So.2d 102, 104 (Fla. 4th DCA 1974). An option contract is \xe2\x80\x9ca unilateral contract which\ngives the option holder the right to purchase under the terms and conditions of the option\nagreement.\xe2\x80\x9d S. Inv. Corp. v. Norton, 57 So.2d 1, 2 (Fla. 1952). Unlike an option, however, a right of\nfirst refusal does not grant the power to compel an unwilling owner to sell. See, e.g., 6 Am. L. Prop. \xc2\xa7\n26.64.\nWhether the common law rule against perpetuities applies to a right of first refusal is a\nquestion of first impression in this Court. The district courts are divided on the issue. Compare Old\nPort Cove, 954 So.2d at 743 (doubting that the rule applied to rights of first refusal); and Warren v. City\nof Leesburg, 203 So.2d 522, 526 (Fla. 2d DCA 1967) (suggesting that the rule does not apply to rights\nof first refusal); with Fallschase, 696 So.2d at 835 (holding that the rule does apply to rights of first\nrefusal); Reagan, 321 So.2d at 133 (same); and Points, 301 So.2d at 104 (same).\nOther jurisdictions are likewise split. Of those that have considered this issue, a majority\nhave concluded that the rule applies to rights of first refusal.2 A notable minority, however, has held\notherwise.3 We find the minority view more consistent with Florida law.\nWhere they discuss the rationale, courts adopting the majority view generally conclude that\nan option or right of first refusal creates an interest in property. Ferrero, 536 A.2d at 1139 (\xe2\x80\x9cAs rights\n71\n\n\x0cof first refusal are interests in property, the great majority of American jurisdictions have applied the\nRule Against Perpetuities to such rights.\xe2\x80\x9d); see, e.g., Stuart Kingston, 596 A.2d at 1384; Gore, 867 P.2d at\n338; Martin, 348 N.E.2d at 309; Pace, 347 So.2d at 1317; Melcher, 435 P.2d at 114; McHugh, 380 S.E.2d\nat 874; Smith, 296 S.E.2d at 854. In Florida, however, an option does not create a legal or equitable\ninterest in property. As we explained over fifty years ago, \xe2\x80\x9cuntil an optionee exercises the right to\npurchase in accordance with the terms of his option he has no estate, either legal or equitable, in the\nlands involved.\xe2\x80\x9d Gautier v. Lapof, 91 So.2d 324, 326 (Fla.1956). We have since reiterated that\nprinciple. See Leon County Educ. Facilities Auth. v. Hartsfield, 698 So.2d 526, 530 (Fla.1997) (\xe2\x80\x9c[T]his\nCourt has long held that the status of parties to the ordinary lease with an option to purchase\nremains that of landlord and tenant until the option is exercised and that the lessee has no equitable\ninterest in the property.\xe2\x80\x9d); BancFlorida v. Hayward, 689 So.2d 1052, 1054 (Fla.1997) (\xe2\x80\x9cUnder Florida\nlaw, an option to purchase property creates neither an equitable interest nor an equitable remedy.\xe2\x80\x9d).\nAs these cases show, Florida law has consistently held that an option does not create an\ninterest in land. Therefore, a right of first refusal \xe2\x80\x93 which may or may not ripen into an option\ndepending on whether the owner decides to sell, see, e.g., Pearson, 497 So.2d at 900 \xe2\x80\x93 cannot create an\ninterest in land, either. See Randolph, 727 N.W.2d at 392 (\xe2\x80\x9cBecause the right of first refusal gives the\nholder fewer rights than an option, we conclude that if the latter does not create an interest in land,\nneither does the former.\xe2\x80\x9d); Robroy, 622 P.2d at 370 (\xe2\x80\x9cThe holder of a right of first refusal has far less\nof an interest in land than the holder of an ordinary option.\xe2\x80\x9d).\nThis conclusion is consistent with our approach in Iglehart, 383 So.2d 610. There, we\nconsidered whether a fixed-price right of first refusal for an unlimited duration should be analyzed\nunder the rule against perpetuities or under the rule against unreasonable restraints on alienation. Id.\nat 613. We concluded that it was more appropriately analyzed under the rule against unreasonable\nrestraints: \xe2\x80\x9cAlthough we conclude that the option in this case might be subject to the rule against\nperpetuities, such a finding is not necessary to answer the first question since we find this repurchase\noption is more appropriately classified as an unreasonable restraint on the use of the subject property.\xe2\x80\x9d Id. at 614\n(emphasis added). We held that the fixed-price repurchase option at issue violated the rule against\nunreasonable restraints, but recognized that \xe2\x80\x9cthe law is clear that a repurchase option at market or\nappraised value for unlimited duration is not an unreasonable restraint.\xe2\x80\x9d Id. at 615.\nAlthough in Iglehart we found it unnecessary to address whether a right of first refusal is\nsubject to the rule against perpetuities, our opinion noted our preference for analyzing rights of first\nrefusal under the rule against unreasonable restraints. Id. at 616; see also 6 Am. L. Prop. \xc2\xa7 26.66\n(arguing that courts should have analyzed options and preemptions under the rule against\nunreasonable restraints on alienation rather than the rule against perpetuities because \xe2\x80\x9c[e]verything\nof value in the option device could have been preserved, and its evils combated more effectively\nthan can be done through the rule against perpetuities\xe2\x80\x9d).\nWe reaffirm our holding in Iglehart that rights of first refusal should be analyzed under the\nrule against unreasonable restraints, and close the door left open there by concluding that rights of\nfirst refusal are not subject to the common law rule against perpetuities.4 A right of first refusal is a\ncontractual right. The rule against perpetuities, on the other hand, is \xe2\x80\x9ca rule of property law, not of\ncontract law.\xe2\x80\x9d Iglehart, 383 So.2d at 614; see also Warren, 203 So.2d at 526 (stating that an option does\nnot vest the holder with an interest in the land, but is \xe2\x80\x9cstrictly a contractual right, not a property\nright, while the rule against perpetuities is a rule of property rather than a rule of contract\xe2\x80\x9d).5\nIn holding that the rule against perpetuities does not apply to rights of first refusal, we\nrecognize that we are adopting the minority view. It also, however, appears to be the more modern\none. See Jesse Dukeminier, A Modern Guide to Perpetuities, 74 Cal. L.Rev. 1867, 1908 (1986) (\xe2\x80\x9cThe\nmodern trend \xe2\x80\xa6 has been to free preemptive options from the Rule and to subject them instead to\nthe rule against unreasonable restraints on alienation.\xe2\x80\x9d). For example, the First Restatement of\n72\n\n\x0cProperty identified an option as subject to the rule. See Restatement (First) of Property \xc2\xa7 413(1)\n(1944); see also id. cmt. e (\xe2\x80\x9cPreemptive provisions, being analogous to options upon a condition\nprecedent, must comply with the rule against perpetuities in so far as their maximum duration is\nconcerned.\xe2\x80\x9d). The Third Restatement, however, reversed course, stating that the rule does not apply\nto options or rights of first refusal. Restatement (Third) of Property: Servitudes, \xc2\xa7 3.3 (2000). The\nhistorical development is explained:\nIn the late 19th century \xe2\x80\xa6 courts began to apply [the rule] to commercial land transactions,\nincluding options [and] rights of first refusal\xe2\x80\xa6. The virtue of the rule was that it invalidated all\ninterests that lacked a durational limit, thus clearing titles without any need to inquire into the utility\nof the arrangement. Its vice was that it operated arbitrarily, applying a time period totally unsuited to\ncommercial transactions\xe2\x80\xa6.\nAlthough commentators had long complained that the rule against perpetuities should not\nbe applied to commercial transactions, it was not until the 1980s that courts in any number followed\nsuit\xe2\x80\xa6. While some courts continue to adhere to the old view, there is authority to support using\nrestraints-on-alienation doctrine rather than the rule against perpetuities, which blindly invalidates\ntransactions without regard to merit.\nId. cmt. b (emphasis added). We agree that applying the rule to rights of first refusal does not\nserve the rule\xe2\x80\x99s purposes, which is \xe2\x80\x9cto ensure that property is reasonably available for development\nby prohibiting restraints that remove property from a beneficial use for an extended period of time.\xe2\x80\x9d\nIglehart, 383 So.2d at 613. They are better analyzed under the rule prohibiting unreasonable restraints\non alienation. See, e.g., Cambridge Co., 700 P.2d at 542 (\xe2\x80\x9cBecause the preemptive right\xe2\x80\xa6 poses no\nthreat to \xe2\x80\xa6 free alienability\xe2\x80\xa6 we perceive no reason to invalidate the right under the rule against\nperpetuities.\xe2\x80\x9d); Bortolotti, 866 N.E.2d at 889 (\xe2\x80\x9cBecause the holder of a right of first refusal may only\nchoose to purchase property on the same terms as a bona fide offer\xe2\x80\xa6. the rule against perpetuities\nlogically should not apply. In our view, this position is better suited for business transactions, such\nas the one here, in which the right of first refusal was created.\xe2\x80\x9d); Metro. Transp. Auth., 501 N.Y.S.2d\n306, 492 N.E.2d at 385 (recognizing that, at least in commercial settings, rights of first refusal are\n\xe2\x80\x9cbest regulated by the rule against unreasonable restraints on alienation\xe2\x80\x9d).\n[Note: We will study the rule against unreasonable restraints on alienation in the context of\ncovenants. This rule, which attempts to protect the free alienability of property, applies to conditions\nin grants and to covenants, which are promises concerning one\xe2\x80\x99s use of land that do are enforceable\nas agreements rather than as conditions of continued title.]\nThe effective date of the statute was January 1, 1979. Ch. 77-23, \xc2\xa7 2, Laws of Fla. The\nparties executed the Agreement in 1977, so this statute does not apply. \xe2\x86\xa9\nSee, e.g., HSL Linda Gardens Props., Ltd. v. Seymour, 163 Ariz. 396, 788 P.2d 129, 130\n(Ct.App.1990); Estate of Johnson v. Carr, 286 Ark. 369, 691 S.W.2d 161, 161 (1985); Strong v. Theis, 187\nCal.App.3d 913, 232 Cal.Rptr. 272, 276 (1986); Neustadt v. Pearce, 145 Conn. 403, 143 A.2d 437, 438\n(1958); Stuart Kingston, Inc. v. Robinson, 596 A.2d 1378, 1383 (Del. 1991); Martin v. Prairie Rod & Gun\nClub, 39 Ill.App.3d 33, 348 N.E.2d 306, 309 (1976); Buck v. Banks, 668 N.E.2d 1259, 1261\n(Ind.Ct.App. 1996); Trecker v. Langel, 298 N.W.2d 289, 291 (Iowa 1980); Gore v. Beren, 254 Kan. 418,\n867 P.2d 330, 338 (1994); Low v. Spellman, 629 A.2d 57, 58 (Me. 1993); Ferrero Constr. Co. v. Dennis\nRourke Corp., 311 Md. 560, 536 A.2d 1137, 1139 (1988); Pace v. Culpepper, 347 So.2d 1313, 1317\n(Miss.1977); Nickels v. Cohn, 764 S.W.2d 124, 132 (Mo.Ct.App.1989); Mazzeo v. Kartman, 234\nN.J.Super. 223, 560 A.2d 733, 737 (App.Div.1989); Village of Pinehurst v. Reg\xe2\x80\x99l Inv. of Moore, Inc., 330\nN.C. 725, 412 S.E.2d 645, 646 (1992); Schafer v. Deszcz, 120 Ohio App.3d 410, 698 N.E.2d 60, 62\n(1997); Webb v. Reames, 326 S.C. 444, 485 S.E.2d 384, 385 (Ct.App.1997); Clark v. Shelton, 584 P.2d\n875, 877 (Utah 1978); Lake of the Woods Ass\xe2\x80\x99n v. McHugh, 238 Va. 1, 380 S.E.2d 872, 874 (1989); Smith\n73\n\n\x0cv. VanVoorhis, 170 W.Va. 729, 296 S.E.2d 851, 854 (1982); Browe v. Rasmussen, 121 Wis.2d 697, 359\nN.W.2d 181, 1984 WL 180227 (Wis.Ct.App. 1984); see also Hansen v. Stroecker, 699 P.2d 871, 873\n(Alaska 1985) (recognizing that under the traditional approach options in gross are subject to the\nrule, but adopting the \xe2\x80\x9cwait-and-see\xe2\x80\x9d approach); Byke, 680 P.2d at 195 (finding the rule applicable to\nan option, but imposing a reasonable timeframe to avoid a violation); Campbell v. Campbell, 313 Ky.\n249, 230 S.W.2d 918, 920 (1950) (\xe2\x80\x9cThe general rule recognized by the great majority of courts is that\nan option \xe2\x80\xa6 extending beyond the period limited by the rule against perpetuities, violates such\nrule\xe2\x80\xa6.\xe2\x80\x9d); Melcher v. Camp, 435 P.2d 107, 115 (Okla.1967) (\xe2\x80\x9c[T]he interest sufficient to invoke the \xe2\x80\xa6\nrule against perpetuities is created and transferred in the ordinary option.\xe2\x80\x9d); Hall v. Crocker, 192\nTenn. 506, 241 S.W.2d 548, 549 (1951) (recognizing that a fixed price right to repurchase must not\nviolate the rule). \xe2\x86\xa9\nSee, e.g., Robertson v. Murphy, 510 So.2d 180, 182 (Ala. 1987); Cambridge Co. v. East Slope Inv.\nCorp., 700 P.2d 537, 542 (Colo. 1985); Shiver, 304 S.E.2d at 906; Bortolotti v. Hayden, 449 Mass. 193,\n866 N.E.2d 882, 889 (2007); Randolph v. Reisig, 272 Mich.App. 331, 727 N.W.2d 388, 392 (2006);\nMetro. Transp. Auth. v. Bruken Realty Corp., 67 N.Y.2d 156, 501 N.Y.S.2d 306, 492 N.E.2d 379, 385\n(1986); Cherokee Water Co. v. Forderhause, 641 S.W.2d 522, 526 (Tex.1982); Robroy Land Co. v. Prather,\n95 Wash.2d 66, 622 P.2d 367, 369 (1980); Hartnett v. Jones, 629 P.2d 1357, 1360 (Wyo.1981); see also\nWeber v. Texas Co., 83 F.2d 807, 808 (5th Cir.1936) (\xe2\x80\x9cThe option under consideration is within\nneither the purpose nor the reason for the rule.\xe2\x80\x9d); cf. Great Bay Sch. & Training Ctr. v. Simplex Wire &\nCable Co., 131 N.H. 682, 559 A.2d 1329, 1331 (1989)(stating that the rule does not apply to all\npreemptive rights, just those that \xe2\x80\x9cpose a substantial restraint on alienation\xe2\x80\x9d); Power Gas Mktg. &\nTransmission, Inc. v. Cabot Oil & Gas Corp., 2008 Pa. Super 54, 948 A.2d 807 (2008) (holding that a\nright of first refusal in an oil and gas lease agreement is not subject to the rule against perpetuities;\nstating \xe2\x80\x9cwe also question whether, in the first instance, rights of first refusal\xe2\x80\xa6 ever concern\npropertied estates such that they should be brought within the rule against perpetuities\xe2\x80\x9d). \xe2\x86\xa9\nNeither party has addressed whether the right of first refusal at issue here is an unreasonable\nrestraint on alienation. We agree with the Fourth District, however, that because it is not for a fixed\nprice, it is not an unreasonable restraint. Old Port Cove, 954 So.2d at 746; see Iglehart, 383 So.2d at 615\n(\xe2\x80\x9c[T]he law is clear that a repurchase option at market or appraised value for unlimited duration is\nnot an unreasonable restraint.\xe2\x80\x9d). \xe2\x86\xa9\nBecause a right of first refusal is a contractual right, not a property interest, we need not\nconsider section 689.225(6)(c), Florida Statutes, which permits reformation of \xe2\x80\x9cnonvested property\ninterests\xe2\x80\x9d created before October 1, 1988. \xe2\x86\xa9\n\n74\n\n\x0cTexaco Refining and Marketing, Inc. v. Jack Samowitz et al.,\n213 Conn. 676 (1990)\n\nWalter R. Hampton, Jr., with whom were Donald L. Mackie and, on the brief, Lawrence H.\nLissitzyn, for the appellants (defendants).\nJerome A. Mayer, with whom was Kim E. Nolan, for the appellee (plaintiff).\nPeters, C.J.\nThis appeal concerns the validity, under General Statutes \xc2\xa7 47-33a and the common law rule\nagainst perpetuities, of an option to purchase real property contained in a long-term commercial\nlease. The named plaintiff, Texaco Refining and Marketing, Inc., brought an action for specific\nperformance of an option contract against the defendants, Jack Samowitz, Alex Klein, Sheila Klein,\nGloria Walkoff and Marilyn Moss, as successors in interest to the lessor of a lease executed and\nrecorded in 1964. The trial court rendered judgment for the plaintiff, and the defendants have\nappealed. We transferred their appeal here in accordance with Practice Book \xc2\xa7 4023. We find no\nreversible error.\nThe trial court relied on a stipulation between the parties for its finding of facts. On June 3,\n1964, the named plaintiff and Kay Realty Corporation, the predecessor in interest of the defendants,\nexecuted a lease for property in Southington. The term of the leasehold was fifteen years, subject to\nrenewal by the lessee, the plaintiff, for three additional five year periods. The plaintiff exercised two\nof these options for renewal.\nThe provision of the lease at issue in this appeal granted the plaintiff \xe2\x80\x9cthe exclusive right, at\nlessee\xe2\x80\x99s option, to purchase the demised premises \xe2\x80\xa6 at any time during the term of this lease or an\nextension or renewal thereof, from and after the 14th year of the initial term for the sum of\n$125,000.\xe2\x80\x9d On August 14, 1987, during the second renewal period under the lease, the plaintiff gave\nnotification, by certified mail, of its exercise of its option to purchase. When the defendants refused\nto transfer the property, the plaintiff brought this action, on December 30, 1987, for a judicial order\nof specific performance.\nThe trial court found that the plaintiff had demonstrated that it was ready, willing and able to\nperform its obligations under the contract, and that the option contained in its lease was supported\nby consideration. Noting that the terms of the lease had originally been negotiated by two\ncorporations bargaining at arm\xe2\x80\x99s length, the court concluded that the option was enforceable. The\ncourt expressly considered and rejected both the statutory and the common law defenses that the\ndefendants reassert in this appeal. Although we do not necessarily subscribe to the trial court\xe2\x80\x99s\nreasoning, we concur in its judgment on alternate grounds. Bernstein v. Nemeyer, 213 Conn. 665, 669,\n570 A.2d 164 (1990); Favorite v. Miller, 176 Conn. 310, 317, 407 A.2d 974 (1978).\n[The court rejected the the statutory defense to specific performance].\nThe defendants rely on the common law rule against perpetuities as their second argument\nfor the unenforceability of the plaintiff\xe2\x80\x99s option to purchase their property. The rule against\nperpetuities states that \xe2\x80\x9c[n]o interest is good unless it must vest, if at all, not later than twenty-one\nyears after some life in being at the creation of the interest.\xe2\x80\x9d J. Gray, The Rule Against Perpetuities\n(4th Ed. 1942) p. 191; Connecticut Bank & Trust Co. v. Brody, 174 Conn. 616, 623, 392 A.2d 445\n75\n\n\x0c(1978). The defendants maintain that the option in this case did not vest within the time span\nmandated by the rule. We disagree.\nThe trial court determined that the option in the lease agreement did not violate the rule\nagainst perpetuities by construing the lease agreement as a series of discrete undertakings, first for an\ninitial fourteen year term, and thereafter for each renewal term. Because the option could be\nexercised only within one of these discrete terms, none of which exceeded twenty-one years in\nlength, the court held that the interest in the option would necessarily vest within the time period\nspecified by the rule against perpetuities.\nWhatever might be the merits of the trial court\xe2\x80\x99s construction of the lease agreement, we\nprefer to consider a more basic question: do options in long-term leases fall within the jurisdiction\nof the rule against perpetuities? Our precedents indicate that the rule applies to an unrestricted\noption to purchase real property; Neustadt v. Pearce, 145 Conn. 403, 405, 143 A.2d 437 (1958); H. J.\nLewis Oyster Co. v. West, 93 Conn. 518, 530, 107 A. 138 (1919); but not to an option to renew the\nterm of a real property lease. Lonergan v. Connecticut Food Store, Inc., 168 Conn. 122, 124, 357 A.2d 910\n(1975). We have not, however, previously considered the relationship between the rule against\nperpetuities and an option to purchase contained in a long-term commercial lease of real property.\nThe defendants have offered no reason of policy why we should extend the ambit of the rule\nagainst perpetuities to cover an option to purchase contained in a commercial lease. \xe2\x80\x9cThe underlying\nand fundamental purpose of the rule is founded on the public policy in favor of free alienability of\nproperty and against restricting its marketability over long periods of time by restraints on its\nalienation.\xe2\x80\x9d Connecticut Bank & Trust Co. v. Brody, supra, 624; 4 Restatement, Property (1944) pp.\n2129-33. An option coupled with a long-term commercial lease is consistent with these policy\nobjectives because it stimulates improvement of the property and thus renders it more rather than\nless marketable. 3 L. Simes & A. Smith, The Law of Future Interests (2d Ed. 1956) p. 162. Any\nextension of the rule against perpetuities would, furthermore, be inconsistent with the legislative\nadoption of the \xe2\x80\x9csecond look\xe2\x80\x9d doctrine, pursuant to which an interest subject to the rule may be\nvalidated, contrary to the common law, by the occurrence of events subsequent to the ereation of\nthe interest. See General Statutes \xc2\xa7 45-95; Connecticut Bank & Trust Co. v. Brody, supra, 627-28.\nWe therefore conclude that an option to purchase contained in a commercial lease, at least if\nthe option must be exercised within the leasehold term, is valid without regard to the rule against\nperpetuities. This position is consistent with the weight of authority in the United States. See, e.g.,\nDozier v. Troy Drive-in-Theatres, 265 Ala. 93, 101-103, 89 So. 2d 537 (1956); Cambridge Co. v. East Slope\nInvestment Corporation, 700 P.2d 537, 540 (Colo. 1985); Wing, Inc. v. Arnold, 107 So. 2d 765, 768-69\n(Fla. App. 1959); St Regis Paper Co. v. Brown, 247 Ga. 361, 363-64, 276 S.E.2d 24 (1981); Keogh v. Peck,\n316 Ill. 318, 333-35, 147 N.E. 266 (1925); Hollander v. Central Metal Co., 109 Md. 131, 157-61, 71 A.\n442 (1908); Quarto Mining Co. v. Litman, 42 Ohio St. 2d 73, 78, 326 N.E.2d 676, cert. denied, 423 U.S.\n866, 96 S. Ct. 128, 46 L. Ed. 2d 96 (1975); Producers Oil Co. v. Gore, 610 P.2d 772, 775 (Okla. 1980);\nHoover v. Ford\xe2\x80\x99s Prairie Coal Co., 145 Wash. 295, 306, 259 P. 1079 (1927); contra First Huntington\nNational Bank v. Gideon-Broh Realty Co., 139 W. Va. 130, 152-53, 79 S.E.2d 675 (1953). The\ncommentators have, for a long time, unanimously supported what has become the majority view.\nSee, e.g., E. Abbot, \xe2\x80\x9cLeases and the Rule against Perpetuities,\xe2\x80\x9d 27 Yale L.J. 878, 885-89 (1918); 6\nAmerican Law of Property (A. Casner ed. 1952) \xc2\xa7 24.57; A. Langeluttig, \xe2\x80\x9cOptions to Purchase and\nthe Rule against Perpetuities,\xe2\x80\x9d 17 Va. L. Rev. 461, 464-71 (1931); 5A R. Powell, Real Property (1989)\n\xc2\xa7 771 [2]; 4 Restatement, Property (1944) \xc2\xa7 395; 3 L. Simes & A. Smith, supra, p. 162; 4A G.\nThompson, Real Property (1979) p. 618. The plaintiff\xe2\x80\x99s option in this case was, therefore,\nenforceable.\n\n76\n\n\x0c77\n\n\x0c2.3. Restraints on Marriage\nShapira v. Union National Bank,\n39 Ohio Misc. 28 (Ohio Probate Ct. 1974)\n\nMr. Dennis Haines, for plaintiff.\nMr. Martin Novak, for defendant State of Israel.\nMr. Irwin I. Kretzer, for defendant Union National Bank.\nHenderson, J.\nThis is an action for a declaratory judgment and the construction of the will of David\nShapira, M. D., who died April 13, 1973, a resident of this county. By agreement of the parties, the\ncase has been submitted upon the pleadings and the exhibit.\nThe portions of the will in controversy are as follows:\n\xe2\x80\x9cItem VIII. All the rest, residue and remainder of my estate, real and personal, of every kind\nand description and wheresoever situated, which I may own or have the right to dispose of at the\ntime of my decease, I give, devise and bequeath to my three (3) beloved children, to wit: Ruth\nShapira Aharoni, of Tel Aviv, Israel, or wherever she may reside at the time of my death; to my son\nDaniel Jacob Shapira, and to my son Mark Benjamin Simon Shapira in equal shares, with the\nfollowing qualifications: *\n\xe2\x80\x9c(b) My son Daniel Jacob Shapira should receive his share of the bequest only, if he is\nmarried at the time of my death to a Jewish girl whose both parents were Jewish. In the event that at\nthe time of my death he is not married to a Jewish girl whose both parents were Jewish, then his\nshare of this bequest should be kept by my executor for a period of not longer than seven (7) years\nand if my said son Daniel Jacob gets married within the seven year period to a Jewish girl whose\nboth parents were Jewish, my executor is hereby instructed to turn over his share of my bequest to\nhim. In the event, however, that my said son Daniel Jacob is unmarried within the seven (7) years\nafter my death to a Jewish girl whose both parents were Jewish, or if he is married to a non Jewish\ngirl, then his share of my estate, as provided in item 8 above should go to The State of Israel,\nabsolutely.\xe2\x80\x9d\nThe provision for the testator\xe2\x80\x99s other son Mark, is conditioned substantially similarly. Daniel\nJacob Shapira, the plaintiff, alleges that the condition upon his inheritance is unconstitutional,\ncontrary to public policy and unenforceable because of its unreasonableness, and that he should be\ngiven his bequest free of the restriction. Daniel is 21 years of age, unmarried and a student at\nYoungstown State University.\nThe provision in controversy is an executory devise or legacy, under which vesting of the\nestate of Daniel Jacob Shapira or the State of Israel is not intended to take place necessarily at the\ndeath of the testator, but rather conditionally, at a time not later than seven years after the testator\xe2\x80\x99s\ndeath. The executory aspect of the provision, though rather unusual, does not render it invalid.\nHeath v. City of Cleveland (1926), 114 Ohio St. 535.\n78\n\n\x0cCONSTITUTIONALITY\nPlaintiff\xe2\x80\x99s argument that the condition in question violates constitutional safeguards is based\nupon the premise that the right to marry is protected by the Fourteenth Amendment to the\nConstitution of the United States\xe2\x80\xa6 . . The court concludes \xe2\x80\xa6 that the upholding and enforcement\nof the provisions of Dr. Shapira\xe2\x80\x99s will conditioning the bequests to his sons upon their marrying\nJewish girls does not offend the Constitution of Ohio or of the United States.\nPUBLIC POLICY\nThe condition that Daniel\xe2\x80\x99s share should be \xe2\x80\x9cturned over to him if he should marry a Jewish\ngirl whose both parents were Jewish\xe2\x80\x9d constitutes a partial restraint upon marriage. If the condition\nwere that the beneficiary not marry anyone, the restraint would be general or total, and, at least in\nthe case of a first marriage, would be held to be contrary to public policy and void. A partial restraint\nof marriage which imposes only reasonable restrictions is valid, and not contrary to public policy: 5\nBowe-Parker: Page on Wills 460, Section 44.25; 56 Ohio Jurisprudence 2d 243, Wills, Section 729;\n52 American Jurisprudence 2d 1023, Marriage, Section 181. The great weight of authority in the\nUnited States is that gifts conditioned upon the beneficiary\xe2\x80\x99s marrying within a particular religious\nclass or faith are reasonable. 5 Bowe-Parker; Page on Wills 461, Section 44.25; 52 American\nJurisprudence 2d 1025, Marriage, Section 183. 56 Ohio Jurisprudence 2d 245, Wills, Section 731; 1\nPrentice-Hall, Estate Planning, Law of Wills, 373, Paragraph 375.20; 1 Restatement of the Law,\nTrusts 2d, 166, Section 62 (h); National Bank v. Snodgrass (supra), annotation, 50 A. L. R. 2d 740;\nGordon v. Gordon, supra; In re Harris (1955), 143 N. Y. Supp. 2d 746; Matter of Seaman (1916), 218 N.\nY. 77, 112 N. E. 576; Matter of Liberman (1939), 279 N. Y. 458, 18 N. E. 2d 658; In re Silverstein\xe2\x80\x99s Will\n(1956), 155 N. Y. Supp. 2d 598; In re Clayton\xe2\x80\x99s Estate (Phila. Co. Pa. 1930), 13 D. & C. 413; Pacholder v.\nRosenheim (1916), 129 Md. 455, 99 A. 672.\nPlaintiff contends, however, that in Ohio a condition such as the one in this case is void as\nagainst the public policy of this state. In Ohio, as elsewhere, a testator may not attach a condition to\na gift which is in violation of public policy. 56 Ohio Jurisprudence 2d 238, Wills, Section 722; Neidler\nv. Donaldson (P. C. Seneca 1966), 9 Ohio Misc. 208, 224 N. E. 2d 404, 38 O. O. 2d 360. There can be\nno question about the soundness of plaintiff\xe2\x80\x99s position that the public policy of Ohio favors\nfreedom of religion and that it is guaranteed by Section 7, Article I of the Ohio Constitution,\nproviding that \xe2\x80\x9call men have a natural and indefeasible right to worship Almighty God according to\nthe dictates of their own conscience.\xe2\x80\x9d Plaintiff\xe2\x80\x99s position that the free choice of religious practice\ncannot be circumscribed or controlled by contract is substantiated by Hackett v. Hackett (C. A. Lucas\n1958), 78 Ohio Law Abs. 485, 150 N. E. 2d 431. This case held that a covenant in a separation\nagreement, incorporated in a divorce decree, that the mother would rear a daughter in the Roman\nCatholic faith was unenforceable. However, the controversial condition in the case at bar is a partial\nrestraint upon marriage and not a covenant to restrain the freedom of religious practice; and, of\ncourse, this court is not being asked to hold the plaintiff in contempt for failing to marry a Jewish\ngirl of Jewish parentage.\nCounsel contends that if \xe2\x80\x9cDr. David Shapira, during his life, had tried to impose upon his\nson those restrictions set out in his Will he would have violated the public policy of Ohio as shown\n79\n\n\x0cin Hackett v. Hackett. The public policy is equally violated by the restrictions Dr. Shapira has placed\non his son by his Will.\xe2\x80\x9d This would be true, by analogy, if Dr. Shapira, in his lifetime, had tried to\nforce his son to marry a Jewish girl as the condition of a completed gift. But it is not true that if Dr.\nShapira had agreed to make his son an inter-vivos gift if he married a Jewish girl within seven years,\nthat his son could have forced him to make the gift free of the condition.\nIt is noted, furthermore, in this connection, that the courts of Pennsylvania distinguish\nbetween testamentary gifts conditioned upon the religious faith of the beneficiary and those\nconditioned upon marriage to persons of a particular religious faith. In In Re Clayton\xe2\x80\x99s Estate, supra\n(13 D. & C. 413), the court upheld a gift of a life estate conditioned upon the beneficiary\xe2\x80\x99s not\nmarrying a woman of the Catholic faith. In its opinion the court distinguishes the earlier case of\nDrace v. Klinedinst (1922), 275 Pa. 266, 118 A. 907, in which a life estate willed to grandchildren,\nprovided they remained faithful to a particular religion, was held to violate the public policy of\nPennsylvania. In Clayton\xe2\x80\x99s Estate, the court said that the condition concerning marriage did not affect\nthe faith of the beneficiary, and that the condition, operating only on the choice of a wife, was too\nremote to be regarded as coercive of religious faith.\nBut counsel relies upon an Ohio case much more nearly in point, that of Moses v. Zook (C.\nA., Wayne 1934), 18 Ohio Law Abs. 373. This case involves a will in which the testatrix gave the\nincome of her residual estate in trust to her niece and nephews for two years and then the remainder\nto them. Item twelve provides as follows: \xe2\x80\x9cIf any of my nieces or nephews should marry outside of\nthe Protestant Faith, then they shall not receive any part of my estate devised or bequeathed to\nthem.\xe2\x80\x9d The will contained no gift over upon violation of the marriage condition. The holding of the\ntrial court was that item twelve was null and void as being against public policy and the seven other\nitems of the will should be administered as specified in detail by the court. There is nothing in the\nreported opinion to show to what extent, if at all, the question of public policy was in issue or\ncontested in the trial court; only one of the several other unrelated holdings of the trial court (not\nincluding the public policy holding) was assigned as error; and although the Court of Appeals\nadopted the unexcepted-to holdings of the trial court, there is no citation of authorities or discussion\nconcerning the public policy question itself. The case was apparently not appealed to the Supreme\nCourt, and no other cases in Ohio have been cited or found. Moses v. Zook differs in its facts in not\ncontaining a gift over upon breach of the condition, and appears not to have been a sufficiently\nlitigated or reasoned establishment of the public policy of Ohio which this court should be obliged\nto follow.\nThe only cases cited by plaintiff\xe2\x80\x99s counsel in accord with the holding in Moses v. Zook are\nsome English cases and one American decision. In England the courts have held that partial\nrestrictions upon marriage to persons not of the Jewish faith, or of Jewish parentage, were not\ncontrary to public policy or invalid. Hodgson v. Halford (1879 Eng.) L. R. 11 Ch. Div. 959, 50 A. L. R.\n2d 742. Other cases in England, however, have invalidated forfeitures of similarly conditioned\nprovisions for children upon the basis of uncertainty or indefiniteness. Re Blaiberg [1940] Ch. 385,\n[1940] 1 All. Eng. 632, 50 A. L. R. 2d 746; Clayton v. Ramsden [1943], A. C. 320 [1943], 1 All. Eng. 16H. L., 50 A. L. R. 2d 746; Re Donn [1944], Ch. 8 [1943], 2 All. Eng. 564, 50 A L. R. 2d 746; Re Moss\xe2\x80\x99\nTrusts [1945], 1 All. Eng. 207, 61 Times L. 147, 50 A. L. R. 2d 747. Since the foregoing decisions, a\nlater English case has upheld a condition precedent that a granddaughter-beneficiary marry a person\nof Jewish faith and the child of Jewish parents. The court distinguished the cases cited above as not\napplicable to a condition precedent under which the legatee must qualify for the gift by marrying as\nspecified, and there was found to be no difficulty with indefiniteness where the legatee married\nunquestionably outside the Jewish faith. Re Wolffe[1953], 1 Week L. R. 1211 [1953] 2 All. Eng. 697,\n50 A. L. R.2d 747.\nThe American case cited by plaintiff is that of Maddox v. Maddox (1854), 52 Va. (11\n80\n\n\x0cGrattan\xe2\x80\x99s)804. The testator in this case willed a remainder to his nice if she remain a member of the\nSocity of Friends. When the niece arrived at a marriageable age there were but five or six unmarried\nmen of the society in the neighborhood in which she lived. She married a non-member and thus lost\nher own membership. The court held the condition to be an unreasonable restraint upon marriage\nand void, and that there being no gift over upon breach of the condition, the condition was in\nterrorem, and did not avoid the bequest. It can be seen that while the court considered the\ntestamentary condition to be a restraint upon marriage, it was primarily one in restraint of religious\nfaith. The court said that with the small number of eligible bachelors in the area the condition would\nhave operated as a virtual prohibition of the niece\xe2\x80\x99s marrying, and that she could not be expected to\n\xe2\x80\x9cgo abroad\xe2\x80\x9d in search of a helpmate or to be subjected to the chance of being sought after by a\nstranger. The court distinguished the facts of its case from those in England upholding conditions\nupon marriage by observing that England was \xe2\x80\x9calready overstocked with inhabitants\xe2\x80\x9d while this\ncountry had \xe2\x80\x9can unbounded extent of territory, a large portion of which is yet unsettled, and in\nwhich increase of population is one of the main elements of national prosperity.\xe2\x80\x9d The other ground\nupon which the Virginia court rested its decision, that the condition was in terrorem because of the\nabsence of a gift over, is clearly not applicable to the case at bar, even if it were in accord with Ohio\nlaw, because of the gift over to the State of Israel contained in the Shapira will.\nIn arguing for the applicability of the Maddox v. Maddox test of reasonableness to the case at\nbar, counsel for the plaintiff asserts that the number of eligible Jewish females in this county would\nbe an extremely small minority of the total population especially as compared with the comparatively\nmuch greater number in New York, whence have come many of the cases comprising the weight of\nauthority upholding the validity of such clauses. There are no census figures in evidence. While this\ncourt could probably take judicial notice of the fact that the Jewish community is a minor, though\nimportant segment of our total local population, nevertheless the court is by no means justified in\njudicial knowledge that there is an insufficient number of eligible young ladies of Jewish parentage in\nthis area from which Daniel would have a reasonable latitude of choice. And of course, Daniel is not\nat all confined in his choice to residents of this county, which is a very different circumstance in this\nday of travel by plane and freeway and communication by telephone, from the horse and buggy days\nof the 1854 Maddox v. Maddox decision. Consequently, the decision does not appear to be an\nappropriate yardstick of reasonableness under modern living conditions.\nPlaintiff\xe2\x80\x99s counsel contends that the Shapira will falls within the principle of Fineman v.\nCentral National Bank (1961), 87 Ohio Law Abs. 236, 175 N.E. 2d 837, 18 O.O. 2d 33, holding that\nthe public policy of Ohio does not countenance a bequest or devise conditioned on the beneficiary\xe2\x80\x99s\nobtaining a separation or divorce from his wife. Counsel argues that the Shapira condition would\nencourage the beneficiary to marry a qualified girl just to receive the bequest, and then to divorce\nher afterward. This possibility seems too remote to be a pertinent application of the policy against\nbequests conditioned upon divorce. Most other authorities agree with Fineman v. Bank that as a\ngeneral proposition, a testamentary gift effective only on condition that the recipient divorce or\nseparate from his or her spouse is against public policy and invalid. 14 A. L. R. 3d 1222. But no\nauthorities have been found extending the principle to support plaintiff\xe2\x80\x99s position. Indeed, in\nmeasuring the reasonableness of the condition in queston, both the father and the court should be\nable to assume that the son\xe2\x80\x99s motive would be proper. And surely the son should not gain the\nadvantage of the avoidance of the condition by the possibility of his own impropriety.\nFinally, counsel urges that the Shapira condition tends to pressure Daniel, by the reward of\nmoney, to marry within seven years without opportunity for mature reflection, and jeopardizes his\ncollege education. It seems to the court, on the contrary, that the seven year time limit would be a\nmost reasonable grace period, and one which would give the son ample opportunity for exhaustive\nreflection and fulfillment of the condition without constraint or oppression. Daniel is no more being\n81\n\n\x0c\xe2\x80\x9cblackmailed into a marriage by immediate financial gain,\xe2\x80\x9d as suggested by counsel, than would be\nthe beneficiary of a living gift or conveyance upon consideration of a future marriage \xe2\x80\x93 an\narrangement which has long been sanctioned by the courts of this state. Thompson v. Thompson (1867),\n17 Ohio St. 649.\nIn the opinion of this court, the provision made by the testator for the benefit of the State of\nIsrael upon breach or failure of the condition is most significant for two reasons. First, it\ndistinguishes this case from the bare forfeitures in Moses v. Zook, and in Maddox v. Maddox (including\nthe technical in terrorem objection), and, in a way, from the vagueness and indefiniteness doctrine of\nsome of the English cases. Second, and of greater importance, it demonstrates the depth of the\ntestator\xe2\x80\x99s conviction. His purpose was not merely a negative one designed to punish his son for not\ncarrying out his wishes. His unmistakable testamentary plan was that his possessions be used to\nencourage the preservation of the Jewish faith and blood, hopefully through his sons, but, if not,\nthen through the State of Israel. Whether this judgment was wise is not for this court to determine.\nBut it is the duty of this court to honor the testator\xe2\x80\x99s intention within the limitations of law and of\npublic policy. The prerogative granted to a testator by the laws of this state to dispose of his estate\naccording to his conscience is entitled to as much judicial protection and enforcement as the\nprerogative of a beneficiary to receive an inheritance.\nIt is the conclusion of this court that public policy should not, and does not preclude the\nfulfillment of Dr. Shapira\xe2\x80\x99s purpose, and that in accordance with the weight of authority in this\ncountry, the conditions contained in his will are reasonable restrictions upon marriage, and valid.\n\n82\n\n\x0c2.4. Waste\nMoore v. Phillips,\n627 P.2d 831 (Kan. Ct. App. 1981).\n\nMorgan Wright, Larned, for appellant.\nRichard L. Friedeman, of Conner & Opie, Great Bend, for appellees.\nBefore Prager, Justice Presiding, Abbott, J., and J. Patrick Brazil, District Judge, Assigned.\nPrager, Justice Presiding:\nThis is a claim for waste asserted against the estate of a life tenant by remaindermen, seeking\nto recover damages for the deterioration of a farmhouse resulting from neglect by the life tenant.\nThe life tenant was Ada C. Brannan. The defendant-appellant is her executrix, Ruby F. Phillips. The\nclaimants-appellees are Dorothy Moore and Kent Reinhardt, the daughter and grandson of Ada C.\nBrannan.\nThe facts in the case are essentially as follows: Leslie Brannan died in 1962. By his will, he\nleft his wife, Ada C. Brannan, a life estate in certain farmland containing a farmhouse, with\nremainder interests to Dorothy Moore and Kent Reinhardt. Ada C. Brannan resided in the\nfarmhouse until 1964. She then rented the farmhouse until August 1, 1965, when it became\nunoccupied. From that point on, Ada C. Brannan rented all of the farmland but nobody lived in the\nhouse. It appears that from 1969 to 1971 it was leased to the remaindermen, but they did not live\nthere. It is undisputed that the remaindermen inspected the premises from time to time down\nthrough the years. In 1973, Ada C. Brannan petitioned for a voluntary conservatorship because of\nphysical infirmities. In 1976, Ada C. Brannan died testate, leaving her property to others. Dorothy\nMoore and Kent Reinhardt were not included in Ada\xe2\x80\x99s bounty. From the record, it is clear that Ada\nC. Brannan and her daughter, Dorothy Moore, were estranged from about 1964 on. This\nestrangement continued until Ada Brannan\xe2\x80\x99s death, although there was minimal contact between\nthem from time to time.\nAfter Ada Brannan\xe2\x80\x99s death, Dorothy Moore and Kent Reinhardt filed a demand against the\nestate of Ada Brannan on the theory of waste to recover damages for the deterioration of the\nfarmhouse. The total damages alleged were in the amount of $16,159. Both the district magistrate\nand the district judge inspected the premises and found deterioration due to neglect by the life\ntenant. The district court found the actual damages to the house to be $10,433. The executrix of\nAda\xe2\x80\x99s estate denied any neglect or breach of duty by Ada Brannan as life tenant. She asserted the\ndefenses of laches or estoppel, the statute of limitation, and abandonment. These affirmative\ndefenses were rejected by the district magistrate and the district judge, except the defense of laches\nor estoppel which the district magistrate sustained. On appeal, the district judge found that the\ndefense of laches or estoppel was not applicable against the remaindermen in this case. Following\nentry of judgment in favor of the remaindermen, the executrix appealed.\nIt is important to note that the executrix does not contend, as points of error, that the life\ntenant was not responsible for deterioration of the farmhouse or that the action is barred by a\nstatute of limitations. The amount of damages awarded is not contested. In her brief, the executrix83\n\n\x0cappellant asserts four points which essentially present a single issue: Whether the remaindermen, by\nwaiting eleven years until the death of the life tenant before filing any claim or demand against the\nlife tenant for neglect of the farmhouse, are barred by laches or estoppel?\nThe executrix contends, in substance, that laches and estoppel, although considered to be\nequitable defenses, are available in an action at law to recover damages. She points out that, under\nK.S.A. 58-2523, a remainderman may sue to prevent waste during the life of the tenant while the life\ntenancy is still in existence. She then notes that the remaindermen inspected the premises on\nnumerous occasions during the eleven years the property was vacant; yet they made no demand that\nthe farmhouse be kept in repair. They waited until the death of the life tenant to bring the action,\nbecause then they would not be faced with Ada\xe2\x80\x99s testimony which might defeat their claim.\nThe remaindermen, in their brief, dispute certain factual statements made by the executrix.\nThey agree that the remaindermen had very limited contact with the life tenant after the\nestrangement. They contend that there is evidence to show the vast majority of the damage to the\nhouse occurred during the last two or three years of the life tenancy and that Dorothy Moore did, in\nfact, express concern to her mother about the deterioration of the house 15 to 20 times during the\neleven-year period. They contend that mere passage of time does not constitute laches and that, in\norder to have laches or estoppel, the person claiming the same must show a detrimental change of\nposition or prejudice of some kind. They argue that the executrix has failed to show any prejudice,\nsince the fact of waste and deterioration is clear and undisputed and there is nothing the testimony\nof the life tenant could have added on that issue had she been at the trial. As to the failure of the\nremaindermen to file an action in the lifetime of the life tenant, the remaindermen argue that\nclaimants had been advised to avoid contact with Ada Brannan unless it was absolutely necessary\nand that they did not want to make a claim during her lifetime since it would have only made a bad\nsituation worse. They maintain that they had good reasons to wait until Ada\xe2\x80\x99s death to assert the\nclaim.\nIn order to place this case in proper perspective, it would be helpful to summarize some of\nthe basic principles of law applicable where a remainderman asserts a claim of waste against a life\ntenant. They are as follows:\n(1) A life tenant is considered in law to be a trustee or quasi-trustee and occupies a fiduciary\nrelation to the remaindermen. The life tenant is a trustee in the sense that he cannot injure or\ndispose of the property to the injury of the rights of the remaindermen, but he differs from a pure\ntrustee in that he may use the property for his exclusive benefit and take all the income and profits.\nWindscheffel v. Wright, 187 Kan. 678, 686, 360 P.2d 178 (1961); In re Estate of Miller, 225 Kan. 655, 594\nP.2d 167 (1979).\n(2) It is the duty of a life tenant to keep the property subject to the life estate in repair so as\nto preserve the property and to prevent decay or waste. 51 Am.Jur.2d, Life Tenants and\nRemaindermen s 259, pp. 546-548. Stated in another way, the law imposes upon a tenant the\nobligation to return the premises to the landlord or remaindermen at the end of the term unimpaired\nby the negligence of the tenant. Salina Coca-Cola Bottling Corp. v. Rogers, 171 Kan. 688, 237 P.2d 218\n(1951); In re Estate of Morse, 192 Kan. 691, 391 P.2d 117 (1964).\n(3) The term \xe2\x80\x9cwaste\xe2\x80\x9d implies neglect or misconduct resulting in material damages to or loss\nof property, but does not include ordinary depreciation of property due to age and normal use over\na comparatively short period of time. First Federal Savings & Loan Ass\xe2\x80\x99n v. Moulds, 202 Kan. 557, 451\nP.2d 215 (1969).\n(4) Waste may be either voluntary or permissive. Voluntary waste, sometimes spoken of as\ncommissive waste, consists of the commission of some deliberate or voluntary destructive act.\nPermissive waste is the failure of the tenant to exercise the ordinary care of a prudent man for the\npreservation and protection of the estate.78 Am.Jur.2d, Waste s 3, p. 397.\n84\n\n\x0c(5) The owner of a reversion or remainder in fee has a number of remedies available to him\nagainst a life tenant who commits waste. He may recover compensatory damages for the injuries\nsustained. He may have injunctive relief in equity, or, in a proper case, may obtain a receivership.\nThe same basic remedies are available against either a tenant for years or a life tenant. Kimberlin v.\nHicks, 150 Kan. 449, 456, 94 P.2d 335 (1939).\n(6) By statute in Kansas, K.S.A. 58-2523, \xe2\x80\x9c(a) person seized of an estate in remainder or\nreversion may maintain an action for waste or trespass for injury to the inheritance, notwithstanding\nan intervening estate for life or years.\xe2\x80\x9dThus a remainderman does not have to wait until the life\ntenant dies in order to bring an appropriate action for waste.\n(7) Where the right of action of the remainderman or landlord is based upon permissive\nwaste, it is generally held that the injury is continuing in nature and that the statute of limitations\ndoes not commence to run in favor of the tenant until the expiration of the tenancy. Under certain\nstate statutes, it has been held that the period of limitation commences at the time the waste is\ncommitted. Prescott, Exor. of Mary E. Prescott v. Grimes, 143 Ky. 191, 136 S.W. 206 (1911); In Re Stout\xe2\x80\x99s\nEstate, 151 Or. 411, 50 P.2d 768 (1935).\n(8) There is authority which holds that an action for waste may be lost by laches. Harcourt v.\nWhite, 28 Beavan\xe2\x80\x99s 303, 54 Eng.Reprint 382 (1860); 78 Am.Jur.2d, Waste s 38, p. 424. Likewise,\nestoppel may be asserted as a defense in an action for waste. The doctrine of laches and estoppel are\nclosely related, especially where there is complaint of delay which has placed another at a\ndisadvantage. Laches is sometimes spoken of as a species of estoppel. Laches is a wholly negative\nthing, the result of a failure to act; estoppel on the other hand may involve an affirmative act on the\npart of some party of the lawsuit. The mere passage of time is not enough to invoke the doctrine of\nlaches. Each case must be governed by its own facts, and what might be considered a lapse of\nsufficient time to defeat an action in one case might be insufficient in another. Laches, in legal\nsignificance, is not mere delay, but delay that works a disadvantage to another. Clark v. Chipman, 212\nKan. 259, 510 P.2d 1257 (1973). The defense of laches may be applied in actions at law as well as in\nequitable proceedings. McDaniel v. Messerschmidt, 191 Kan. 461, 464, 382 P.2d 304 (1963). In Osincup v.\nHenthorn, 89 Kan. 58, 130 P. 652 (1913), it was held that laches is an equitable defense and will not\nbar a recovery from mere lapse of time nor where there is a reasonable excuse for nonaction of a\nparty in making inquiry as to his rights or in asserting them.\nThe basic question for our determination is whether the district court erred in holding that\nthe defense of laches or estoppel should not be applied in this case. We have concluded that the\ndistrict court did not commit error in its rejection of the defense of laches or estoppel under the\ncircumstances of this case. In reaching this conclusion, we have noted the following factors: The\nevidence is clear that the life tenant, Ada Brannan, failed to carry out her duty as life tenant and\nquasi-trustee to keep the property in reasonable repair. The claim of waste does not arise out of any\nact on the part of the remaindermen. Preservation of the property was the responsibility of the life\ntenant. There was evidence to show that the vast majority of the damage to the farmhouse occurred\nduring the last two or three years of the life tenancy. The fact that permissive waste occurred was\nproved beyond question. If the life tenant had been alive, she could not very well have disputed the\nfact that the property has been allowed to deteriorate. Hence, any delay in filing the action until after\nAda\xe2\x80\x99s death could not have resulted in prejudice to her executrix. There is no evidence in the record\nto support the defense of estoppel.\nFurthermore, the evidence was undisputed that the life tenant was an elderly woman who\ndied in August of 1976 at the age of 83. The position of Dorothy Moore was that she did not wish\nto file an action which would aggravate her mother and take funds which her mother might need\nduring her lifetime. Even though Dorothy Moore was estranged from her mother, the law should\nnot require her to sue her mother during her lifetime under these circumstances. As noted above, it\n85\n\n\x0cwas the tenant\xe2\x80\x99s obligation to see that the premises were turned over to the remaindermen in good\nrepair at the termination of the life estate. Under all the circumstances in this case, we hold that the\ndistrict court did not err in rejecting the defense of laches or estoppel.\nThe judgment of the district court is affirmed.\n\n86\n\n\x0cMelms v. Pabst Brewing Co.,\n104 Wis. 7 (1899)\n\nBloodgood, Kemper & Bloodgood, for appellants.\nWinkler, Flanders, Smith, Bottum & Vilas, for respondent.\nWinslow, J.\nThis is an action for waste, brought by reversioners against the defendant, which is the\nowner of an estate for the life of another in a quarter of an acre of land in the city of Milwaukee.\nThe waste claimed is the destruction of a dwelling house upon the land, and the grading of the same\ndown to the level of the street. The complaint demands double damages, under section 3176, Rev.\nSt. 1898.\nThe quarter of an acre of land in question is situated upon Virginia street, in the city of\nMilwaukee, and was the homestead of one Charles T. Melms, deceased. The house thereon was a\nlarge brick building, built by Melms in the year 1864, and cost more than $20,000. At the time of the\nbuilding of the house, Melms owned the adjoining real estate, and also owned a brewery upon a part\nof the premises. Charles T. Melms died in the year 1869, leaving his estate involved in financial\ndifficulties. After his decease, both the brewery and the homestead were sold and conveyed to the\nPabst Brewing Company, but it was held in the action of Melms v. Brewing Co., 93 Wis. 140, 66 N. W.\n244, that the brewing company only acquired Mrs. Melms\xe2\x80\x99 life estate in the homestead, and that the\nplaintiffs in this action were the owners of the fee, subject to such life estate. As to the brewery\nproperty, it was held in an action under the same title, decided at the same time, and reported in 93\nWis. 153, 66 N. W. 518, that the brewing company acquired the full title in fee.\nThe homestead consists of a piece of land 90 feet square, in the center of which the\naforesaid dwelling house stood; and this parcel is connected with Virginia street on the south by a\nstrip 45 feet wide and 60 feet long, making an exact quarter of an acre. It clearly appears by the\nevidence that after the purchase of this land by the brewing company the general character of real\nestate upon Virginia street about the homestead rapidly changed, so that soon after the year 1890 it\nbecame wholly undesirable and unprofitable as residence property. Factories and railway tracks\nincreased in the vicinity, and the balance of the property was built up with brewing buildings, until\nthe quarter of an acre homestead in question became an isolated lot and building, standing from 20\nto 30 feet above the level of the street, the balance of the property having been graded down in\norder to fit it for business purposes.\nThe evidence shows without material dispute that, owing to these circumstances, the\nresidence, which was at one time a handsome and desirable one, became of no practical value, and\nwould not rent for enough to pay taxes and insurance thereon; whereas, if the property were cut\ndown to the level of the street, so that it was capable of being used as business property, it would\nagain be useful, and its value would be largely enhanced. Under these circumstances, and prior to the\njudgment in the former action, the defendant removed the building, and graded down the property\nto about the level of the street, and these are the acts which it is claimed constitute waste.\nThe action was tried before the court without a jury, and the court found, in addition to the\nfacts above stated, that the removal of the building and grading down of the earth was done by the\ndefendant in 1891 and 1892, believing itself to be the owner in fee simple of the property, and that\nby said acts the estate of the plaintiffs in the property was substantially increased, and that the\n87\n\n\x0cplaintiffs have been in no way injured thereby. Upon these findings the complaint was dismissed,\nand the plaintiffs appeal.\nOpinion\nOur statutes recognize waste, and provide a remedy by action, and the recovery of double\ndamages therefor (Rev. St. 1898, \xc2\xa7 3170 et seq.); but they do not define it. It may be either voluntary\nor permissive, and may be of houses, gardens, orchards, lands, or woods (Id. \xc2\xa7 3171); but, in order to\nascertain whether a given act constitutes waste or not, recourse must be had to the common law as\nexpounded by the text-books and decisions.\nIn the present case a large dwelling house, expensive when constructed, has been destroyed,\nand the ground has been graded down, by the owner of the life estate, in order to make the property\nserve business purposes. That these acts would constitute waste under ordinary circumstances\ncannot be doubted. It is not necessary to delve deeply into the Year Books, or philosophize\nextensively as to the meaning of early judicial utterances, in order to arrive at this conclusion. The\nfollowing definition of \xe2\x80\x9cwaste\xe2\x80\x9d was approved by this court in Bandlow v. Thieme, 53 Wis. 57, 9 N. W.\n920:\nIt may be defined to be any act or omission of duty by a tenant of land which does a lasting\ninjury to the freehold, tends to the permanent loss of the owner of the fee, or to destroy or lessen\nthe value of the inheritance, or to destroy the identity of the property, or impair the evidence of\ntitle.\xe2\x80\x9dIn the same case it was also said: \xe2\x80\x9cThe damage being to the inheritance, and the heir of the\nreversioner having the right of action to recover it, imply that the injury must be of a lasting and\npermanent character.\nAnd in Brock v. Dole, 66 Wis. 142, 28 N. W. 334, it was also said that\nany material change in the nature and character of the buildings made by the tenant is waste,\nalthough the value of the property should be enhanced by the alteration.\nThese recent judicial utterances in this court settle the general rules which govern waste\nwithout difficulty, and it may be said, also, that these rules are in accord with the general current of\nthe authorities elsewhere. But, while they are correct as general expressions of the law upon the\nsubject, and were properly applicable to the cases under consideration, it must be remembered that\nthey are general rules only, and, like most general propositions, are not to be accepted without\nlimitation or reserve under any and all circumstances.\nThus the ancient English rule which prevented the tenant from converting a meadow into\narable land was early softened down, and the doctrine of meliorating waste was adopted, which,\nwithout changing the legal definition of waste, still allowed the tenant to change the course of\nhusbandry upon the estate if such change be for the betterment of the estate. Bewes, Waste, p. 134,\nand cases cited. Again, and in accordance with this same principle, the rule that any change in a\nbuilding upon the premises constitutes waste has been greatly modified, even in England; and it is\nnow well settled that, while such change may constitute technical waste, still it will not be enjoined in\nequity when it clearly appears that the change will be, in effect, a meliorating change, which rather\nimproves the inheritance than injures it. Doherty v. Allman, 3 App. Cas. 709; In re McIntosh, 61 Law J.\nQ. B. 164.\nFollowing the same general line of reasoning, it was early held in the United States that,\nwhile the English doctrine as to waste was a part of our common law, still that the cutting of timber\n88\n\n\x0cin order to clear up wild land and fit it for cultivation, if consonant with the rules of good\nhusbandry, was not waste, although such acts would clearly have been waste in England. Tied. Real\nProp. (Eng. Ed.) \xc2\xa7 74; Rice, Mod. Law Real Prop. \xc2\xa7\xc2\xa7 160, 161; Wilkinson v. Wilkinson, 59 Wis. 557, 18\nN. W. 527.\nThese familiar examples of departure from ancient rules will serve to show that, while\ndefinitions have remained much the same, the law upon the subject of waste is not an unchanging\nand unchangeable code, which was crystallized for all time in the days of feudal tenures, but that it is\nsubject to such reasonable modifications as may be demanded by the growth of civilization and\nvarying conditions. And so it is now laid down that the same act may be waste in one part of the\ncountry while in another it is a legitimate use of the land, and that the usages and customs of each\ncommunity enter largely into the settlement of the question. Tied. Real Prop. (Eng. Ed.) \xc2\xa7 73.\nThis is entirely consistent with, and in fact springs from, the central idea upon which the\ndisability of waste is now, and always has been, founded, namely, the preservation of the property\nfor the benefit of the owner of the future estate without permanent injury to it. This element will be\nfound in all the definitions of waste, namely, that it must be an act resulting in permanent injury to\nthe inheritance or future estate. It has been frequently said that this injury may consist either in\ndiminishing the value of the inheritance, or increasing its burdens, or in destroying the identity of the\nproperty, or impairing the evidence of title.\nThe last element of injury so enumerated, while a cogent and persuasive one in former times,\nhas lost most, if not all, of its force, at the present time. It was important when titles were not\nregistered, and descriptions of land were frequently dependent upon natural monuments, or the uses\nto which the land was put; but since the universal adoption of accurate surveys, and the\nestablishment of the system of recording conveyances, there can be few acts which will impair any\nevidence of title. Doherty v. Allman, supra; Bewes, Waste, pp. 129, 130, et seq. But the principle that the\nreversioner or remainder-man is ordinarily entitled to receive the identical estate, or, in other words,\nthat the identity of the property is not to be destroyed, still remains, and it has been said that\nchanges in the nature of buildings, though enhancing the value of the property, will constitute waste\nif they change the identity of the estate. Brock v. Dole, supra.\nThis principle was enforced in the last-named case, where it was held that a tenant from year\nto year of a room in a frame building would be enjoined from constructing a chimney in the building\nagainst the objection of his landlord. The importance of this rule to the landlord or owner of the\nfuture estate cannot be denied. Especially is it valuable and essential to the protection of a landlord\nwho rents his premises for a short time. He has fitted his premises for certain uses. He leases them\nfor such uses, and he is entitled to receive them back at the end of the term still fitted for those uses;\nand he may well say that he does not choose to have a different property returned to him from that\nwhich he leased, even if, upon the taking of testimony, it might be found of greater value by reason\nof the change.\nMany cases will be found sustaining this rule; and that it is a wholesome rule of law,\noperating to prevent lawless acts on the part of tenants, cannot be doubted, nor is it intended to\ndepart therefrom in this decision. The case now before us, however, bears little likeness to such a\ncase, and contains elements so radically different from those present in Brock v. Dole that we cannot\nregard that case as controlling this one.\nThere are no contract relations in the present case. The defendants are the grantees of a life\nestate, and their rights may continue for a number of years. The evidence shows that the property\nbecame valueless for the purpose of residence property as the result of the growth and development\nof a great city. Business and manufacturing interests advanced and surrounded the once elegant\nmansion, until it stood isolated and alone, standing upon just enough ground to support it, and\nsurrounded by factories and railway tracks, absolutely undesirable as a residence, and incapable of\n89\n\n\x0cany use as business property. Here was a complete change of conditions, not produced by the\ntenant, but resulting from causes which none could control. Can it be reasonably or logically said\nthat this entire change of condition is to be completely ignored, and the ironclad rule applied that\nthe tenant can make no change in the uses of the property because he will destroy its identity? Must\nthe tenant stand by, and preserve the useless dwelling house, so that he may at some future time turn\nit over to the reversioner, equally useless?\nCertainly, all the analogies are to the contrary. As we have before seen, the cutting of timber,\nwhich in England was considered waste, has become in this country an act which may be waste or\nnot, according to the surrounding conditions and the rules of good husbandry; and the same rule\napplies to the change of a meadow to arable land. The changes of conditions which justify these\ndepartures from early inflexible rules are no more marked nor complete than is the change of\nconditions which destroys the value of residence property as such, and renders it only useful for\nbusiness purposes.\nSuppose the house in question had been so situated that it could have been remodeled into\nbusiness property; would any court of equity have enjoined such remodeling under the\ncircumstances here shown, or ought any court to render a judgment for damages for such an act?\nClearly, we think not. Again, suppose an orchard to have become permanently unproductive\nthrough disease or death of the trees, and the land to have become far more valuable, by reason of\nnew conditions, as a vegetable garden or wheat field, is the life tenant to be compelled to preserve or\nrenew the useless orchard, and forego the advantages to be derived from a different use? Or\nsuppose a farm to have become absolutely unprofitable by reason of change of market conditions as\na grain farm, but very valuable as a tobacco plantation, would it be waste for the life tenant to\nchange the use accordingly, and remodel a now useless barn or granary into a tobacco shed? All\nthese questions naturally suggest their own answer, and it is certainly difficult to see why, if change\nof conditions is so potent in the case of timber, orchards, or kind of crops, it should be of no effect\nin the case of buildings similarly affected.\nIt is certainly true that a case involving so complete a change of situation as regards buildings\nhas been rarely, if ever, presented to the courts, yet we are not without authorities approaching very\nnearly to the case before us. Thus, in the case of Doherty v. Allman, before cited, a court of equity\nrefused an injunction preventing a tenant for a long term from changing storehouses into dwelling\nhouses, on the ground that by change of conditions the demand for storehouses had ceased, and the\nproperty had become worthless, whereas it might be productive when fitted for dwelling houses.\nAgain, in the case of Sherrill v. Connor, 107 N. C. 630, 12 S. E. 588, which was an action for\npermissive waste against a tenant in dower, who had permitted large barns and outbuildings upon a\nplantation to fall into decay, it was held that, as these buildings had been built before the Civil War\nto accommodate the operation of the plantation by slaves, it was not necessarily waste to tear them\ndown, or allow them to remain unrepaired, after the war, when the conditions had completely\nchanged by reason of the emancipation, and the changed methods of use resulting therefrom; and\nthat it became a question for the jury whether a prudent owner of the fee, if in possession, would\nhave suffered the unsuitable barns and buildings to have fallen into decay, rather than incur the cost\nof repair.\nThis last case is very persuasive and well reasoned, and it well states the principle which we\nthink is equally applicable to the case before us. In the absence of any contract, express or implied,\nto use the property for a specified purpose, or to return it in the same condition in which it was\nreceived, a radical and permanent change of surrounding conditions, such as is presented in the case\nbefore us, must always be an important, and sometimes a controlling, consideration upon the\nquestion whether a physical change in the use of the buildings constitutes waste. In the present case\nthis consideration was regarded by the trial court as controlling, and we are satisfied that this is the\n90\n\n\x0cright view.\nThis case is not to be construed as justifying a tenant in making substantial changes in the\nleasehold property, or the buildings thereon, to suit his own whim or convenience, because,\nperchance, he may be able to show that the change is in some degree beneficial. Under all ordinary\ncircumstances the landlord or reversioner, even in the absence of any contract, is entitled to receive\nthe property at the close of the tenancy substantially in the condition in which it was when the\ntenant received it; but when, as here, there has occurred a complete and permanent change of\nsurrounding conditions, which has deprived the property of its value and usefulness as previously\nused, the question whether a life tenant, not bound by contract to restore the property in the same\ncondition in which he received it, has been guilty of waste in making changes necessary to make the\nproperty useful, is a question of fact for the jury under proper instructions, or for the court, where,\nas in the present case, the question is tried by the court.\nJudgment affirmed.\n\n91\n\n\x0cBaker v. Weedon,\n262 So.2d 641 (Miss. 1972)\n\nSmith, Downs, Coleman & Ross, Corinth, for appellant.\nSharp & Fisher, Corinth, for appellee.\nPatterson, Justice:\nThis is an appeal from a decree of the Chancery Court of Alcorn County. It directs a sale of\nland affected by a life estate and future interests with provision for the investment of the proceeds.\nThe interest therefrom is to be paid to the life tenant for her maintenance. We reverse and remand.\nJohn Harrison Weedon was born in High Point, North Carolina. He lived throughout the\nSouth and was married twice prior to establishing his final residence in Alcorn County. His first\nmarriage to Lula Edwards resulted in two siblings, Mrs. Florence Weedon Baker and Mrs. Delette\nWeedon Jones. Mrs. Baker was the mother of three children, Henry Baker, Sarah Baker Lyman and\nLouise Virginia Baker Heck, the appellants herein. Mrs. Delette Weedon Jones adopted a daughter,\nDorothy Jean Jones, who has not been heard from for a number of years and whose whereabouts\nare presently unknown.\nJohn Weedon was next married to Ella Howell and to this union there was born one child,\nRachel. Both Ella and Rachel are now deceased.\nSubsequent to these marriages John Weedon bought Oakland Farm in 1905 and engaged\nhimself in its operation. In 1915 John, who was then 55 years of age, married Anna Plaxico, 17 years\nof age. This marriage, though resulting in no children, was a compatible relationship. John and Anna\nworked side by side in farming this 152.95-acre tract of land in Alcorn County. There can be no\ndoubt that Anna\xe2\x80\x99s contribution to the development and existence of Oakland Farm was significant.\nThe record discloses that during the monetarily difficult years following World War I she hoed,\npicked cotton and milked an average of fifteen cows per day to protect the farm from financial ruin.\nWhile the relationship of John and Anna was close and amiable, that between John and his\ndaughters of his first marriage was distant and strained. He had no contact with Florence, who was\nreared by Mr. Weedon\xe2\x80\x99s sister in North Carolina, during the seventeen years preceding his death. An\neven more unfortunate relationship existed between John and his second daughter, Delette Weedon\nJones. She is portrayed by the record as being a nomadic person who only contacted her father for\nmoney, threatening on several occasions to bring suit against him.\nWith an obvious intent to exclude his daughters and provide for his wife Anna, John\nexecuted his last will and testament in 1925. It provided in part:\nSecond; I give and bequeath to may beloved wife, Anna Plaxco Weedon all of my property\nboth real, personal and mixed during her natural life and upon her death to her children, if she has\nany, and in the event she dies without issue then at the death of my wife Anna Plaxco Weedon I\ngive, bequeath and devise all of my property to my grandchildren, each grandchild sharing equally\nwith the other.\nThird; In this will I have not provided for my daughters, Mrs. Florence Baker and Mrs.\nDelett Weedon Jones, the reason is, I have given them their share of my property and they have not\nlooked after and cared for me in the latter part of my life.\n\n92\n\n\x0cSubsequent to John Weedon\xe2\x80\x99s death in 1932 and the probate of his will, Anna continued to\nlive on Oakland Farm. In 1933 Anna, who had been urged by John to remarry in the event of his\ndeath, wed J. E. Myers. This union lasted some twenty years and produced no offspring which might\nterminate the contingent remainder vested in Weedon\xe2\x80\x99s grandchildren by the will.\nThere was no contact between Anna and John Weedon\xe2\x80\x99s children or grandchildren from\n1932 until 1964. Anna ceased to operate the farm in 1955 due to her age and it has been rented since\nthat time. Anna\xe2\x80\x99s only income is $1000 annually from the farm rental, $300 per year from sign rental\nand $50 per month by way of social security payments. Without contradiction Anna\xe2\x80\x99s income is\npresently insufficient and places a severe burden upon her ability to live comfortably in view of her\nage and the infirmities therefrom.\nIn 1964 the growth of the city of Corinth was approaching Oakland Farm. A right-of-way\nthrough the property was sought by the Mississippi State Highway Department for the construction\nof U.S. Highway 45 bypass. The highway department located Florence Baker\xe2\x80\x99s three children, the\ncontingent remaindermen by the will of John Weedon, to negotiate with them for the purchase of\nthe right-of-way. Dorothy Jean Jones, the adopted daughter of Delette Weedon Jones, was not\nlocated and due to the long passage of years, is presumably dead. A decree pro confesso was entered\nagainst her.\nUntil the notice afforded by the highway department the grandchildren were unaware of\ntheir possible inheritance. Henry Baker, a native of New Jersey, journeyed to Mississippi to supervise\ntheir interests. He appears, as was true of the other grandchildren, to have been totally sympathetic\nto the conditions surrounding Anna\xe2\x80\x99s existence as a life tenant. A settlement of $20,000 was\ncompleted for the right-of-way bypass of which Anna received $7500 with which to construct a new\nhome. It is significant that all legal and administrative fees were deducted from the shares of the\nthree grandchildren and not taxed to the life tenant. A contract was executed in 1970 for the sale of\nsoil from the property for $2500. Anna received $1000 of this sum which went toward completion\nof payments for the home.\nThere was substantial evidence introduced to indicate the value of the property is\nappreciating significantly with the nearing completion of U.S. Highway 45 bypass plus the growth of\nthe city of Corinth. While the commercial value of the property is appreciating, it is notable that the\nrental value for agricultural purposes is not. It is apparent that the land can bring no more for\nagricultural rental purposes than the $100 per year now received.\nThe value of the property for commercial purposes at the time of trial was $168,500. Its\nestimated value within the ensuing four years is placed at $336,000, reflecting the great influence of\nthe interstate construction upon the land. Mr. Baker, for himself and other remaindermen, appears\nto have made numerous honest and sincere efforts to sell the property at a favorable price.\nHowever, his endeavors have been hindered by the slowness of the construction of the bypass.\nAnna, the life tenant and appellee here, is 73 years of age and although now living in a new\nhome, has brought this suit due to her economic distress. She prays that the property, less the house\nsite, be sold by a commissioner and that the proceeds be invested to provide her with an adequate\nincome resulting from interest on the trust investment. She prays also that the sale and investment\nmanagement be under the direction of the chancery court.\nThe chancellor granted the relief prayed by Anna under the theory of economic waste. His\nopinion reflects:\n\xe2\x80\xa6 (T)he change of the economy in this area, the change in farming conditions, the\nequipment required for farming, and the age of this complainant leaves the real estate where it is to\nall intents and purposes unproductive when viewed in light of its capacity and that a continuing use\nunder the present conditions would result in economic waste.\n93\n\n\x0cThe contingent remaindermen by the will, appellants here, were granted an interlocutory\nappeal to settle the issue of the propriety of the chancellor\xe2\x80\x99s decree in divesting the contingency title\nof the remaindermen by ordering a sale of the property.\nThe weight of authority reflects a tendency to afford a court of equity the power to order the\nsale of land in which there are future interests. Simes, Law of Future Interest, section 53 (2d ed. 1966),\nstates:\nBy the weight of authority, it is held that a court of equity has the power to order a judicial\nsale of land affected with a future interest and an investment of the proceeds, where this is necessary\nfor the preservation of all interests in the land. When the power is exercised, the proceeds of the sale\nare held in a judicially created trust. The beneficiaries of the trust are the persons who held interests\nin the land, and the beneficial interests are of the same character as the legal interests which they\nformally held in the land.\nSee also Simes and Smith, The Law of Future Interest, \xc2\xa7 1941 (2d ed. 1956).\nThis Court has long recognized that chancery courts do have jurisdiction to order the sale of\nland for the prevention of waste. Kelly v. Neville, 136 Miss. 429 (1924). In Riley v. Norfleet, 167 Miss.\n420, 436-437 (1933), Justice Cook, speaking for the Court and citing Kelly, supra, stated:\n\xe2\x80\xa6 The power of a court of equity on a plenary bill, with adversary interest properly\nrepresented, to sell contingent remainders in land, under some circumstances, though the contingent\nremaindermen are not then ascertained or in being, as, for instance, to preserve the estate from\ncomplete or partial destruction, is well established.\nWhile Mississippi and most jurisdictions recognize the inherent power of a court of equity to\ndirect a judicial sale of land which is subject to a future interest, nevertheless the scope of this power\nhas not been clearly defined. It is difficult to determine the facts and circumstances which will merit\nsuch a sale.\nIt is apparent that there must be \xe2\x80\x9cnecessity\xe2\x80\x9d before the chancery court can order a judicial\nsale. It is also beyond cavil that the power should be exercised with caution and only when the need\nis evident. Lambdin v. Lambdin, 209 Miss. 672 (1950). These cases, Kelly, Riley and Lambdin, supra, are\nall illustrative of situations where the freehold estate was deteriorating and the income therefrom\nwas insufficient to pay taxes and maintain the property. In each of these this Court approved a\njudicial sale to preserve and maintain the estate. The appellants argue, therefore, that since Oakland\nFarm is not deteriorating and since there is sufficient income from rental to pay taxes, a judicial sale\nby direction of the court was not proper.\nThe unusual circumstances of this case persuade us to the contrary. We are of the opinion\nthat deterioration and waste of the property is not the exclusive and ultimate test to be used in\ndetermining whether a sale of land affected by future interest is proper, but also that consideration\nshould be given to the question of whether a sale is necessary for the best interest of all the parties,\nthat is, the life tenant and the contingent remaindermen. This \xe2\x80\x9cnecessary for the best interest of all\nparties\xe2\x80\x9d rule is gleaned from Rogers, Removal of Future Interest Encumbrances-Sale of the Fee Simple Estate,\n17 Vanderbilt L. Rev. 1437 (1964); Simes, Law of Future Interest, supra; Simes and Smith, The Law of\nFuture Interest, \xc2\xa7 1941 (1956); and appears to have the necessary flexibility to meet the requirements\nof unusual and unique situations which demand in justice an equitable solution.\nOur decision to reverse the chancellor and remand the case for his further consideration is\ncouched in our belief that the best interest of all the parties would not be served by a judicial sale of\nthe entirety of the property at this time. While true that such a sale would provide immediate relief\nto the life tenant who is worthy of this aid in equity, admitted by the remaindermen, it would\n94\n\n\x0cnevertheless under the circumstances before us cause great financial loss to the remaindermen.\nWe therefore reverse and remand this cause to the chancery court, which shall have\ncontinuing jurisdiction thereof, for determination upon motion of the life tenant, if she so desires,\nfor relief by way of sale of a part of the burdened land sufficient to provide for her reasonable needs\nfrom interest derived from the investment of the proceeds. The sale, however, is to be made only in\nthe event the parties cannot unite to hypothecate the land for sufficient funds for the life tenant\xe2\x80\x99s\nreasonable needs. By affording the options above we do not mean to suggest that other remedies\nsuitable to the parties which will provide economic relief to the aging life tenant are not open to\nthem if approved by the chancellor. It is our opinion, shared by the chancellor and acknowledged by\nthe appellants, that the facts suggest an equitable remedy. However, it is our further opinion that this\nequity does not warrant the remedy of sale of all of the property since this would unjustly impinge\nupon the vested rights of the remaindermen.\nReversed and remanded.\nRodgers, P.J., and Jones, Inzer, and Robertson, JJ., concur.\n\n95\n\n\x0c3. Leaseholds\n3.1. Eviction\nBerg v. Wiley,\n264 N.W.2d 145 (Minn. 1978).\n\nLeonard, Street and Deinard and Lowell J. Noteboom and David C. Zalk, Minneapolis, for\nappellants.\nMannikko & Swenson, Joseph L. Mannikko, Robert P. Larson, Wayzata, Robert G. Share,\nMinneapolis, for respondents.\nHeard before Rogosheske, Peterson, and Wahl, JJ., and considered and decided by the court\nen banc.\nRogosheske, Justice.\nDefendant landlord, Wiley Enterprises, Inc., and defendant Rodney A. Wiley (hereafter\ncollectively referred to as Wiley) appeal from a judgment upon a jury verdict awarding plaintiff\ntenant, A Family Affair Restaurant, Inc., damages for wrongful eviction from its leased premises.\nThe issues for review are whether the evidence was sufficient to support the jury\xe2\x80\x99s finding that the\ntenant did not abandon or surrender the premises and whether the trial court erred in finding\nWiley\xe2\x80\x99s reentry forcible and wrongful as a matter of law. We hold that the jury\xe2\x80\x99s verdict is supported\nby sufficient evidence and that the trial court\xe2\x80\x99s determination of unlawful entry was correct as a\nmatter of law, and affirm the judgment.\nOn November 11, 1970, Wiley, as lessor and tenant\xe2\x80\x99s predecessor in interest as lessee,\nexecuted a written lease agreement letting land and a building in Osseo, Minnesota, for use as a\nrestaurant. The lease provided a 5-year term beginning December 1, 1970, and specified that the\ntenant agreed to bear all costs of repairs and remodeling, to \xe2\x80\x9cmake no changes in the building\nstructure\xe2\x80\x9d without prior written authorization from Wiley, and to \xe2\x80\x9coperate the restaurant in a lawful\nand prudent manner.\xe2\x80\x9dWiley also reserved the right \xe2\x80\x9cat (his) option (to) retake possession\xe2\x80\x9d of the\npremises \xe2\x80\x9c(s)hould the Lessee fail to meet the conditions of this Lease.\xe2\x80\x9d1 In early 1971, plaintiff\nKathleen Berg took assignment of the lease from the prior lessee, and on May 1, 1971, she opened\n\xe2\x80\x9cA Family Affair Restaurant\xe2\x80\x9d on the premises. In January 1973, Berg incorporated the restaurant\nand assigned her interest in the lease to \xe2\x80\x9cA Family Affair Restaurant, Inc.\xe2\x80\x9d As sole shareholder of\nthe corporation, she alone continued to act for the tenant.\nThe present dispute has arisen out of Wiley\xe2\x80\x99s objection to Berg\xe2\x80\x99s continued remodeling of\nthe restaurant without procuring written permission and her consequent operation of the restaurant\nin a state of disrepair with alleged health code violations. Strained relations between the parties came\nto a head in June and July 1973. In a letter dated June 29, 1973, Wiley\xe2\x80\x99s attorney charged Berg with\nhaving breached lease items 5 and 6 by making changes in the building structure without written\nauthorization and by operating an unclean kitchen in violation of health regulations. The letter\ndemanded that a list of eight remodeling items be completed within 2 weeks from the date of the\n96\n\n\x0cletter, by Friday, July 13, 1973, or Wiley would retake possession of the premises under lease item 7.\nAlso, a June 13 inspection of the restaurant by the Minnesota Department of Health had produced\nan order that certain listed changes be completed within specified time limits in order to comply\nwith the health code. The major items on the inspector\xe2\x80\x99s list, similar to those listed by Wiley\xe2\x80\x99s\nattorney, were to be completed by July 15, 1973.\nDuring the 2-week deadline set by both Wiley and the health department, Berg continued to\noperate the restaurant without closing to complete the required items of remodeling. The evidence is\nin dispute as to whether she intended to permanently close the restaurant and vacate the premises at\nthe end of the 2 weeks or simply close for about 1 month in order to remodel to comply with the\nhealth code. At the close of business on Friday, July 13, 1973, the last day of the 2-week period, Berg\ndismissed her employees, closed the restaurant, and placed a sign in the window saying \xe2\x80\x9cClosed for\nRemodeling.\xe2\x80\x9d Earlier that day, Berg testified, Wiley came to the premises in her absence and\nattempted to change the locks. When she returned and asserted her right to continue in possession,\nhe complied with her request to leave the locks unchanged. Berg also testified that at about 9:30 p.\nm. that evening, while she and four of her friends were in the restaurant, she observed Wiley\nhanging from the awning peering into the window. Shortly thereafter, she heard Wiley pounding on\nthe back door demanding admittance. Berg called the county sheriff to come and preserve order.\nWiley testified that he observed Berg and a group of her friends in the restaurant removing paneling\nfrom a wall. Allegedly fearing destruction of his property, Wiley called the city police, who, with the\nsheriff, mediated an agreement between the parties to preserve the status quo until each could\nconsult with legal counsel on Monday, July 16, 1973.\nWiley testified that his then attorney advised him to take possession of the premises and lock\nthe tenant out. Accompanied by a police officer and a locksmith, Wiley entered the premises in\nBerg\xe2\x80\x99s absence and without her knowledge on Monday, July 16, 1973, and changed the locks. Later\nin the day, Berg found herself locked out. The lease term was not due to expire until December 1,\n1975. The premises were re-let to another tenant on or about August 1, 1973. Berg brought this\ndamage action against Wiley and three other named defendants, including the new tenant, on July\n27, 1973.2 A second amended complaint sought damages for lost profits, damage to chattels,\nintentional infliction of emotional distress, and other tort damages based upon claims in wrongful\neviction, contract, and tort. Wiley answered with an affirmative defense of abandonment and\nsurrender and counterclaimed for damage to the premises and indemnification on mechanics lien\nliability incurred because of Berg\xe2\x80\x99s remodeling. At the close of Berg\xe2\x80\x99s case, all defendants other than\nRodney A. Wiley and Wiley Enterprises, Inc., were dismissed from the action. Only Berg\xe2\x80\x99s action for\nwrongful eviction and intentional infliction of emotional distress and Wiley\xe2\x80\x99s affirmative defense of\nabandonment and his counterclaim for damage to the premises were submitted by special verdict to\nthe jury. With respect to the wrongful eviction claim, the trial court found as a matter of law that\nWiley did in fact lock the tenant out, and that the lockout was wrongful.\nThe jury, by answers to the questions submitted, found no liability on Berg\xe2\x80\x99s claim for\nintentional infliction of emotional distress and no liability on Wiley\xe2\x80\x99s counterclaim for damages to\nthe premises, but awarded Berg $31,000 for lost profits and $3,540 for loss of chattels resulting from\nthe wrongful lockout. The jury also specifically found that Berg neither abandoned nor surrendered\nthe premises. The trial court granted Wiley\xe2\x80\x99s post-trial motion for an order decreeing that Berg\nindemnify Wiley for any mechanics lien liability incurred due to Berg\xe2\x80\x99s remodeling by way of set-off\nfrom Berg\xe2\x80\x99s judgment and ordered the judgment accordingly amended.\nOn this appeal, Wiley seeks an outright reversal of the damages award for wrongful eviction,\nclaiming insufficient evidence to support the jury\xe2\x80\x99s finding of no abandonment or surrender and\nclaiming error in the trial court\xe2\x80\x99s finding of wrongful eviction as a matter of law.\nThe first issue before us concerns the sufficiency of evidence to support the jury\xe2\x80\x99s finding\n97\n\n\x0cthat Berg had not abandoned or surrendered the leasehold before being locked out by Wiley.\nViewing the evidence to support the jury\xe2\x80\x99s special verdict in the light most favorable to Berg, as we\nmust,3 we hold it amply supports the jury\xe2\x80\x99s finding of no abandonment or surrender of the premises.\nWhile the evidence bearing upon Berg\xe2\x80\x99s intent was strongly contradictory, the jury could reasonably\nhave concluded, based on Berg\xe2\x80\x99s testimony and supporting circumstantial evidence, that she\nintended to retain possession, closing temporarily to remodel. Thus, the lockout cannot be excused\non ground that Berg abandoned or surrendered the leasehold.\nThe second and more difficult issue is whether Wiley\xe2\x80\x99s self-help repossession of the\npremises by locking out Berg was correctly held wrongful as a matter of law.\nMinnesota has historically followed the common-law rule that a landlord may rightfully use\nself-help to retake leased premises from a tenant in possession without incurring liability for\nwrongful eviction provided two conditions are met: (1) The landlord is legally entitled to possession,\nsuch as where a tenant holds over after the lease term or where a tenant breaches a lease containing\na reentry clause; and (2) the landlord\xe2\x80\x99s means of reentry are peaceable. Mercil v. Broulette, 66 Minn.\n416, 69 N.W. 218 (1896). Under the common-law rule, a tenant who is evicted by his landlord may\nrecover damages for wrongful eviction where the landlord either had no right to possession or\nwhere the means used to remove the tenant were forcible, or both. See, e. g., Poppen v. Wadleigh, 235\nMinn. 400, 51 N.W.2d 75 (1952); Sweeney v. Meyers, 199 Minn. 21, 270 N.W. 906 (1937); Lobdell v.\nKeene, 85 Minn. 90, 88 N.W. 426 (1901). See, also, Minn.St. 566.01 (statutory cause of action where\nentry is not \xe2\x80\x9callowed by law\xe2\x80\x9d or, if allowed, is not made \xe2\x80\x9cin a peaceable manner\xe2\x80\x9d).\nWiley contends that Berg had breached the provisions of the lease, thereby entitling Wiley,\nunder the terms of the lease, to retake possession, and that his repossession by changing the locks in\nBerg\xe2\x80\x99s absence was accomplished in a peaceful manner. In a memorandum accompanying the posttrial order, the trial court stated two grounds for finding the lockout wrongful as a matter of law: (1)\nIt was not accomplished in a peaceable manner and therefore could not be justified under the\ncommon-law rule, and (2) any self-help reentry against a tenant in possession is wrongful under the\ngrowing modern doctrine that a landlord must always resort to the judicial process to enforce his\nstatutory remedy against a tenant wrongfully in possession. Whether Berg had in fact breached the\nlease and whether Wiley was hence entitled to possession was not judicially determined. That issue\nbecame irrelevant upon the trial court\xe2\x80\x99s finding that Wiley\xe2\x80\x99s reentry was forcible as a matter of law\nbecause even if Berg had breached the lease, this could not excuse Wiley\xe2\x80\x99s nonpeaceable reentry.\nThe finding that Wiley\xe2\x80\x99s reentry was forcible as a matter of law provided a sufficient ground for\ndamages, and the issue of breach was not submitted to the jury.4\nIn each of our previous cases upholding an award of damages for wrongful eviction, the\nlandlord had in fact been found to have no legal right to possession. In applying the common-law\nrule, we have not before had occasion to decide what means of self-help used to dispossess a tenant\nin his absence will constitute a nonpeaceable entry, giving a right to damages without regard to who\nholds the legal right to possession. Wiley argues that only actual or threatened violence used against\na tenant should give rise to damages where the landlord had the right to possession. We cannot\nagree.\nIt has long been the policy of our law to discourage landlords from taking the law into their\nown hands, and our decisions and statutory law have looked with disfavor upon any use of self-help\nto dispossess a tenant in circumstances which are likely to result in breaches of the peace. We gave\nearly recognition to this policy in Lobdell v. Keene, 85 Minn. 90, 101, 88 N.W. 426, 430 (1901), where\nwe said:\nThe object and purpose of the legislature in the enactment of the forcible entry and unlawful\ndetainer statute was to prevent those claiming a right of entry or possession of lands from redressing\ntheir own wrongs by entering into possession in a violent and forcible manner. All such acts tend to\n98\n\n\x0ca breach of the peace, and encourage high-handed oppression. The law does not permit the owner\nof land, be his title ever so good, to be the judge of his own rights with respect to a possession\nadversely held, but puts him to his remedy under the statutes.\nTo facilitate a resort to judicial process, the legislature has provided a summary procedure in\nMinn.St. 566.02 to 566.17 whereby a landlord may recover possession of leased premises upon\nproper notice and showing in court in as little as 3 to 10 days. As we recognized in Mutual Trust Life\nIns. Co. v. Berg, 187 Minn. 503, 505, 246 N.W. 9, 10 (1932), \xe2\x80\x9c(t)he forcible entry and unlawful\ndetainer statutes were intended to prevent parties from taking the law into their own hands when\ngoing into possession of lands and tenements\xe2\x80\xa6.\xe2\x80\x9d To further discourage self-help, our legislature has\nprovided treble damages for forcible evictions, ss 557.08 and 557.09, and has provided additional\ncriminal penalties for intentional and unlawful exclusion of a tenant.s 504.25. In Sweeney v. Meyers,\nsupra, we allowed a business tenant not only damages for lost profits but also punitive damages\nagainst a landlord who, like Wiley, entered in the tenant\xe2\x80\x99s absence and locked the tenant out.\nIn the present case, as in Sweeney, the tenant was in possession, claiming a right to continue\nin possession adverse to the landlord\xe2\x80\x99s claim of breach of the lease, and had neither abandoned nor\nsurrendered the premises. Wiley, well aware that Berg was asserting her right to possession, retook\npossession in her absence by picking the locks and locking her out. The record shows a history of\nvigorous dispute and keen animosity between the parties. Upon this record, we can only conclude\nthat the singular reason why actual violence did not erupt at the moment of Wiley\xe2\x80\x99s changing of the\nlocks was Berg\xe2\x80\x99s absence and her subsequent self-restraint and resort to judicial process. Upon these\nfacts, we cannot find Wiley\xe2\x80\x99s means of reentry peaceable under the common-law rule. Our longstanding policy to discourage self-help which tends to cause a breach of the peace compels us to\ndisapprove the means used to dispossess Berg. To approve this lockout, as urged by Wiley, merely\nbecause in Berg\xe2\x80\x99s absence no actual violence erupted while the locks were being changed, would be\nto encourage all future tenants, in order to protect their possession, to be vigilant and thereby set the\nstage for the very kind of public disturbance which it must be our policy to discourage.\nConsistent with our conclusion that we cannot find Wiley\xe2\x80\x99s means of reentry peaceable\nunder the common-law rule is Gulf Oil Corp. v. Smithey, 426 S.W.2d 262 (Tex.Civ.App.1968). In that\ncase the Texas court, without departing from the common-law rule, held that a landlord\xe2\x80\x99s reentry in\nthe tenant\xe2\x80\x99s absence by picking the locks and locking the tenant out, although accomplished without\nactual violence, was forcible as a matter of law.5 The Texas courts, by continuing to embrace the\ncommon-law rule, have apparently left open the possibility that self-help may be available in that\nstate to dispossess a tenant in some undefined circumstances which may be found peaceable.\nWe recognize that the growing modern trend departs completely from the common-law rule\nto hold that self-help is never available to dispossess a tenant who is in possession and has not\nabandoned or voluntarily surrendered the premises. Annotation, 6 A.L.R.3d 177, 186; 76 Dickinson\nL.Rev. 215, 227. This growing rule is founded on the recognition that the potential for violent\nbreach of peace inheres in any situation where a landlord attempts by his own means to remove a\ntenant who is claiming possession adversely to the landlord. Courts adopting the rule reason that\nthere is no cause to sanction such potentially disruptive self-help where adequate and speedy means\nare provided for removing a tenant peacefully through judicial process. At least 16 states6 have\nadopted this modern rule, holding that judicial proceedings, including the summary procedures\nprovided in those states\xe2\x80\x99 unlawful detainer statutes, are the exclusive remedy by which a landlord\nmay remove a tenant claiming possession. See, e. g., Kassan v. Stout, 9 Cal.3d 39, 106 Cal.Rptr. 783, 507\nP.2d 87 (1973); Jordan v. Talbot, 55 Cal.2d 597, 12 Cal.Rptr. 488, 361 P.2d 20 (1961); Malcolm v. Little,\n295 A.2d 711 (Del.1972); Teston v. Teston, 135 Ga.App. 321, 217 S.E.2d 498 (1975); Weber v. McMillan,\n285 So.2d 349 (La.App.1973); Bass v. Boetel & Co., 191 Neb. 733, 217 N.W.2d 804 (1974); Edwards v.\nC. N. Investment Co., 27 Ohio Misc. 57, 56 Ohio O.2d 261, 272 N.E.2d 652 (1971).7\n99\n\n\x0cWhile we would be compelled to disapprove the lockout of Berg in her absence under the\ncommon-law rule as stated, we approve the trial court\xe2\x80\x99s reasoning and adopt as preferable the\nmodern view represented by the cited cases. To make clear our departure from the common-law\nrule for the benefit of future landlords and tenants, we hold that, subsequent to our decision in this\ncase, the only lawful means to dispossess a tenant who has not abandoned nor voluntarily\nsurrendered but who claims possession adversely to a landlord\xe2\x80\x99s claim of breach of a written lease is\nby resort to judicial process. We find that Minn.St. 566.02 to 566.17 provide the landlord with an\nadequate remedy for regaining possession in every such8 Where speedier action than provided in ss\n566.02 to 566.17 seems necessary because of threatened destruction of the property or other exigent\ncircumstances, a temporary restraining order under Rule 65, Rules of Civil Procedure, and law\nenforcement protection are available to the landlord. Considered together, these statutory and\njudicial remedies provide a complete answer to the landlord. In our modern society, with the\navailability of prompt and sufficient legal remedies as described, there is no place and no need for\nself-help against a tenant in claimed lawful possession of leased premises.\nApplying our holding to the facts of this case, we conclude, as did the trial court, that\nbecause Wiley failed to resort to judicial remedies against Berg\xe2\x80\x99s holding possession adversely to\nWiley\xe2\x80\x99s claim of breach of the lease, his lockout of Berg was wrongful as a matter of law. The rule\nwe adopt in this decision is fairly applied against Wiley, for it is clear that, applying the older\ncommon-law rule to the facts and circumstances peculiar to this case, we would be compelled to\nfind the lockout nonpeaceable for the reasons previously stated. The jury found that the lockout\ncaused Berg damage and, as between Berg and Wiley, equity dictates that Wiley, who himself\nperformed the act causing the damage, must bear the loss.\nAffirmed.\nThe provisions of the lease pertinent to this case provide: \xe2\x80\x9cItem # 5 The Lessee will make\nno changes to the building structure without first receiving written authorization from the Lessor.\nThe Lessor will promptly reply in writing to each request and will cooperate with the Lessee on any\nreasonable request.\xe2\x80\x9dItem # 6 The Lessee agrees to operate the restaurant in a lawful and prudent\nmanner during the lease period. \xe2\x80\x9cItem # 7 Should the Lessee fail to meet the conditions of this\nLease the Lessor may at their option retake possession of said premises. In any such event such act\nwill not relieve Lessee from liability for payment the rental herein provided or from the conditions\nor obligations of this lease.\xe2\x80\x9d \xe2\x86\xa9\nProceedings in this damage action were suspended for the duration of a separate unlawful\ndetainer action in which Berg sought to recover possession of the premises under Minn.St. c. 566. In\nthat action, this court reversed a judgment awarding possession of the premises to Berg, holding that\nan unlawful detainer action under Minn.St. c. 566 was not available to a tenant against his landlord.\nBerg v. Wiley, 303 Minn. 247, 226 N.W.2d 904 (1975). An amended complaint in this damage action\nwas served on May 6, 1974. A second amended complaint was served on December 12, 1975, and\nproceedings were resumed. \xe2\x86\xa9\nKuehl v. National Tea Co., Minn., 245 N.W.2d 235 (1976). \xe2\x86\xa9\nAlthough not affirmatively pleaded by Wiley, the issue of whether Berg had breached the\nlease and Wiley\xe2\x80\x99s waiver thereof was litigated by consent with evidence presented by both parties,\nand Wiley on post-trial motion alleged as error the trial court\xe2\x80\x99s failure to submit the issue to the jury.\nWe observe that upon the conflicting testimony in the record before us we would be unable to find\nas a matter of law that Berg breached the lease and that Wiley did not waive any claimed breach.\nThus, even assuming that Wiley\xe2\x80\x99s reentry could be found peaceable, we would be unable to resolve\nthis dispute in Wiley\xe2\x80\x99s favor under the common-law rule, as he urges, without a remand to determine\nthe issue of breach, which the parties do not desire. \xe2\x86\xa9\n100\n\n\x0cCalifornia courts similarly implied force in certain nonviolent entries made in the tenant\xe2\x80\x99s\nabsence. See, e. g., Karp v. Margolis, 159 Cal.App.2d 69, 323 P.2d 557 (1958); McNeil v. Higgins, 86\nCal.App.2d 723, 195 P.2d 470 (1948). \xe2\x86\xa9\nAnnotation, 6 A.L.R.3d 177, 186, Supp. 13, shows this modern rule to have been adopted in\nCalifornia, Connecticut, Delaware, Florida, Georgia, Illinois, Indiana, Louisiana, Nebraska, North\nCarolina, Ohio, Tennessee, Texas, Utah, Vermont, and Washington. \xe2\x86\xa9\nWe have examined the summary statutory procedures for repossession held exclusive in\nthese other states and we find them comparable and on the whole no speedier than the summary\njudicial procedures by which a landlord may regain possession in as little as 3 to 10 days under\nMinn.St. 566.02 to 566.17. \xe2\x86\xa9\nUnder ss 566.05 and 566.06, a landlord may regain possession in default proceedings against\na tenant personally served with process in as little as 3 to 10 days. Default judgment against a tenant\nnot present and served by posting may be procured in a week to 10 days. ss 566.05 and 566.06. Trial\nis by the court unless either party demands a jury trial. s 566.07. Proceedings are stayed on appeal\nexcept as against a holdover tenant. s 566.12. Upon execution of a writ of restitution, the tenant is\nallowed 24 hours to vacate the property. We are mindful that by s 566.04 the summary remedy of ss\n566.02 to 566.17 is made unavailable against any tenant having been \xe2\x80\x9cin quiet possession for three\nyears next before the filing of the complaint\xe2\x80\xa6.\xe2\x80\x9d This reflects an appropriate policy choice by the\nlegislature to require full litigation of the right to possession in a common-law ejectment action\nbefore judicially ousting a tenant of such long tenure. Our holding, disallowing self-help in such\ncases as well, is consistent with the legislative policy protecting the long-term tenant. The availability\nof temporary restraining orders, temporary injunctions against waste, and eventual damages for\nunlawful detainer or unpaid rent provides an adequate compensating remedy to the landlord for any\ndelay in obtaining possession during judicial proceedings. \xe2\x86\xa9\n\n101\n\n\x0cRucker v. Wynn,\n212 Ga. App. 69 (Ga. Ct. App. 1994)\n\nAlan I. Begner, Penny M. Douglass, for appellants.\nAlston & Bird, A. McCampbell Gibson, T. Michael Tennant, for appellee.\nAndrews, Judge\nAfter the tenants in a commercial lease agreement failed to pay rent when due under the\nlease terms, the landlord, without notice to the tenants, retook possession of the premises and\nrerented it pursuant to terms in the lease providing that the lease would remain in effect, and that\nthe tenants would be liable for accruing rent less amounts collected on rerental. The tenants sued the\nlandlord for wrongful eviction, trespass, breach of the implied covenant of quiet enjoyment of the\npremises, breach of the lease agreement, breach of an alleged oral contract to accept late payment of\nrent, and conversion of personal property. The landlord counterclaimed seeking the difference\nbetween past due rent accruing under the lease and rent generated by rerental. The trial court\ngranted partial summary judgment in favor of the landlord eliminating all the tenants\xe2\x80\x99 claims except\nconversion of personal property, and granting summary judgment in favor of the landlord on the\ncounterclaim for $248,830 for accrued rent, plus additional sums for attorney fees and interest. The\ntenants appeal from the order of summary judgment.\nThe lease agreement at issue provided for the lease of the premises for a restaurant business\nfor a term of five years beginning July 1, 1990 for monthly rent of $7,000 for the first five months\nand $12,500 per month thereafter. Rent was due under the lease on the first day of each month. The\ntenants failed to pay the $12,500 rent payment due on January 1, 1991. On or about January 7, 1991,\nthe tenants gave the landlord a check for $12,500, but informed the landlord that there were not\nsufficient funds in the bank to cover the check. According to the landlord, the tenants asked him to\nhold the check and allow them to operate the business through the next weekend so they could\ngenerate funds to cover the check, which the landlord agreed to do. According to the tenants, the\nlandlord agreed to hold the check for two weekends. The landlord deposited the check on January\n16, 1991, and it was refused for insufficient funds.\nThe lease defined a failure to pay rent as a default constituting a breach of the lease, and\nfurther provided that in the event of such default, and without notice, the \xe2\x80\x9cLandlord, as Tenant\xe2\x80\x99s\nagent, without terminating this lease may enter upon and rent the premises, in whole or in part, at\nthe best price obtainable by reasonable effort, without advertisement and by private negotiations and\nfor any term landlord deems proper, with Tenant being liable to Landlord for the deficiency, if any,\nbetween Tenant\xe2\x80\x99s rent hereunder and the price obtained by Landlord on reletting; provided,\nhowever, that Landlord shall not be considered to be under any duty by reason of this provision to\ntake any action to mitigate damages by reason of Tenant\xe2\x80\x99s default.\xe2\x80\x9d Pursuant to this lease provision,\nthe landlord reentered the premises without notice on January 18, 1991 after business hours when\nthe tenants were not present, evicted the tenants by changing the locks on the doors, and prepared\nand rerented the premises.\n102\n\n\x0c1. There is no merit to the tenants\xe2\x80\x99 claim that the landlord wrongfully evicted them without\nnotice or resort to dispossessory proceedings. \xe2\x80\x9c[A] landlord may contract to avoid [the statutory\nnotice and other requirements of dispossessory proceedings set forth in OCGA \xc2\xa7 44-7-50 et seq.]\nwhen renting property which is not to be used as a dwelling-place.\xe2\x80\x9d (Emphasis in original.) Colonial\nSelf Storage &c. v. Concord Properties, 147 Ga. App. 493, 495 (249 SE2d 310) (1978). The landlord was\nentitled to rely upon the default provisions in the commercial lease agreement, which gave him the\nright to reenter and take possession without notice or resort to legal proceedings, and he acted\npursuant to the terms of the lease in reentering and taking possession of the premises for rerental\nupon default by the tenants for nonpayment of rent. Id.; Wilkerson v. Chattahoochee Parks, 244 Ga.\n472, 473-474 (260 SE2d 867) (1979); Eason Publications v. Monson, 163 Ga. App. 370, 371 (294 SE2d\n585) (1982). Accordingly, we also conclude that the trial court properly granted summary judgment\nin favor of the landlord on the tenants\xe2\x80\x99 claims for trespass, breach of the implied covenant of quiet\nenjoyment of the premises, and breach of the terms of the lease agreement. Compare Entelman v.\nHagood, 95 Ga. 390 (22 SE 545) (1894); Real Estate Loan Co. v. Pugh, 47 Ga. App. 443 (170 SE 698)\n(1933); Teston v. Teston, 135 Ga. App. 321 (217 SE2d 498) (1975); and Forrest v. Peacock, 185 Ga. App.\n189 (363 SE2d 581) (1987), rev\xe2\x80\x99d on other grounds 258 Ga. 158 (368 SE2d 519) (1988) (cases\ndealing with actions for trespass for wrongful eviction of residential tenants); compare Albert\nProperties v. Watkins, 143 Ga. App. 184 (237 SE2d 670) (1977) (action for breach of residential\ntenant\xe2\x80\x99s right to quiet enjoyment of the premises); compare Swift Loan &c. Co. v. Duncan, 195 Ga.\nApp. 556 (394 SE2d 356) (1990) (action for trespass for self-help eviction of a commercial tenant,\nwhere there was also evidence that the landlord\xe2\x80\x99s actions were in violation of the terms of the\ncommercial lease agreement).\n2. There was no error in the trial court\xe2\x80\x99s grant of summary judgment in favor of the landlord\non the claim that the landlord breached an oral agreement to accept late payment of the rent. There\nwas no consideration to support such an agreement (see Clark v. GMAC, 185 Ga. App. 130, 136\n(363 SE2d 813) (1987); Phillips v. Atlantic Bank &c. Co., 168 Ga. App. 590, 591 (309 SE2d 813)\n(1983)), and any oral agreement was voided by the express provision of the lease stating that, \xe2\x80\x9c[t]his\nLease contains the entire agreement of the parties hereto and no representations, inducements,\npromises or agreements, oral or otherwise, between the parties, not embodied herein, shall be of any\nforce or effect.\xe2\x80\x9d Clark, supra at 134; Great American Builders v. Howard, 207 Ga. App. 236, 240 (427\nSE2d 588) (1993). The tenants\xe2\x80\x99 additional claim on appeal that the landlord waived the right to\ntimely payment of rent by previous acceptance of late payments was not raised in the trial court and\npresents nothing for appellate review. Lamb v. Georgia-Pacific Corp., 194 Ga. App. 848, 850 (392 SE2d\n307) (1990).\n3. Contrary to the tenants\xe2\x80\x99 contentions, where under the terms of a commercial lease a\nlandlord has the right to reenter and take possession of the premises without recourse to legal\nproceedings, he may do so and effect a self-help eviction if this can be accomplished without a\nbreach of the peace. See generally Moss v. Chappell, 126 Ga. 196, 208 (54 SE 968) (1906); Peacock &\nHunt Naval Stores Co. v. Brooks Lumber Co., 96 Ga. 542, 545-546 (23 SE 835) (1895). There is no\nevidence in this case that the landlord\xe2\x80\x99s actions caused a breach of the peace. See Hopkins v. First\nUnion Bank of Savannah, 193 Ga. App. 109, 110-111 (387 SE2d 144) (1989); Hill v. Fed. Employees\nCredit Union, 193 Ga. App. 44, 47-48 (386 SE2d 874) (1989); Deavers v. Standridge, 144 Ga. App. 673,\n674-675 (242 SE2d 331) (1978).\n4. Tenants claim the trial court erred in granting summary judgment for the landlord for rent\naccruing after they were evicted. Although \xe2\x80\x9c[g]enerally, when a landlord evicts a tenant and takes\npossession of the premises, the lease is terminated and the right to claim rent which accrues after\neviction is extinguished,\xe2\x80\x9d the lease may provide otherwise. Peterson v. P. C. Towers, L.P., 206 Ga. App.\n591 (426 SE2d 243) (1992). \xe2\x80\x9c[T]he parties to a lease agreement may contract in advance to hold the\n103\n\n\x0clessee liable for rent even after an eviction, deducting therefrom only the amounts recovered by the\nlessor from reletting the premises if such an agreement is premised on the existence of an explicit\nand detailed provision in the lease which clearly and unequivocally expressed the parties\xe2\x80\x99 intention to\nhold the lessee responsible for after-accrued rent even should an eviction take place.\xe2\x80\x9d (Citations and\npunctuation omitted.) Id. at 591-592; Hardin v. Macon Mall, 169 Ga. App. 793 (315 SE2d 4) (1984).\nThe language used in the present lease was a clear expression of the parties\xe2\x80\x99 intention that\nafter reentry by the landlord to take possession of the premises for rerental, the tenants remained\nliable for accruing rent and were responsible to the landlord for the difference between the tenants\xe2\x80\x99\nrent accruing under the lease and the rent obtained by reletting. There is no merit to the tenants\xe2\x80\x99\ncontention that the lease provisions were ambiguous. As the record stands, it is undisputed that the\ntenants\xe2\x80\x99 rent accruing under the lease after eviction was $287,500, and that the landlord\xe2\x80\x99s efforts to\nrelet the premises generated rentals of $38,670, leaving a deficiency of $248,830.1 There was no error\nin the trial court\xe2\x80\x99s grant of summary judgment in favor of the landlord on his counterclaim.\nThe issue was not raised, and we do not address the contractual responsibility to mitigate\ndamages which may be imposed on a landlord who reenters the premises pursuant to a lease\nprovision as the tenant\xe2\x80\x99s agent for the purpose of reletting the premises. \xe2\x86\xa9\n\n104\n\n\x0c3.2. Tenant Duties\nRios v. Carrillo,\n861 N.Y.S.2d 129 (N.Y. App. Div. 2008)\n\nPeter Piddoubny, Astoria, for appellant.\nGoldberg, Scudieri, Lindenberg & Block, P.C., New York City (Robert H. Goldberg of\ncounsel), for respondent.\nLifson, J.\nAt issue on this appeal is the question of whether the Supreme Court properly applied the\ndoctrine of mitigation of damages in the context of a default on a residential lease. We reiterate the\nprinciple that, in the absence of legislative direction to the contrary, common-law principles control\nand contrary to lower court authority, an assessment of damages should not require the prevailing\nparty to mitigate damages.\nIn 2000 the plaintiff landlord leased a residential apartment to the defendant tenant for a\nterm of two years. Around October 2001 the defendant vacated the apartment and ceased paying\nrent, which he contends was upon the plaintiff\xe2\x80\x99s consent. In 2003 the plaintiff commenced this\naction to recover damages consisting of the unpaid rent she claims was due under the terms of the\nparties\xe2\x80\x99 lease. After a nonjury trial before a Judicial Hearing Officer upon the parties\xe2\x80\x99 stipulation, the\nSupreme Court dismissed the complaint, determining that the plaintiff failed to prove that she made\na serious attempt to mitigate damages. The plaintiff appeals from the judgment, and we reverse.\nThe Supreme Court improperly determined that the plaintiff owed the defendant a duty to\nmitigate damages upon the breach of the parties\xe2\x80\x99 residential lease. The Supreme Court relied on a\nline of cases stemming from the decision of the Appellate Term, Second and Eleventh Judicial\nDistricts, in Paragon Indus. v Williams (122 Misc 2d 628, 629 [1983]), which, relying on federal case\nlaw, stated as follows:\n\xe2\x80\x9cHowever, following the landmark case of Javins v First Nat. Realty Corp. (428 F2d 1071, cert\nden 400 U.S. 925) \xe2\x80\xa6 [c]ourts in this State began to acknowledge that a lease of residential premises\nestablishes a contractual relationship with mutual obligations and that there are rules of law\napplicable to other agreements that should apply to leases\xe2\x80\xa6 Not long thereafter, some courts\nextended this reasoning to the issue of landlord\xe2\x80\x99s [sic] duty to mitigate, concluding that a landlord\nshould indeed have such a duty \xe2\x80\xa6 We now hold that a landlord has such a duty\xe2\x80\x9d (citations omitted).\nEven within the Appellate Term this view has not been uniformly applied (see Callender v\nTitus, 4 Misc 3d 126[A], 2004 NY Slip Op 50608[U] [2004] [landlord had no duty to mitigate\ndamages by reletting premises]). Other courts in this Department have likewise opted to not impose\nsuch a duty on a prevailing landlord (see Duda v Thompson, 169 Misc 2d 649 [1996]).\nThe Supreme Court\xe2\x80\x99s reliance on Paragon Indus. v Williams (122 Misc 2d 628 [1983]) and its\nprogeny is misplaced. Well-settled law in this state imposes no duty on a residential landlord to\nmitigate damages (see Holy Props. v Cole Prods., 87 NY2d 130 [1995]; Whitehouse Estates v Post, 173 Misc\n105\n\n\x0c2d 558 [1997]). As noted by the Court of Appeals in Holy Props. v Cole Prods. (87 NY2d at 133):\n\xe2\x80\x9cThe law imposes upon a party subjected to injury from breach of contract, the duty of\nmaking reasonable exertions to minimize the injury \xe2\x80\xa6 Leases are not subject to this general rule,\nhowever, for, unlike executory contracts, leases have been historically recognized as a present\ntransfer of an estate in real property \xe2\x80\xa6 Once the lease is executed, the lessee\xe2\x80\x99s obligation to pay rent\nis fixed according to its terms and a landlord is under no obligation or duty to the tenant to relet, or\nattempt to relet abandoned premises in order to minimize damages.\xe2\x80\x9d\nAlthough Holy Props. involved a commercial lease, the broad language employed and the\nreliance on real property principles negate the possibility that the Court of Appeals was confining its\ndetermination only to commercial leases. There is simply no basis for limiting the broad language of\nHoly Props. Moreover, in Holy Props., the Court of Appeals placed great weight on the fact that the\nparties\xe2\x80\x99 lease \xe2\x80\x9cexpressly provided that plaintiff was under no duty to mitigate damages and that upon\ndefendant\xe2\x80\x99s abandonment of the premises or eviction, it would remain liable for all monetary\nobligations arising under the lease\xe2\x80\x9d and therefore concluded that \xe2\x80\x9c[if] the lease provides that the\ntenant shall be liable for rent after eviction, the provision is enforceable\xe2\x80\x9d (87 NY2d at 134).\nSimilarly, in the matter now before us, the lease between the parties provided that the\ndefendant remains liable for the rent upon the cancellation of the lease except as provided by law.\nThus, the parties agreed at the onset of the tenancy that the defendant would remain liable for rent\ndue under the lease for its duration.\nSince the Court of Appeals has not modified its rule in Holy Props., nor has there been any\nlegislative enactment which requires a contrary result, we are constrained to follow what we perceive\nto be established precedent that a residential landlord is under no duty to mitigate damages where\nthe terms of the lease do not indicate otherwise\xe2\x80\xa6 . .\n\n106\n\n\x0cAustin Hill Country Reality, Inc. v. Palisades Plaza, Inc.,\n948 S.W.2d 293 (Tex. 1997)\n\nWilliam Rushing Hemphill, Geoffrey D. Weisbart, David F. Minton, Barry K. Bishop,\nAustin, for Petitioners.\nKenneth D. Lerner, Austin, for Respondent.\nSpector, Justice, delivered the opinion for a unanimous Court.\nWe overrule the motion for rehearing. We withdraw our opinion of January 10, 1997, and\nsubstitute the following in its place.\nThe issue in this case is whether a landlord has a duty to make reasonable efforts to mitigate\ndamages when a tenant defaults on a lease. The court of appeals held that no such duty exists at\ncommon law. 938 S.W.2d 469. We hold today that a landlord has a duty to make reasonable efforts\nto mitigate damages. Accordingly, we reverse the judgment of the court of appeals and remand for a\nnew trial.\nI.\nPalisades Plaza, Inc., owned and operated an office complex consisting of four office\nbuildings in Austin. Barbara Hill, Annette Smith, and David Jones sold real estate in Austin as a\nRe/Max real estate brokerage franchise operating through Austin Hill Country Realty, Inc. On\nSeptember 15, 1992, the Palisades and Hill Country executed a five-year commercial office lease for\na suite in the Palisades\xe2\x80\x99 office complex. An addendum executed in connection with the lease set the\nmonthly base rent at $3,128 for the first year, $3,519 for the second and third years, and $3,910 for\nthe fourth and fifth years. The parties also signed an improvements agreement that called for the\nPalisades to convert the shell office space into working offices for Hill Country. The lease was to\nbegin on the \xe2\x80\x9ccommencement date,\xe2\x80\x9d which was defined in the lease and the improvements\nagreement as either (1) the date that Hill Country occupied the suite, or (2) the date that the\nPalisades substantially completed the improvements or would have done so but for \xe2\x80\x9ctenant delay.\xe2\x80\x9d\nAll parties anticipated that the lease would begin on November 15, 1992.\nBy the middle of October 1992, the Palisades had nearly completed the improvements.\nConstruction came to a halt on October 21, 1992, when the Palisades received conflicting\ninstructions about the completion of the suite from Hill on one hand and Smith and Jones on the\nother. By two letters, the Palisades informed Hill Country, Hill, Smith, and Jones that it had received\nconflicting directives and would not continue with the construction until Hill, Smith, and Jones\ncollectively designated a single representative empowered to make decisions for the trio. Hill, Smith,\nand Jones did not reply to these letters.\nIn a letter dated November 19, 1992, the Palisades informed Hill Country, Hill, Smith, and\nJones that their failure to designate a representative was an anticipatory breach of contract. The\nparties tried unsuccessfully to resolve their differences in a meeting. The Palisades then sued Hill\n107\n\n\x0cCountry, Hill, Smith, and Jones (collectively, \xe2\x80\x9cHill Country\xe2\x80\x9d) for anticipatory breach of the lease.\nAt trial, Hill Country attempted to prove that the Palisades failed to mitigate the damages\nresulting from Hill Country\xe2\x80\x99s alleged breach. In particular, Hill Country introduced evidence that the\nPalisades rejected an offer from Smith and Jones to lease the premises without Hill, as well as an\noffer from Hill and another person to lease the premises without Smith and Jones. Hill Country also\ntried to prove that, while the Palisades advertised for tenants continuously in a local newspaper, it\ndid not advertise in the commercial-property publication \xe2\x80\x9cThe Flick Report\xe2\x80\x9d as it had in the past.\nHill Country requested an instruction asking the jury to reduce the Palisades\xe2\x80\x99 damage award by \xe2\x80\x9cany\namount that you find the [Palisades] could have avoided by the exercise of reasonable care.\xe2\x80\x9d The\ntrial judge rejected this instruction, stating, \xe2\x80\x9cLast time I checked the law, it was that a landlord\ndoesn\xe2\x80\x99t have any obligation to try to fill the space.\xe2\x80\x9d The jury returned a verdict for the Palisades for\n$29,716 in damages and $16,500 in attorney\xe2\x80\x99s fees. The court of appeals affirmed that judgment. 938\nS.W.2d 469.\nII.\nIn its only point of error, Hill Country asks this Court to recognize a landlord\xe2\x80\x99s duty to make\nreasonable efforts to mitigate damages when a tenant breaches a lease. This Court\xe2\x80\x99s most recent, and\nmost thorough, discussion of mitigation appeared in Brown v. RepublicBank First National Midland, 766\nS.W.2d 203 (Tex.1988). The issues in Brown were whether a termination right in one contract was\nimpliedly included in a sublease agreement between the same parties and, if not, whether the\nlandlord had a duty to mitigate damages upon the tenant\xe2\x80\x99s breach. Id. at 204. We held that the\ntermination right was incorporated into the sublease. Id. The tenant thus had properly terminated\nthe sublease agreement, and we did not reach the mitigation issue. Id.\nFive justices of this Court, however, expressed that they would hold that a landlord has a\nduty to mitigate damages after a tenant defaults. Id. at 204 (Kilgarlin, J., concurring, joined by Spears,\nGonzalez, and Mauzy, JJ.); id. at 207-08 (Phillips, C.J., dissenting). The concurrence emphasized the\ncontractual nature of modern leases, noting that a covenant to pay rent is like any other contractual\npromise to pay. Id. at 206 (citing Schneiker v. Gordon, 732 P.2d 603, 610 (Colo.1987)). The concurring\njustices and the dissenting Chief Justice concluded that public policy requires a landlord, like all\nother aggrieved parties to a contract, to mitigate damages. Id. at 206 (Kilgarlin, J., concurring); id. at\n207-08 (Phillips, C.J., dissenting).\nToday we face the issue that Brown did not reach: whether a landlord has a duty to make\nreasonable efforts to mitigate damages upon the tenant\xe2\x80\x99s breach. Because there is no statute\naddressing this issue, we look to the common law. John F. Hicks, The Contractual Nature of Real\nProperty Leases, 24 BAYLOR L.REV. 443, 446-53 (1972).\nThe traditional common law rule regarding mitigation dictates that landlords have no duty to\nmitigate damages. See Dawn R. Barker, Note, Commercial Landlords\xe2\x80\x99 Duty upon Tenants\xe2\x80\x99 Abandonment\xe2\x80\x93To\nMitigate?, 20 J. Corp. L. 627, 629 (1995). This rule stems from the historical concept that the tenant is\nowner of the property during the lease term; as long as the tenant has a right to possses the land, the\ntenant is liable for rent. See Reid v. Mutual of Omaha Ins. Co., 776 P.2d 896, 902, 905 (Utah 1989).\nUnder this rule, a landlord is not obligated to undertake any action following a tenant\xe2\x80\x99s\nabandonment of the premises but may recover rents periodically for the remainder of the term. See\nGruman v. Investors Diversified Servs., 247 Minn. 502, 78 N.W.2d 377, 379-80 (1956).\nIn Texas, the traditional common law rule was first adopted in Racke v. Anheuser-Busch Brewing\nAss\xe2\x80\x99n, 17 Tex.Civ.App. 167, 42 S.W. 774, 775 (Galveston 1897, no writ). In Racke, a landlord sued to\n108\n\n\x0cdetermine the extent of the tenant\xe2\x80\x99s liability for holding over past the lease term. Concluding that\nthe holdover rendered the tenant liable under a new tenancy for one year, the Court of Civil Appeals\nheld that the landlord could not \xe2\x80\x9cbe subjected to damages for failing to let the premises to another,\nto prevent rents accruing the [tenant].\xe2\x80\x9d Id.\nTexas courts have consistently followed this no-mitigation rule in cases involving a\nlandlord\xe2\x80\x99s suit for past due rent. See, e.g., Metroplex Glass Ctr., Inc. v. Vantage Properties, Inc., 646 S.W.2d\n263, 265 (Tex.App.\xe2\x80\x93 Dallas 1983, writ ref\xe2\x80\x99d n.r.e.); Apex Co. v. Grant, 276 S.W. 445, 447\n(Tex.Civ.App.\xe2\x80\x93 Dallas 1925, writ ref\xe2\x80\x99d); see generally E.L. Kellett, Annotation, Landlord\xe2\x80\x99s Duty, On\nTenant\xe2\x80\x99s Failure to Occupy, or Abandonment of, Premises, to Mitigate Damages by Accepting or Procuring Another\nTenant, 21 A.L.R.3d 534, 555-56 (1968).\nSome Texas courts have, however, required a landlord to mitigate damages when the\nlandlord seeks a remedy that is contractual in nature, such as anticipatory breach of contract, rather\nthan a real property cause of action. See Employment Advisors, Inc. v. Sparks, 364 S.W.2d 478, 480\n(Tex.Civ.App.\xe2\x80\x93 Waco), writ ref\xe2\x80\x99d n.r.e. per curiam, 368 S.W.2d 199, 200 (Tex.1963); see also Evons v.\nWinkler, 388 S.W.2d 265, 269 (Tex.Civ. App.-Corpus Christi 1965, writ ref\xe2\x80\x99d n.r.e.). In Sparks, the\nlandlord sued the tenant for anticipatory repudiation of the lease. The court of appeals observed\nthat, because the landlord pursued a contractual remedy, the landlord\xe2\x80\x99s damage recovery was\n\xe2\x80\x9csubject, of course, to the usual rules concerning mitigation.\xe2\x80\x9d 364 S.W.2d at 480. In refusing writ per\ncuriam, this Court expressed no opinion on the appellate court\xe2\x80\x99s holding. 368 S.W.2d at 200.\nOther Texas courts have required a landlord to mitigate damages when the landlord reenters\nor resumes control of the premises. See John Church Co. v. Martinez, 204 S.W. 486, 489 (Tex.Civ.App.\xe2\x80\x93\nDallas 1918, writ ref\xe2\x80\x99d); Robinson Seed & Plant Co. v. Hexter & Kramer, 167 S.W. 749, 751 (Tex.Civ.\nApp.\xe2\x80\x93Dallas 1914, writ ref\xe2\x80\x99d). Thus, a landlord currently may be subject to a mitigation requirement\ndepending upon the landlord\xe2\x80\x99s actions following breach and the type of lawsuit the landlord pursues.\nIII.\nIn discerning the policy implications of a rule requiring landlords to mitigate damages, we are\ninformed by the rules of other jurisdictions. Forty-two states and the District of Columbia have\nrecognized that a landlord has a duty to mitigate damages in at least some situations: when there is a\nbreach of a residential lease, a commercial lease, or both.1\nOnly six states have explicitly held that a landlord has no duty to mitigate in any situation.2\nIn South Dakota, the law is unclear.3\nThose jurisdictions recognizing a duty to mitigate have emphasized the change in the nature\nof landlord-tenant law since its inception in medieval times. At English common law, the tenant had\nonly contractual rights against the landlord and therefore could not assert common-law real property\ncauses of action to protect the leasehold. Over time, the courts recognized a tenant\xe2\x80\x99s right to bring\nreal property causes of action, and tenants were considered to possess an estate in land. 2 R.\nPOWELL, THE LAW OF REAL PROPERTY \xc2\xa7 221[1], at 16-18 (1969). The landlord had to give\nthe tenant possession of the land, and the tenant was required to pay rent in return. As covenants in\nleases have become more complex and the structures on the land have become more important to\nthe parties than the land itself, courts have begun to recognize that a lease possesses elements of\nboth a contract and a conveyance. See, e.g., Schneiker v. Gordon, 732 P.2d 603, 607-09 (Colo.1987); Reid\nv. Mutual of Omaha Ins. Co., 776 P.2d 896, 902, 904 (Utah 1989). Under contract principles, the lease\nis not a complete conveyance to the tenant for a specified term such that the landlord\xe2\x80\x99s duties are\nfulfilled upon deliverance of the property to the tenant. Rather, a promise to pay in a lease is\n109\n\n\x0cessentially the same as a promise to pay in any other contract, and a breach of that promise does not\nnecessarily end the landlord\xe2\x80\x99s ongoing duties. Schneiker, 732 P.2d at 610; Wright v. Baumann, 239 Or.\n410, 398 P.2d 119, 121 (1965). Because of the contractual elements of the modern lease agreement,\nthese courts have imposed upon the landlord the contractual duty to mitigate damages upon the\ntenant\xe2\x80\x99s breach.\nPublic policy offers further justification for the duty to mitigate. First, requiring mitigation in\nthe landlord-tenant context discourages economic waste and encourages productive use of the\nproperty. As the Colorado Supreme Court has written:\nUnder traditional property law principles a landlord could allow the property to remain\nunoccupied while still holding the abandoning tenant liable for rent. This encourages both economic\nand physical waste. In no other context of which we are aware is an injured party permitted to sit\nidly by and suffer avoidable economic loss and thereafter to visit the full adverse economic\nconsequences upon the party whose breach initiated the chain of events causing the loss.\nSchneiker, 732 P.2d at 610. A mitigation requirement thus returns the property to productive\nuse rather than allowing it to remain idle. Public policy requires that the law \xe2\x80\x9cdiscourage even\npersons against whom wrongs have been committed from passively suffering economic loss which\ncould be averted by reasonable efforts.\xe2\x80\x9d Wright, 398 P.2d at 121 (quoting C. McCORMICK,\nHANDBOOK ON THE LAW OF DAMAGES, \xc2\xa7 33 (1935)).\nSecond, a mitigation rule helps prevent destruction of or damage to the leased property. If\nthe landlord is encouraged to let the property remain unoccupied, \xe2\x80\x9cthe possibility of physical\ndamage to the property through accident or vandalism is increased.\xe2\x80\x9d Schneiker, 732 P.2d at 610.\nThird, the mitigation rule is consistent with the trend disfavoring contract penalties. Reid, 776\nP.2d at 905-06. Courts have held that a liquidated damages clause in a contract must represent a\nreasonable estimate of anticipated damages upon breach. See, e.g., Warner v. Rasmussen, 704 P.2d 559,\n561, 563 (Utah 1985). \xe2\x80\x9cSimilarly, allowing a landlord to leave property idle when it could be\nprofitably leased and forc[ing] an absent tenant to pay rent for that idled property permits the\nlandlord to recover more damages than it may reasonably require to be compensated for the tenant\xe2\x80\x99s\nbreach. This is analogous to imposing a disfavored penalty upon the tenant.\xe2\x80\x9d Reid, 776 P.2d at 90506.\nFinally, the traditional justifications for the common law rule have proven unsound in\npractice. Proponents of the no-mitigation rule suggest that the landlord-tenant relationship is\npersonal in nature, and that the landlord therefore should not be forced to lease to an unwanted\ntenant. See Wohl v. Yelen, 22 Ill.App.2d 455, 161 N.E.2d 339, 343 (1959). Modern lease arrangements,\nhowever, are rarely personal in nature and are usually business arrangements between strangers.\nEdwin Smith, Jr., Comment, Extending the Contractual Duty to Mitigate Damages to Landlords when a\nTenant Abandons the Lease, 42 BAYLOR L.REV. 553, 559 (1990). Further, the landlord\xe2\x80\x99s duty to make\nreasonable efforts to mitigate does not require that the landlord accept replacement tenants who are\nfinancial risks or whose business was precluded by the original lease. Note, Landlord and Tenant\xe2\x80\x93\nMitigation of Damages, 45 Wash.L.Rev. 218, 225 (1970).\nThe overwhelming trend among jurisdictions in the United States has thus been toward\nrequiring a landlord to mitigate damages when a tenant abandons the property in breach of the lease\nagreement. Those courts adopting a mitigation requirement have emphasized the contractual\nelements of a lease agreement, the public policy favoring productive use of property, and the\npracticalities of the modern landlord-tenant arrangement as supporting such a duty.\nIV.\n110\n\n\x0cWe are persuaded by the reasoning of those courts that recognize that landlords must\nmitigate damages upon a tenant\xe2\x80\x99s abandonment and failure to pay rent. This Court has recognized\nthe dual nature of a lease as both a conveyance and a contract. See Davidow v. Inwood North Prof\xe2\x80\x99l\nGroup\xe2\x80\x93Phase I, 747 S.W.2d 373, 375-76 (Tex.1988); Kamarath v. Bennett, 568 S.W.2d 658, 660-61 (Tex.\n1978). Under a contract view, a landlord should be treated no differently than any other aggrieved\nparty to a contract. Further, the public policy of the state of Texas calls for productive use of\nproperty as opposed to avoidable economic waste. Brown, 766 S.W.2d at 204 (Kilgarlin, J.,\nconcurring). As Professor McCormick wrote over seventy years ago, the law\nwhich permits the landlord to stand idly by the vacant, abandoned premises and treat them\nas the property of the tenant and recover full rent, [should] yield to the more realistic notions of\nsocial advantage which in other fields of the law have forbidden a recovery for damages which the\nplaintiff by reasonable efforts could have avoided.\nCharles McCormick, The Rights of the Landlord Upon Abandonment of the Premises by the Tenant, 23\nMich.L.Rev. 211, 221-22 (1925). Finally, we have recognized that contract penalties are disfavored in\nTexas. Stewart v. Basey, 150 Tex. 666, 245 S.W.2d 484, 486 (1952) (landlord should not receive more\nor less than actual damages upon tenant\xe2\x80\x99s breach). A landlord should not be allowed to collect rent\nfrom an abandoning tenant when the landlord can, by reasonable efforts, relet the premises and\navoid incurring some damages. We therefore recognize that a landlord has a duty to make reasonable\nefforts to mitigate damages when the tenant breaches the lease and abandons the property, unless\nthe commercial landlord and tenant contract otherwise.\nV.\nTo ensure the uniform application of this duty by the courts of this state, and to guide future\nlandlords and tenants in conforming their conduct to the law, we now consider several practical\nconsiderations that will undoubtedly arise. We first consider the level of conduct by a landlord that\nwill satisfy the duty to mitigate. The landlord\xe2\x80\x99s mitigation duty has been variously stated in other\njurisdictions. See, e.g., Reid, 776 P.2d at 906 (\xe2\x80\x9cobjective commercial reasonableness\xe2\x80\x9d); Schneiker, 732\nP.2d at 611 (\xe2\x80\x9creasonable efforts\xe2\x80\x9d); Cal. Civ.Code \xc2\xa7 1951.2(c)(2) (\xe2\x80\x9creasonably and in a good-faith\neffort\xe2\x80\x9d). Likewise, the courts of this state have developed differing language regarding a party\xe2\x80\x99s duty\nto mitigate in other contexts. See City of San Antonio v. Guidry, 801 S.W.2d 142, 151 (Tex.App.\xe2\x80\x93San\nAntonio 1990, no writ) (collecting cases). We hold that the landlord\xe2\x80\x99s duty to mitigate requires the\nlandlord to use objectively reasonable efforts to fill the premises when the tenant vacates in breach\nof the lease.\nWe stress that this is not an absolute duty. The landlord is not required to simply fill the\npremises with any willing tenant; the replacement tenant must be suitable under the circumstances.\nNor does the landlord\xe2\x80\x99s failure to mitigate give rise to a cause of action by the tenant. Rather, the\nlandlord\xe2\x80\x99s failure to use reasonable efforts to mitigate damages bars the landlord\xe2\x80\x99s recovery against\nthe breaching tenant only to the extent that damages reasonably could have been avoided. Similarly,\nthe amount of damages that the landlord actually avoided by releasing the premises will reduce the\nlandlord\xe2\x80\x99s recovery.\nFurther, we believe that the tenant properly bears the burden of proof to demonstrate that\nthe landlord has mitigated or failed to mitigate damages and the amount by which the landlord\nreduced or could have reduced its damages. The traditional rule in other contexts is that the\nbreaching party must show that the nonbreaching party could have reduced its damages. See, e.g.,\n111\n\n\x0cSorbus, Inc. v. UHW Corp., 855 S.W.2d 771, 775 (Tex.App.\xe2\x80\x93El Paso 1993, writ denied) (mitigation of\ndamages following tortious interference with contract); Texas Dep\xe2\x80\x99t of Human Servs. v. Green, 855\nS.W.2d 136, 151 (Tex. App.\xe2\x80\x93Austin 1993, writ denied) (mitigation of damages following wrongful\ndischarge); see generally E. ALLEN FARNSWORTH, CONTRACTS \xc2\xa7 12.12 (2d ed. 1990). In the\nlandlord-tenant context, although there is some split of authority, many other jurisdictions have\nplaced the burden of proving mitigation or failure to mitigate upon the breaching tenant. See Barker,\n20 J. Corp. L. at 639 n. 86.\nWhen the tenant contends that the landlord has actually mitigated damages, the breaching\ntenant need not plead the landlord\xe2\x80\x99s actual mitigation as an affirmative defense. Rather, the tenant\xe2\x80\x99s\nevidence of the landlord\xe2\x80\x99s mitigation tends to rebut the measure of damages under the landlord\xe2\x80\x99s\nclaim of breach and may be admitted under a general denial. See Greater Fort Worth & Tarrant County\nCommunity Action Agency v. Mims, 627 S.W.2d 149, 151 (Tex.1982). The tenant\xe2\x80\x99s contention that the\nlandlord failed to mitigate damages, in contrast, is similar to an avoidance defense; evidence of\nfailure to mitigate is admissible only if the tenant pleads the failure to mitigate as an affirmative\ndefense. W.L. Moody & Co. v. Rowland, 100 Tex. 363, 99 S.W. 1112, 1114-16 (1907); see also Professional\nServs., Inc. v. Amaitis, 592 S.W.2d 396, 397 (Tex.Civ.App.\xe2\x80\x93Dallas 1979, writ ref\xe2\x80\x99d n.r.e.).\nThe final issue to resolve regarding the duty to mitigate is to which types of actions by the\nlandlord the duty will apply. Traditionally, Texas courts have regarded the landlord as having four\ncauses of action against a tenant for breach of the lease and abandonment. See Speedee Mart v. Stovall,\n664 S.W.2d 174, 177 (Tex.App.\xe2\x80\x93Amarillo 1983, no writ); Jerry D. Johnson, Landlord Remedies in\nTexas: Confusion Reigns Where Certainty Should Prevail, 33 S. Tex. L.Rev. 417, 419-20 (1992). First, the\nlandlord can maintain the lease, suing for rent as it becomes due. Second, the landlord can treat the\nbreach as an anticipatory repudiation, repossess, and sue for the present value of future rentals\nreduced by the reasonable cash market value of the property for the remainder of the lease term.\nThird, the landlord can treat the breach as anticipatory, repossess, release the property, and sue the\ntenant for the difference between the contractual rent and the amount received from the new tenant.\nFourth, the landlord can declare the lease forfeited (if the lease so provides) and relieve the tenant of\nliability for future rent. Speedee Mart, 664 S.W.2d at 177.\nThe landlord must have a duty to mitigate when suing for anticipatory repudiation. Because\nthe cause of action is contractual in nature, the contractual duty to mitigate should apply. The\nlandlord\xe2\x80\x99s option to maintain the lease and sue for rent as it becomes due, however, is more\ntroubling. To require the landlord to mitigate in that instance would force the landlord to reenter the\npremises and thereby risk terminating the lease or accepting the tenant\xe2\x80\x99s surrender. See Johnson, 33\nS. Tex.L.Rev. at 437; Hicks, 24 Baylor L.Rev. at 517. We thus hold that, when exercising the option\nto maintain the lease in effect and sue for rent as it becomes due following the tenant\xe2\x80\x99s breach and\nabandonment, the landlord has a duty to mitigate only if (1) the landlord actually reenters, or (2) the\nlease allows the landlord to reenter the premises without accepting surrender, forfeiting the lease, or\nbeing construed as evicting the tenant. See Robinson Seed & Plant Co. v. Hexter & Kramer, 167 S.W.\n749, 751 (Tex.Civ.App.\xe2\x80\x93Dallas 1914, writ ref\xe2\x80\x99d); 21 A.L.R.3d at 556-63. A suit for anticipatory\nrepudiation, an actual reentry, or a contractual right of reentry subject to the above conditions will\ntherefore give rise to the landlord\xe2\x80\x99s duty to mitigate damages upon the tenant\xe2\x80\x99s breach and\nabandonment.\nVI.\nIn their first amended answer, Hill Country and Barbara Hill specifically contended that the\n112\n\n\x0cPalisades failed to mitigate its damages. Because the court of appeals upheld the trial court\xe2\x80\x99s refusal\nto submit their mitigation instruction, we reverse the judgment of the court of appeals and remand\nfor a new trial.\nLennon v. United States Theatre Corp., 920 F.2d 996, 1000 (D.C.Cir.1990) (holding that both\nresidential and commercial landlords have duty to mitigate); ALASKA STAT. \xc2\xa7 34.03.230(c) (Michie\n1990) (residential); ARIZ.REV.STAT.ANN. \xc2\xa7 33-1370 (West 1974) (residential); Tempe Corporate\nOffice Bldg. v. Arizona Funding Servs., 167 Ariz. 394, 807 P.2d 1130, 1135 (App.1991)(commercial);\nBaston v. Davis, 229 Ark. 666, 318 S.W.2d 837, 841 (1958) (commercial); CAL.CIV.CODE \xc2\xa7\n1951.2(a)(2), (c)(2) (West 1985) (residential); Sanders Constr. Co. v. San Joaquin First Fed. Sav. & Loan\nAss\xe2\x80\x99n, 136 Cal.App.3d 387, 186 Cal.Rptr. 218, 226 (1982) (commercial); Schneiker v. Gordon, 732 P.2d\n603, 611 (Colo.1987) (commercial); Danpar Assocs. v. Somersville Mills Sales Room, Inc., 182 Conn. 444,\n438 A.2d 708, 710 (1980) (commercial); DEL.CODE ANN. tit. 25, \xc2\xa7 5507 (1996) (residential),\nDEL.CODE ANN. tit. 25, \xc2\xa7\xc2\xa7 5101, 5507(d) (1996) (commercial); FLA.STAT. ANN. \xc2\xa7 83.595 (West\n1995) (residential); In re PAVCO Enters., Inc., 172 B.R. 114, 117 (Bankr. M.D.Fla.1994) (commercial);\nHAW.REV.STAT. \xc2\xa7 521-70(d) (Supp.1975) (residential); Marco Kona Warehouse v. Sharmilo, Inc., 7\nHaw.App. 383, 768 P.2d 247, 251, cert. denied, 70 Haw. 665, 796 P.2d 501 (1989) (commercial); Olsen\nv. Country Club Sports, Inc., 110 Idaho 789, 718 P.2d 1227, 1232-33 (App.1985) (commercial); 735\nILL.COMP.STAT. 5/9-213.1 (West 1992) (residential and commercial); Nylen v. Park Doral\nApartments, 535 N.E.2d 178, 183 (Ind.Ct.App. 1989) (residential); Sandor Dev. Co. v. Reitmeyer, 498\nN.E.2d 1020, 1023 (Ind.Ct.App.1986) (commercial); Hirsch v. Merchants Nat\xe2\x80\x99l Bank & Trust Co. of Ind.,\n166 Ind.App. 497, 336 N.E.2d 833, 836 (1975) (commercial); IOWA CODE \xc2\xa7 562A.29(3) (1996)\n(residential); Harmsen v. Dr. MacDonald\xe2\x80\x99s, Inc., 403 N.W.2d 48, 51 (Iowa.Ct. App.1987) (commercial);\nKAN.STAT.ANN. \xc2\xa7\xc2\xa7 58-2532 to -2567 (1976)(residential); Gordon v. Consolidated Sun Ray, Inc., 195\nKan. 341, 404 P.2d 949, 953-54 (1965) (commercial); KY.REV. STAT.ANN. \xc2\xa7 383.670(3) (Michie\n1994) (residential); Gray v. Kanavel, 508 So.2d 970, 973 (La.Ct. App.1987) (residential);\nLA.CIV.CODE ANN. art. 2002 (West 1990) (commercial); ME.REV.STAT. ANN. tit. 14, \xc2\xa7 6010-A\n(West 1995) (residential and commercial); MD.CODE ANN., REAL PROP. \xc2\xa7 8-207 (1995)\n(residential); Atkinson v. Rosenthal, 33 Mass.App.Ct. 219, 598 N.E.2d 666, 669 (1992) (commercial);\nJefferson Dev. Co. v. Heritage Cleaners, 109 Mich.App. 606, 311 N.W.2d 426, 428 (1981) (commercial);\nMRI Northwest Rentals Invs. v. Schnucks-Twenty-Five. Inc., 807 S.W.2d 531, 534\n(Mo.Ct.App.1991)(limited duty in commercial leases); MONT.CODE ANN. \xc2\xa7 70-24-426 (1995);\nProperties Inv. Group of Mid-America v. JBA, Inc., 242 Neb. 439, 495 N.W.2d 624, 628-29 (1993)\n(commercial); NEV.REV.STAT. \xc2\xa7 118.175 (1991) (residential); Deasy v. Dernham Co. (In re Blondheim\nModular Mfg., Inc.), 65 B.R. 856, 861 (Bankr.D.N.H.1986) (residential and commercial); Sommer v.\nKridel, 74 N.J. 446, 378 A.2d 767, 768 (1977) (residential); McGuire v. City of Jersey City, 125 N.J. 310,\n593 A.2d 309, 314 (1991) (commercial); N.M.STAT.ANN. \xc2\xa7 47-8-6 (Michie 1978) (residential); Isbey\nv. Crews, 55 N.C.App. 47, 284 S.E.2d 534, 537 (1981)(residential); Weinstein v. Griffin, 241 N.C. 161,\n84 S.E.2d 549, 552 (1954) (commercial); N.D.CENT. Code \xc2\xa7 47-16-13.4 to .5 (1993) (residential);\nMAR-SON, Inc. v. Terwaho Enters., 259 N.W.2d 289, 291-92 (N.D.1977) (commercial); Stern v. Taft, 49\nOhio App.2d 405, 361 N.E.2d 279, 281 (1976) (residential); Master Lease of Ohio, Inc. v. Andrews, 20\nOhio App.3d 217, 485 N.E.2d 820, 823 (1984) (commercial); OKLA.STAT.ANN. tit. 41, \xc2\xa7 129\n(West 1986) (residential); Carpenter v. Riddle, 527 P.2d 592, 594 (Okla.1974) (limited duty in\ncommercial leases); OR.REV.STAT. \xc2\xa7 90.410 (1995) (residential); United States Nat\xe2\x80\x99l Bank of Oregon v.\nHomeland, Inc., 291 Or. 374, 631 P.2d 761, 765 (1981) (commercial); In re New York City Shoes, Inc., 86\nB.R. 420, 424 (Bankr.E.D.Pa. 1988) (commercial); R.I. GEN. LAWS \xc2\xa7 34-18-40 (1994) (residential);\nLovell v. Kevin J. Thornton Enters., Inc. (In re Branchaud), 186 B.R. 337, 340 (Bankr.D.R.I.1995)\n(commercial); S.C.Code Ann. \xc2\xa7 27-40-730 (Law Co-op.1993) (residential); United States Rubber Co. v.\nWhite Tire Co., 231 S.C. 84, 97 S.E.2d 403, 409 (1956) (commercial); TENN.CODE ANN. \xc2\xa7 66-28113\n\n\x0c515 (1995) (residential); Jaffe v. Bolton, 817 S.W.2d 19, 26-27 (Tenn.Ct. App.1991) (commercial); Reid\nv. Mutual of Omaha Ins. Co., 776 P.2d 896, 906 (Utah 1989) (residential and commercial); O\xe2\x80\x99Brien v.\nBlack, 162 Vt. 448, 648 A.2d 1374, 1376 (1994) (commercial); Va.Code Ann. tit. 55 \xc2\xa7 248.35 (Michie\n1995) (residential); WASH.REV.CODE \xc2\xa7 59.18.310 (1990) (residential); Hargis v. Mel-Mad Corp., 46\nWash. App. 146, 730 P.2d 76, 79 (1986) (commercial); WIS. STAT. \xc2\xa7 704.29 (1993-94) (residential);\nFirst Wis. Trust Co. v. L. Wiemann Co., 93 Wis.2d 258, 286 N.W.2d 360, 366 (1980) (commercial);\nSystem Terminal Corp. v. Cornelison, 364 P.2d 91, 95 (Wyo.1961) (commercial). See generally 52 C.J.S.\nLandlord and Tenant \xc2\xa7 498 (1968); 21 AM.JUR. 3d Damages\xe2\x80\x93Mitigation by Landlord \xc2\xa7\xc2\xa7 1-9 (1968 &\nSupp.1994); 5 A. CORBIN, CORBIN ON CONTRACTS \xc2\xa7 1039A (Supp.1993). \xe2\x86\xa9\nRyals v. Laney, 338 So.2d 413, 415 (Ala.Civ. App.1976) (holding that there is no duty to\nmitigate in residential leases); Crestline Ctr. v. Hinton, 567 So.2d 393, 396 (Ala.Civ.App.1990)\n(commercial); Love v. McDevitt, 114 Ga.App. 734, 152 S.E.2d 705, 706 (1966) (residential); Lamb v.\nDecatur Fed. Sav. & Loan Ass\xe2\x80\x99n, 201 Ga.App. 583, 411 S.E.2d 527, 530 (1991) (commercial);\nem>Markoe v. Naiditch & Sons, 303 Minn. 6, 226 N.W.2d 289, 291 (1975) (residential and\ncommercial); Alsup v. Banks, 68 Miss. 664, 9 So. 895, 895 (1891) (residential); Duda v. Thompson, 169\nMisc.2d 649, 647 N.Y.S.2d 401, 403-04 (N.Y.Sup.Ct.1996) (residential); Holy Properties, Ltd. v. Kenneth\nCole Prods., Inc., 87 N.Y.2d 130, 637 N.Y.S.2d 964, 661 N.E.2d 694, 696 (1995) (commercial); Arbenz\nv. Exley, Watkins & Co., 52 W.Va. 476, 44 S.E. 149, 151 (1903) (commercial). Mississippi has\nreported no cases regarding a commercial landlord\xe2\x80\x99s duty to mitigate, and West Virginia has reported\nno cases regarding a residential landlord\xe2\x80\x99s duty to mitigate. \xe2\x86\xa9\nSouth Dakota has apparently reported no cases on this issue. \xe2\x86\xa9\n\n114\n\n\x0cNobles v. Jiffy Market Food Store Corp.,\n579 S.E.2d 63 (Ga. Ct. App. 2003)\n\nEllis, Painter, Ratterree & Bart, Tracy A. O\xe2\x80\x99Connell, Savannah, Ansley B. Threlkeld, for\nappellant.\nWhelchel, Brown, Readdick & Bumgartner, Gregory T. Carter, Brunswick, for appellees.\nPhipps, Judge.\nLandlord Marcus H. Nobles, Jr. sued tenants the Jiffy Market Food Store Corporation, Keith\nStrickland, and Gladys Strickland (collectively Jiffy Market) for breach of several lease agreements.\nAmong the damages Nobles sought were future lease payments under an acceleration clause in one\nof the agreements. The trial court granted in part Jiffy Market\xe2\x80\x99s motion for summary judgment,\nruling that the acceleration clause was invalid. The court also denied Nobles\xe2\x80\x99s motion for partial\nsummary judgment. Nobles appeals both rulings. Finding no error, we affirm.\nThe record shows that in September 1995, Jiffy Market acquired from Nobles the franchise\nrights to a Huddle House restaurant in Richmond Hill. As part of the transaction, Nobles leased\nJiffy Market the restaurant premises for a period of 22 years. The lease required Jiffy Market to make\ngraduated monthly payments, repair the premises, pay applicable taxes, and maintain insurance. In\naddition to the premises lease, the parties also entered into separate agreements for the lease of\nrestaurant equipment and exterior signs.\nThe parties later amended the premises lease twice to decrease the monthly lease payments\nand to reflect Jiffy Market\xe2\x80\x99s sublease of the premises to a third party. Both amendments ratified the\noriginal lease agreement.\nTwo paragraphs of the premises lease agreement addressed Nobles\xe2\x80\x99s remedies in the event\nof a default by Jiffy Market. Under Paragraph 27, if Jiffy Market defaulted on its obligations after\nwritten notice by Nobles, then Nobles\nat his option may at once, or within six (6) months thereafter (but only once during\ncontinuance of such default or condition[)], terminate this lease by written notice to [Jiffy Market];\nwhereupon this Lease shall end\xe2\x80\xa6. Upon such termination by [Nobles, Jiffy Market] will at once\nsurrender possession of the premises to [Nobles]\xe2\x80\xa6. In addition, [Nobles] may also collect, as damages, the\nremaining rent due or to become due under this Lease for the remainder of the term, less any amounts derived by\n[Nobles] from re-leasing the Premises.1\nParagraph 28, titled \xe2\x80\x9cReletting by Lessor,\xe2\x80\x9d provided that\n[Nobles], as [Jiffy Market\xe2\x80\x99s] agent, without terminating this Lease, upon [Jiffy Market\xe2\x80\x99s]\nbreach of this Lease, in such a manner as to authorize termination as provided herein, may at\n[Nobles\xe2\x80\x99s] option enter upon and rent Premises at the best price obtainable by reasonable effort,\nwithout advertisement and by private negotiations and for any term [Nobles] deems proper.\n[Nobles] shall make reasonable efforts to relet the Premises. [Jiffy Market] shall be liable to [Nobles]\nfor the deficiency, if any, between [Jiffy Market\xe2\x80\x99s] rent hereunder and the price obtained by [Nobles]\non reletting.\nIn September 2000, the restaurant ceased operations. On October 10, Nobles sent Jiffy\nMarket a letter demanding that month\xe2\x80\x99s lease payment and stating that if payment was not received\n115\n\n\x0cby October 20, he would declare default and seek \xe2\x80\x9call sums due under the Lease.\xe2\x80\x9d No payment was\nmade. On February 15, Jiffy Market returned the premises to Nobles. Nobles claims that much of\nthe equipment was broken or missing and that the signs required repair.\nNobles sued Jiffy Market for all future payments under the remaining 18 years of the lease\nterm, totaling $865,596. Nobles later relet the premises to another tenant, and he acknowledged that\nany recovery of future rents under his lease with Jiffy Market would be offset by payments received\nunder the new lease. In addition to future rent, Nobles also sought damages from Jiffy Market for\nbreach of the equipment and sign leases, repayment of the rent reductions allowed under the first\nlease amendment, and reimbursement of insurance and tax payments.\nNobles sought partial summary judgment, arguing that the record clearly showed that Jiffy\nMarket had breached the lease agreements, entitling him to damages. Jiffy Market also moved for\nsummary judgment, claiming that Paragraph 27 of the premises agreement providing for recovery of\nfuture rent was an unenforceable penalty clause and that Nobles terminated the lease when he\nsought recovery under that paragraph, thereby ending Jiffy Market\xe2\x80\x99s obligations. The trial court\nagreed that Paragraph 27 was unenforceable, but otherwise denied both motions.\nWe review the trial court\xe2\x80\x99s ruling de novo, considering the evidence and all reasonable\nconclusions and inferences drawn from it in the light most favorable to the nonmovant.2\n1. Nobles first contends that the court erred in ruling that Paragraph 27 of the premises lease\nwas an unenforceable penalty. We disagree.\nThis case is controlled by Peterson v. P.C. Towers, L.P.,3 in which we examined a commercial\nlease provision similar to Paragraph 27.4 We noted that while a tenant generally is not responsible for\nrent accruing after the landlord resumes possession, the parties may contract otherwise, provided\nthat the lease agreement contains \xe2\x80\x9can explicit and detailed provision \xe2\x80\xa6 which clearly and\nunequivocally expresse[s] the parties\xe2\x80\x99 intention to hold the [tenant] responsible for after-accrued\nrent.\xe2\x80\x9d5 Such \xe2\x80\x9caccelerated rent\xe2\x80\x9d provisions are enforceable as valid liquidated damages clauses if (1)\nthe injury caused by breach of the lease is difficult or impossible to estimate accurately; (2) the\nparties intend to provide for damages rather than a penalty; and (3) the stipulated sum is a\nreasonable pre-estimate of the landlord\xe2\x80\x99s probable loss.6 If these requirements are not met, then the\naccelerated rent provision \xe2\x80\x9cfails as a penalty.\xe2\x80\x9d7 Whether an accelerated rent provision is enforceable\nis a question of law for the court.8\nIn analyzing whether the accelerated rent provision in Peterson met the three requirements for\na valid liquidated damages clause, we noted that\n[t]he measure of damages in an action seeking to recover in advance for the full remaining\nterm of a breached lease is the difference between what the tenant would have had to pay in rent for\nthe balance of the term, and the fair rental value of the premises for the balance of the term. [Cit.]9\nBecause these figures would be difficult to estimate accurately, we concluded that the first\nrequirement was satisfied. But the accelerated rent provision failed to calculate damages \xe2\x80\x9cbased on\nthe future rental value of the premises, and the likelihood of reletting.\xe2\x80\x9d10 Therefore, it provided the\nlandlord \xe2\x80\x9cwith payment potentially bearing no reasonable relation to actual damages,\xe2\x80\x9d11 and we held\nthat it was an unenforceable penalty.\nParagraph 27 of the agreement between Nobles and Jiffy Market suffers from the same\ndeficiency. It contained no \xe2\x80\x9cassessment of future market conditions for the premises to account for\nfuture rental value, and the probability of reletting the premises for all or part of the remaining\nterm.\xe2\x80\x9d12 This deficiency is especially acute in light of the length of the lease. Nobles attempted to\ncollect approximately 18 years of unaccrued rent\xe2\x80\x93almost 200 payments\xe2\x80\x93at once. But neither the\nlease nor any evidence cited to this court attempted to determine whether these upfront payments\nwould bear any reasonable relationship to Nobles\xe2\x80\x99s actual future damages, and it is difficult to infer\nsuch a relationship given the lengthy lease period. The damages Nobles sought were entirely too\n116\n\n\x0cspeculative and uncertain.\nMoreover, Paragraph 27 did not provide that the future rent be reduced to present value13 \xe2\x80\x93\nanother indication of a potentially large gulf between the sums authorized by that paragraph and the\namount of Nobles\xe2\x80\x99s actual damages. Finally, the lease did not require that Nobles try to relet the\npremises in the event of Jiffy Market\xe2\x80\x99s default. Rather, reletting was solely \xe2\x80\x9cat [Nobles\xe2\x80\x99s] option.\xe2\x80\x9d14\nThus, the lease gave Nobles both present possession of the premises and all future rent. This, as we\nnoted in Jones v. Clark,15 \xe2\x80\x9cis manifestly unreasonable and oppressive.\xe2\x80\x9d16 For these reasons, the trial\ncourt correctly ruled that the accelerated rent clause in Paragraph 27 operated as an unenforceable\npenalty rather than a valid liquidated damages provision.\nNobles cites American Med. Transport Group v. Glo-An, Inc.,17 Rucker v. Wynn,18 and Hardin v.\nMacon Mall,19 in which we enforced accelerated rent provisions in commercial leases as valid\nliquidated damages provisions. But these cases are distinguishable.\nIn American Med. Transport, the tenant defaulted on two leases with 24-month terms after ten\nmonths of the terms had elapsed.20 After placing a \xe2\x80\x9cfor lease\xe2\x80\x9d sign on the premises and reletting one\nof the suites, the landlord sought twelve months of unaccrued rent on one lease and one month on\nthe other.21 In Rucker, the tenant defaulted on a five-year lease after six months had elapsed, and the\nlandlord sought the difference between unaccrued rent for the remainder of the lease term and rent\ngenerated by reletting the premises.22 In Hardin, the tenant defaulted after six years of a 15-year lease\nhad elapsed, but after finding a new tenant, the landlord sought only two years of unaccrued rent\nunder the lease\xe2\x80\x99s accelerated rent clause.23 Because the landlords in these cases sought unaccrued\nrent only for relatively brief periods of time, it is far more likely that such rent represented a\nreasonable pre-estimate of the landlords\xe2\x80\x99 losses. These cases, therefore, did not involve the\nspeculation and uncertainty inherent here, where Nobles wants unaccrued rent for the remarkable\nperiod of 18 years.\nNobles also cites Ott v. Vineville Market,24 in which we upheld a landlord\xe2\x80\x99s charge of\naccelerated rent against a defaulting tenant, for the proposition that accelerated rent provisions are\nnot liquidated damages provisions and thus cannot be rejected as unenforceable penalties. But Ott\ndid not describe the lease provisions that authorized the charge of unaccrued rent, so its conclusion\nmust be limited to its unspecified facts.25 We follow our more recent decision in Peterson, which\nholds that an accelerated rent provision similar to the one here \xe2\x80\x9ceither qualifies as an enforceable\nliquidated damages provision, or it fails as a penalty.\xe2\x80\x9d26\n2. Next, Nobles argues that even if Paragraph 27 did not entitle him to collect accelerated\nrent, Paragraph 28 did. Although the trial court did not address this argument, we will do so because\nit was presented below.\nParagraph 28 provided that if Nobles relet the premises without terminating the lease, Jiffy\nMarket would be liable for any deficiency between the rent it owed under the lease and the price\nobtained by Nobles on reletting. Paragraph 27, on the other hand, allowed accelerated rent only if\nNobles terminated the lease. Thus, either Nobles terminated the lease and Paragraph 27 applies, or\nhe did not, and Paragraph 28 applies. Whether and when Nobles terminated the lease is a question\nof fact for the jury, and the trial court appropriately denied summary judgment on that issue.27\nIf Paragraph 28 applies, then we question whether it can be construed to authorize upfront\ncollection of future, unaccrued rent for the 18-year remainder of the lease term. If it can be so\nconstrued, then it, too, is an unenforceable penalty. Like Paragraph 27, it fails to satisfy the\nrequirements for a valid liquidated damages provision because it provides no assessment of future\nmarket conditions regarding the rental value of the property and the possibility of reletting.\n3. Finally, Nobles contends that the trial court erred in failing to grant him summary\njudgment on his claim for two other kinds of damages. Again, we disagree.\n(a) First, Nobles argues that he is entitled to repayment of a reduction in rent that Jiffy\n117\n\n\x0cMarket received under the first amendment to the lease agreement. That amendment decreased Jiffy\nMarket\xe2\x80\x99s monthly rent by $700. It also provided that if Jiffy Market \xe2\x80\x9ccease[d] to operate\xe2\x80\x9d a Huddle\nHouse restaurant on the premises before September 30, 2000, then it would have to repay Nobles\n$700 per month for each month that the reduction was in place. Because there was conflicting\ntestimony whether the restaurant \xe2\x80\x9coperated\xe2\x80\x9d through September 30, summary judgment was not\nappropriate on this claim.\n(b) Second, Nobles seeks repayment of certain taxes and insurance that he paid on the\nproperty, but that Jiffy Market should have paid under the premises lease. To support this claim,\nNobles submitted his affidavit, which stated that he \xe2\x80\x9cpaid $5,142.56 to Franklin Insurance Agency\nfor property insurance and $3,002.00 to Travelers for flood insurance\xe2\x80\x9d for an unspecified period of\ncoverage. The affidavit also stated that Nobles paid $2,440.53 in county taxes and $565.92 in local\ntaxes on the property for the year 2000. Jiffy Market contends that Nobles terminated the lease, so it\ncannot collect any sums due thereunder. As noted, however, whether and when Nobles terminated\nthe lease is a jury question. Whether the sums expended by Nobles fell within Jiffy Market\xe2\x80\x99s\nobligations under the lease also is a jury question. The trial court properly denied summary judgment\non this claim.\nJudgment affirmed.\nAndrews, P.J., and Mikell, J., concur.\n(Emphasis supplied.) \xe2\x86\xa9\nSee Sams v. Video Display Corp., 255 Ga.App. 478, 566 S.E.2d 28 (2002). \xe2\x86\xa9\n206 Ga.App. 591, 426 S.E.2d 243 (1992). \xe2\x86\xa9\nThe agreement in Peterson provided that if the lease was terminated due to the tenant\xe2\x80\x99s\ndefault, the landlord could \xe2\x80\x9c\xe2\x80\x98declare the entire amount of the rent which would become due and\npayable during the remainder of the term of this lease to be due and payable immediately,\xe2\x80\x99\xe2\x80\x9d with\nreduction to present cash value and offset by any rent the landlord received from reletting the\npremises. 206 Ga.App. at 592(2), 426 S.E.2d 243. \xe2\x86\xa9\n(Citations and punctuation omitted.) Id. at 591-592, 426 S.E.2d 243. \xe2\x86\xa9\nId. at 593(3), 426 S.E.2d 243. \xe2\x86\xa9\nId. at 592, 426 S.E.2d 243. \xe2\x86\xa9\nId. at 592-593, 426 S.E.2d 243. \xe2\x86\xa9\nId. at 593, 426 S.E.2d 243. \xe2\x86\xa9\nId. at 594, 426 S.E.2d 243. \xe2\x86\xa9\nId. \xe2\x86\xa9\nId. \xe2\x86\xa9\nAfter filing the complaint, Nobles reduced its asserted damages for future rent to present\nvalue, but we evaluate the validity of Paragraph 27 as it was written. \xe2\x86\xa9\nAfter suing Jiffy Market for the full amount of all future rent, Nobles apparently did relet\nthe premises, though for a shorter period of time and for less money than the Jiffy Market lease. \xe2\x86\xa9\n147 Ga.App. 657, 249 S.E.2d 619 (1978). \xe2\x86\xa9\nId. at 659(2), 249 S.E.2d 619; see also Carter v. Tokai Financial Svcs., 231 Ga.App. 755, 759(2),\n500 S.E.2d 638 (1998) (accelerated rent clause in personal property lease was unenforceable under\nPeterson because it allowed lessor, after lessee\xe2\x80\x99s default, to retain property yet collect all future rent\npayments). \xe2\x86\xa9\n235 Ga.App. 464, 509 S.E.2d 738 (1998). \xe2\x86\xa9\n212 Ga.App. 69, 441 S.E.2d 417 (1994). \xe2\x86\xa9\n169 Ga.App. 793, 315 S.E.2d 4 (1984). \xe2\x86\xa9\n118\n\n\x0c235 Ga.App. at 464, 509 S.E.2d 738. \xe2\x86\xa9\nId. at 465, 509 S.E.2d 738. \xe2\x86\xa9\n212 Ga.App. at 69, 72(4), 441 S.E.2d 417. \xe2\x86\xa9\n169 Ga.App. at 793, 315 S.E.2d 4. \xe2\x86\xa9\n203 Ga.App. 80, 81(2), 416 S.E.2d 362 (1992). \xe2\x86\xa9\nOtt also did not relate the term of the lease, when the tenant defaulted, or how much future\nrent the landlord sought. See id. at 80-81, 416 S.E.2d 362. \xe2\x86\xa9\n206 Ga.App. at 592, 426 S.E.2d 243. \xe2\x86\xa9\nSee Buford-Clairmont v. Jacobs Pharmacy Co., 131 Ga.App. 643, 647(1), 206 S.E.2d 674 (1974)\n(whether landlord\xe2\x80\x99s actions constituted termination of lease was question for jury). \xe2\x86\xa9\n\n119\n\n\x0c3.3. Landlord Duties\nBlackett v. Olanoff,\n358 N.E.2d 817 (1977)\n\nPhilip S. Lapatin, Boston, for plaintiffs.\nSally A. Corwin, Boston (Jon C. Mazuy, Boston, with her), for defendants.\nBefore Hennessey, C.J., and Braucher, Kaplan, and Wilkins, JJ.\nWilkins, Justice\nThe defendant in each of these consolidated actions for rent successfully raised constructive\neviction as a defense against the landlords\xe2\x80\x99 claim. The judge found that the tenants were \xe2\x80\x98very\nsubstantially deprived\xe2\x80\x99 of quiet enjoyment of their leased premises \xe2\x80\x99for a substantial time\xe2\x80\x99 (emphasis\noriginal). He ruled that the tenants\xe2\x80\x99 implied warranty of quiet enjoyment was violated by late evening\nand early morning music and disturbances coming from nearby premises which the landlords leased\nto others for use as a bar or cocktail lounge (lounge). The judge further found that, although the\nlandlords did not intend to create the conditions, the landlords \xe2\x80\x98had it within their control to correct\nthe conditions which \xe2\x80\xa6 amounted to a constructive eviction of each (tenant).\xe2\x80\x99 He also found that\nthe landlords promised each tenant to correct the situation, that the landlords made some attempt to\nremedy the problem, but they were unsuccessful, and that each tenant vacated his apartment within\na reasonable time. Judgment was entered for each tenant; the landlords appealed; and we transferred\nthe appeals here. We affirm the judgments.\nThe landlords argue that they did not violate the tenants\xe2\x80\x99 implied covenant of quiet\nenjoyment because they are not chargeable with the noise from the lounge. The landlords do not\nchallenge the judge\xe2\x80\x99s conclusion that the noise emanating from the lounge was sufficient to\nconstitute a constructive eviction, if that noise could be attributed to the landlords.1 Nor do the\nlandlords seriously argue that a constructive eviction could not be found as matter of law because\nthe lounge was not on the same premises as the tenants\xe2\x80\x99 apartments. See 1 American Law of\nProperty s 3.51 at 281 (A. J. Casner ed. 1952). The landlords\xe2\x80\x99 principal contention, based on the\ndenial of certain requests for rulings, is that they are not responsible for the conduct of the\nproprietors, employees, and patrons of the lounge.\nOur opinions concerning a constructive eviction by an alleged breach of an implied covenant\nof quiet enjoyment sometimes have stated that the landlord must perform some act with the intent\nof depriving the tenant of the enjoyment and occupation of the whole or part of the leased premises.\nSee Katz v. Duffy, 261 Mass. 149, 151-152, 158 N.E. 264 (1927), and cases cited. There are occasions,\nhowever, where a landlord has not intended to violate a tenant\xe2\x80\x99s rights, but there was nevertheless a\nbreach of the landlord\xe2\x80\x99s covenant of quiet enjoyment which flowed as the natural and probable\nconsequence of what the landlord did, what he failed to do, or what he permitted to be done. Charles\nE. Burt, Inc. v. Seven Grand Corp., 340 Mass. 124, 127, 163 N.E.2d 4 (1959) (failure to supply light,\nheat, power, and elevator services). Westland Housing Corp. v. Scott, 312 Mass. 375, 381, 44 N.E.2d 959\n(1942) (intrusions of smoke and soot over a substantial period of time due to a defective boiler).\nShindler v. Milden, 282 Mass. 32, 33-34, 184 N.E. 673 (1933) (failure to install necessary heating\n120\n\n\x0csystem, as agreed). Case v. Minot, 158 Mass. 577, 587, 33 N.E. 700 (1893) (landlord authorizing\nanother lessee to obstruct the tenant\xe2\x80\x99s light and air, necessary for the beneficial enjoyment of the\ndemised premises). Skally v. Shute, 132 Mass. 367, 370-371 (1882) (undermining of a leased building\nrendering it unfit for occupancy). Although some of our opinions have spoken of particular action\nor inaction by a landlord as showing a presumed intention to evict, the landlord\xe2\x80\x99s conduct, and not\nhis intentions, is controlling. See Westland Housing Corp. v. Scott, supra, 312 Mass. at 382-383, 44 N.E.\n959.\nThe judge was warranted in ruling that the landlords had it within their control to correct the\ncondition which caused the tenants to vacate their apartments. The landlords introduced a\ncommercial activity into an area where they leased premises for residential purposes. The lease for\nthe lounge expressly provided that entertainment in the lounge had to be conducted so that it could\nnot be heard outside the building and would not disturb the residents of the leased apartments. The\npotential threat to the occupants of the nearby apartments was apparent in the circumstances. The\nlandlords complained to the tenants of the lounge after receiving numerous objections from\nresidential tenants. From time to time, the pervading noise would abate in response to the landlord\xe2\x80\x99s\ncomplaints. We conclude that, as matter of law, the landlords had a right to control the\nobjectionable noise coming from the lounge and that the judge was warranted in finding as a fact\nthat the landlords could control the objectionable conditions.\nThis situation is different from the usual annoyance of one residential tenant by another\nwhere traditionally the landlord has not been chargeable with the annoyance. See Katz v. Duffy, 261\nMass. 149, 158 N.E. 264 (1927) (illegal sale of alcoholic beverages); DeWitt v. Pierson, 112 Mass. 8\n(1873) (prostitution).2 Here we have a case more like Case v. Minot, 158 Mass. 577, 33 N.E. 700\n(1893), where the landlord entered into a lease with one tenant which the landlord knew permitted\nthat tenant to engage in activity which would interfere with the rights of another tenant. There, to be\nsure, the clash of tenants\xe2\x80\x99 rights was inevitable, if each pressed those rights. Here, although the clash\nof tenants\xe2\x80\x99 interests was only a known potentiality initially, experience demonstrated that a decibel\nlevel for the entertainment at the lounge, acoustically acceptable to its patrons and hence\ncommercially desirable to its proprietors, was intolerable for the residential tenants.\nThe rule in New York appears to be that the landlord may not recover rent if he has had\nample notice of the existence of conduct of one tenant which deprives another tenant of the\nbeneficial enjoyment of his premises and the landlord does little or nothing to abate the nuisance. See\nCohen v. Werner, 85 Misc.2d 341, 342, 378 N.Y.S.2d 868 (N.Y.App.T.1975); Rockrose Associates v. Peters,\n81 Misc.2d 971, 972, 366 N.Y.S.2d 567 (N.Y.Civ.Ct.1975) (office lease); Home Life Ins. Co. v.\nBreslerman, 168 Misc. 117, 118, 5 N.Y.S.2d 272 (N.Y.App.T.1938). But see comments in Trustees of the\nSailors\xe2\x80\x99 Snug Harbor in the City of New York v. Sugarman, 264 App.Div. 240, 241, 35 N.Y.S.2d 196\n(N.Y.1942) (no nuisance).\nA tenant with sufficient bargaining power may be able to obtain an agreement from the\nlandlord to insert and to enforce regulatory restrictions in the leases of other, potentially offending,\ntenants. See E. Schwartz, Lease Drafting in Massachusetts s 6.33 (1961).\nBecause the disturbing condition was the natural and probable consequence of the landlords\xe2\x80\x99\npermitting the lounge to operate where it did and because the landlords could control the actions at\nthe lounge, they should not be entitled to collect rent for residential premises which were not\nreasonably habitable. Tenants such as these should not be left only with a claim against the\nproprietors of the noisome lounge. To the extent that our opinions suggest a distinction between\nnonfeasance by the landlord, which has been said to create no liability (P. Hall, Massachusetts Law\nof Landlord and Tenant ss 90-91 (4th ed. 1949)), and malfeasance by the landlord, we decline to\nperpetuate that distinction where the landlord creates a situation and has the right to control the\nobjectionable conditions.\n121\n\n\x0cJudgments affirmed.\nThere was evidence that the lounge had amplified music (electric musical instruments and\nsinging, at various times) which started at 9:30 P.M. and continued until 1:30 A.M. or 2 A.M.,\ngenerally on Tuesdays through Sundays. The music could be heard through the granite walls of the\nresidential tenants\xe2\x80\x99 building, and was described variously as unbelievably loud, incessant, raucous,\nand penetrating. The noise interfered with conversation and prevented sleep. There was also\nevidence of noise from patrons\xe2\x80\x99 yelling and fighting. \xe2\x86\xa9\nThe general, but not universal, rule, in this country is that a landlord is not chargeable\nbecause one tenant is causing annoyance to another ( A. H. Woods Theatre v. North American Union,\n246 Ill.App. 521, 526-527, (1927) (music from one commercial tenant annoying another commercial\ntenant\xe2\x80\x99s employees)), even where the annoying conduct would be a breach of the landlord\xe2\x80\x99s\ncovenant of quiet enjoyment if the landlord were the miscreant. See Paterson v. Bridges, 16 Ala.App.\n54, 55, 75 So. 260 (1917); Thompson v. Harris, 9 Ariz.App. 341, 345, 452 P.2d 122 (1969), and cases\ncited; 1 American Law of Property s 3.53 (A.J. Casner ed. 1952); Annot., 38 A.L.R. 250 (1925).\nContra Kesner v. Consumers Co., 255 Ill.App. 216, 228-229 (1929) (storage of flammables constituting a\nnuisance); Bruckner v. Helfaer, 197 Wis. 582, 585, 222 N.W. 790 (1929) (residential tenant not liable\nfor rent where landlord, with ample notice, does not control another tenant\xe2\x80\x99s conduct). \xe2\x86\xa9\n\n122\n\n\x0cMinjak Co. v. Randolph,\n528 N.Y.S.2d 554 (App. Div. 1988).\n\nH. Shapiro, New York City, for petitioner-landlord-respondent.\nD. Ratner, New York City, for respondents-tenants-appellants.\nBefore Sandler, J.P., and Carro, Asch and Ellerin, JJ.\nMemorandum Decision\nOrder of the Appellate Term, First Department (Sandifer, Parness, Ostrau, JJ.), entered\nMarch 3, 1987, which reversed a final judgment of Civil Court (David Saxe, J.), entered March 23,\n1984, awarding rent abatements, punitive damages and attorney\xe2\x80\x99s fees to respondents-tenantsappellants, and ordered a new trial, is unanimously reversed, on the law, without costs, and the\njudgment of Civil Court reinstated except to eliminate any rent abatement for the period of time July\nthrough mid October 1981.\nIn July of 1983 petitioner-landlord commenced the within summary nonpayment proceeding\nagainst respondents Randolph and Kikuchi, tenants of a loft space on the fourth floor of petitioner\xe2\x80\x99s\nbuilding on West 20th Street in Manhattan, alleging nonpayment of rent since July 1981. The\ntenants\xe2\x80\x99 answer set forth as affirmative defenses that because they were unable to use two-thirds of\nthe loft space due to the landlord\xe2\x80\x99s renovations and other conditions, they were entitled to an\nabatement of two-thirds of the rent, and that as to the remaining one-third space, they were entitled\nto a further rent abatement due to the landlord\xe2\x80\x99s failure to supply essential services. The tenants also\ncounterclaimed for breach of warranty of habitability, seeking both actual and punitive damages and\nattorney\xe2\x80\x99s fees.\nA trial was held in Civil Court before Justice Saxe in November of 1983. It was stipulated\nthat rent was due and owing from October 1981 through November 1983 in the amount of $12,787\n($200 due for October 1981, $450 due each month from November 1981 through December 1982,\nand $567 per month since January 1983).\nRespondents commenced residency of the loft space in 1976 pursuant to a commercial lease.\nPetitioner offered a commercial lease even though at the time of the signing of the lease the building\nwas used predominantly for residential purposes and the respondents had informed petitioner that\nthey would use the loft as their residence. The loft space measures 1700 square feet, approximately\ntwo-thirds of which is used as a music studio for Mr. Kikuchi, where he composes, rehearses and\nstores his very expensive electronic equipment and musical instruments. The remainder of the space\nis used as the tenants\xe2\x80\x99 residence.\nLate in 1977, the fifth floor tenant began to operate a health spa equipment business which\nincluded the display of fully working jacuzzis, bathtubs, and saunas. The jacuzzis and bathtubs were\nfilled to capacity with water. From November 1977 through February 1982, respondents suffered at\nleast 40 separate water leaks from the fifth floor. At times the water literally poured into the\nbedroom and bedroom closets of respondents\xe2\x80\x99 loft, ruining their clothes and other items. Water\nleaked as well into the kitchen, the bathroom and onto Mr. Kikuchi\xe2\x80\x99s grand piano and other musical\ninstruments. Respondents\xe2\x80\x99 complaints to petitioner went unheeded.\nIn January of 1978 the fifth-floor tenant began to sandblast the walls, causing sand to seep\nthrough openings around pipes and cracks in the ceiling and into respondent\xe2\x80\x99s loft. The sand, which\ncontinued to fall into the loft even as the parties went to trial, got into respondent\xe2\x80\x99s clothes, bed,\n123\n\n\x0cfood and even their eyes.\nIn September of 1981 the landlord commenced construction work in the building to convert\nthe building into a Class A multiple building. To convert the freight elevator into a passenger\nelevator, petitioner had the elevator shaft on respondent\xe2\x80\x99s side of the building removed. The\nworkers threw debris down the elevator shaft, raising \xe2\x80\x9chuge clouds of dust\xe2\x80\x9d which came pouring\ninto the loft and settled everywhere, on respondents\xe2\x80\x99 clothes, bed, food, toothbrushes and musical\nequipment. The musical equipment had to be covered at all times to protect it from the dust.\nRespondents began to suffer from eye and sinus problems, nausea, and soreness in their throats\nfrom the inhalation of the dust. Respondents attempted to shield themselves somewhat from the\ndust by putting up plastic sheets, only to have the workmen rip them down.\nTo demonstrate the hazardous nature of some of the construction work, respondents\nintroduced evidence that as the landlord\xe2\x80\x99s workers were demolishing the stairs from the seventh\nfloor down, no warning signs were posted, causing one visitor to come perilously close to falling\nthrough a hole in the stairs. The workers jackhammered a new entrance to the loft, permitting the\ndebris to fall directly onto the floor of respondents\xe2\x80\x99 loft. The workmen would mix cement right on\nrespondents\xe2\x80\x99 floor. A new entrance door to the loft was sloppily installed without a door sill, and\nloose bricks were left around the frame. A day later, brick fragments and concrete fell on tenant\nRandolph\xe2\x80\x99s head as she closed the door.\nThe record contains many more examples of dangerous construction and other conduct\ninterfering with respondents\xe2\x80\x99 ability to use and enjoy possession of their loft. From 1981 until the\ntime of trial, Kikuchi was completely unable to use the music studio portion of the loft. His musical\ninstruments had been kept covered and protected against the sand and later the dust since 1978.\nThe jury rendered a verdict awarding respondents a rent abatement of 80% for July 1981\nthrough November 1983, as compensatory damages on the theory of constructive eviction from the\nmusic studio portion of the loft; a 40% rent abatement for January 1981 through November 1983,\non the remainder of the rent due for the residential portion of the premises, on a theory of breach of\nwarranty of habitability; a 10% rent abatement on the rent attributable to the residential portion of\nthe premises for all of 1979, on a breach of warranty of habitability theory; and punitive damages in\nthe amount of $20,000. After trial the court granted respondents\xe2\x80\x99 motion made pursuant to Real\nProperty Law Sec. 234 for reasonable attorney\xe2\x80\x99s fees, awarding respondents $5000. The court also\ngranted petitioner\xe2\x80\x99s motion to set aside the verdict and for other relief, only to the extent of\nreducing the award for punitive damages to $5000. Final judgment was entered on March 23, 1984.\nOn appeal to the Appellate Term that court reversed the judgment. Holding that the\ndoctrine of constructive eviction could not provide a defense to this nonpayment proceeding,\nbecause tenants had not abandoned possession of the demised premises, the court reversed the\njury\xe2\x80\x99s award as to the 80% rent abatement predicated on the constructive eviction theory. The court\nordered a new trial on the counterclaim for breach of warranty of habitability, concluding it likely\nthat the jury\xe2\x80\x99s consideration of the constructive eviction claim impacted on the breach of warranty\nof habitability claim. The court also struck down the award of punitive damages, concluding that,\neven if punitive damages could properly be awarded in habitability cases, the facts herein did not\nsupport a finding of \xe2\x80\x9chigh moral culpability\xe2\x80\x9d or \xe2\x80\x9ccriminal indifference to civil obligations,\xe2\x80\x9d as\nrequired by Walker v. Sheldon, 10 N.Y.2d 401, 405, 223 N.Y.S.2d 488, 179 N.E.2d 497, so as to\nwarrant punitive damages. We reverse and hold that the tenants were entitled to avail themselves of\nthe doctrine of constructive eviction based on their abandonment of a portion of the premises and\nthat the award for punitive damages was permissible and warranted by these facts.\nWe agree with the holding and reasoning of East Haven Associates v. Gurian, 64 Misc.2d\n276,313 N.Y.S.2d 276, that a tenant may assert as a defense to the nonpayment of rent the doctrine\nof constructive eviction, even if he or she has abandoned only a portion of the demised premises\n124\n\n\x0cdue to the landlord\xe2\x80\x99s acts in making that portion of the premises unusable by the tenant. The rule of\nEdgerton v. Page, 20 N.Y. 281, the first decision to establish the requirement of abandonment of\npremises as a condition to asserting the defense of constructive eviction, is not undermined by our\nacknowledgement of a defense for partial constructive eviction. Edgerton v. Page, supra, emphasized\nthat the tenant\xe2\x80\x99s obligation to pay rent continues as long as \xe2\x80\x9cthe tenant remains in possession of the\nentire premises demised\xe2\x80\xa6.\xe2\x80\x9d Id. at 285 [emphasis original]. It is not contrary to this rule nor against\nany established precedent to hold that when the tenant is constructively evicted from a portion of\nthe premises by the landlord\xe2\x80\x99s actions, he should not be obligated to pay the full amount of the rent.\nEast Haven Associates v. Gurian, supra, 64 Misc.2d at 279-280,313 N.Y.S.2d 276. Indeed \xe2\x80\x9ccompelling\nconsiderations of social policy and fairness\xe2\x80\x9d dictate such a result. Id. at 277, 313 N.Y.S.2d 276. None\nof the cases cited by the landlord reaches or warrants a contrary conclusion. See Barash v. Pennsylvania\nTerminal Real Estate Corp., 26 N.Y.2d 77, 83, 308 N.Y.S.2d 649, 256 N.E.2d 707; Two Rector Street\nCorp. v. Bein, 226 A.D. 73, 76, 234 N.Y.S. 409; 300 West 56th Street Corp. v. Kelly, 153 N.Y.S.2d 978.\nAs for petitioner\xe2\x80\x99s argument on appeal that the tenants never abandoned any portion of the\npremises and, in fact, continued to use the entire loft even up until the day of trial, we note that this\nassertion is unaccompanied by any citation to the record. This was no mere inadvertent error, for\nthere is absolutely nothing in the record to support such a claim. The evidence at trial fully\nsupported a finding that respondents were compelled to abandon the music studio portion of the\nloft due to \xe2\x80\x9cthe landlord\xe2\x80\x99s wrongful acts [which] substantially and materially deprive[d] the tenant[s]\nof the beneficial use and enjoyment\xe2\x80\x9d of that portion of the loft. See Barash v. Pennsylvania Terminal\nReal Estate Corp., supra, 26 N.Y.2d at 83, 308 N.Y.S.2d 649, 256 N.E.2d 707.\nPetitioner does, however, correctly point out that as the constructive eviction claim was\nasserted as a defense to the nonpayment of rent and respondents did not request an abatement for\nany months other than those in which they did not pay rent, the jury\xe2\x80\x99s award of an 80% rent\nabatement as to the months July, August, September and half of October of 1981 must be stricken.\nThe award for punitive damages, as reduced by the Civil Court to $5000, should be\nreinstated as well. Although no exception to the court\xe2\x80\x99s charge permitting the jury to award punitive\ndamages was made, we discuss the issue of the propriety of submitting this issue to the jury in light\nof petitioner\xe2\x80\x99s argument that the award subjects it to a liability for which there is no support in the\nlaw and in light of Appellate Term\xe2\x80\x99s inconclusive comment on whether or not punitive damages\ncould, as a matter of law, be awarded in habitability cases.\nAlthough generally in breach of contract claims the damages to be awarded are\ncompensatory, in certain instances punitive damages may be awarded when to do so would \xe2\x80\x9cdeter\nmorally culpable conduct.\xe2\x80\x9d See Halpin v. Prudential Ins. Co., 48 N.Y.2d 906, 907, 425 N.Y.S.2d 48, 401\nN.E.2d 171; Williamson, Picket, Gross v. Hirschfeld, 92 A.D.2d 289, 295, 460 N.Y.S.2d 36 (punitive\ndamages for conduct involving bad faith). The determining factor is \xe2\x80\x9cnot the form of the action \xe2\x80\xa6,\nbut the moral culpability of the defendant,\xe2\x80\x9d and whether the conduct implies a \xe2\x80\x9ccriminal\nindifference to civil obligations.\xe2\x80\x9d Walker v. Sheldon, supra, 10 N.Y.2d at 404-405, 223 N.Y.S.2d 488,\n179 N.E.2d 497.\nWith respect to this State\xe2\x80\x99s strict housing code standards and statutes, made enforceable\nthrough civil and criminal sanctions and other statutory remedies, it is within the public interest to\ndeter conduct which undermines those standards when that conduct rises to the level of high moral\nculpability or indifference to a landlord\xe2\x80\x99s civil obligations. Therefore, it has been recognized that\npunitive damages may be awarded in breach of warranty of habitability cases where the landlord\xe2\x80\x99s\nactions or inactions were intentional and malicious. See e.g., Pleasant East Associates v. Cabrera, 125\nMisc.2d 877, 883-884, 480 N.Y.S.2d 693; Century Apts. Inc. v. Yalkowsky, 106 Misc.2d 762, 766, 435\nN.Y.S.2d 627; Davis v. Williams, 92 Misc.2d 1051, 1054-1055, 402 N.Y.S.2d 92; Kipsborough Realty\nCorp. v. Goldbetter, 81 Misc.2d 1054, 1058-1060, 367 N.Y.S.2d 916.\n125\n\n\x0cAccordingly, the issue of punitive damages was properly submitted to the jury, and we are\nsatisfied that this record supports the jury\xe2\x80\x99s finding of morally culpable conduct in light of the\ndangerous and offensive manner in which the landlord permitted the construction work to be\nperformed, the landlord\xe2\x80\x99s indifference to the health and safety of others, and its disregard for the\nrights of others, so as to imply even a criminal indifference to civil obligations. See Walker v.\nSheldon, supra, 10 N.Y.2d at 405, 223 N.Y.S.2d 488, 179 N.E.2d 497. One particularly egregious\nexample of the landlord\xe2\x80\x99s wanton disregard for the safety of others was the way in which the stair\ndemolition was performed: steps were removed and no warning sign even posted. The landlord\xe2\x80\x99s\nindifference and lack of response to the tenants\xe2\x80\x99 repeated complaints of dust, sand and water leak\nproblems demonstrated a complete indifference to their health and safety and a lack of concern for\nthe damage these conditions could cause to the tenants\xe2\x80\x99 valuable personal property. Such\nindifference must be viewed as rising to the level of high moral culpability. Accordingly, the award\nof punitive damages is sustained.\nWe likewise reject petitioner\xe2\x80\x99s argument that respondents cannot rely on their lease in order\nto recover attorney\xe2\x80\x99s fees pursuant to the provisions of Real Property Law Sec. 234. This statute has\nthe effect, inter alia, of implying into a lease for residential property which contains a provision\npermitting the landlord to recover attorney\xe2\x80\x99s fees in a summary proceeding brought pursuant to the\nlease a similarly binding covenant by the landlord to pay the tenant\xe2\x80\x99s reasonable attorney\xe2\x80\x99s fees\nincurred in the successful defense of a summary proceeding commenced by the landlord arising out\nof the lease. We find totally without merit petitioner\xe2\x80\x99s interpretation of the decision of another Civil\nCourt judge, holding that the landlord could not take advantage of the waiver of jury trial lease\nprovision, as meaning that respondents cannot now rely on the lease at all in seeking an award of\nattorney\xe2\x80\x99s fees. This is an action under the lease and this lease has not been voided. Furthermore,\nresidential occupants of lofts are afforded the same protections available to other residential tenants\nunder the Real Property Law (seeMultiple Dwelling Law Sec. 286 ). Thus, the award for attorney\xe2\x80\x99s\nfees was proper.\nExcept to eliminate any rent abatement for July through mid-October of 1981, the Civil\nCourt judgment should be reinstated.\n\n126\n\n\x0cOverstreet v. Rhodes,\n212 Ga. 521 (1956)\n\nWm. G. Grant, Robert W. Spears, for plaintiff in error.\nT. Charles Allen, Fisher, Phillips & Allen, contra.\nCandler, Justice.\n(After stating the foregoing facts.) As shown by our statement of the case, the defendant\nadmitted a prima facie case in the plaintiff\xe2\x80\x99s favor, and affirmatively pleaded constructive eviction\nfrom the rented building resulting from the landlord\xe2\x80\x99s failure to keep it in a proper state of repair as\nit was his duty to do under the rent contract. A rented building becomes untenantable and the tenant\nis constructively evicted therefrom and thereafter relieved of his obligation to pay rent, when the\nlandlord whose duty it is to keep it in a proper state of repair allows it to deteriorate to such an\nextent that it is an unfit place for the tenant to carry on the business for which it was rented, and\nwhen it cannot be restored to a fit condition by ordinary repairs which can be made without\nunreasonable interruption of the tenant\xe2\x80\x99s business. Wolff v. Turner, 6 Ga. App. 366 (65 S. E. 41);\nWeinstein v. Schacter Brothers, 32 Ga. App. 742 (124 S. E. 803); Millen Hotel Co. v. Gray, 67 Ga. App. 38\n(19 S. E. 2d 428). See also Lewis & Co. v. Chisolm, 68 Ga. 40. To establish its affirmative defense of\nconstructive eviction from the rented premises, it was therefore necessary for the defendant in this\ncase to prove (1) that the landlord in consequence of his failure to keep the rented building repaired\nallowed it to deteriorate to such an extent that it had become an unfit place for the defendant to\ncarry on the business for which it was rented, and (2) that it could not be restored to a fit condition\nby ordinary repairs which could be made without unreasonable interruption of the tenant\xe2\x80\x99s business.\nWhether or not the defendant had carried the burden and proved these essentials of his affirmative\nplea, was a question raised in the trial court both by the general grounds of the plaintiff\xe2\x80\x99s motion for\nnew trial and by his motion for judgment notwithstanding the verdict, and the Court of Appeals\nerred in holding that the evidence question as to whether or not the rented premises could be\nrestored to a tenantable condition without unreasonable interruption to the tenant\xe2\x80\x99s business was\none which it could not consider, since it had been raised for the first time in the brief of the plaintiff\nin error.\nJudgment reversed. All the Justices concur.\n\n127\n\n\x0cJavins v. First National Realty Corporation,\n428 F.2d 1071 (1970)\n\nMr. Edmund E. Fleming, Boston, Mass., for appellants.\nMr. Herman Miller, Washington, D. C., for appellee.\nMrs. Caryl S. Terry, Washington, D. C., filed a brief on behalf of Washington Planning and\nHousing Association as amicus curiae urging reversal.\nMrs. Margaret F. Ewing, Mrs. Florence Wagman Roisman and Mrs. Patricia M. Wald,\nWashington, D. C., filed a brief on behalf of Neighborhood Legal Services Program as amicus curiae\nurging reversal.\nMessrs. Myron Moskovitz and Peter Honigsberg filed a brief on behalf of National Housing\nLaw Project as amicus curiae urging reversal.\nBefore Wright, McGowan and Robb, Circuit Judges.\nJ. Skelly Wright, Circuit Judge:\nThese cases present the question whether housing code1 violations which arise during the\nterm of a lease have any effect upon the tenant\xe2\x80\x99s obligation to pay rent. The Landlord and Tenant\nBranch of the District of Columbia Court of General Sessions ruled proof of such violations\ninadmissible when proffered as a defense to an eviction action for nonpayment of rent. The District\nof Columbia Court of Appeals upheld this ruling. Saunders v. First National Realty Corp., 245 A.2d\n836 (1968).\nBecause of the importance of the question presented, we granted appeallants\xe2\x80\x99 petitions for\nleave to appeal. We now reverse and hold that a warranty of habitability, measured by the standards\nset out in the Housing Regulations for the District of Columbia, is implied by operation of law into\nleases of urban dwelling units covered by those Regulations and that breach of this warranty gives\nrise to the usual remedies for breach of contract.\n\nI\n\nThe facts revealed by the record are simple. By separate written leases,2 each of the\nappellants rented an apartment in a three-building apartment complex in Northwest Washington\nknown as Clifton Terrace. The landlord, First National Realty Corporation, filed separate actions in\nthe Landlord and Tenant Branch of the Court of General Sessions on April 8, 1966, seeking\npossession on the ground that each of the appellants had defaulted in the payment of rent due for\nthe month of April. The tenants, appellants here, admitted that they had not paid the landlord any\nrent for April. However, they alleged numerous violations of the Housing Regulations as \xe2\x80\x9can\nequitable defense or [a] claim by way of recoupment or set-off in an amount equal to the rent\n128\n\n\x0cclaim,\xe2\x80\x9d as provided in the rules of the Court of General Sessions.3 They offered to prove\n\xe2\x80\x9c[t]hat there are approximately 1500 violations of the Housing Regulations of the District of\nColumbia in the building at Clifton Terrace, where Defendant resides some affecting the premises of\nthis Defendant directly, others indirectly, and all tending to establish a course of conduct of violation\nof the Housing Regulations to the damage of Defendants *.\xe2\x80\x9d\nSettled Statement of Proceedings and Evidence, p. 2 (1966). Appellants conceded at trial,\nhowever, that this offer of proof reached only violations which had arisen since the term of the lease\nhad commenced. The Court of General Sessions refused appellants\xe2\x80\x99 offer of proof4 and entered\njudgment for the landlord. The District of Columbia Court of Appeals affirmed, rejecting the\nargument made by appellants that the landlord was under a contractual duty to maintain the\npremises in compliance with the Housing Regulations. Saunders v. First National Realty Corp., supra,\n245 A.2d at 838.5\n\nII\n\nSince, in traditional analysis, a lease was the conveyance of an interest in land, courts have\nusually utilized the special rules governing real property transactions to resolve controversies\ninvolving leases. However, as the Supreme Court has noted in another context, \xe2\x80\x9cthe body of private\nproperty law *, more than almost any other branch of law, has been shaped by distinctions whose\nvalidity is largely historical.\xe2\x80\x9d6 Courts have a duty to reappraise old doctrines in the light of the facts\nand values of contemporary life \xe2\x80\x93 particularly old common law doctrines which the courts\nthemselves created and developed.7 As we have said before, \xe2\x80\x9c[T]he continued vitality of the\ncommon law * depends upon its ability to reflect contemporary community values and ethics.\xe2\x80\x9d8\nThe assumption of landlord-tenant law, derived from feudal property law, that a lease\nprimarily conveyed to the tenant an interest in land may have been reasonable in a rural, agrarian\nsociety; it may continue to be reasonable in some leases involving farming or commercial land. In\nthese cases, the value of the lease to the tenant is the land itself. But in the case of the modern\napartment dweller, the value of the lease is that it gives him a place to live. The city dweller who\nseeks to lease an apartment on the third floor of a tenement has little interest in the land 30 or 40\nfeet below, or even in the bare right to possession within the four walls of his apartment. When\nAmerican city dwellers, both rich and poor, seek \xe2\x80\x9cshelter\xe2\x80\x9d today, they seek a well known package of\ngoods and services9 \xe2\x80\x93 a package which includes not merely walls and ceilings, but also adequate heat,\nlight and ventilation, serviceable plumbing facilities, secure windows and doors, proper sanitation,\nand proper maintenance.\nProfessor Powell summarizes the present state of the law:\n\xe2\x80\x9d * The complexities of city life, and the proliferated problems of modern society in general,\nhave created new problems for lessors and lessees and these have been commonly handled by\nspecific clauses inserted in leases. This growth in the number and detail of specific lease covenants\nhas reintroduced into the law of estates for years a predominantly contractual ingredient. In practice,\nthe law today concerning estates for years consists chiefly of rules determining the construction and\neffect of lease covenants. *\xe2\x80\x9d10\nIronically, however, the rules governing the construction and interpretation of\n\xe2\x80\x9cpredominantly contractual\xe2\x80\x9d obligations in leases have too often remained rooted in old property\n129\n\n\x0claw.\nSome courts have realized that certain of the old rules of property law governing leases are\ninappropriate for today\xe2\x80\x99s transactions. In order to reach results more in accord with the legitimate\nexpectations of the parties and the standards of the community, courts have been gradually\nintroducing more modern precepts of contract law in interpreting leases.11 Proceeding piecemeal has,\nhowever, led to confusion where \xe2\x80\x9cdecisions are frequently conflicting, not because of a healthy\ndisagreement on social policy, but because of the lingering impact of rules whose policies are long\nsince dead.\xe2\x80\x9d12\nIn our judgment the trend toward treating leases as contracts is wise and well considered.\nOur holding in this case reflects a belief that leases of urban dwelling units should be interpreted and\nconstrued like any other contract.13\n\nIII\n\nModern contract law has recognized that the buyer of goods and services in an industrialized\nsociety must rely upon the skill and honesty of the supplier to assure that goods and services\npurchased are of adequate quality.14 In interpreting most contracts, courts have sought to protect the\nlegitimate expectations of the buyer and have steadily widened the seller\xe2\x80\x99s responsibility for the\nquality of goods and services through implied warranties of fitness and merchantability.15 Thus\nwithout any special agreement a merchant will be held to warrant that his goods are fit for the\nordinary purposes for which such goods are used and that they are at least of reasonably average\nquality. Moreover, if the supplier has been notified that goods are required for a specific purpose, he\nwill be held to warrant that any goods sold are fit for that purpose. These implied warranties have\nbecome widely accepted and well established features of the common law, supported by the\noverwhelming body of case law.16 Today most states as well as the District of Columbia17 have\ncodified and enacted these warranties into statute, as to the sale of goods, in the Uniform\nCommercial Code.\nImplied warranties of quality have not been limited to cases involving sales. The consumer\nrenting a chattel, paying for services, or buying a combination of goods and services must rely upon\nthe skill and honesty of the supplier to at least the same extent as a purchaser of goods. Courts have\nnot hesitated to find implied warranties of fitness and merchantability in such situations.18 In most\nareas product liability law has moved far beyond \xe2\x80\x9cmere\xe2\x80\x9d implied warranties running between two\nparties in privity with each other.19\nThe rigid doctrines of real property law have tended to inhibit the application of implied\nwarranties to transactions involving real estate.20 Now, however, courts have begun to hold sellers\nand developers of real property responsible for the quality of their product.21 For example, builders\nof new homes have recently been held liable to purchasers for improper construction on the ground\nthat the builders had breached an implied warranty of fitness.22 In other cases courts have held\nbuilders of new homes liable for breach of an implied warranty that all local building regulations had\nbeen complied with.23 And following the developments in other areas, very recent decisions24 and\ncommentary25 suggest the possible extension of liability to parties other than the immediate seller for\nimproper construction of residential real estate.\nDespite this trend in the sale of real estate, many courts have been unwilling to imply\n130\n\n\x0cwarranties of quality, specifically a warranty of habitability, into leases of apartments. Recent\ndecisions have offered no convincing explanation for their refusal26 ; rather they have relied without\ndiscussion upon the old common law rule that the lessor is not obligated to repair unless he\ncovenants to do so in the written lease contract.27 However, the Supreme Courts of at least two\nstates, in recent and well reasoned opinions, have held landlords to implied warranties of quality in\nhousing leases. Lemle v. Breeden, S.Ct.Hawaii, 462 P. 2d 470 (1969); Reste Realty Corp. v. Cooper,\n53 N.J. 444, 251 A.2d 268 (1969). See also Pines v. Perssion, 14 Wis.2d 590, 111 N.W.2d 409 (1961).\nIn our judgment, the old no-repair rule cannot coexist with the obligations imposed on the landlord\nby a typical modern housing code, and must be abandoned28 in favor of an implied warranty of\nhabitability.29 In the District of Columbia, the standards of this warranty are set out in the Housing\nRegulations.\n\nIV\n\nA. In our judgment the common law itself must recognize the landlord\xe2\x80\x99s obligation to keep\nhis premises in a habitable condition. This conclusion is compelled by three separate considerations.\nFirst, we believe that the old rule was based on certain factual assumptions which are no longer true;\non its own terms, it can no longer be justified. Second, we believe that the consumer protection\ncases discussed above require that the old rule be abandoned in order to bring residential landlordtenant law into harmony with the principles on which those cases rest. Third, we think that the\nnature of today\xe2\x80\x99s urban housing market also dictates abandonment of the old rule.\nThe common law rule absolving the lessor of all obligation to repair originated in the early\nMiddle Ages.30 Such a rule was perhaps well suited to an agrarian economy; the land was more\nimportant31 than whatever small living structure was included in the leasehold, and the tenant farmer\nwas fully capable of making repairs himself.32 These historical facts were the basis on which the\ncommon law constructed its rule; they also provided the necessary prerequisites for its application.33\nCourt decisions in the late 1800\xe2\x80\x99s began to recognize that the factual assumptions of the\ncommon law were no longer accurate in some cases. For example, the common law, since it\nassumed that the land was the most important part of the leasehold, required a tenant to pay rent\neven if any building on the land was destroyed.34 Faced with such a rule and the ludicrous results it\nproduced, in 1863 the New York Court of Appeals declined to hold that an upper story tenant was\nobliged to continue paying rent after his apartment building burned down.35 The court simply\npointed out that the urban tenant had no interest in the land, only in the attached building.\nAnother line of cases created an exception to the no-repair rule for short term leases of\nfurnished dwellings.36 The Massachusetts Supreme Judicial Court, a court not known for its\nwillingness to depart from the common law, supported this exception, pointing out:\n\xe2\x80\x9d * [A] different rule should apply to one who hires a furnished room, or a furnished house,\nfor a few days, or a few weeks or months. Its fitness for immediate use of a particular kind, as\nindicated by its appointments, is a far more important element entering into the contract than when\nthere is a mere lease of real estate. One who lets for a short term a house provided with all\nfurnishings and appointments for immediate residence may be supposed to contract in reference to\na well-understood purpose of the hirer to use it as a habitation. * It would be unreasonable to hold,\nunder such circumstances, that the landlord does not impliedly agree that what he is letting is a\n131\n\n\x0chouse suitable for occupation in its condition at the time. *\xe2\x80\x9d37\nThese as well as other similar cases38 demonstrate that some courts began some time ago to\nquestion the common law\xe2\x80\x99s assumptions that the land was the most important feature of a leasehold\nand that the tenant could feasibly make any necessary repairs himself. Where those assumptions no\nlonger reflect contemporary housing patterns, the courts have created exceptions to the general rule\nthat landlords have no duty to keep their premises in repair.\nIt is overdue for courts to admit that these assumptions are no longer true with regard to all\nurban housing. Today\xe2\x80\x99s urban39 tenants, the vast majority of whom live in multiple dwelling houses,\nare interested, not in the land, but solely in \xe2\x80\x9ca house suitable for occupation.\xe2\x80\x9d Furthermore, today\xe2\x80\x99s\ncity dweller usually has a single, specialized skill unrelated to maintenance work; he is unable to make\nrepairs like the \xe2\x80\x9cjack-of-all-trades\xe2\x80\x9d farmer who was the common law\xe2\x80\x99s model of the lessee.40 Further,\nunlike his agrarian predecessor who often remained on one piece of land for his entire life, urban\ntenants today are more mobile than ever before. A tenant\xe2\x80\x99s tenure in a specific apartment will often\nnot be sufficient to justify efforts at repairs. In addition, the increasing complexity of today\xe2\x80\x99s\ndwellings renders them much more difficult to repair than the structures of earlier times. In a\nmultiple dwelling repair may require access to equipment and areas in the control of the landlord.\nLow and middle income tenants, even if they were interested in making repairs, would be unable to\nobtain any financing for major repairs since they have no long-term interest in the property.\nOur approach to the common law of landlord and tenant ought to be aided by principles\nderived from the consumer protection cases referred to above.41 In a lease contract, a tenant seeks to\npurchase from his landlord shelter for a specified period of time. The landlord sells housing as a\ncommercial businessman and has much greater opportunity, incentive and capacity to inspect and\nmaintain the condition of his building. Moreover, the tenant must rely upon the skill and bona fides of\nhis landlord at least as much as a car buyer must rely upon the car manufacturer. In dealing with\nmajor problems, such as heating, plumbing, electrical or structural defects, the tenant\xe2\x80\x99s position\ncorresponds precisely with \xe2\x80\x9cthe ordinary consumer who cannot be expected to have the knowledge\nor capacity or even the opportunity to make adequate inspection of mechanical instrumentalities,\nlike automobiles, and to decide for himself whether they are reasonably fit for the designed\npurpose.\xe2\x80\x9d Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 375, 161 A.2d 69, 78 (1960).42\nSince a lease contract specifies a particular period of time during which the tenant has a right\nto use his apartment for shelter, he may legitimately expect that the apartment will be fit for\nhabitation for the time period for which it is rented. We point out that in the present cases there is\nno allegation that appellants\xe2\x80\x99 apartments were in poor condition or in violation of the housing code\nat the commencement of the leases.43 Since the lessees continue to pay the same rent, they were\nentitled to expect that the landlord would continue to keep the premises in their beginning condition\nduring the lease term. It is precisely such expectations that the law now recognizes as deserving of\nformal, legal protection.\nEven beyond the rationale of traditional products liability law, the relationship of landlord\nand tenant suggests further compelling reasons for the law\xe2\x80\x99s protection of the tenants\xe2\x80\x99 legitimate\nexpectations of quality. The inequality in bargaining power between landlord and tenant has been\nwell documented.44 Tenants have very little leverage to enforce demands for better housing. Various\nimpediments to competition in the rental housing market, such as racial and class discrimination45\nand standardized form leases,46 mean that landlords place tenants in a take it or leave it situation.\nThe increasingly severe shortage47 of adequate housing further increases the landlord\xe2\x80\x99s bargaining\npower and escalates the need for maintaining and improving the existing stock. Finally, the findings\nby various studies of the social impact of bad housing has led to the realization that poor housing is\ndetrimental to the whole society, not merely to the unlucky ones who must suffer the daily indignity\nof living in a slum.48\n132\n\n\x0cThus we are led by our inspection of the relevant legal principles and precedents to the\nconclusion that the old common law rule imposing an obligation upon the lessee to repair during the\nlease term was really never intended to apply to residential urban leaseholds. Contract principles\nestablished in other areas of the law provide a more rational framework for the apportionment of\nlandlord-tenant responsibilities; they strongly suggest that a warranty of habitability be implied into\nall contracts49 for urban dwellings.\nB. We believe, in any event, that the District\xe2\x80\x99s housing code requires that a warranty of\nhabitability be implied in the leases of all housing that it covers. The housing code \xe2\x80\x93 formally\ndesignated the Housing Regulations of the District of Columbia \xe2\x80\x93 was established and authorized by\nthe Commissioners of the District of Columbia on August 11, 1955.50 Since that time, the code has\nbeen updated by numerous orders of the Commissioners. The 75 pages of the Regulations provide a\ncomprehensive regulatory scheme setting forth in some detail: (a) the standards which housing in the\nDistrict of Columbia must meet;51 (b) which party, the lessor or the lessee, must meet each standard;\nand (c) a system of inspections, notifications and criminal penalties. The Regulations themselves are\nsilent on the question of private remedies.\nTwo previous decisions of this court, however, have held that the Housing Regulations\ncreate legal rights and duties enforceable in tort by private parties. In Whetzel v. Jess Fisher\nManagement Co., 108 U.S.App.D.C. 385, 282 F.2d 943 (1960), we followed the leading case of Altz\nv. Lieberson, 233 N.Y. 16, 134 N.E. 703 (1922), in holding (1) that the housing code altered the\ncommon law rule and imposed a duty to repair upon the landlord, and (2) that a right of action\naccrued to a tenant injured by the landlord\xe2\x80\x99s breach of this duty. As Judge Cardozo wrote in\nLieberson:\n\xe2\x80\x9d * We may be sure that the framers of this statute, when regulating tenement life, had\nuppermost in thought the care of those who are unable to care for themselves. The Legislature must\nhave known that unless repairs in the rooms of the poor were made by the landlord, they would not\nbe made by any one. The duty imposed became commensurate with the need. The right to seek\nredress is not limited to the city or its officers. The right extends to all whom there was a purpose to\nprotect. *\xe2\x80\x9d\n134 N.E. at 704. Recently, in Kanelos v. Kettler, 132 U.S.App.D.C. 133, 135, 406 F.2d 951,\n953 (1968), we reaffirmed our position in Whetzel, holding that \xe2\x80\x9cthe Housing Regulations did impose\nmaintenance obligations upon appellee [landlord] which he was not free to ignore.\xe2\x80\x9d52\nThe District of Columbia Court of Appeals gave further effect to the Housing Regulations\nin Brown v. Southall Realty Co., 237 A.2d 834 (1968). There the landlord knew at the time the lease\nwas signed that housing code violations existed which rendered the apartment \xe2\x80\x9cunsafe and\nunsanitary.\xe2\x80\x9d Viewing the lease as a contract, the District of Columbia Court of Appeals held that the\npremises were let in violation of Sections 230453 and 250154 of the Regulations and that the lease,\ntherefore, was void as an illegal contract. In the light of Brown, it is clear not only that the housing\ncode creates privately enforceable duties as held in Whetzel, but that the basic validity of every\nhousing contract depends upon substantial compliance with the housing code at the beginning of\nthe lease term. The Brown court relied particularly upon Section 2501 of the Regulations which\nprovides:\n\xe2\x80\x9cEvery premises accommodating one or more habitations shall be maintained and kept in\nrepair so as to provide decent living accommodations for the occupants. This part of this Code\ncontemplates more than mere basic repairs and maintenance to keep out the elements; its purpose is\nto include repairs and maintenance designed to make a premises or neighborhood healthy and safe.\xe2\x80\x9d\nBy its terms, this section applies to maintenance and repair during the lease term. Under the\nBrown holding, serious failure to comply with this section before the lease term begins renders the\ncontract void. We think it untenable to find that this section has no effect on the contract after it has\n133\n\n\x0cbeen signed. To the contrary, by signing the lease the landlord has undertaken a continuing\nobligation to the tenant to maintain the premises in accordance with all applicable law.\nThis principle of implied warranty is well established. Courts often imply relevant law into\ncontracts to provide a remedy for any damage caused by one party\xe2\x80\x99s illegal conduct.55 In a case\nclosely analogous to the present ones, the Illinois Supreme Court held that a builder who\nconstructed a house in violation of the Chicago building code had breached his contract with the\nbuyer:\n\xe2\x80\x9d * [T]he law existing at the time and place of the making of the contract is deemed a part of\nthe contract, as though expressly referred to or incorporated in it. *\n\xe2\x80\x9cThe rationale for this rule is that the parties to the contract would have expressed that\nwhich the law implies \xe2\x80\x98had they not supposed that it was unnecessary to speak of it because the law\nprovided for it.\xe2\x80\x99 * Consequently, the courts, in construing the existing law as part of the express\ncontract, are not reading into the contract provisions different from those expressed and intended\nby the parties, as defendants contend, but are merely construing the contract in accordance with the\nintent of the parties.\xe2\x80\x9d56\nWe follow the Illinois court in holding that the housing code must be read into housing\ncontracts \xe2\x80\x93 a holding also required by the purposes and the structure of the code itself.57 The duties\nimposed by the Housing Regulations may not be waived or shifted by agreement if the Regulations\nspecifically place the duty upon the lessor.58 Criminal penalties are provided if these duties are\nignored. This regulatory structure was established by the Commissioners because, in their judgment,\nthe grave conditions in the housing market required serious action. Yet official enforcement of the\nhousing code has been far from uniformly effective.59 Innumerable studies have documented the\ndesperate condition of rental housing in the District of Columbia and in the nation. In view of these\ncircumstances, we think the conclusion reached by the Supreme Court of Wisconsin as to the effect\nof a housing code on the old common law rule cannot be avoided:\n\xe2\x80\x9d * [T]he legislature has made a policy judgment \xe2\x80\x93 that it is socially (and politically) desirable\nto impose these duties on a property owner \xe2\x80\x93 which has rendered the old common law rule\nobsolete. To follow the old rule of no implied warranty of habitability in leases would, in our\nopinion, be inconsistent with the current legislative policy concerning housing standards. *\xe2\x80\x9d60\nWe therefore hold that the Housing Regulations imply a warranty of habitability, measured\nby the standards which they set out, into leases of all housing that they cover.\n\nV\n\nIn the present cases, the landlord sued for possession for nonpayment of rent. Under\ncontract principles,61 however, the tenant\xe2\x80\x99s obligation to pay rent is dependent upon the landlord\xe2\x80\x99s\nperformance of his obligations, including his warranty to maintain the premises in habitable\ncondition. In order to determine whether any rent is owed to the landlord, the tenants must be given\nan opportunity to prove the housing code violations alleged as breach of the landlord\xe2\x80\x99s warranty.62\nAt trial, the finder of fact must make two findings: (1) whether the alleged violations63\nexisted during the period for which past due rent is claimed, and (2) what portion, if any or all, of\nthe tenant\xe2\x80\x99s obligation to pay rent was suspended by the landlord\xe2\x80\x99s breach. If no part of the tenant\xe2\x80\x99s\nrental obligation is found to have been suspended, then a judgment for possession may issue\n134\n\n\x0cforthwith. On the other hand, if the jury determines that the entire rental obligation has been\nextinguished by the landlord\xe2\x80\x99s total breach, then the action for possession on the ground of\nnonpayment must fail.64\nThe jury may find that part of the tenant\xe2\x80\x99s rental obligation has been suspended but that part\nof the unpaid back rent is indeed owed to the landlord.65 In these circumstances, no judgment for\npossession should issue if the tenant agrees to pay the partial rent found to be due.66 If the tenant\nrefuses to pay the partial amount, a judgment for possession may then be entered.\nThe judgment of the District of Columbia Court of Appeals is reversed and the cases are\nremanded for further proceedings consistent with this opinion.67\nSo ordered.\nCircuit Judge Robb concurs in the result and in Parts IV-B and V of the opinion.\nHousing Regulations of the District of Columbia (1956). \xe2\x86\xa9\nA clause in the lease provided that the tenant waived the statutory 30-day notice to quit. 45\nD.C.Code \xc2\xa7 908 (1967) expressly permits waiver of this notice. Appellants\xe2\x80\x99 answer put in issue the\nvalidity of the waivers. In view of our disposition, we have no occasion to pass upon this aspect of\nthe case. \xe2\x86\xa9\nRule 4(c) of the Landlord and Tenant Branch of the Court of General Sessions provides:\n\xe2\x80\x9cIn suits in this branch for recovery of possession of property in which the basis of recovery of\npossession is nonpayment of rent, tenants may set up an equitable defense or claim by way of\nrecoupment or set-off in an amount equal to the rent claim. No counterclaim may be filed unless\nplaintiff asks for money judgment for rent. The exclusion of prosecution of any claims in this\nbranch shall be without prejudice to the prosecution of any claims in other branches of the court.\xe2\x80\x9d\nAppellants have sought only to defeat the landlord\xe2\x80\x99s action; they have not as yet claimed any money\ndamages for the landlord\xe2\x80\x99s alleged breach of contract. Under Rule 4(c) supra, they may not\ncounterclaim for money damages if the landlord seeks only possession and no money judgment, as it\nhas done here. For the considerations to be applied in determining whether this rule conforms \xe2\x80\x9cas\nnearly as may be practicable\xe2\x80\x9d to the Federal Rules of Civil Procedure as required by 13 D.C.Code \xc2\xa7\n101 (1967), see McKelton v. Bruno, 138 U.S.App. D.C. \xe2\x80\x93, 428 F.2d 718 (decided February 17, 1970).\n\xe2\x86\xa9\nAccording to established procedure, this case was submitted to both the District of\nColumbia Court of Appeals and this court on the basis of a sparse \xe2\x80\x9cSettled Statement of\nProceedings and Evidence,\xe2\x80\x9d as approved by both parties and the trial judge. Unfortunately, the\ncourt\xe2\x80\x99s ruling on the offer of proof was made from the bench, and the basis of the ruling is not\nreflected in the \xe2\x80\x9cSettled Statement.\xe2\x80\x9d We have recently noted the inadequacy of such records for\nreview by an appellate court. Lee v. Habib, 137 U.S.App.D.C. 403, 424 F.2d 891 (1970). \xe2\x86\xa9\nIn the District of Columbia Court of Appeals, appellee urged that these cases were moot on\nthe basis of events occurring since the landlord initiated this litigation. The D.C. Court of Appeals\nheld that the cases were not moot. Saunders v. First National Realty Co., 245 A.2d 836, 837 (1968).\nAppellee has not argued mootness here, and in any event we follow the ruling of the D.C. Court of\nAppeals on this point. \xe2\x86\xa9\nJones v. United States, 362 U.S. 257, 266, 80 S.Ct. 725, 733, 4 L.Ed.2d 697 (1960). \xe2\x86\xa9\nSee Spencer v. General Hospital of the District of Columbia, 138 U.S.App.D.C. 48, 53, 425\nF.2d 479, 484 (1969) (en banc); Schipper v. Levitt & Sons, Inc., 44 N.J. 70, 90, 207 A.2d 314, 325\n(1965). Cf. 11 S. Williston, Contracts \xc2\xa7 1393A at 461 (3d ed. W. Jaeger 1968) (\xe2\x80\x9cMost of the leading\njurisdictions have not hesitated to undo a judicially committed blunder * by employing the same\nmeans \xe2\x80\x93 judicial decisions\xe2\x80\x9d) and cases cited therein at n. 20. \xe2\x86\xa9\nWhetzel v. Jess Fisher Management Co., 108 U.S.App.D.C. 385, 388, 282 F.2d 943, 946\n135\n\n\x0c(1960). \xe2\x86\xa9\nSee, e. g., National Commission on Urban Problems, Building the American City 9 (1968).\nThe extensive standards set out in the Housing Regulations provide a good guide to community\nexpectations. \xe2\x86\xa9\n2 R. Powell, Real Property \xc2\xb6 221 [1] at 179 (1967). \xe2\x86\xa9\nE. g., Medico-Dental Building Co. v. Horton & Converse, 21 Cal.2d 411, 418, 132 P.2d 457,\n462 (1942). See also 1 American Law of Property \xc2\xa7 3.11 at 202-205 (A. Casner ed. 1952); Note, The\nCalifornia Lease \xe2\x80\x93 Contract or Conveyance?, 4 Stan.L.Rev. 244 (1952); Friedman, The Nature of a\nLease in New York, 33 Cornell L.Q. 165 (1947). \xe2\x86\xa9\nKessler, The Protection of the Consumer Under Modern Sales Law, 74 Yale L.J. 262, 263\n(1964). \xe2\x86\xa9\nThis approach does not deny the possible importance of the fact that land is involved in a\ntransaction. The interpretation and construction of contracts between private parties has always\nrequired courts to be sensitive and responsive to myriad different factors. We believe contract\ndoctrines allow courts to be properly sensitive to all relevant factors in interpreting lease obligations.\nWe also intend no alteration of statutory or case law definitions of the term \xe2\x80\x9creal property\xe2\x80\x9d for\npurposes of statutes or decisions on recordation, descent, conveyancing, creditors\xe2\x80\x99 rights, etc. We\ncontemplate only that contract law is to determine the rights and obligations of the parties to the\nlease agreement, as between themselves. The civil law has always viewed the lease as a contract, and\nin our judgment that perspective has proved superior to that of the common law. See 2 M. Planiol,\nTreatise on the Civil Law \xc2\xa7 1663 et seq. (1959); 11 La.Stat.Ann., Civil Code, Art. 2669 (1952). \xe2\x86\xa9\nSee generally 8 S. Williston, Contracts \xc2\xa7\xc2\xa7 983-989 (3d ed. W. Jaeger 1964); W. Prosser, Torts \xc2\xa7\n95 (3d ed. 1964). \xe2\x86\xa9\nSee Jaeger, Warranties of Merchantability and Fitness for Use, 16 Rutgers L. Rev. 493 (1962);\nUniform Commercial Code \xc2\xa7\xc2\xa7 2-314, 2-315 (1968). \xe2\x86\xa9\nIbid. \xe2\x86\xa9\n28 D.C.Code Subtitle I (1967). \xe2\x86\xa9\nFarnsworth, Implied Warranties of Quality in Non-Sales Cases, 57 Colum. L.Rev. 653\n(1957). See Cintrone v. Hertz Truck Leasing & Rental Service, 45 N.J. 434, 212 A.2d 769 (1965); 2 F.\nHarper & F. James, Torts \xc2\xa7 28.19 at 1577 n. 5 and n. 6 (1956). \xe2\x86\xa9\nSee, e. g., Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d 69 (1960); Goldberg\nv. Kollsman Instrument Corp., 12 N.Y.2d 432, 240 N.Y.S.2d 592, 191 N.E.2d 81 (1963). See generally\nProsser, The Assault Upon the Citadel (Strict Liability to the Consumer), 69 Yale L.J. 1099 (1960);\nJaeger, Product Liability: The Constructive Warranty, 39 Notre Dame Lawyer 501 (1964). \xe2\x86\xa9\nSee Fegeas v. Sherill, 218 Md. 472, 147 A.2d 223 (1958); 7 S. Williston, Contracts \xc2\xa7 926 at\n800-801, \xc2\xa7 926A (3d ed. W. Jaeger 1963). \xe2\x86\xa9\nSee generally Bearman, Caveat Emptor in Sale of Realty \xe2\x80\x93 Recent Assaults Upon the Rule, 14\nVand.L.Rev. 541 (1961); Dunham, Vendor\xe2\x80\x99s Obligation as to Fitness of Land for a Particular\nPurpose, 37 Minn.L.Rev. 108 (1953). \xe2\x86\xa9\nSee Waggoner v. Midwestern Development, Inc., S.D., 154 N.W.2d 803 (1967); Bethlahmy\nv. Bechtel, 91 Idaho 55, 415 P.2d 698 (1969); Schipper v. Levitt & Sons, Inc., supra Note 7;\nCarpenter v. Donohoe, 154 Colo. 78, 388 P.2d 399 (1964); Loraso v. Custom Built Homes, Inc.,\nLa.App., 144 So.2d 459 (1962). Other cases still continue the older limitation on the vendor\xe2\x80\x99s\nliability to homes sold before construction is complete. See, e. g., Hoye v. Century Builders, 52\nWash.2d 830, 329 P.2d 474 (1958). \xe2\x86\xa9\nSee Schiro v. W. E. Gould & Co., 18 Ill.2d 538, 165 N.E.2d 286 (1960); Annot., 110 A.L.R.\n136\n\n\x0c1048 (1937). \xe2\x86\xa9\nConnor v. Great Western Savings and Loan Ass\xe2\x80\x99n, 69 Cal.2d 850, 73 Cal.Rptr. 369, 447\nP.2d 609 (1968) (in bank) (Traynor, Ch. J.). Chief Justice Traynor\xe2\x80\x99s excellent opinion utilizes tort\ndoctrines to extend liability beyond the immediate seller. \xe2\x86\xa9\nComment, Liability of the Institutional Lender for Structural Defects in New Housing, 35\nU.Chi.L.Rev. 739 (1968). \xe2\x86\xa9\nE. g., Kearse v. Spaulding, 406 Pa. 140, 176 A.2d 450 (1962); Susskind v. 1136 Tenants\nCorp., 43 Misc.2d 588, 251 N.Y.S.2d 321 (1964); Rubinger v. Del Monte, N.Y.S.Ct., App.T., 217\nN.Y.S.2d 792 (1961). \xe2\x86\xa9\nThe cases which recite this old rule are legion. A representative sampling is cited in 32\nAm.Jur. Landlord and Tenant \xc2\xa7 655 n. 14 (1941). \xe2\x86\xa9\nAs far as tort liability is concerned, we have previously held that the old common law rule\nhas been changed by passage of the housing code and that the landlord has a duty to maintain\nreasonably safe premises. See Note 52 infra. \xe2\x86\xa9\nAlthough the present cases involve written leases, we think there is no particular\nsignificance in this fact. The landlord\xe2\x80\x99s warranty is implied in oral and written leases for all types of\ntenancies. \xe2\x86\xa9\nThe rule was \xe2\x80\x9csettled\xe2\x80\x9d by 1485. 3 W. Holdsworth, A History of English Law 122-123 (6th\ned. 1934). The common law rule discussed in text originated in the even older rule prohibiting the\ntenant from committing waste. The writ of waste expanded as the tenant\xe2\x80\x99s right to possession grew\nstronger. Eventually, in order to protect the landowner\xe2\x80\x99s reversionary interest, the tenant became\nobligated to make repairs and liable to eviction and damages if he failed to do so. Ibid. \xe2\x86\xa9\nThe land was so central to the original common law conception of a leasehold that rent was\nviewed as \xe2\x80\x9cissuing\xe2\x80\x9d from the land: \xe2\x80\x9c[T]he governing idea is that the land is bound to pay the rent .\nWe may almost go to the length of saying that the land pays it through [the tenant\xe2\x80\x99s] hand.\xe2\x80\x9d 2 F.\nPollock & F. Maitland, The History of English Law 131 (2d ed. 1923). \xe2\x86\xa9\nMany later judicial opinions have added another justification of the old common law rule.\nThey have invoked the timeworn cry of caveat emptor and argued that a lessee has the opportunity to\ninspect the premises. On the basis of his inspection, the tenant must then take the premises \xe2\x80\x9cas is,\xe2\x80\x9d\naccording to this reasoning. As an historical matter, the opportunity to inspect was not thought\nimportant when the rule was first devised. See Note 30 supra. To the extent the no-repair rule rests\non caveat emptor, see page 1079, infra. \xe2\x86\xa9\nEven the old common law courts responded with a different rule for a landlord-tenant\nrelationship which did not conform to the model of the usual agrarian lease. Much more substantial\nobligations were placed upon the keepers of inns (the only multiple dwelling houses known to the\ncommon law). Their guests were interested solely in shelter and could not be expected to make their\nown repairs. \xe2\x80\x9cThe modern apartment dweller more closely resembles the guest in an inn than he\nresembles an agrarian tenant, but the law has not generally recognized the similarity.\xe2\x80\x9d J. Levi, P.\nHablutzel, L. Rosenberg & J. White, Model Residential Landlord-Tenant Code 6-7 (Tent. Draft\n1969). \xe2\x86\xa9\nParadine v. Jane, Aleyn 26, 82 Eng. Rep. 897 (K.B. 1947); 1 American Law of Property,\nsupra Note 11, \xc2\xa7 3.103. \xe2\x86\xa9\nGraves v. Berdan, 26 N.Y. 498 (1863). \xe2\x86\xa9\n1 American Law of Property, supra Note 11, \xc2\xa7 3.45 at 267-268, and cases cited therein. \xe2\x86\xa9\nIngalls v. Hobbs, 156 Mass. 348, 31 N.E. 286 (1892). \xe2\x86\xa9\nThe cases developing the doctrines of \xe2\x80\x9cquiet enjoyment\xe2\x80\x9d and \xe2\x80\x9cconstructive eviction\xe2\x80\x9d are\n137\n\n\x0cthe most important. See 2 R. Powell, supra Note 10, \xc2\xb6 225 [3]. See also Gladden v. Walker & Dunlop,\n83 U.S.App.D.C. 224, 168 F.2d 321 (1948) (landlord has duty to maintain portions of apartment\n\xe2\x80\x9cunder his control\xe2\x80\x9d including plumbing, heating and electrical systems); J. D. Young Corp. v.\nMcClintic, Tex.Civ.App., 26 S.W.2d 460 (1930) (implied covenant of fitness in lease of building\nunder construction); Steefel x. Rothschild, 179 N.Y. 273, 72 N.E. 112 (1904) (duty to disclose latent\ndefects). \xe2\x86\xa9\nIn 1968 more than two thirds of America\xe2\x80\x99s people lived in the 228 largest metropolitan\nareas. Only 5.2% lived on farms. The World Almanac 1970 at 251 (L. Long ed.). More than 98% of\nall housing starts in 1968 were non-farm. Id. at 313. \xe2\x86\xa9\nSee J. Levi et al., supra Note 33, at 6. \xe2\x86\xa9\nSee Part III, supra. \xe2\x86\xa9\nNor should the average tenant be thought capable of \xe2\x80\x9cinspecting\xe2\x80\x9d plaster, floorboards,\nroofing, kitchen appliances, etc. To the extent, however, that some defects are obvious, the law must\ntake note of the present housing shortage. Tenants may have no real alternative but to accept such\nhousing with the expectation that the landlord will make necessary repairs. Where this is so, caveat\nemptor must of necessity be rejected. \xe2\x86\xa9\nIn Brown v. Southall Realty Co., 237 A.2d 834 (1968), the District of Columbia Court of\nAppeals held that unsafe and unsanitary conditions existing at the beginning of the tenancy and\nknown to the landlord rendered any lease of those premises illegal and void. \xe2\x86\xa9\nSee Edwards v. Habib, 130 U.S.App. D.C. 126, 140, 397 F.2d 687, 701 (1968); 2 R. Powell,\nsupra Note 10, \xc2\xb6 221 [1] at 183; President\xe2\x80\x99s Committee on Urban Housing, A Decent Home 96\n(1968). \xe2\x86\xa9\nPresident\xe2\x80\x99s Committee, supra Note 44, at 96; National Commission, supra Note 9, at 18-19;\nG. Sternlieb, The Tenement Landlord 71 (1966). \xe2\x86\xa9\nR. Powell, supra Note 10, \xc2\xb6 221 [1] at 183 n. 13. \xe2\x86\xa9\nSee generally President\xe2\x80\x99s Committee, supra Note 44. \xe2\x86\xa9\nA. Schorr, Slums and Insecurity (1963); J. Levi, et al., supra Note 33, at 7-8. \xe2\x86\xa9\nWe need not consider the provisions of the written lease governing repairs since this\nimplied warranty of the landlord could not be excluded. See Henningsen v. Bloomfield Motors, Inc.,\nsupra Note 19; Kay v. Cain, 81 U.S.App.D.C. 24, 25, 154 F.2d 305, 306 (1946). See also Note 58, infra.\n\xe2\x86\xa9\n2 D.C.Register 47 (1955). \xe2\x86\xa9\nThese include standards for nursing homes and other similar institutions. The full scheme\nof the Regulations is set out in Whetzel v. Fisher Management Co., supra Note 8. \xe2\x86\xa9\nKanelos and Whetzel have effectively overruled, on the basis of the enactment of the housing\ncode, Bowles v. Mahoney, 91 U.S.App.D.C. 155, 202 F.2d 320 (1952) (two to one decision, Judge\nBazelon dissenting). \xe2\x86\xa9\n\xe2\x80\x9cNo person shall rent or offer to rent any habitation, or the furnishings thereof, unless such\nhabitation and its furnishings are in a clean, safe and sanitary condition, in repair, and free from\nrodents or vermin.\xe2\x80\x9d \xe2\x86\xa9\nSee infra. \xe2\x86\xa9\nSee cases cited in Annot., 110 A.L.R. 1048 (1937). \xe2\x86\xa9\nSchiro v. W. E. Gould & Co., supra Note 23, 18 Ill.2d at 544, 165 N.E.2d at 290. As a\ngeneral proposition, it is undoubtedly true that parties to a contract intend that applicable law will be\ncomplied with by both sides. We recognize, however, that reading statutory provisions into private\ncontracts may have little factual support in the intentions of the particular parties now before us.\n138\n\n\x0cBut, for reasons of public policy, warranties are often implied into contracts by operation of law in\norder to meet generally prevailing standards of honesty and fair dealing. When the public policy has\nbeen enacted into law like the housing code, that policy will usually have deep roots in the\nexpectations and intentions of most people. See Costigan, Implied-in-Fact Contracts and Mutual\nAssent, 33 Harv. L.Rev. 376, 383-385 (1920). \xe2\x86\xa9\n\xe2\x80\x9cThe housing and sanitary codes, especially in light of Congress\xe2\x80\x99 explicit direction for their\nenactment, indicate a strong and pervasive congressional concern to secure for the city\xe2\x80\x99s slum\ndwellers decent, or at least safe and sanitary, places to live.\xe2\x80\x9d Edwards v. Habib, supra Note 44, 130\nU.S.App.D.C. at 139, 397 F.2d at 700. \xe2\x86\xa9\nAny private agreement to shift the duties would be illegal and unenforceable. The\nprecedents dealing with industrial safety statutes are directly in point: \xe2\x80\x9d * [T]he only question\nremaining is whether the courts will enforce or recognize as against a servant an agreement express\nor implied on his part to waive the performance of a statutory duty of the master imposed for the\nprotection of the servant, and in the interest of the public, and enforceable by criminal prosecution.\nWe do not think they will. To do so would be to nullify the object of the statute. *\xe2\x80\x9d Narramore v.\nCleveland, C., C. & St. L. Ry. Co., 6 Cir., 96 F. 298, 302 (1899). See W. Prosser, Torts \xc2\xa7 67 at 468-469\n(3d ed. 1964) and cases cited therein. \xe2\x86\xa9\nSee Gribetz & Grad, Housing Code Enforcement: Sanctions and Remedies, 66\nColum.L.Rev. 1254 (1966); Note, Enforcement of Municipal Housing Codes, 78 Harv.L.Rev. 801\n(1965). \xe2\x86\xa9\nPines v. Perssion, 14 Wis.2d 590, 596, 111 N.W.2d 409, 412-413 (1961). Accord, Buckner v.\nAzulai, 251 Cal.App.2d Supp. 1013, 59 Cal.Rptr. 806 (1967). \xe2\x86\xa9\nIn extending all contract remedies for breach to the parties to a lease, we include an action\nfor specific performance of the landlord\xe2\x80\x99s implied warranty of habitability. \xe2\x86\xa9\nTo be relevant, of course, the violations must affect the tenant\xe2\x80\x99s apartment or common\nareas which the tenant uses. Moreover, the contract principle that no one may benefit from his own\nwrong will allow the landlord to defend by proving the damage was caused by the tenant\xe2\x80\x99s wrongful\naction. However, violations resulting from inadequate repairs or materials which disintegrate under\nnormal use would not be assignable to the tenant. Also we agree with the District of Columbia\nCourt of Appeals that the tenant\xe2\x80\x99s private rights do not depend on official inspection or official\nfinding of violation by the city government. Diamond Housing Corp. v. Robinson, 257 A.2d 492,\n494 (1969). \xe2\x86\xa9\nThe jury should be instructed that one or two minor violations standing alone which do not\naffect habitability are de minimis and would not entitle the tenant to a reduction in rent. \xe2\x86\xa9\nAs soon as the landlord made the necessary repairs rent would again become due. Our\nholding, of course, affects only eviction for nonpayment of rent. The landlord is free to seek\neviction at the termination of the lease or on any other legal ground. \xe2\x86\xa9\nIn George Y. Worthington & Son Management Corp. v. Levy, 204 A.2d 334, 336 (1964),\nthe District of Columbia Court of Appeals approved a similar procedure: \xe2\x80\x9cIn actions for possession\nof real property by reason of default in rent, where no money judgment for the back rent is sought,\nit is nevertheless proper practice for the trial court to specifically find the amount of rent in arrears.\n*\xe2\x80\x9d \xe2\x86\xa9\nCompare Molyneaux v. Town House, Inc., D.C.C.A., 195 A.2d 744 (1963). A jury finding\nthat the landlord had failed to live up to all of his obligations would operate as a conclusive finding\nthat the tenant was entitled to equitable relief under Molyneaux. \xe2\x86\xa9\nAppellants in the present cases offered to pay rent into the registry of the court during the\npresent action. We think this is an excellent protective procedure. If the tenant defends against an\n139\n\n\x0caction for possession on the basis of breach of the landlord\xe2\x80\x99s warranty of habitability, the trial court\nmay require the tenant to make future rent payments into the registry of the court as they become\ndue; such a procedure would be appropriate only while the tenant remains in possession. The\nescrowed money will, however, represent rent for the period between the time the landlord files suit\nand the time the case comes to trial. In the normal course of litigation, the only factual question at\ntrial would be the condition of the apartment during the time the landlord alleged rent was due and\nnot paid. As a general rule, the escrowed money should be apportioned between the landlord and\nthe tenant after trial on the basis of the finding of rent actually due for the period at issue in the suit.\nTo insure fair apportionment, however, we think either party should be permitted to amend its\ncomplaint or answer at any time before trial, to allege a change in the condition of the apartment. In\nthis event, the finder of fact should make a separate finding as to the condition of the apartment at\nthe time at which the amendment was filed. This new finding will have no effect upon the original\naction; it will only affect the distribution of the escrowed rent paid after the filing of the amendment.\n\xe2\x86\xa9\n\n140\n\n\x0c141\n\n\x0cThompson v. Crownover et al.,\n259 Ga. 126 (1989)\n\nCarr, Tabb & Pope, David H. Pope, for appellant.\nRichard Eason, Jr., John C. Sumner, Rex T. Reeves, Morse & Ontal, Jack O. Morse, for appellees.\nDennis A. Goldstein, Kay Y. Young, amici curiae.\nSmith, Justice\nWe granted a writ of certiorari in Thompson v. Crownover, 186 Ga. App. 633 (368 SE2d 170)\n(1988), and we reverse.\nThe appellant, Mrs. Thompson, was seriously burned when flames from what was left of a\ndeteriorating gas heater ignited her clothing. She filed an action against the appellees, James L.\nCrownover and Crownover Electrical and Mechanical, Inc., the owners of the house in which the\nincident occurred.\nThe trial court granted the appellees\xe2\x80\x99 motion for summary judgment after finding that the\ndefective condition of the heater was patent and that the appellant had equal or superior knowledge\nof the defect. The Court of Appeals (three judges concurred in the opinion, two concurred in the\njudgment only, and four dissented) generally affirmed the trial court\xe2\x80\x99s grant of summary judgment\nfor the appellees.\nFacts\nMrs. Howard, the appellant\xe2\x80\x99s mother, leased three rooms from Mr. Crownover as a dwelling\nplace where she lived with her two daughters and six grandchildren. Two gas heaters served as the\nsource of heat for the rooms. At the time Mrs. Howard leased the rooms, the bedroom heater lacked\nthe protective radiants that served as protection from the gas flames.\nDuring the tenancy, Mrs. Howard told Mr. Crownover that the heater was dangerous and\nasked him to repair it. Mr. Crownover did not repair the heater, but he did authorize Mrs. Howard\nto repair it. He told her that she could buy the necessary protective radiants and deduct the cost\nfrom her rent. The protective radiants she purchased were not the proper size, and her attempt to\nrepair the heater was unsuccessful. Subsequently, the top and back of the heater fell off, leaving\nopen gas flames rising from a frame on the floor.\nMr. Crownover had actual and constructive notice of the dangerous situation on several\noccasions from Mrs. Howard and others. The last such notice was received by Mr. Crownover\napproximately one month prior to the incident. Mr. Crownover received a notice from the College\nPark housing inspector informing him, among other things, that the heating facilities in the property\nhe leased were in poor condition and that the property was \xe2\x80\x9cunsafe for human occupancy and\nconstitute[d a] hazard to [the] health and safety of [the] occupants.\xe2\x80\x9d\nOn the day the appellant was burned, she was alone at home. Mrs. Howard was out looking\nfor a new place to live because the property had been declared \xe2\x80\x9cunsafe.\xe2\x80\x9d Not long after the appellant\n142\n\n\x0cwas taken to the hospital, the fire inspector told Mr. Crownover that the heaters would have to be\nreplaced. Before that day had ended, Mr. Crownover had both heaters replaced.\nThe appellant received burns over 36 percent of her body, requiring her to remain in Grady\nHospital from January 1984 until April 1984. Thereafter she had to wear a special garment for a year\nand had to go to the out-patient clinic at Grady on a weekly basis.\nLandlord\xe2\x80\x99s Duty\n1. Under traditional property law, a lessor grants and a lessee acquires an estate in the land.\nThus, according to the common law, the lessor generally has no obligation to keep the tenant\xe2\x80\x99s\nestate in repair nor is he responsible for persons injured on or off the tenant\xe2\x80\x99s estate. However, in\nstates that follow the common law there has been\n[d]iscontent with the appearance of unfairness in the landlord\xe2\x80\x99s general immunity from tort\nliability, and with the artificiality and increasing complexity of the various exceptions to this\nseemingly archaic rule of nonliability, [finally] the New Hampshire Supreme Court in Sargent v. Ross\n[113 N.H. 388 (308 A2d 528) (1973)] turned the rule on its head in 1973 and imposed on the lessor a\ngeneral tort duty of reasonable care. The holding has been followed by [ten courts], and rejected by\n[two courts], and it is still too early to know how broadly this restructuring of landlord tort law may\nextend.\nW. L. Prosser & W. P. Keeton, Prosser & Keeton on Torts, p. 446 (5th ed. 1984).\nGeorgia\xe2\x80\x99s statutory landlord and tenant law is unique. More than 120 years ago our General\nAssembly rejected the common law when it enacted Section 2261 of the 1865 Code which provided:\nWhen the owner of lands grants to another simply the right to possess and enjoy the use of\nsuch lands \xe2\x80\xa6 and the tenant accepts the grant, the relation of landlord and tenant exists between\nthem. In such case no estate passes out of the landlord, and the tenant has only a usufruct \xe2\x80\xa6\nGa. L. 1865, \xc2\xa7 2261 (now OCGA \xc2\xa7 44-7-1 (a)).\nThe Georgia landlord does not grant, nor does the Georgia tenant acquire an estate. \xe2\x80\x9c[In a\nlandlord and tenant relationship] the tenant has no estate, but a mere right of use, very similar to the\nright of a hirer of personalty.\xe2\x80\x9d Ga. L. 1865, \xc2\xa7 2256 (now OCGA \xc2\xa7 44-6-101). Thus it was only\nnatural for the General Assembly to require the landlord, the owner of the estate, to keep his estate\nin repair and retain liability for all substantial improvements upon his estate. \xe2\x80\x9cThe landlord must\nkeep the premises in repair, and is liable for all substantial improvements placed upon them by his\nconsent.\xe2\x80\x9d Ga. L. 1865, \xc2\xa7 2266 (now OCGA \xc2\xa7 44-7-13).\nWith this understanding of the Georgia landlord\xe2\x80\x99s relationship to the property and to the\ntenant, it was no surprise when the General Assembly in 1895 enacted another statute that imposed\na duty of reasonable care on landlords. \xe2\x80\x9c[The landlord] is responsible to others for damages arising\nfrom defective construction, or for damages from failure to keep the premises in repair.\xe2\x80\x9d Ga. L.\n1895, \xc2\xa7 3118 (now OCGA \xc2\xa7 44-7-14).\nAlthough our courts have looked to the common law in deciding landlord and tenant cases,\nit is clear that the General Assembly rejected the common law long ago, \xe2\x80\x9cand the judiciary, up until\nnow, has simply failed to give effect to this policy in its decisions.\xe2\x80\x9d Country Club Apts. v. Scott, 246 Ga.\n443, 444 (271 SE2d 841) (1980).\n2. The General Assembly has consistently expressed the public policy of this state as one in\nfavor of imposing upon the landlord liability for damages to others from defective construction and\nfailure to keep his premises in repair. The expressed public policy in favor of landlord liability is\nmatched by an equally strong and important public policy in favor of preventing unsafe residential\n143\n\n\x0chousing.\nThe General Assembly has found that people with low incomes are forced to live in unsafe\nhousing and that such living conditions constitute a menace to the health and safety of all the\nresidents of Georgia. The General Assembly has also found a direct correlation between unsafe\nresidential housing and excessive financial burdens placed on municipalities, counties, and the state\nas a whole.1\n3. With these important policies expressed and firmly in place, the General Assembly\nenacted a statute in 1976, OCGA \xc2\xa7 44-7-2, which forbids landlords from avoiding: their duty of\nrepair, OCGA \xc2\xa7 44-7-2 (b) (1); and their liability for failure to repair, OCGA \xc2\xa7 44-7-2 (b) (2). It also\nforbids landlords from avoiding their duties created by housing codes, OCGA \xc2\xa7 44-7-2 (b) (3).\nThe public policy of this state supports the position advanced by the Restatement of Law 2d,\nProperty, \xc2\xa7 17.6, which follows:\nA landlord [should be] subject to liability for physical harm caused to the tenant and others\nupon the leased property with the consent of the tenant or his subtenants by a dangerous condition\nexisting before or arising after the tenant has taken possession, if he has failed to exercise reasonable\ncare to repair the condition and the existence of the condition is in violation of:\n(1) an implied warranty of habitability; or\n(2) a duty created by statute or administrative regulation.\nThe General Assembly\xe2\x80\x99s mandate is clear. The landlord, the owner of the estate, cannot\navoid duties created by housing codes. One of the ways in which the public policy of this state can\nbe upheld is by subjecting the landlord to tort liability for a violation of the duties created by the\nhousing codes and other legislation. Accord Restatement of Law 2d, Property, \xc2\xa7 17.6 Reporter\xe2\x80\x99s\nnote 3.\n>>\nDisposition of This Case\n4. Prior to the time of the incident, the City of College Park adopted \xe2\x80\x9cThe Southern\nHousing Code.\xe2\x80\x9d Thus a jury must decide whether the appellees have failed to exercise reasonable\ncare to repair the heater and whether the condition of the heater constituted a violation of the\nhousing code.\n5. The Court of Appeals found that the appellant had assumed the risk. However,\n[i]ssues of negligence, including the related issues of assumption of the risk, lack of ordinary\ncare for one\xe2\x80\x99s own safety, lack of ordinary care in avoiding the consequences of another\xe2\x80\x99s negligence\nand comparative negligence, are ordinarily not susceptible of summary adjudication whether for or\nagainst the plaintiff or the defendant, but must be resolved by a trial in the ordinary manner.\nWakefield v. A. R. Winter Co., 121 Ga. App. 259 (174 SE2d 178) (1970).\n6. The Court of Appeals held that the use of the bedroom heater was not one of \xe2\x80\x9cnecessity\xe2\x80\x9d\nas the heater in the living room provided \xe2\x80\x9ca less dangerous\xe2\x80\x9d alternative. Thompson v. Crownover, supra,\n186 Ga. App. 633, 636. However, the evidence regarding the condition of the living room heater\nwas conflicting.2 It is the jury\xe2\x80\x99s function to draw an inference from the evidence when more than\none inference can be drawn. Also, the appellees cannot be insulated from liability simply because\none portion of the premises might be \xe2\x80\x9cless dangerous\xe2\x80\x9d than the other. At any rate, it is a question\nfor a jury to resolve.\n7. A trial court\xe2\x80\x99s grant of summary judgment will not be sustained if there is any genuine\nissue of material fact. There remain genuine issues of material fact for a jury\xe2\x80\x99s resolution.\nJudgment reversed. All the Justices concur, except Hunt, J., who concurs specially, and Marshall, C. J.,\nClarke, P. J., and Weltner, J., who dissent.\n144\n\n\x0cHunt, Justice, concurring specially.\nI write separately because the majority\xe2\x80\x99s emphasis on the landlord\xe2\x80\x99s conduct and the extent\nof the tenant\xe2\x80\x99s injuries tends to obscure the central issue. The central issue is not the extent of the\nlandlord\xe2\x80\x99s negligence, which negligence is presupposed in a consideration of assumption of the risk\nas applied to Mrs. Thompson. Rather, the central issue is whether her admitted knowledge of the\nheater\xe2\x80\x99s condition acts, under the doctrine of assumption of the risk, as a bar to any recovery. But\nfor the \xe2\x80\x9crule of necessity\xe2\x80\x9d3 I think it would.\nHaving said that, let me point out that certiorari was granted in this case to consider whether\nthe \xe2\x80\x9cpatent defect\xe2\x80\x9d rule bars recovery to the plaintiff in this case. Having implicitly decided that it\ndoes not, we should not then move into the fact-finding arena to determine whether the \xe2\x80\x9crule of\nnecessity\xe2\x80\x9d applies here \xe2\x80\x93 that is, whether, as a matter of fact, the plaintiff had a reasonable\nalternative to using the hazardous heater. In so doing, we are second-guessing both the trial court\xe2\x80\x99s\nand the Court of Appeals\xe2\x80\x99 determinations on that question.4 This is not our function on certiorari\nand I would not reach this issue.\n\xe2\x80\x9cIt is found and declared that there exist in municipalities and counties of this state slum\nareas \xe2\x80\xa6 [which] consume an excessive proportion of its revenues because of the extra services\nrequired for police, fire, accident, hospitalization, and other forms of public protection, services, and\nfacilities.\xe2\x80\x9d OCGA \xc2\xa7 36-61-3 (a). [T]here exist in the state insanitary [sic] and unsafe dwelling\naccommodations; that persons of low income are forced to reside in such accommodations \xe2\x80\xa6\n[which] constitute a menace to the health, safety, morals, and welfare of the residents of the state\nand \xe2\x80\xa6 these conditions necessitate excessive and disproportionate expenditures of public funds for\ncrime prevention and punishment, public health and safety, fire and accident protection, and other\npublic services and facilities \xe2\x80\xa6 OCGA \xc2\xa7 8-3-2. \xe2\x86\xa9\nMrs. Howard\xe2\x80\x99s affidavit stated that the Gas Light Company inspector left a note stating that\nthe \xe2\x80\x9cgas space heaters\xe2\x80\x9d were dangerous. When the property was declared \xe2\x80\x9cunfit,\xe2\x80\x9d the notice of the\nhousing violations stated that the \xe2\x80\x9cheating facilities\xe2\x80\x9d were in poor condition. Appellee James\nCrownover stated in a deposition that he replaced both heaters in the apartment after the fire inspector\ntold him that the heaters had to be replaced. \xe2\x86\xa9\nExplored by Judge Benham in his dissent joined by Judges Deen, McMurray and Pope. \xe2\x86\xa9\nAnd, in so doing, we come no closer to reconciling the issue than did the Court of Appeals.\nWhat then does our involvement contribute to the general body of state law? See Supreme Court\nRules 29 and 30 (1) regarding the criteria for the grant of certiorari. \xe2\x86\xa9\n\n145\n\n\x0c3.4. Problems\nPROBLEMS\n\nWhich, if any, of the below are critical to making a warranty of habitability claim after Javins?\n(a) showing that one\xe2\x80\x99s residential lease is written in the form of a contract rather than a transfer of\nreal property\n(b) showing a violation of the local Housing Code\n(c) showing bad faith on the part of the landlord\n(d) showing a substantial interference with the right of possession\nIn your own words, why should it affect a landlord\xe2\x80\x99s duty to mitigate damages when a\ntenant breaks a lease whether a lease agreement is a transfer of an interest in land?\nExplain how it might be possible to show a breach of the warranty of habitability where\nthere is no breach of the covenant of quiet enjoyment.\nTrue or false: One can maintain a constructive eviction claim while occupying the leased\nproperty.\nAnswers\n\nJavins?\n\n1. Which, if any, of the below are critical to making a warranty of habitability claim after\n\n(a) showing that one\xe2\x80\x99s residential lease is written in the form of a contract rather than a\ntransfer of real property\nNo, this is not necessary. One of the major points of Javins is that residential leases are not\ntransfers of real property, but are to be treated like ordinary contracts. One need not show that one\xe2\x80\x99s\nlease is a contract.\n(b) showing a violation of the local Housing Code\nYes. Though some courts find violations based on conditions that fall below judicially\nspecified community standards, the Javins court found the warranty to be based on compliance with\nthe housing code.\n(c) showing bad faith on the part of the landlord\nNo, not required.\n(d) showing a substantial interference with the right of possession\nNo, this is, roughly, the standard for showing a constructive eviction, i.e., a breach of the\ncovenant to provide quiet enjoyment, not for showing a breach of the warranty of habitability.\n2. In your own words, why should it affect a landlord\xe2\x80\x99s duty to mitigate damages when a\ntenant breaks a lease whether a lease agreement is a transfer of an interest in land?\nIf the lease is a transfer of an interest in land, then a landlord could neither enter a tenant\xe2\x80\x99s\napartment nor re-let it. The property would not \xe2\x80\x98belong\xe2\x80\x99 to the landlord, or at least is not his to\npossess, until the end of the leasehold at which point the property would revert to him. If, however,\nthe lease is a contract, then the tenant\xe2\x80\x99s non-payment is a material breach, which excuses the\nlandlord from his obligation to provide the tenant with possession of the premises. Thus, if it is a\ncontract, the landlord can cover some of his losses, but if it is a conveyance of real property, he\n146\n\n\x0ccannot.\n3. Explain how it might be possible to show a breach of the warranty of habitability where\nthere is no breach of the covenant of quiet enjoyment.\nA breach of the covenant of quiet enjoyment requires constructive eviction from at least a\nportion of the leased property. A breach of the warranty of habitability, like a broken window or\npest infestation, can exist without constituting an eviction. That said, these claims are often brought\ntogether. And the Restatement and traditional standards for (more than insignificant, substantial)\nconstructive eviction are less then perfectly clear. But if you observed that the standards were not\nthe same, and observed that a landlord could violate one without violating the other, that\xe2\x80\x99s fine.\n4. True or false: One can maintain a constructive eviction claim while occupying the leased\nproperty.\nTrue. This is just Minjak.\n\n147\n\n\x0c4. Shared Ownership\nAn Introduction to Co-Ownership\nHaving now learned how people split ownership temporally, serially serving as owners, we\nwill study the means by which people can own the same thing at the same time. Instead of \xe2\x80\x9cO to A\nand then to B,\xe2\x80\x9d let\xe2\x80\x99s consider \xe2\x80\x9cO to A and B.\xe2\x80\x9d\nIt isn\xe2\x80\x99t difficult to imagine the kinds of issues that will arise if we recognize two or more\npeople as co-owners of Blackacre. What if they don\xe2\x80\x99t get along, can\xe2\x80\x99t agree on how to use the\nproperty, can\xe2\x80\x99t agree on maintenance or remodeling or whether to sell or lease? What if one coowner acts without the consent of the others? What happens when a co-owner dies? The law must\nhave ways to answer such questions.\nAs with temporally divided ownership, concurrent co-ownership can come in one of several,\nfixed types. Knowing the type of co-ownership will answer many questions concerning the rights\nand obligations of the co-owners (often called cotenants). These forms are: the tenancy in common, the\njoint tenancy, and the tenancy by the entirety.1 Your first job when evaluating a situation involving coowners is to determine whether the co-owners are tenants in common, joint tenants, or tenants by\nthe entirety.\nThe major differences between the forms of co-ownership are in (1) how they are created,\n(2) how the interests in the property are distributed, (3) the effect of the death of a cotenant, (4) the\nalienability of interests, and (5) the availability of partition. Despite these differences, the forms of\nco-ownership share approaches to dividing income and expenses among cotenants.\nBasic Co-Ownership Principles\nExcept for certain key differences between the forms of co-ownership, the rights and\nobligations of co-owners can be summarized succinctly:\nUndivided interests. Each cotenant has an equal right to use and occupy the whole property.\nThough the cotenants may, by informal agreement or force of habit, have their own rooms or\nprivate areas, they may not bar each other from any part of the property. Cotenants have this right\neven if they have small fractional shares. I may have only a one-quarter interest in Blackacre to your\nthree-quarters interest. If Blackacre were sold, we\xe2\x80\x99d take the proceeds according to those shares. But,\ndespite your greater share, we have equal rights to possess and use all of Blackacre.\nOuster. A cotenant is ousted when forcibly ejected or barred from the property. Courts will\nfind constructive ouster if something about the property itself or something about the relationship\nbetween the cotenants makes co-occupancy impossible.\nNo duty to pay rent. Cotenants are not obligated to pay rent to each other, even if one or more\nof them are not in possession. Thus, if your cotenant has exclusive possession of Blackacre, and you\nlive elsewhere, you have no right to any amount of rent from your cotenant. One important\nexception: an ousted cotenant is owed rent, usually calculated by taking the fair market rental value\nand giving to the ousted cotenant his or her share (according to his or her fractional interest).\nRent from third parties. Cotenants are however entitled to share in rents received from third\nparties. If cotenant A leases the property to X, then cotenant B is entitled to a portion of the rent\n148\n\n\x0c(less expenses) according to B\xe2\x80\x99s fractional share.\nExpenses. Cotenants have a duty to pay their share of basic expenses, such as mortgage\npayments, insurance premiums, and taxes. Many courts include among such expenses amounts\nneeded for basic maintenance. Other courts treat even basic maintenance like all courts treat major\nimprovements: no duty to share costs absent an agreement among the cotenants.\nExpense borne by in-possession cotenants. Cotenants in exclusive possession must pay all the\nexpenses up to the value of the cotenants\xe2\x80\x99 occupation. Thus, in the example above where you live\nelsewhere while your cotenant enjoys living at Blackacre, while you don\xe2\x80\x99t get rent, you do get the\nbenefit of not having to pay at least some of the expenses. If there are only two of you, each with a\none-half interest, then you only become liable for basic expenses that exceed half of the fair rental\nvalue of Blackacre. You would bear half of the expenses that exceed such amount.\nAccounting. An accounting is a cause of action to force a cotenant to pay for rents and basic\nmaintenance.\nPartitition. An action for partitition is the means through which to seek judicial division of the\nproperty. Partition can be either in kind, meaning that the property is physically divided with the\ndivided pieces distributed to the cotenants as sole owners, or by sale, after which the cotenants\nreceive the proceeds according to their fractional shares. Though there is a stated preference for in\nkind partitition, it is often impractical and sales are common.\nThe Tenancy in Common\nThis is now the default form of co-ownership across the United States. Thus, a grant in the\nform \xe2\x80\x9cO to A and B\xe2\x80\x9d will result in a transfer of the property to A and B as tenants in common. The\nfractional shares granted need not be equal, and there can be more than two co-owners. Consider:\n\xe2\x80\x9cO toA, B, and C as tenants in common, with a 1/4 undivided interest in A, a 1/4 undivided\ninterest in B, and a 1/2 undivided interest in C.\xe2\x80\x9d Each of the cotenant is free to use the whole\nproperty, with C\xe2\x80\x99s larger interest relevant only to any rent that is collected, expenses to be paid,\nefforts to partition, or proceeds from a sale. E.g., while A is free to wander on and enjoy the whole\nproperty, C would get half of the property in an in kind partition, half of the proceeds in a sale, and\nhalf of the bill for basic expenses.\nThe cotenants may sell or lease their interests, granting what they have: a fractional,\nundivided interest as a tenant in common. The recipient steps into the shoes of the cotenant, able to\noccupy the whole, but subject to the right of the other cotenants to do the same.\nThe Joint Tenancy\nThe basic difference between a joint tenancy and a tenancy in common is the effect given to\nthe death of a cotenant. Joint tenants have a right of survivorship. Upon death, a joint tenant\xe2\x80\x99s share is\ndivided equally among the surviving joint tenants. In the case of two joint tenants, the one who\noutlives the other gets the whole property. It has been called the ultimate gamble.\nWhat if the ultimate gamble ends in a \xe2\x80\x9ctie\xe2\x80\x9d? What if all cotenants die at exactly the same\ntime? To this morbid possibility, the oddly titled Uniform Simultaneous Death Act provides an\nanswer: they split the property.\nThese days, the intention to create a joint tenancy with right of survivorship must be clear in\n149\n\n\x0cthe grant. Not only that, but grants creating joint tenancies must be attended by the four unities:\nTime. The interests of the joint tenants must be created at the same time.\nTitle. The interests must be created in the same instrument.\nInterest. The interests must be identical. The tenants must have the same fractional shares.\nPossession. The joint tenants must have an equal right to possess the whole. (Note that this\nis no different than the rule for tenants in common.)\nOnly if all four of these \xe2\x80\x9cunities\xe2\x80\x9d are met will a joint tenancy with right of survivorship be\ncreated. If the intent is lacking or if any of these unities is not met, a tenancy in common results.\nA joint tenant can easily sever the joint tenancy, transforming his or her interest into a tenancy\nin common. A conveyance is universally held to sever the joint tenancy. (As we will see, sometimes\nlesser actions than sales will also sever.) So if A and B are joint tenants, and A conveys his interest to\nX, then the joint tenancy is severed. X and B are now tenants in common. When either dies, the\ndecedent\xe2\x80\x99s interest goes according to his or her will, not automatically to the surviving joint tenant.\nSuppose that A, B, and C are joint tenants. Since they are joint tenants, we know that each\nhas a 1/3 undivided interest. The death of any of them will result in an equal distribution of the\ndecedent\xe2\x80\x99s interest to the survivors, who will remain joint tenants, now each with a 1/2 undivided\ninterest. The last survivor will take everything.2 If C sells her interest to X, the joint tenancy with\nrespect to C is severed and X will take as a tenant in common with A and B. X has no right of\nsurvivorship and, similarly, will get nothing upon the deaths of A or B. When X dies, his interest\ngoes according to his will. But the joint tenancy remains intact between A and B. So if A dies before\nB, B will obtain A\xe2\x80\x99s share, remaining a tenant in common with X, but now possessing a 2/3\nundivided interest.\nThe Tenancy by the Entirety\nYou can think of the tenancy by the entirety as a more restrictive joint tenancy that only\napplies to married couples. It only exists in about half the states. But where it does, it is sometimes\nthe default form of co-ownership for property conveyed to married couples. (Recall that the usual\ndefault for transfers to more than one party is the tenancy in common.)\nSpouses owning a piece of property in a tenancy by the entirety are essentially joint tenants,\nbut they may not as easily sever the right of survivorship. Typically, conversion to a tenancy in\ncommon occurs only as a result of divorce proceedings. Further, most states require both spouses to\nconsent to sale or encumbrance of such property. As a result it is difficult for creditors to reach the\nproperty to satisfy the debts of either spouse.3\nHere is a chart summarizing the major differences between the forms of co-ownership:\nTenancy in common Joint tenancy Tenancy by the entirety How created Default: O to A and\nB (as tenants in common). Four unities in order to create Sometimes default for married couples,\nwhere it exists. Distribution of interests Co-Os may have differing shares All interests identical\nInterests identical Right of survivorship? No Yes Yes Alienable? Yes Alienation severs yielding\ntenancy in common. Only sold or burdened if both spouses agree. Partition? Yes Yes Only in\ndivorce\n150\n\n\x0cMarital Property\nMarriage presents another complication for property ownership questions. While the three\nforms above exhaust the ways in which groups of individuals can choose to own particular pieces of\nproperty together, the marriage relationship carries with it sharing obligations that apply to any\nproperty owned by either spouse. In this sense, marriage is like a business enterprise in which\nmultiple interests can be acquired and shared under the same rules. These sharing obligations are not\nuniform and may depend on when and under what circumstances the property was acquired.\nIn a well-functioning marriage, each spouse is made happy by the success and joy of the\nother. There is an expectation and willingness to share the fruits of each other\xe2\x80\x99s hard work.\nUnwinding a marriage, on divorce, can be difficult, well for many reasons, but at least because the\nspouses typically no longer view their contributions to each other as generating their own reward.\nEach is likely to believe their sacrifices went uncompensated.\nThere are two primary divisions among states in dealing with marital property: separate\nproperty states and community property states.\nSeparate property\nIn a separate property state, the property of each spouse, whether acquired before or during\nthe marriage is considered to be, well, the separate property of each spouse. That does not mean,\nhowever, that the spouses have no property-based obligations between them. These are the major\nfeatures of separate property states:\nCreditors of one spouse cannot seek satisfaction from the separate property of the other\nspouse.\nSpouses do have a (rarely litigated outside of divorce) duty to support and maintain one\nanother.\nOn divorce property is equitably distributed, a serious caveat to the notion that the property of\neither spouse is truly separate. What equitable means varies widely among states. What property is\ndivided also varies, with some looking to all property on division and others looking only to what\nthey define as \xe2\x80\x9cmarital property.\xe2\x80\x9d\nAlimony, if ordered at all, is usually temporary (less than two years). The states\noverwhelmingly prefer clean breaks and financial independence.\nOn death, while separate property is separate and can be freely devised, most separate\nproperty states have forced share statutes requiring a certain portion, from a third to a half of the\ndecedent\xe2\x80\x99s separate property, to be devised to the surviving spouse.\nCommunity Property\nThere are relatively few community property states, but they include large segments of the\npopulation.4 What\xe2\x80\x99s more, separate property states honor the community property status of property\nbrought into them. Thus, it is worth knowing something about community property rules no matter\nwhere one practices.\nGenerally, community property is deemed to include all property acquired during the\nmarriage, except property that is inherited or received as a gift. In some states, income derived from\nseparate property (such as property acquired before marriage) is separate. Contracts to change the\nstatus of property are upheld in most states. Here are some general, though not universal rules:\nSpouses have fiduciary duties to each other with respect to community property, but they\nmay unilaterally convey and encumber property. There are exceptions: both spouses must consent to\nthe conveyance of a business and to the conveyance or mortgaging of real property.\n151\n\n\x0cThe states differ widely on whether creditors of individual spouses can reach community\nproperty.\nOn divorce, some states mechanically give to each spouse his or her own separate property\nand half of the community property, but most equitably divide like separate property states.\nOn death, a spouse can will away all of his or her separate property and half of the\ncommunity property. There is generally no forced share beyond this.\nAt common law, there was recognized a fourth form of concurrent ownership, the tenancy in\npartnership. It was used for joint ownership of business assets by business partners. Today, business\nownership is almost entirely governed by state statutes, such as the Uniform Partnership Act and\nothers defining and regulating partnerships and corporations. \xe2\x86\xa9\nStudents are typically tempted to assume that the last survivor will have a fee simple\nabsolute. But we don\xe2\x80\x99t know that. The joint tenants may only have been sharing a life estate or a fee\nsimple determinable. The joint tenancy refers to how their interest, whatever it may be, is shared.\nEvery present and future interest we learned about earlier can be held solely or with others. If with\nothers, then it can be held in a tenancy in common or joint tenancy. In a joint tenancy, the last\nsurvivor becomes the sole owner of whatever interest was jointly owned. \xe2\x86\xa9\nI will spare you the historical background of the tenancy by the entirety. It is based on the\nlegal fiction that husband and wife are one person, and that person, originally, was the husband. The\nMarried Women\xe2\x80\x99s Property Acts of the nineteenth century permitted married women to control\ntheir own property, but they did not uniformly alter the interpretation of the tenancy by the entirety\nas vesting full control in the husband. The Sawada v. Endo case explores the ways courts have\nattempted to transition to a gender-neutral interpretation of this form of co-ownership. \xe2\x86\xa9\nArizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, Wisconsin\n\xe2\x86\xa9\n\n152\n\n\x0c4.1. Tenancies in Common\nOlivas v. Olivas,\n108 N.M. 814 (1989)\n\nNancy Ann Meuchel, Sapello, for respondent-appellant.\nEugenio S. Mathis, Las Vegas, for petitioner-appellee.\nHartz, Judge.\nRespondent Sam Olivas (husband) appeals the property division in a divorce action.\nPetitioner Carolina Olivas (wife) and husband were divorced by a partial decree entered December\n18, 1984. The district court did not enter its final order dividing property until August 31, 1987. The\nissues in this appeal arise, for the most part, as a consequence of the unusually lengthy delay between\nthe divorce decree and the property division.\n\xe2\x80\xa6.\n1. CONSTRUCTIVE OUSTER\nHusband and wife separated in June 1983, about two months before wife filed her petition\nfor dissolution of marriage. The district court found that husband \xe2\x80\x9cchose to move out of the family\nhome, and he then maintained another home where he also had his office for his business.\xe2\x80\x9d\nHusband contends that the district court erred in failing to find that he had been constructively\nousted from the family home. He requested findings and conclusions that the constructive ouster by\nhis wife entitled him to half of the reasonable rental value of the home from the time of the initial\nseparation.\nHusband and wife held the family home as community property during the marriage and as\ntenants in common after dissolution. See Phillips v. Wellborn, 89 N.M. 340, 552 P.2d 471 (1976);\nHickson v. Herrmann, 77 N.M. 683, 427 P.2d 36 (1967). Although wife was the exclusive occupant of\nthe house after the separation, ordinarily a cotenant incurs no obligation to fellow cotenants by\nbeing the exclusive occupant of the premises.\n\xe2\x80\x9c[I]t is a well-settled principle of the common law that the mere occupation by a tenant of\nthe entire estate does not render him liable to his cotenant for the use and occupation of any part of\nthe common property. The reason is easily found. The right of each to occupy the premises is one\nof the incidents of a tenancy in common. Neither tenant can lawfully exclude the other. The\noccupation of one, so long as he does not exclude the other, is but the exercise of a legal right. If,\nfor any reason, one does not choose to assert the right of common enjoyment, the other is not\nobliged to stay out; and if the sole occupation of one could render him liable therefor to the other,\nhis legal right to the occupation would be dependent upon the caprice or indolence of his cotenant,\n153\n\n\x0cand this the law would not tolerate.\xe2\x80\x9d\nWilliams v. Sinclair Refining Co., 39 N.M. 388, 392, 47 P.2d 910, 912 (1935) (quoting Hamby v.\nWall, 48 Ark. 135, 137, 2 S.W. 705, 706 (1887)).\nThe result is otherwise, however, when the occupant has ousted the other cotenants. See\nChance v. Kitchell, 99 N.M. 443, 659 P.2d 895 (1983). Although the term \xe2\x80\x9couster\xe2\x80\x9d suggests an\naffirmative physical act, even a reprehensible act, the obligation of the occupying cotenant to pay\nrent may arise in the absence of \xe2\x80\x9cactual\xe2\x80\x9d ouster when the realities of the situation, without there\nbeing any fault by either cotenant, prevent the cotenants from sharing occupancy. 4 G. Thompson,\nReal Property Section 1805, at 189 (J. Grimes Repl. 1979), states:\n[B]efore a tenant in common can be liable to his cotenants for rent for the use and\noccupation of the common property, his occupancy must be such as amounts to a denial of the right\nof his cotenants to occupy the premises jointly with him, or the character of the property must be such as to\nmake such joint occupancy impossible or impracticable. [Emphasis added.]\nWe believe that it was this latter type of situation \xe2\x80\x93 an \xe2\x80\x9couster\xe2\x80\x9d in effect, without any\nphysical act and perhaps without any fault \xe2\x80\x93 to which the New Mexico Supreme Court was referring\nwhen it recognized the doctrine of \xe2\x80\x9cconstructive ouster\xe2\x80\x9d in the marital context in Hertz v. Hertz, 99\nN.M. 320, 657 P.2d 1169 (1983). The court wrote:\n[I]f one of the parties in a divorce case remains in possession of the community residence\nbetween the date of the divorce and the date of the final judgment dividing the community assets,\nthen there may be a form of constructive ouster, exclusion, or an equivalent act which is created as to\nthe right of common enjoyment by the divorced spouse not in possession. See \xc2\xa7 42-4-8, N.M.S.A.\n1978. This exclusion may render the divorced spouse in possession of the community residence\nliable to the divorced spouse not in possession for the use and occupation of the residence between\nthe date of the divorce and the date of the final judgment. See \xc2\xa7 42-4-9, N.M.S.A. 1978. To hold\notherwise would mean that both divorced spouses should have continued to live with each other\nduring the eighteen month interim or that both should have abandoned the property. [Emphasis\nadded.]\nId. at 330, 657 P.2d at 1179.\nApplying the notion of constructive ouster in the marital context is simply another way of\nsaying that when the emotions of a divorce make it impossible for spouses to continue to share the\nmarital residence pending a property division, the spouse who \xe2\x80\x93 often through mutual agreement \xe2\x80\x93\ntherefore departs the residence may be entitled to rent from the remaining spouse. Although one\ncan say that the departing spouse has been constructively \xe2\x80\x9cousted,\xe2\x80\x9d the term should not suggest\nphysical misconduct, or any fault whatsoever, on the part of the remaining spouse.\nCommon law precedents support the proposition that the remaining spouse should pay rent\nto the cotenant when both cannot be expected to live together on the property. For example, when\nit is impractical for all cotenants to occupy the premises jointly, it is unnecessary that those claiming\nrent from the cotenant in possession first demand the right to move in and occupy the premises. See\nOechsner v. Courcier, 155 S.W.2d 963 (Tex.Civ.App. 1941) (applying that principle when five heirs,\nwith separate families totalling twenty-two members, were cotenants of a five-room cottage being\noccupied by one of the families); Annotation, Accountability of Cotenants for Rents and Profits or Use and\nOccupation, 51 A.L.R.2d 388, \xc2\xa7 15 (1957). The impracticality of joint occupancy by the cotenants may\nresult from the relations between the cotenants becoming \xe2\x80\x9cso strained and bitter that they could not\ncontinue to reside together in peace and concord.\xe2\x80\x9d Maxwell v. Eckert, 109 A. 730, 731 (N.J. Eq.\n1920). See Finley v. Keene, 136 N.J. Eq. 347, 42 A.2d 208 (1945); In re Marriage of Maxfield, 47 Wash.\nApp. 699, 737 P.2d 671 (1987). If, however, hostility flows only from the cotenant out of\npossession, ordinarily there would be no constructive ouster. See O\xe2\x80\x99Connell v. O\xe2\x80\x99Connell, 93 N.J. Eq.\n603, 117 A. 634 (1922) (wife left home and refused to return despite solicitation by husband). In that\n154\n\n\x0ccircumstance the departing spouse has \xe2\x80\x9cabandoned\xe2\x80\x9d his or her interest in possession, rather than\nbeing excluded. See 4 G. Thompson, supra, \xc2\xa7 1805, at 192 (possessing cotenant not liable for his use\nand occupancy when other cotenant has abandoned property). Cf. Elsner v. Elsner, 425 S.W.2d 254\n(Mo. Ct. App. 1967) (wife not required to pay rent to absent husband; husband apparently\nvoluntarily abandoned home).\nOne jurisdiction has gone so far as to create a rebuttable presumption of ouster of the\nspouse who moves out of the former marital residence upon divorce. See Stylianopoulos v.\nStylianopoulos, 17 Mass. App. 64, 455 N.E.2d 477 (1983). Cf. In re Marriage of Watts, 171 Cal. App.3d\n366, 217 Cal. Rptr. 301 (1985) (court may order husband to reimburse community for exclusive use\nof residence after separation); Palmer v. Protrka, 257 Or. 23, 476 P.2d 185, 190 (1970) (En Banc)\n(when marital difficulties make co-occupancy impossible, requiring occupant to pay one-half of\nrental value seems closest to parties\xe2\x80\x99 intentions when they took title); but cf. Kahnovsky v. Kahnovsky, 67\nR.I. 208, 21 A.2d 569 (1941) (finding no ouster although \xe2\x80\x9cseparation was the result of marital\ndifference\xe2\x80\x9d); Barrow v. Barrow, 527 So.2d 1373 (Fla. 1988) (ex-spouses who own residence as\ncotenants after final property distribution are treated just as any other cotenants). We note that a\ncomparable result has been achieved in New Mexico\xe2\x80\x99s Second Judicial District Court through\nunpublished Interim Guidelines adopted in December 1984, which provide that, in the absence of a\ncontrary order or agreement of the parties, the parties will share the costs of maintaining the\nhouseholds for both parties during the pendency of the divorce proceeding.\nHusband had the burden of proving constructive ouster in this case. Therefore, we must\nsustain the district court\xe2\x80\x99s ruling against husband unless the evidence at trial was such as to compel the\ndistrict court to find ouster. Although the evidence of hostility between the spouses may have\nsustained a finding by the district court of constructive ouster, there was substantial evidence to\nsupport the inference that husband\xe2\x80\x99s purpose in leaving the community residence was to live with a\ngirl friend and his departure was the reason wife filed for divorce; he was not pushed out but pulled.\nEven if husband was entitled to a presumption of ouster (an issue we need not reach), that\npresumption would not require a finding in his favor once wife presented evidence that husband\xe2\x80\x99s\nmotive for departure was to live with another woman. See SCRA 1986, 11-301 (presumption shifts\nburden of production but not burden of proof). Also, the delay of several years before husband\ndemanded any rent from wife supports an inference of abandonment of his interest in occupancy. In\nshort, the evidence was conflicting and did not compel a finding of constructive ouster.\nWe recognize the ambiguity in the district court\xe2\x80\x99s finding that defendant \xe2\x80\x9cchose to move\nout.\xe2\x80\x9d Such language could be consistent with husband\xe2\x80\x99s departure being the result of marital friction,\nin which case there generally would be constructive ouster. On the other hand, the language could\nalso be construed as referring to husband\xe2\x80\x99s abandoning the home to live with another woman. We\nchoose the second construction of the finding, because \xe2\x80\x9c[i]n the case of uncertain, doubtful or\nambiguous findings, an appellate court is bound to indulge every presumption to sustain the\njudgment.\xe2\x80\x9d Ledbetter v. Webb, 103 N.M. 597, 602, 711 P.2d 874, 879 (1985). Moreover, it appeared\nfrom oral argument before this court that the issue of constructive ouster was framed in the district\ncourt in essentially the same manner as treated in this opinion. Therefore, we are comfortable in\nassuming that the district court applied the proper rule of law and in construing the district court\xe2\x80\x99s\nfinding compatibly with its rejection of husband\xe2\x80\x99s proposed conclusion of law that there was a\nconstructive ouster.\n\xe2\x80\xa6.\nDonnelly, Judge (specially concurring).\n155\n\n\x0cI concur in the result reached by the majority on each of the issues raised by appellant on\nappeal; I disagree, however, with the discussion concerning appellant\xe2\x80\x99s claim of constructive ouster.\nAppellant asserts that the trial court improperly rejected his requested finding of fact that he\nwas constructively ousted or evicted from the family home and that he should be compensated for a\nportion of the reasonable monthly rental value of the residence from the time of the parties\nseparation to the entry of the final judgment disposing of the community debts and assets. The trial\ncourt adopted a finding determining that appellant \xe2\x80\x9cchose to move out of the family home, and he\nthen maintained another home where he also had his office for his business.\xe2\x80\x9d Appellant contends\nthat the court\xe2\x80\x99s finding is not supported by substantial evidence. Although the record contains\nconflicting testimony on this issue the trial court\xe2\x80\x99s finding is supported by substantial evidence.\nAn \xe2\x80\x9couster\xe2\x80\x9d is a wrongful dispossession or exclusion of a party from real property and\ninvolves proof of intent of one party to exclude another. Hamilton v. MacDonald, 503 F.2d 1138 (9th\nCir.1974); Mastbaum v. Mastbaum, 126 N.J. Eq. 366, 9 A.2d 51 (1939). A party seeking to establish the\nfact of ouster must prove that he has unequivocally been deprived of the right to the common and\nequal possession and enjoyment of the property. See Young v. Young, 37 Md. App. 211, 376 A.2d 1151\n(1977). Generally, ouster may not be presumed solely from the fact that one party is in possession of\nthe property. Barrow v. Barrow, 527 So.2d 1373 (Fla. 1988). Similarly, a cotenant in possession of\nproperty is not liable to another cotenant for a portion of the fair rental value of the occupied\nproperty, except where he has agreed to pay, deprived the other of possession, or has used the\nproperty so as to constructively exclude the other cotenant from its use or enjoyment. See Chance v.\nKitchell, 99 N.M. 443, 659 P.2d 895 (1983); Keeler v. McNeir, 184 Okl. 244, 86 P.2d 1004 (1939);\nRoberts v. Roberts, 584 P.2d 378 (Utah 1978); In re Marriage of Maxfield, 47 Wash. App. 699, 737 P.2d\n671 (1987). \xe2\x80\x9cExclusive use,\xe2\x80\x9d which means no more than one cotenant using the entire property,\nrequires either an act of exclusion or a use of such nature that it necessarily prevents another\ncotenant from exercising his rights in the property. Young v. Young. Generally there can be no holding\nadversely or ouster by one cotenant unless the fact of such exclusive holding is communicated or\nmade known to the other. Barrow v. Barrow.\nWhere the parties have separated and one spouse retains exclusive possession of the\ncommunity residence pending entry of the final decree of divorce, such occupancy, if tantamount to\nan ouster or constructive eviction, may render the spouse who retains possession of the property\nliable to the other for a portion of the reasonable rental value. Hertz v. Hertz, 99 N.M. 320, 657 P.2d\n1169 (1983). If the evidence, however, supports a finding that one party elected to move out of the\ncommunity residence, absent conduct and an intent on the part of the remaining party to exclude\nthe other from the property, denial of a claim of ouster or constructive eviction is proper.\nThe term \xe2\x80\x9cconstructive eviction\xe2\x80\x9d most commonly arises in the context of a landlord and\ntenant relationship. See Santrizos v. Public Drug Co., 143 Minn. 222, 173 N.W. 563 (1919). For the acts\nof one party to constitute a constructive eviction of another, there must be an injurious interference\nwith one party\xe2\x80\x99s possession, substantial deprivation of the party\xe2\x80\x99s beneficial use of the premises, and\nsuch impairment of the party\xe2\x80\x99s right to reasonable use of the premises that he is compelled to vacate\nthe property. See Ben Har Holding Corp. v. Fox, 147 Misc. 300, 263 N.Y.S. 695 (1933). Where one\nparty is forced to leave the home because of violent conduct of the other, such fact may give rise to\na finding of ouster. See Young v. Young. In situations where the property is not adaptable to double\noccupancy, occupancy of the property by one party where rancor or hostility exists to the degree\nthat one or the other must vacate the property may give rise to a basis for finding a constructive\nouster. Newman v. Chase, 70 N.J. 254, 359 A.2d 474 (1976). See Cummings v. Anderson, 94 Wash.2d 135,\n614 P.2d 1283 (1980); see also Annotation, Accountability of Cotenants for Rents and Profits or Use and\nOccupation, 51 A.L.R.2d 388, at \xc2\xa7 15 (1957).\n156\n\n\x0cNo presumption of constructive ouster or eviction arises from the mere fact that one spouse\nhas left the marital residence and the other remains in possession. Proof of occupancy of realty by\none party, without more, does not render a tenant liable to a cotenant for use of the property\nbecause each has a right to occupy the premises. In re Estate of Lopez, 106 N.M. 157, 740 P.2d 707\n(Ct.App. 1987). See also NMSA 1978, \xc2\xa7 40-3-3 (Repl. 1986); Oliver v. Oliver,710 S.W.2d 942 (Mo. App.\n1986). Each case must be decided under the facts of that particular case.\nThe finding of the trial court determining that appellant was not ousted from the community\nresidence is supported by substantial evidence; thus denial of appellant\xe2\x80\x99s requested finding of fact\nseeking an award of the rental value of the community residence during the separation was proper.\nSee Holloway v. New Mexico Office Furniture, 99 N.M. 525, 660 P.2d 615 (Ct.App. 1983).\n\n157\n\n\x0c158\n\n\x0cBrewer v. Washingtn RSA No. 8 Limited Partnership,\n184 P.3d 860 (Ida. 2008)\n\nClark & Feeney, Lewiston, for appellants. Paul Thomas Clark argued.\nCreason, Moore, Dokken, PLLC, Lewiston, for respondents. Mark Moorer argued.\nBurdick, Justice\nBrothers William and Robert Brewer (the Brewers) are tenants in common with their aunt,\nMadlynn Kinzer, and other family members of property located on Moscow Mountain, Latah\nCounty. The Brewers each own a collective, undivided one-sixth interest in the property, and Kinzer\nowns an undivided, one-third interest in the property. The other family members own the remaining\ninterests.\nSince the late 1980s, before the Brewers acquired their interest, Kinzer has acted as manager\nof the property. Various companies, including Inland Cellular, entered into leases with Kinzer to\noperate microwave communication towers on the property. Inland Cellular\xe2\x80\x99s lease is for the use of a\nspecific fifty feet square portion of the property and an easement to access that parcel. The Brewers\nnever authorized Kinzer to enter into any of the leases, and prior to signing the leases, Kinzer never\nspoke with her nephews regarding the leases. Kinzer sent the Brewers their share of the proceeds\nfrom many of the leases; however, Kinzer retained all of the proceeds from the lease with Inland\nCellular as her fee for managing the property. Although the Brewers requested copies of the leases\nfrom Kinzer, she did not send them.\nSubsequently, the Brewers brought this action against Kinzer, the other tenants in common\nand the various lease holders for breach of contract, breach of fiduciary duty, constructive fraud,\naccounting, rescission of leases, and unjust enrichment. The district court granted Inland Cellular\xe2\x80\x99s\nmotion for summary judgment as to the Brewers\xe2\x80\x99 claim for unjust enrichment. It also determined\nthat the Brewers were not entitled to rescind the Inland Cellular lease, as partition was their\nexclusive remedy. The Brewers appealed.\n\xe2\x80\xa6.\nThe Brewers assert that as a matter of law, in order to make a binding lease all tenants must\nact, and an unauthorized lease is without force and is invalid; co-tenants may void unauthorized\nleases and may regard the lessee as a trespasser. Therefore, they argue, it was error for the district\ncourt to determine partition was their sole remedy.\nWe hold the district court erred when it determined that partition was the sole remedy.\nWhen deciding the various motions for summary judgment, the district court noted that the Brewers\nhad not ratified the lease with Inland Cellular, as they had done with other lessees. Nonetheless, it\ndetermined the Brewers were not entitled to rescission of that lease, as partition of the tenancy in\ncommon was their exclusive remedy. Since the Brewers had not sought partition of the property, the\ncourt granted summary judgment to Inland Cellular.\nAlthough a co-tenant has the right to lease their individual interest in the common property,\na co-tenant has no power to lease the entire estate or a specific portion of the entire estate without\nthe consent of the other tenants. 20 Am.Jur.2d Cotenancy & Joint Ownership \xc2\xa7 100 (2005). An ousted\nco-tenant has three available remedies under Idaho law. Such a contract may be voidable by the non159\n\n\x0cleasing tenants in common. See id. Excluded tenants in common may also seek the fair rental value\nof common property. See Cox v. Cox, 138 Idaho 881, 886, 71 P.3d 1028, 1033 (2003). Finally, cotenants ousted by the lease of the common property (or some portion thereof) to another party by\none co-tenant may seek partition of the property. See I.C. \xc2\xa7 6-501 et seq.; Morga v. Friedlander, 140\nAriz. 206, 680 P.2d 1267, 1270 (1984); Jackson v. Low Cost Auto Parts, 25 Ariz.App. 515, 544 P.2d\n1116, 1117-18 (1976); Quinlan Invest. Co. v. Meehan Cos., 171 Mich.App. 635, 430 N.W.2d 805, 808\n(1988); Bangen v. Bartelson, 553 N.W.2d 754, 759 (N.D.1996); Carr v. Deking, 52 Wash.App. 880, 765\nP.2d 40, 43 (1988); see also 20 Am.Jur.2d Cotenancy & Joint Ownership \xc2\xa7 101 (2005). Each of these\nremedies is equitable in nature, and the district court must examine all the interests involved before\ndetermining which remedy is appropriate for the situation.\nHere, the Inland Cellular lease was for a specific portion of the land to the exclusion of other\nco-tenants. Although the lease is binding between Kinzer, Inland Cellular and the co-tenants who\nratified the lease, the Brewers may seek rescission of the lease as a potential remedy. However,\nbecause the district court determined that partition was the exclusive remedy, it failed to balance the\nequities to determine if rescission was the appropriate remedy. As such, we vacate the district court\xe2\x80\x99s\ndecision and remand the case for the district court to consider whether rescission is the appropriate\nremedy in this instance.\nJ. Jones, J., specially concurring.\nI concur in the Court\xe2\x80\x99s opinion but think it appropriate to mention an issue not particularly\naddressed by the parties \xe2\x80\x93 the timeliness of the Brewers\xe2\x80\x99 action.\nThe Brewers acquired their interest in the real property at issue pursuant to a probate decree\ndated July 6, 1992. The Inland Cellular lease was entered into on January 27, 1995, with a five-year\nterm and a five-year renewal option. The lease appears to have been twice renewed, because counsel\nnotified the Court in oral argument that the lease was then in effect. The Brewers began raising\nquestions about the various property leases after the summer of 2000. This lawsuit was filed on June\n15, 2001, during the first renewal period of this lease. It does appear that the Brewers tried, without\nmuch success, to find out what was going on with the property prior to filing their suit. However, it\nwould seem that they could have exercised substantially more diligence in their efforts. After all,\nKinzer began entering into leases for the property in 1978 and continued without apparent question\nuntil the fall of 2000. After the Brewers acquired their interest in the property in 1992 and\nthroughout the remainder of the 1990\xe2\x80\x99s, inquiry would have shown that Kinzer had leased the\nproperty for a number of communication facilities. A visit to the property would likely have\ndisclosed the existence of several communication facilities. There is no indication that Inland\nCellular\xe2\x80\x99s predecessor in interest attempted to conceal the construction of its facility on the property.\nThings that come to mind at this point are concepts such as laches or the weighing of equities.\nWhile Inland Cellular\xe2\x80\x99s predecessor should have obtained the approval of all tenants in\ncommon when it negotiated the lease for the property, the inordinate passage of time, combined\nwith the construction and operation of the facility on the property, will make this a difficult situation\nto unwind. This is not an issue that can be determined on this appeal, but it is one that will hopefully\nbe fully aired on remand.\n\n160\n\n\x0c4.2. Joint Tenancies\nRiddle v. Harmon,\n102 Cal.App.3d 524 (Cal. App. 1980).\n\nJack C. Hamson, Ukiah, for plaintiff and respondent.\nFarella, Braun & Martel by Jon F. Hartung, Richard J. Hicks, San Francisco, for defendant\nand appellant.\nPochee, Associate Justice.\nWe must decide whether Frances Riddle, now deceased, unilaterally terminated a joint\ntenancy by conveying her interest from herself as joint tenant to herself as tenant in common. The\ntrial court determined, via summary judgment quieting title to her widower, that she did not. The\nfacts follow.\nMr. and Mrs. Riddle purchased a parcel of real estate, taking title as joint tenants. Several\nmonths before her death, Mrs. Riddle retained an attorney to plan her estate. After reviewing\npertinent documents, he advised her that the property was held in joint tenancy and that, upon her\ndeath, the property would pass to her husband. Distressed upon learning this, she requested that the\njoint tenancy be terminated so that she could dispose of her interest by will. As a result, the attorney\nprepared a grant deed whereby Mrs. Riddle granted to herself an undivided one-half interest in the\nsubject property. The document also provided that \xe2\x80\x9cThe purpose of this Grant Deed is to terminate\nthose joint tenancies formerly existing between the Grantor, FRANCES P. RIDDLE, and JACK C.\nRIDDLE, her husband. \xe2\x80\xa6\xe2\x80\x9d He also prepared a will disposing of Mrs. Riddle\xe2\x80\x99s interest in the\nproperty. Both the grant deed and will were executed on December 8, 1975. Mrs. Riddle died 20\ndays later.\nThe court below refused to sanction her plan to sever the joint tenancy and quieted title to\nthe property in her husband. The executrix of the will of Frances Riddle appeals from that\njudgment.\nThe basic concept of a joint tenancy is that it is one estate which is taken jointly. Under the\ncommon law, four unities were essential to the creation and existence of an estate in joint tenancy:\ninterest, time, title and possession. (Tenhet v. Boswell (1976) 18 Cal.3d 150, 155, 133 Cal.Rptr. 10, 554\nP.2d 330.)If one of the unities was destroyed, a tenancy in common remained.(Id.) Severance of the\njoint tenancy extinguishes the principal feature of that estate, the Jus accrescendi or right of\nsurvivorship. This \xe2\x80\x9cright\xe2\x80\x9d is a mere expectancy that arises \xe2\x80\x9conly upon success in the ultimate gamble\nsurvival and then only if the unity of the estate has not theretofore been destroyed by voluntary\nconveyance \xe2\x80\xa6, by partition proceedings \xe2\x80\xa6, by involuntary alienation under an execution \xe2\x80\xa6, or by\nany other action which operates to sever the joint tenancy.\xe2\x80\x9d (Id., at pp. 155-156, 133 Cal.Rptr. at p.\n14, 554 P.2d at p. 334, citations omitted.)\nAn indisputable right of each joint tenant is the power to convey his or her separate estate by\nway of gift or otherwise without the knowledge or consent of the other joint tenant and to thereby\nterminate the joint tenancy. (Delanoy v. Delanoy (1932) 216 Cal. 23, 26, 13 P.2d 513; Estate of Harris\n(1937) 9 Cal.2d 649, 658, 72 P.2d 873; Wilk v. Vencill (1947) 30 Cal.2d 104, 108-109, 180 P.2d 351.)If\n161\n\n\x0ca joint tenant conveys to a stranger and that person reconveys to the same tenant, then no revival of\nthe joint tenancy occurs because the unities are destroyed. (Hammond v. McArthur (1947) 30 Cal.2d\n512, 183 P.2d 1; Comments, Severance of Joint Tenancy in California (1957) 8 Hastings L.J. 290,\n291.)The former joint tenants become tenants in common.\nAt common law, one could not create a joint tenancy in himself and another by a direct\nconveyance. It was necessary for joint tenants to acquire their interests at the same time (unity of\ntime) and by the same conveyancing instrument (unity of title). So, in order to create a valid joint\ntenancy where one of the proposed joint tenants already owned an interest in the property, it was\nfirst necessary to convey the property to a disinterested third person, a \xe2\x80\x9cstrawman,\xe2\x80\x9d who then\nconveyed the title to the ultimate grantees as joint tenants. This remains the prevailing practice in\nsome jurisdictions. Other states, including California, have disregarded this application of the unities\nrequirement \xe2\x80\x9cas one of the obsolete \xe2\x80\x98subtle and arbitrary distinctions and niceties of the feudal\ncommon law,\xe2\x80\x99 (and allow the creation of a valid joint tenancy without the use of a strawman).\xe2\x80\x9d (4 A.\nPowell on Real Property (1979) p. 616, p. 670, citation omitted.)\nBy amendment to its Civil Code,1 California became a pioneer in allowing the Creation of a\njoint tenancy by direct transfer. Under authority of Civil Code section 683, a joint tenancy\nconveyance may be made from a \xe2\x80\x9csole owner to himself and others,\xe2\x80\x9d or from joint owners to\nthemselves and others as specified in the code. (See Bowman, Real Estate Law in California (4th ed.\n1975) p. 105.) The purpose of the amendment was to \xe2\x80\x9cavoid the necessity of making a conveyance\nthrough a dummy\xe2\x80\x9d in the statutorily enumerated situations. (Appendix to Journal of the Senate,\nCalifornia, Reg.Sess. 1955, Vol. 2, Third Progress Report to the Legislature, March 1955, p. 54.)\nAccordingly, in California, it is no longer necessary to use a strawman to Create A joint tenancy.\n(Donovan v. Donovan (1963) 223 Cal.App.2d 691, 697, 36 Cal.Rptr. 225.)This court is now asked to\nreexamine whether a strawman is required to terminate a joint tenancy.\nTwelve years ago, in Clark v. Carter (1968) 265 Cal.App.2d 291, 295, 70 Cal.Rptr. 923, the\nCourt of Appeal considered the same question and found the strawman to be indispensable. As in\nthe instant case, the joint tenants in Clark were husband and wife. The day before Mrs. Clark died,\nshe executed two documents without her husband\xe2\x80\x99s knowledge or consent: (1) a quitclaim deed\nconveying her undivided half interest in certain real property from herself as joint tenant to herself\nas tenant in common, and (2) an assignment of her undivided half interest in a deed of trust from\nherself as joint tenant to herself as tenant in common. These documents were held insufficient to\nsever the joint tenancy.\nAfter summarizing joint tenancy principles, the court reasoned that \xe2\x80\x9c(U)nder California law,\na transfer of property presupposes participation by at least two parties, namely, a grantor and a\ngrantee. Both are essential to the efficacy of a deed, and they cannot be the same person. A transfer\nof property requires that title be conveyed by one living person to another. (Civ.Code, s 1039.) \xe2\x80\xa6\n(P) Foreign authority also exists to the effect that a person cannot convey to himself alone, and if he\ndoes so, he still holds under the original title. (P) Similarly, it was the common law rule that in every\nproperty conveyance there be a grantor, a grantee, and a thing granted. Moreover, the grantor could\nnot make himself the grantee by conveying an estate to himself.\xe2\x80\x9d(Clark, supra, at pp. 295-296, 70\nCal.Rptr. at pp. 926, 927, citations omitted.)\nThat \xe2\x80\x9ctwo-to-transfer\xe2\x80\x9d notion stems from the English common law feoffment ceremony\nwith livery of seisin. (Swenson and Degnon, Severance of Joint Tenancies (1954) 33 Minn.L.Rev.\n466, 467.)If the ceremony took place upon the land being conveyed, the grantor (feoffor) would\nhand a symbol of the land, such as a lump of earth or a twig, to the grantee (feoffee). (Burby, Real\nProperty (3d ed. 1966) p. 281.) In order to complete the investiture of seisin it was necessary that the\nfeoffor completely relinquish possession of the land to the feoffee. (Moynihan, Preliminary Survey\nof the Law of Real Property (1940) p. 86.) It is apparent from the requirement of livery of seisin that\n162\n\n\x0cone could not enfeoff oneself that is, one could not be both grantor and grantee in a single\ntransaction. Handing oneself a dirt clod is ungainly. Just as livery of seisin has become obsolete,2 so\nshould ancient vestiges of that ceremony give way to modern conveyancing realities.\n\xe2\x80\x9cWe are given to justifying our tolerance for anachronistic precedents by rationalizing that\nthey have engendered so much reliance as to preclude their liquidation. Sometimes, however, we\nassume reliance when in fact it has been dissipated by the patent weakness of the precedent. Those\nwho plead reliance do not necessarily practice it.\xe2\x80\x9d(Traynor, No Magic Words Could Do It Justice\n(1961) 49 Cal.L.Rev. 615, 622-623.)Thus, undaunted by the Clark case, resourceful attorneys have\nworked out an inventory of methods to evade the rule that one cannot be both grantor and grantee\nsimultaneously.\nThe most familiar technique for unilateral termination is use of an intermediary \xe2\x80\x9cstrawman\xe2\x80\x9d\nblessed in the case of Burke v. Stevens (1968) 264 Cal.App.2d 30, 70 Cal.Rptr. 87. There, Mrs. Burke\ncarried out a secret plan to terminate a joint tenancy that existed between her husband and herself in\ncertain real property. The steps to accomplish this objective involved: (1) a letter written from Mrs.\nBurke to her attorney directing him to prepare a power of attorney naming him as her attorney in\nfact for the purpose of terminating the joint tenancy; (2) her execution and delivery of the power of\nattorney; (3) her attorney\xe2\x80\x99s execution and delivery of a quitclaim deed conveying Mrs. Burke\xe2\x80\x99s\ninterest in the property to a third party, who was an office associate of the attorney in fact; (4) the\nthird party\xe2\x80\x99s execution and delivery of a quitclaim deed reconveying that interest to Mrs. Burke on\nthe following day. The Burke court sanctioned this method of terminating the joint tenancy, noting\nat one point: \xe2\x80\x9cWhile the actions of the wife, from the standpoint of a theoretically perfect marriage,\nare subject to ethical criticism, and her stealthy approach to the solution of the problems facing her\nis not to be acclaimed, the question before this court is not what should have been done ideally in a\nperfect marriage, but whether the decedent and her attorneys acted in a legally permissible\nmanner.\xe2\x80\x9d(Burke, supra, at p. 34, 70 Cal.Rptr. at p. 91.)\nAnother creative method of terminating a joint tenancy appears in Reiss v. Reiss (1941) 45\nCal.App.2d 740, 114 P.2d 718. There a trust was used. For the purpose of destroying the incident of\nsurvivorship, Mrs. Reiss transferred bare legal title to her son, as trustee of a trust for her use and\nbenefit. The son promised to reconvey the property to his mother or to whomever she selected at\nany time upon her demand. (Id., at p. 746, 114 P.2d 718.)The court upheld this arrangement, stating,\n\xe2\x80\x9c(w)e are of the opinion that the clearly expressed desire of Rosa Reiss to terminate the joint tenancy\narrangement was effectively accomplished by the transfer of the legal title to her son for her\nexpressed specific purpose of having the control and the right of disposition of her half of the\nproperty.\xe2\x80\x9d(Id., at p. 747, 114 P.2d at p. 722.)\nIn view of the rituals that are available to unilaterally terminate a joint tenancy, there is little\nvirtue in steadfastly adhering to cumbersome feudal law requirements. \xe2\x80\x9cIt is revolting to have no\nbetter reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more\nrevolting if the grounds upon which it was laid down have vanished long since, and the rule simply\npersists from blind imitation of the past.\xe2\x80\x9d(Justice Oliver Wendell Holmes, Collected Legal Papers\n(1920) p. 187.) Common sense as well as legal efficiency dictate that a joint tenant should be able to\naccomplish directly what he or she could otherwise achieve indirectly by use of elaborate legal\nfictions.\nMoreover, this will not be the first time that a court has allowed a joint tenant to unilaterally\nsever a joint tenancy without the use of an intermediary. In Hendrickson v. Minneapolis Federal Sav. &\nL. Assn. (Minn.1968) 281 Minn. 462, 161 N.W.2d 688, decided one month after Clark, the\nMinnesota Supreme Court held that a tenancy in common resulted from one joint tenant\xe2\x80\x99s execution\nof a \xe2\x80\x9c(D)eclaration of election to sever survivorship of joint tenancy.\xe2\x80\x9dNo fictional transfer by\nconveyance and reconveyance through a strawman was required.3\n163\n\n\x0cOur decision does not create new powers for a joint tenant. A universal right of each joint\ntenant is the power to effect a severance and destroy the right of survivorship by conveyance of his\nor her joint tenancy interest to another \xe2\x80\x9cperson.\xe2\x80\x9d (Swenson and Degnon, op. cit. supra, at p. 469.)\xe2\x80\x9dIf\nan indestructible right of survivorship is desired that is, one which may not be destroyed by one\ntenant that may be accomplished by creating a joint life estate with a contingent remainder in fee to\nthe survivor; a tenancy in common in simple fee with an executory interest in the survivor; or a fee\nsimple to take effect in possession in the future.\xe2\x80\x9d(Swenson and Degnon, supra, at p. 469, fn.\nomitted.)\nWe discard the archaic rule that one cannot enfeoff oneself which, if applied would defeat\nthe clear intention of the grantor. There is no question but that the decedent here could have\naccomplished her objective termination of the joint tenancy by one of a variety of circuitous\nprocesses. We reject the rationale of the Clark case because it rests on a common law notion whose\nreason for existence vanished about the time that grant deeds and title companies replaced colorful\ndirt clod ceremonies as the way to transfer title to real property. One joint tenant may unilaterally\nsever the joint tenancy without the use of an intermediary device.\nThe judgment is reversed.\nCaldecott, P.J., and Rattigan, J., concur.\nMosk, J., and Manuel, J., are of the opinion that the petition should be granted.\nCivil Code section 683, as amended in 1955, provides in relevant part that: \xe2\x80\x9cA joint interest\nis one owned by two or more persons in equal shares, by a title created by a single will or transfer,\nwhen expressly declared in the will or transfer to be a joint tenancy, or by transfer from a sole owner\nto himself and others, or from tenants in common or joint tenants to themselves or some of them,\nor to themselves or any of them and others, or from a husband and wife, when holding title as\ncommunity property or otherwise to themselves or to themselves and others or to one of them and\nto another or others, when expressly declared in the transfer to be a joint tenancy, or when granted\nor devised to executors or trustees as joint tenants.\xe2\x80\x9d \xe2\x86\xa9\nIt was not until 1845 that a statute was enacted in England making it possible for a freehold\nestate to be conveyed by grant deed. In America, livery of seisin was done away with long before\nlegislative reforms were effected in the mother country. (Moynihan, op. cit, supra, at p. 87.) Maitland\ntells us that the physical acts involved in a feoffment grew out of a \xe2\x80\x9cmental incapacity, an inability to\nconceive that mere rights can be transferred.\xe2\x80\x9d(The Mystery of Seisin, 2 Law Quarterly Review 489\n(1886).) \xe2\x86\xa9\nIn its reasoning the Hendrickson court recognized a policy disfavoring survivorship in\nMinnesota, noting that in modern times survivorship came to be regarded \xe2\x80\x9d \xe2\x80\x98as an \xe2\x80\x9codious thing\xe2\x80\x9d\nthat too often deprived a man\xe2\x80\x99s heirs of their rightful inheritance (footnote omitted).\xe2\x80\x99 \xe2\x80\x9c(Hendrickson,\nsupra, at p. 670.)Construing the grant deed as effecting a termination of the joint tenancy will result\nin the concurrent estate becoming a tenancy in common. This outcome is consistent with\nCalifornia\xe2\x80\x99s statutorily decreed preference for recognizing tenancies in common. (See Civ.Code, ss\n683, 686; Tenhet v. Boswell, supra, 18 Cal.3d 150, 157, 133 Cal.Rptr. 10, 554 P.2d 330.) Contrary to the\nmodern preference, at common law there was a presumption in favor of joint tenancy. This\npresumption was based on a desire to avoid the splitting of the feudal services due to the lord of the\nfee. (Moynihan, Preliminary Survey of the Law of Real Property (1940) p. 130.) Land was kept in\nlarger tracts and thus facilitated the rendering of services to the lord. Tenancy in common, on the\nother hand, resulted in constant subdivision. (Swenson and Degnon, Severance of Joint Tenancies\n(1954) 38 Minn.L.R. 466, 503.)Another possible reason that joint tenancy was favored is that it is\n164\n\n\x0ceasier to rely on the loyalty of one man than two. (Id.) As the age of feudalism ended, the reasons for\nthe presumption in favor of joint tenancies also ended.(Id.) \xe2\x86\xa9\n\n165\n\n\x0cTehnet v. Boswell,\n554 P.2d 330 (Cal. 1976).\n\nStringham & Rogers and William J. Kadi, Tulare, for plaintiff and appellant.\nJames G. McCain, Corcoran, for defendant and respondent.\nMosk, Justice.\nA joint tenant leases his interest in the joint tenancy property to a third person for a term of\nyears, and dies during that term. We conclude that the lease does not sever the joint tenancy, but\nexpires upon the death of the lessor joint tenant.\nRaymond Johnson and plaintiff Hazel Tenhet owned a parcel of property as joint tenants.1\nAssertedly without plaintiff\xe2\x80\x99s knowledge or consent, Johnson leased the property to defendant\nBoswell for a period of 10 years at a rental of $150 per year with a provision granting the lessee an\n\xe2\x80\x98option to purchase.\xe2\x80\x992 Johnson died some three months after execution of the lease, and plaintiff\nsought to establish her sole right to possession of the property as the surviving joint tenant. After an\nunsuccessful demand upon defendant to vacate the premises, plaintiff brought this action to have\nthe lease declared invalid. The trial court sustained demurrers to the complaint, and plaintiff\nappealed from the ensuing judgment of dismissal.\n\nI\n\nBefore addressing the primary issue, we must determine whether the appeal should be\ndismissed because of the \xe2\x80\x98one final judgment\xe2\x80\x99 rule. The problem arises from the trial court\xe2\x80\x99s failure\nto dispose of all five causes of action set forth in the third amended complaint. The court granted a\nmotion to strike the fourth and fifth causes and sustained demurrers to the second and third causes\nwithout leave to amend. But the court made no express ruling on the first cause of action, which\nsought declaratory relief and damages.\nGenerally, an appeal may be taken only from the final judgment in an entire action. (Gombos\nv. Ashe (1958) 158 Cal.App.2d 517, 520-523, 322 P.2d 933; 6 Witkin, Cal.Rpocedure (2d ed. 1971)\nAppeal, s 36, p. 4050.) A party may not normally appeal from a judgment on one of his causes of\naction if determination of any remaining cause is still pending. (U.S. Financial v. Sullivan (1974) 37\nCal.App.3d 5, 11, 112 Cal.Rptr. 18; Gombos v. Ashe, supra, 158 Cal.App.2d at pp. 520-523, 322 P.2d\n933.)\nHowever, the rule has been modified in cases in which the trial court\xe2\x80\x99s failure to dispose of\nall causes of action results from inadvertence or mistake rather than an intention to retain the\nremaining causes of action for trial. The leading case of Gombos v. Ashe is a prime example. There,\nplaintiffs injured in an automobile accident filed a complaint setting forth two causes of action\nseeking compensatory damages and a third praying for punitive damages. The trial court sustained a\ndemurrer on the punitive damage issue, and the case went to trial on the compensatory damage\ncauses. Plaintiffs won a jury verdict, but the judgment failed to dispose of the punitive damage issue.\nOn plaintiffs\xe2\x80\x99 appeal from the ruling on that issue, the court, speaking through Justice Peters,\nobserved that the order sustaining the demurrer was not a final judgment and thus not appealable.\nThe normal procedure, noted the court, would be to dismiss the appeal with instructions to the trial\n166\n\n\x0ccourt to amend its judgment by disposing of the punitive damage issue. However, the court\ncontinued, \xe2\x80\x98That would then require the parties to rebrief the question as to whether the (punitive\ndamage) cause of action stated a cause of action-the very point that is fully briefed in the briefs now\non file. This seems to be an unnecessarily dilatory and circuitous method of reaching a proper result.\nIt should not be adopted unless it is the only proper method of reaching a fair result.\xe2\x80\x99(Id. at p. 524,\n322 P.2d at p. 937.)\nAs an alternative, the Gombos appellate court itself amended the judgment on the\ncompensatory damage verdict to include a paragraph dismissing the punitive damage cause of\naction. (Ibid.) The judgment on the jury verdict thus became final, and the court could properly hear\nthe appeal. This method of preserving appeals has been routinely followed in subsequent cases. (See,\ne.g., Oakes v. Suelynn Corp. (1972) 24 Cal.App.3d 271, 281, 100 Cal.Rptr. 838 (where the trial court, in\na damage action, properly struck a conversion count but inadvertently failed to dismiss that count in\nrendering judgment on a jury verdict on a separate count, judgment was amended to include such\ndismissal); Tsarnas v. Bailey (1960) 179 Cal.App.2d 332, 337, 3 Cal.Rptr. 629 (where the intention of\nthe trial court was clear from its judgment on a complaint, judgment was amended to include\ndisposition of a cross-complaint in the same action).)\nThe instant case also calls for application of the Gombos procedure. The trial court,\napparently believing that a cause of action seeking declaratory relief could not be disposed of by\njudgment on the pleadings (but see 3 Witkin, Cal.Procedure (2d ed. 1971) Pleading, s 731, pp. 23512352), made no express ruling on the first cause of action. However, the court left no doubt that it\nconsidered plaintiff\xe2\x80\x99s position insupportable. It sustained demurrers on the other causes of action\nbased on identical facts, and stated, \xe2\x80\x98The Court agrees with \xe2\x80\xa6 defendant to the effect that a\ncotenant may make a valid lease to the extent of his own interest even though the lease is to\ncommence on the death of the lessor.\xe2\x80\x99In these circumstances little would be gained by ordering the\ncourt to rule on the first cause of action, for the outcome is preordained. Not only is the position of\nthe court clear, but both sides have briefed the primary issues, and both urge us to decide the case.\nWe shall therefore amend the judgment by ruling in favor of defendant on the first cause of action\nseeking declaratory relief and damages. We now turn to the merits of the judgment as thus amended.\n\nII\n\nAn understanding of the nature of a joint interest in this state is fundamental to a\ndetermination of the question whether the present lease severed the joint tenancy. Civil Code section\n683 provides in part: \xe2\x80\x98A joint interest is one owned by two or more persons in equal shares, by a title\ncreated by a single will or transfer, when expressly declared in the will or transfer to be a joint\ntenancy\xe2\x80\xa6 .\xe2\x80\x99 This statute, requiring an express declaration for the creation of joint interests, does not\nabrogate the common law rule that four unities are essential to an estate in joint tenancy: unity of\ninterest, unity of time, unity of title, and unity of possession. (See Hammond v. McArthur (1947) 30\nCal.2d 512, 514, 183 P.2d 1; McDonald v. Morley (1940) 15 Cal.2d 409, 412, 101 P.2d 690; 2\nBlackstone, Commentaries -182.)\nThe requirement of four unities reflects the basic concept that there is but one estate which\nis taken jointly; if an essential unity is destroyed the joint tenancy is severed and a tenancy in\ncommon results. (Swartzbaugh v. Sampson (1936) 11 Cal.App.2d 451, 454, 54 P.2d 73; 2 Am.Law of\nProp. (1952) s 6.2, p. 9.) Accordingly, one of two joint tenants may unilaterally terminate the joint\ntenancy by conveying his interest to a third person. (Delanoy v. Delanoy (1932) 216 Cal. 23, 26, 13 P.2d\n513; Green v. Skinner (1921) 185 Cal. 435, 438, 197 P. 60.)Severance of the joint tenancy, of course,\nextinguishes the principal feature of that estate-the Jus accrescendi or right of survivorship.3 Thus, a\n167\n\n\x0cjoint tenant\xe2\x80\x99s right of survivorship is an expectancy that is not irrevocably fixed upon the creation of\nthe estate (Gwinn v. Commissioner of Internal Revenue (1932) 287 U.S. 224, 228, 53 S.Ct. 157, 77 L.Ed.\n270 (interpreting California law)); it arises only upon success in the ultimate gamble-survival-and\nthen only if the unity of the estate has not theretofore been destroyed by voluntary conveyance\n(Delanoy v. Delanoy, supra), by partition proceedings (Code Civ.Proc., s 752; Teutenberg v. Schiller (1955)\n138 Cal.App.2d 18, 22, 291 P.2d 53; cf. Lazzarevich v. Lazzarevich (1952) 39 Cal.2d 48, 50, 244 P.2d 1),\nby involuntary alienation under an execution (Young v. Hessler (1945) 72 Cal.App.2d 67, 69, 164 P.2d\n65; Zeigler v. Bonnell (1942) 52 Cal.App.2d 217, 219, 126 P.2d 118), or by any other action which\noperates to sever the joint tenancy.\nOur initial inquiry is whether the partial alienation of Johnson\xe2\x80\x99s interest in the property\neffected a severance of the joint tenancy under these principles. It could be argued that a lease\ndestroys the unities of interest and possession because the leasing joint tenant transfers to the lessee\nhis present possessory interest and retains a mere reversion. (See Alexander v. Boyer (1969) 253 Md.\n511, 253 A.2d 359, 365.) Moreover, the possibility that the term of the lease may continue beyond\nthe lifetime of the lessor is inconsistent with a complete right of survivorship.\nOn the other hand, if the lease entered into here by Johnson and defendant is valid only\nduring Johnson\xe2\x80\x99s life, then the conveyance is more a variety of life estate Pur autre vie than a term of\nyears. Such a result is inconsistent with Johnson\xe2\x80\x99s freedom to alienate his interest during his lifetime.\nWe are mindful that the issue here presented is \xe2\x80\x98an ancient controversy, going back to Coke\nand Littleton.\xe2\x80\x99(2 Am.Law of Prop. (1952) s 6.2, p. 10.) Yet the problem is like a comet in our law:\nthough its existence in theory has been frequently recognized, its observed passages are few.4 Some\nauthorities support the view that a lease by a joint tenant to a third person effects a complete and\nfinal severance of the joint tenancy. (Alexander v. Boyer (Md.1969) supra, 253 Md. 511, 253 A.2d 359,\n365; 2 Am.Law of Prop. (1952) s 6.2, p. 10; Freeman on Cotenancy and Partition (2d ed. 1886) s 30;\nComment (1937) 25 Cal.L.Rev. 203, 208; Swenson & Degnan, Severance of Joint Tenancies (1954)\n38 Minn.L.Rev. 466, 474.) Such a view is generally based upon what is thought to be the English\ncommon law rule. (See Napier v. Williams (1911) 1 Ch. 361; Cowper v. Fletcher (1865) 6 B. & S. 464, 472;\nDoe ex dem. Marsack v. Read (1810) 12 East 57; Gould v. Kemp (1834) 39 Eng.Rep. 959, 962; Clerk v.\nClerk (1694) 23 Eng.Rep. 809; Littleton\xe2\x80\x99s Tenures, s 289; Swartzbaugh v. Sampson (1936) supra, 11\nCal.App.2d 451, 454, 54 P.2d 73; Annot. (1959) 64 A.L.R.2d 918, 932; cf. Palmer v. Rich (1897) 1\nCh. 134, 142-143; but see 27 Halsbury\xe2\x80\x99s Laws of England (2d ed. 1937) s 1144, p. 662, fn. (l);\nCo.Litt. a.)\nOthers adopt a position that there is a temporary severance during the term of the lease. If\nthe lessor dies while the lease is in force, under this view the existence of the lease at the moment\nwhen the right of survivorship would otherwise take effect operates as a severance, extinguishing the\njoint tenancy. If, however, the term of the lease expires before the lessor, it is reasoned that the joint\ntenancy is undisturbed because the joint tenants resume their original relation. (See, e.g., 2 Reeves on\nReal Property (1909) s 680, p. 965; Comment (1937) 25 Cal.L.Rev. 203, 208-209; cf. 1 Platt on\nLeases (1847) pp. 130-131.) The single conclusion that can be drawn from centuries of academic\nspeculation on the question is that its resolution is unclear.<</p>\nAs we shall explain, it is our opinion that a lease is not so inherently inconsistent with joint\ntenancy as to create a severance, either temporary or permanent. (See Hammond v. McArthur (1947)\nsupra, 30 Cal.2d 512, 516, 183 P.2d 1 (dictum); Swartzbaugh v. Sampson (1936) supra, 11 Cal.App.2d\n451, 454, 54 P.2d 73; 15 Cal.Jur.3d, Cotenancy and Joint Ownership, s 16, p. 736; 20 Am.Jur.2d,\nCotenancy and Joint Ownership, s 17, p. 111; 1 Ogden\xe2\x80\x99s Revised Cal. Real Property Law (1974) s\n720; 1 Platt on Leases (1847) pp. 130-131; 27 Halsbury\xe2\x80\x99s Laws of England (2d ed. 1937) s 1144, p.\n662, fn. (l); Co.Litt. a.)\nUnder Civil Code sections 683 and 686 a joint tenancy must be expressly declared in the\n168\n\n\x0ccreating instrument, or a tenancy in common results. This is a statutory departure from the common\nlaw preference in favor of joint tenancy. (Abbey v. Lord (1959) 168 Cal.App.2d 499, 503, 336 P.2d\n226; Reiss v. Reiss (1941) 45 Cal.App.2d 740, 747, 114 P.2d 718; Swartzbaugh v. Sampson (1936) supra,\n11 Cal.App.2d 451, 454, 54 P.2d 73; see Frisbie v. Marques (1870) 39 Cal. 451, 453-454.)5 Inasmuch as\nthe estate arises only upon express intent, and in many cases such intent will be the intent of the\njoint tenants themselves, we decline to find a severance in circumstances which do not clearly and\nunambiguously establish that either of the joint tenants desired to terminate the estate. (See\nComment (1973) 61 Cal.L.Rev. 231, 248; Note (1948) 36 Cal.L.Rev. 133, 135.)\nIf plaintiff and Johnson did not choose to continue the joint tenancy, they might have\nconverted it into a tenancy in common by written mutual agreement. (See, e.g., Smith v. Morton (1972)\n29 Cal.App.3d 616, 621, 106 Cal.Rptr. 52; 15 Cal.Jur.3d, Cotenancy and Joint Ownership, s 15, p.\n733; 20 Am.Jur.2d, Cotenancy and Joint Ownership, s 19, p. 112.) They might also have jointly\nconveyed the property to a third person and divided the proceeds. Even if they could not agree to\nact in concert, either plaintiff or Johnson might have severed the joint tenancy, with or without the\nconsent of the other, by an act which was clearly indicative of an intent to terminate, such as a\nconveyance of her or his entire interest. Either might also have brought an action to partition the\nproperty, which, upon judgment, would have effected a severance. Because a joint tenancy may be\ncreated only by express intent, and because there are alternative and unambiguous means of altering\nthe nature of that estate, we hold that the lease here in issue did not operate to sever the joint\ntenancy.\n\nIII\n\nHaving concluded that the joint tenancy was not severed by the lease and that sole\nownership of the property therefore vested in plaintiff upon her joint tenant\xe2\x80\x99s death by operation of\nher right of survivorship, we turn next to the issue whether she takes the property unencumbered by\nthe lease.\nIn arguing that plaintiff takes subject to the lease, defendant relies on Swartzbaugh v. Sampson\n(1936) supra, 11 Cal.App.2d 451, 54 P.2d 73.In that case, one of two joint tenants entered into lease\nagreements over the objection of his joint tenant wife, who sought to cancel the leases. The court\nheld in favor of the lessor joint tenant, concluding that the leases were valid.\nBut the suit to cancel the lease in Swartzbaugh was brought during the lifetime of both joint\ntenants, not as in the present case after the death of the lessor. Significantly, the court concluded\nthat \xe2\x80\x98a lease to all of the joint property by one joint tenant is not a nullity but is a valid and\nsupportable contract In so far as the interest of the lessor in the joint property is concerned.\xe2\x80\x99(Italics\nadded; Id. at p. 458, 54 P.2d at p. 77.)During the lifetime of the lessor joint tenant, as the\nSwartzbaugh court perceived, her interest in the joint property was an undivided interest in fee\nsimple that encompassed the right to lease the property.\nBy the very nature of joint tenancy, however, the interest of the nonsurviving joint tenant\nextinguishes upon his death. And as the lease is valid only \xe2\x80\x98in so far as the interest of the lessor in\nthe joint property is concerned,\xe2\x80\x99 it follows that the lease of the joint tenancy property also expires\nwhen the lessor dies.\nThis conclusion is borne out by decisions in this state involving liens on and mortgages of\njoint tenancy property. In Zeigler v. Bonnell (1942) supra, 52 Cal.App.2d 217, 126 P.2d 118, the Court\nof Appeal ruled that a surviving joint tenant takes an estate free from a judgment lien on the interest\nof a deceased cotenant judgment debtor. The court reasoned that \xe2\x80\x98The right of survivorship is the\nchief characteristic that distinguishes a joint tenancy from other interests in property\xe2\x80\xa6 . The\n169\n\n\x0cjudgment lien of (the creditor) could attach only to the interest of his debtor \xe2\x80\xa6. That interest\nterminated upon (the debtor\xe2\x80\x99s) death.\xe2\x80\x99 (Id. at pp. 219-220, 126 P.2d at p. 119.)After his death \xe2\x80\x98the\ndeceased joint tenant had no interest in the property, and his judgment creditor has no greater\nrights.\xe2\x80\x99(Id. at p. 220, 126 P.2d at p. 120.)\nA similar analysis was followed in People v. Nogarr (1958) 164 Cal.App.2d 591, 330 P.2d 858,\nwhich held that upon the death of a joint tenant who had executed a mortgage on the tenancy\nproperty, the surviving joint tenant took the property free of the mortgage. The court reasoned (at p.\n594, 330 P.2d at p. 861) that \xe2\x80\x98as the mortgage lien attached only to such interest as (the deceased\njoint tenant) had in the real property(,) when his interest ceased to exist the lien of the mortgage\nexpired with it.\xe2\x80\x99(Accord, Hamel v. Gootkin (1962) 202 Cal.App.2d 27, 20 Cal.Rptr. 372 (applying the\nNogarr holding to a trust deed).)\nAs these decisions demonstrate, a joint tenant may, during his lifetime, grant certain rights in\nthe joint property without severing the tenancy. But when such a joint tenant dies his interest dies\nwith him, and any encumbrances placed by him on the property become unenforceable against the\nsurviving joint tenant. For the reasons stated a lease falls within this rule.\nAny other result would defeat the justifiable expectations of the surviving joint tenant. Thus\nif A agrees to create a joint tenancy with B, A can reasonably anticipate that when B dies A will take\nan unencumbered interest in fee simple. During his lifetime, of course, B may sever the tenancy or\nlease his interest to a third party. But to allow B to lease for a term continuing After his death would\nindirectly defeat the very purposes of the joint tenancy. For example, for personal reasons B might\nexecute a 99-year lease on valuable property for a consideration of one dollar a year. A would then\ntake a fee simple on B\xe2\x80\x99s death, but would find his right to use the property-and its market valuesubstantially impaired. This circumstance would effectively nullify the benefits of the right of\nsurvivorship, the basic attribute of the joint tenancy.\nOn the other hand, we are not insensitive to the potential injury that may be sustained by a\nperson in good faith who leases from one joint tenant. In some circumstances a lessee might be\nunaware that his lessor is not a fee simple owner but merely a joint tenant, and could find himself\nunexpectedly evicted when the lessor dies prior to expiration of the lease. This result would be\navoided by a prudent lessee who conducts a title search prior to leasing, but we appreciate that such\na course would often be economically burdensome to the lessee of a residential dwelling or a modest\nparcel of property. Nevertheless, it must also be recognized that every lessee may one day face the\nunhappy revelation that his lessor\xe2\x80\x99s estate in the leased property is less than a fee simple. For\nexample, a lessee who innocently rents from the holder of a life estate is subject to risks comparable\nto those imposed upon a lessee of joint tenancy properly.\nMore significantly, we cannot allow extraneous factors to erode the functioning of joint\ntenancy. The estate of joint tenancy is firmly embedded in centuries of real property law and in the\nCalifornia statute books. Its crucial element is the right of survivorship, a right that would be more\nillusory than real if a joint tenant were permitted to lease for a term continuing after his death.\nAccordingly, we hold that under the facts alleged in the complaint the lease herein is no longer valid.\nIt is ordered that the judgment dated June 18, 1973, be and it is hereby amended to read as\nfollows:\nIt is ordered, adjudged and decreed that Defendant, W. W. Boswell, Jr., have judgment\nagainst Plaintiff of dismissal of said First, Second and Third Causes of Action of said Third\nAmended Complaint and the Plaintiff, with respect to said defendant, take nothing by said First,\nSecond and Third Causes of Action of said Third Amended Complaint.\nAs amended, the judgment is reversed.\n\n170\n\n\x0cWright,, C.J., and McComb, Tobriner, Clark and Richardson, JJ., concur.\nAn \xe2\x80\x98Affidavit-Death of Joint Tenant,\xe2\x80\x99 executed by plaintiff and appended as an exhibit to\nplaintiff\xe2\x80\x99s third amended complaint, indicates that the property was acquired by a joint tenancy deed\n\xe2\x80\x98executed by Jettie N. Johnson to Raymond Johnson and Hazel Johnson (now known as Hazel\nTenhet) as joint tenants.\xe2\x80\x99Plaintiff avers by the same document that the value of the property, which\nallegedly includes a dwelling house and lot, did not exceed $3,500 at the time of the death of the\nlessor in 1971. \xe2\x86\xa9\nThe lease did not disclose that the lessor possessed only a joint interest in the property. To\nthe contrary, the \xe2\x80\x98option to purchase\xe2\x80\x99 granted to the lessee, which might more accurately be\ndescribed as a right of first refusal, implied that the lessor possessed a fee simple. It provided in part:\n\xe2\x80\x98Lessee is given a first exclusive right, privilege and option to purchase the house and lot covered by\nthis lease\xe2\x80\xa6 . ( ) If so purchased, Lessor will convey title by grant deed on the usual form subject\nonly to easements or rights of way of record and liens or encumbrances specifically agreed to by and\nbetween Lessor and Lessee. ( ) Lessor shall furnish Lessee with a policy of title insurance at Lessor\xe2\x80\x99s\ncost\xe2\x80\xa6 .\xe2\x80\x99 \xe2\x86\xa9\nThe rule is, Nihil de re accrescit ei, qui nihil in re quando jus accrescerit habet. (2 Co.Litt.) Literally,\nno part of the estate accrues to him who has nothing in the estate when the right accrues. In modern\nparlance, what you have is what you get. \xe2\x86\xa9\nFor discussions of the question, see, e.g., Comment (1973) 61 Cal.L.Rev. 231; Comment\n(1937) 25 Cal.L.Rev. 203, 206-209; Swenson & Degnan, Severance of Joint Tenancies (1954) 38\nMinn.L.Rev. 466, 472-474; Comment (1957) 8 Hastings L.J. 290, 293; Comment (1948) 21\nSo.Cal.L.Rev. 295, 297; 2 Tiffany, The Law of Real Property (3d ed. 1939) section 425, page 210. \xe2\x86\xa9\nBecause the feudal system was opposed to a division of tenures, estates in joint tenancy\nwere favored at common law. Like the laws of primogeniture, joint tenancy was founded \xe2\x80\x98on the\nprinciple of the aggregation of landed estates in the hands of a few, and opposed to their division\namong many persons.\xe2\x80\x99(Siberell v. Siberell (1932) 214 Cal. 767, 771, 7 P.2d 1003, 1004 quoting DeWitt v.\nSan Francisco (1852) 2 Cal. 289, 297.)Despite the obsolescence of its original purpose, the estate of\njoint tenancy remains a popular form of property ownership in California (see Griffith, Community\nProperty in Joint Tenancy Form (1961) 14 Stan.L.Rev. 87, 88-89) on the ground that it avoids the\ndelay and administrative expenses of probate. \xe2\x86\xa9\n\n171\n\n\x0c4.3. Tenancies by the Entirety\nSawada v. Endo,\n57 Haw. 608 (1977)\n\nAndrew S. Hartnett, Honolulu, for plaintiffs-appellants.\nGeorge M. Takane, Eichi Oki, Honolulu, for defendants-appellees.\nBefore Richardson, C. J., and Kobayashi, Ogata, Menor and Kidwell, JJ.\nMenor, Justice\nThis is a civil action brought by the plaintiffs-appellants, Masako Sawada and Helen Sawada,\nin aid of execution of money judgments in their favor, seeking to set aside a conveyance of real\nproperty from judgment debtor Kokichi Endo to Samuel H. Endo and Toru Endo, defendantsappellees herein, on the ground that the conveyance as to the Sawadas was fraudulent.\nOn November 30, 1968, the Sawadas were injured when struck by a motor vehicle operated\nby Kokichi Endo. On June 17, 1969, Helen Sawada filed her complaint for damages against Kokichi\nEndo. Masako Sawada Fied her suit against him on August 13, 1969. The complaint and summons\nin each case was served on Kokichi Endo on October 29, 1969.\nOn the date of the accident, Kokichi Endo was the owner, as a tenant by the entirety with\nhis wife, Ume Endo, of a parcel of real property situate at Wahiawa, Oahu, Hawaii. By deed, dated\nJuly 26, 1969, Kokichi Endo and his wife conveyed the property to their sons, Samuel H. Endo and\nToru Endo. This document was recorded in the Bureau of Conveyances on December 17, 1969. No\nconsideration was paid by the grantees for the conveyance. Both were aware at the time of the\nconveyance that their father had been involved in an accident, and that he carried no liability\ninsurance. Kokichi Endo and Ume Endo, while reserving no life interests therein, continued to\nreside on the premises.\nOn January 19, 1971, after a consolidated trial on the merits, judgment was entered in favor\nof Helen Sawada and against Kokichi Endo in the sum of $8,846.46. At the same time, Masako\nSawada was awarded judgment on her complaint in the amount of $16,199.28. Ume Endo, wife of\nKokichi Endo, on January 29, 1971. She was survived by her husband, Kokichi. Subsequently, after\nbeing frustrated in their attempts to obtain satisfaction of judgment from the personal property of\nKokichi Endo, the Sawadas brought suit to set aside the conveyance which is the subject matter of\nthis controversy. The trial court refused to set aside the conveyance, and the Sawadas appeal.\nI\nThe determinative question in this case is, whether the interest of one spouse in real\nproperty, held in tenancy by the entireties, is subject to levy and execution by his or her individual\n172\n\n\x0ccreditors. This issue is one of first impression in this jurisdiction.\nA brief review of the present state of the tenancy by the entirety might be helpful. Dean\nPhipps, writing in 1951,1 pointed out that only nineteen states and the District of Columbia\ncontinued to recognize it as a valid and subsisting institution in the field of property law. Phipps\ndivided these jurisdictions into four groups. He made no mention of Alaska and Hawaii, both of\nwhich were then territories of the United States.\nIn the Group I states (Massachusetts, Michigan, and North Carolina) the estate is essentially\nthe common law tenancy by the entireties, unaffected by the Married Women\xe2\x80\x99s Property Acts. As at\ncommon law, the possession and profits of the estate are subject to the husband\xe2\x80\x99s exclusive\ndominion and control. In all three states, as at common law, the husband may convey the entire\nestate subject only to the possibility that the wife may become entitled to the whole estate upon\nsurviving him. As at common law, the obverse as to the wife does not hold true. Only in\nMassachusetts, however, is the estate in its entirety subject to levy by the husband\xe2\x80\x99s creditors. In\nboth Michigan and North Carolina, the use and income from the estate is not subject to levy during\nthe marriage for the separate debts of either spouse.\nIn the Group II states (Alaska, Arkansas, New Jersey, New York, and Oregon) the interest\nof the debtor spouse in the estate may be sold or levide upon for his or her separate debts, subject\nto the other spouse\xe2\x80\x99s contingent right of survivorship. Alaska, which has been added to this group,\nhas provided by statute that the interest of a debtor spouse in any type of estate, except a homestead\nas defined and held in tenancy by the entirety, shall be subject to his or her separate debts.\nIn the Group III jurisdictions (Delaware, District of Columbia, Florida, Indiana, Maryland,\nMissouri, Pennsylvania, Rhode Island, Vermont, Virginia, and Wyoming) an attempted conveyance\nby either spouse is wholly void, and the estate may not be subjected to the separate debts of one\nspouse only.\nIn Group IV, the two states of Kentucky and Tennessee hold that the contingent right of\nsurvivorship appertaining to either spouse is separately alienable by him and attachable by his\ncreditiors during the marriage. The use and profits, however, may neither be alienated nor attached\nduring coverture.\nIt appears, therefore, that Hawaii is the only jurisdiction still to be heard from on the\nquestion. Today we join that group of states and the District of Columbia which hold that under the\nMarried Women\xe2\x80\x99s Property Acts the interest of a husband or a wife in an estate by the entireties is\nnot subject to the claims of his or her individual creditors during the joint lives of the spouses. In so\ndoing, we are placing our stamp of approval upon what is apparently the prevailing view of the\nlower courts of this jurisdiction.\nHawaii has long recognized and continues to recoginized the tenancy in common, the joint\ntenancy, and the tenancy by the entirety, as separate and distinct estates. See Paahana v. Bila, 3 Haw.\n725 (1876). That the Married Women\xe2\x80\x99s Property Act of 1888 was not intended to abolish the\ntenancy by the entirety was made clear by the language of Act 19 of the Session Laws of Hawaii,\n1903 (now HRS s 509-1). See also HRS s 509-2. The tenancy by the entirety is predicated upon the\nlegal unity of husband and wife, and the estate is held by them in single ownership. They do not take\nby moieties, but both and each are seized of the whole estate. Lang v. Commissioner of Internal Revenue,\n289 U.S. 109 (1933).\nA joint tenant has a specific, albeit undivided, interest in the property, and if he survives his\ncotenant he becomes the owner of a larger interest than he had prior to the death of the other joint\ntenant. But tenants by the entirety are each deemed to be seized of the entirety from the time of the\ncreation of the estate. At common law, this taking of the \xe2\x80\x98Whole estate\xe2\x80\x99 did not have the real\nsignificance that it does today, insofar as the rights of the wife in the property were concerned. For\nall practical purposes, the wife had no right during coverture to the use and enjoyment and exercise\n173\n\n\x0cof ownership in the marital estate. All she possessed was her contingent right of survivorship.\nThe effect of the Married Women\xe2\x80\x99s Property Acts was to abrogate the husband\xe2\x80\x99s common\nlaw dominance over the marital estate and to place the wife on a level of equality with him as regards\nthe exercise of ownership over the whole estate. The tenancy was and still is predicated upon the\nlegal unity of husband and wife, but the Acts converted it into a unity of equals and not of unequals\nas at common law.Otto F. Stifel\xe2\x80\x99s Union Brewing Co. v. Saxy, supra;Lang v. Commissioner of\nInternal Revenue, supra. No longer could the husband convey, lease, mortgage or otherwise\nencumber the property without her consent. The Acts confirmed her right to the use and enjoyment\nof the whole estate, and all the privileges that ownership of property confers, including the right to\nconvey the property in its entirety, jointly with her husband, during the marriage relation. They also\nhad the effect of insulating the wife\xe2\x80\x99s interest in the estate from the separate debts of her husband.\nNeither husband nor wife has a separate divisible interest in the property held by the entirety\nthat can be conveyed or reached by execution. A joint tenancy may be destroyed by voluntary\nalienation, or by levy and execution, or by compulsory partition, but a tenancy by the entirety may\nnot. The indivisibility of the estate, except by joint action of the spouses, is an indispensable feature\nof the tenancy by the entirety.\nIn Jordan v. Reynolds, the Maryland court held that no lien could attach against entirety\nproperty for the separate debts of the husband, for that would be in derogation of the entirety of\ntitle in the spouses and would be tantamount to a conversion of the tenancy into a joint tenancy or\ntenancy in common. In holding that the spouses could jointly convey the property, free of any\njudgment liens against the husband, the court said:\nTo hold the judgment to be a lien at all against this property, and the right of execution\nsuspended during the life of the wife, and to be enforced on thee death of the wife, would, we think,\nlikewise encumber her estate, and be in contravention of the constitutional provision heretofore\nmentioned, protecting the wife\xe2\x80\x99s property from the husband\xe2\x80\x99s debts.\nIt is clear, we think if the judgment here is declared a lien, but suspended during the life of\nthe wife, and not enforceable until her death, if the husband should survive the wife, it will defeat\nthe sale here made by the husband and wife to the purchaser, and thereby make the wife\xe2\x80\x99s property\nliable for the debts of her husband.\n105 Md. at 295, 296, 66 A. at 39.\nIn Hurd v. Hughes, the Delaware court, recognizing the peculiar nature of an estate by the\nentirety, in that the husband and wife are the owners, not merely of equal interests but of the whole\nestate, stated:\nThe estate (by the entireties) can be acquired or held only by a man and woman while\nmarried. Each spouse owns the whole while both live; neither can sell any interest except with the\nother\xe2\x80\x99s consent, and by their joint act; anc at the death of either the other continues to own the\nwhole, and does not acquire any new interest from the other. There can be no partition between\nthem. From this is deduced the indivisibility and unseverability of the estate into two interests, and\nhence that the creditors of either spouse cannot during their joint lives reach by execution any\ninterest which the debtor had in land so held\xe2\x80\xa6 . One may have doubts as to whether the holding of\nland by entireties is advisable or in harmony with the spirit of the legislation in favor of married\nwomen; but when such an estate is created due effect must be given to its peculiar characteristics.\n12 Del.Ch. at 190, 109 A. at 419.\nIn Frost v. Frost, the Missouri court said:\nUnder the facts of the case at bar it is not necessary for us to decide whether or not under\nour married women\xe2\x80\x99s statutes the husband has been shorn of the exclusive right to the possession\nand control of the property held as an estate in entirety; it is sufficient to say, as we do say, that the\ntitle in such an estate is as it was at common law; neither husband nor wife has an interest in the\n174\n\n\x0cproperty, to the exclusion of the other. Each owns the whole while both live and at the death of\neither the other continues to own the whole, freed from the claim of any one claiming under or\nthrough the deceased.\n200 Mo. at 483, 98 S.W. at 528, 529.\nWe are not persuaded by the argument that it would be unfair to the creditors of either\nspouse to hold that the estate by the entirety may not, without the consent of both spouses, be\nlevied upon for the separate debts of either spouse. No unfairness to the creditor in involved here.\nWe agree with the court in Hurd v. Hughes:\nBut creditors are not entitled to special consideration. If the debt arose prior to the creation\nof the estate, the property was not a basis of credit, and if the debt arose subsequently the creditor\npresumably had notice of the characteristics of the estate which limited his right to reach the\nproperty.\n12 Del.Ch. at 193, 109 A. at 420.\nWe might also add that there is obviously nothing to prevent the creditor from insisting\nupon the subjection of property held in tenancy by the entirety as a condition precedent to the\nextension of credit. Further, the creation of a tenancy by the entirety may not be used as a device to\ndefraud existing creditors. In re Estate of Wall, 440 F.2d 215 (1971).\nWere we to view the matter strictly from the standpoint of public policy, we would still be\nconstrained to hold as we have done here today. In Fairclaw v. Forrest, the court makes this\nobservation:\nThe interest in family solidarity retains some influence upon the institution (of tenancy by\nthe entirety). It is available only to husband and wife. It is a convenient mode of protecting a\nsurviving spouse from inconvenient administration of the decedent\xe2\x80\x99s estate and from the other\xe2\x80\x99s\nimprovident debts. It is in that protection the estate finds its peculiar and justifiable function.\n130 F.2d at 833.\nIt is a matter of common knowledge that the demand for single-family residential lots has\nincreased rapidly in recent years, and the magnitude of the problem is emphasized by the\nconcentration of the bulk of fee simple land in the hands of a few. The shortage of single-family\nresidential fee simple property is critical and government has seen fit to attempt to alleviate the\nproblem through legislation. When a family can afford to own real property, it becomes their single\nmost important asset. Encumbered as it usually is by a first mortgage, the fact remains that so long\nas it remains whole during the joint lives of the spouses, it is always available in its entirety for the\nbenefit and use of the entire family. Loans for education and other emergency expenses, for\nexample, may be obtained on the security of the marital estate. This would not be possible where a\nthird party has become a tenant in common or a joint tenant with one of the spouses, or where the\nownership of the contingent right of survivorship of one of the spouses in a third party has cast a\ncloud upon the title of the marital estate, making it virtually impossible to utilize the estate for these\npurposes.\nIf we were to select between a public policy favoring the creditors of one of the spouses and\none favoring the interests of the family unit, we would not hesitate to choose the latter. But we need\nnot make this choice for, as we pointed out earlier, by the very nature of the estate by the entirety as\nwe view it, and as other courts of our sister jurisdictions have viewed it, \xe2\x80\x98(a) unilaterally indestructible\nright of survivorship, an inability of one spouse to alienate his interest, and, importantly for this case,\na broad immunity from claims of separate creditors remain among its vital incidents.\xe2\x80\x99 In re Estate of\nWall, supra, 440 F.2d at 218.\nHaving determined that an estate by the entirety is not subject to the claims of the creditors\nof one of the spouses during their joint lives, we now hold that the conveyance of the marital\nproperty by Kokichi Endo and Ume Endo, husband and wife, to their sons, Samuel H. Endo and\n175\n\n\x0cToru Endo, was not in fraud of Kokichi Endo\xe2\x80\x99s judgment creditors.\nAffirmed.\nKidwell, Justice, dissenting.\nThis case has been well briefed, and the arguments against the conclusions reached by the\nmajority have been well presented. It will not materially assist the court in resolving the issues for me\nto engage in an extensive review of the conflicting views. Appellants\xe2\x80\x99 position on the appeal was that\ntenancy by the entirety as it existed at common law, together with all of the rights which the\nhusband had over the property of his wife by virtue of the common law doctrine of the unity of the\nperson, was recognized by the early decisions; that the Married Women\xe2\x80\x99s Act of 1888 (new Ch. 573,\nHRS) destroyed the fictional unity of husband and wife; that the legislature has recognized the\ncontinuing existence of the estate of tenancy by the entirety, but has not defined the nature or the\nincidents of that estate, HRS s 509-1, 509-2; that at common law the interest of the husband in an\nestate by the entireties could be taken by his separate creditors on execution against him, subject\nonly to the wife\xe2\x80\x99s right of survivorship; and that the Married Women\xe2\x80\x99s Act merely eliminated any\ninequality in the positions of the spouses with respect to their interests in the property, thus\ndepriving the husband of his former power over the wife\xe2\x80\x99s interest, without thereby altering the\nnature and incidents of the husband\xe2\x80\x99s interest.\nI find the logic of Appellant\xe2\x80\x99s analysis convincing. While the authorities are divided, I\nconsider that the reasoning of the cases cited by Appellant best reconciles the Married Women\xe2\x80\x99s Act\nwith the common law. [Citations omitted.]\nThe majority reaches its conclusion by holding that the effect of the Married Women\xe2\x80\x99s Act\nwas to equalize the positions of the spouses by taking from the husband his common law right to\ntransfer his interest, rather than by elevating the wife\xe2\x80\x99s right of alienation of her interest to place it\non a position of equality with the husband\xe2\x80\x99s. I disagree. I believe that a better interpretation of the\nMarried Women\xe2\x80\x99s Acts is that offered by the Supreme Court of New Jersey in King v. Greene, 30 N.J.\n395, 412 (1959):\nIt is clear that the Married Women\xe2\x80\x99s Act created an equality between the spouses in New\nJersey, insofar as tenancies by the entirety are concerned. If, as we have previously concluded, the\nhusband could alienate his right of survivorship at common law, the wife, by virtue of the act, can\nalienate her right of survivorship. And it follows, that if the wife takes equal rights with the husband\nin the estate, she must take equal disabilities. Such are the dictates of common equality. Thus, the\njudgment creditors of either spouse may levy and execute upon their separate rights of survivorship.\nOne may speculate whether the courts which first chose the path to equality now followed\nby the majority might have felt an unexpressed aversion to entrusting a wife with as much control\nover her interest as had previously been granted to the husband with respect to his interest.\nWhatever may be the historical explanation for these decisions, I feel that the resultant restriction\nupon the freedom of the spouses to deal independently with their respective interests is both\nillogical and unnecessarily at odds with present policy trends. Accordingly, I would hold that the\nseparate interest of the husband in entireties property, at least to the extent of his right of\nsurvivorship, is alienable by him and subject to attachment by his separate creditors, so that a\nvoluntary conveyance of the husband\xe2\x80\x99s interest should be set aside where it is fraudulent as to such\ncreditors, under applicable principles of the law of fraudulent conveyances.\n176\n\n\x0cPhipps, Tenancy by Entireties, 25 Temple L.Q. 24 (1951). \xe2\x86\xa9\n\n177\n\n\x0cIn re Susan Elaine Watford, Debtor.,\n427 B.R. 552 (U.S. Bankr., S.D. Fl. 2010)\n\nErik P. Kimball, Bankruptcy Judge.\n\xe2\x80\xa6.\nSection 522(b)(3)(B) [of the Bankruptcy Code] provides that a debtor may exempt property\n\xe2\x80\x9cin which the debtor had, immediately before the commencement of the case, an interest as a tenant\nby the entirety or joint tenant to the extent that such interest as a tenant by the entirety or joint\ntenant is exempt from process under applicable nonbankruptcy law.\xe2\x80\x9d The Debtor claims that her\ninterest in the Georgia Property is that of a tenant by the entirety, that such interest is exempt from\nprocess under Georgia law, and that it is exempt under section 522(b)(3)(B). The Trustee argues that\nunder Georgia law the Debtor\xe2\x80\x99s interest in the Georgia Property is that of a tenant in common, a\nseverable interest subject to process, and that it is not exempt under section 522(b)(3)(B).\n\xe2\x80\xa6 . By statute, Georgia law provides that a deed conveying real property to two or more\npersons is presumed to create a tenancy in common unless the deed expressly states that the\ngrantees take as \xe2\x80\x9cjoint tenants,\xe2\x80\x9d \xe2\x80\x9cjoint tenants and not as tenants in common,\xe2\x80\x9d \xe2\x80\x9cjoint tenants with\nsurvivorship,\xe2\x80\x9d or \xe2\x80\x9cjointly with survivorship.\xe2\x80\x9d1 Georgia case law uniformly provides that an\ninstrument granting an interest in property to two or more individuals creates a tenancy in common\nunless the instrument expressly states that the grantees take such interest subject to a right of\nsurvivorship. E.g., Williams v. Studstill, 251 Ga. 466, 306 S.E.2d 633, 634-35 (1983); Sams v. McDonald,\n117 Ga.App. 336, 160 S.E.2d 594, 598 (1968).\nThe deed by which the Debtor obtained her interest in the Georgia Property shows the\ngrantees as \xe2\x80\x9cWilliam H. Watford & Susan E. Watford.\xe2\x80\x9d Under Georgia law, this deed created a\ntenancy in common. Such interest is not exempt under section 522(b)(3)(B).\nBy its terms, Section 44-6-190(a) of the Official Code of Georgia encompasses all deeds to\ntwo or more persons, whether or not married. In spite of this, the Debtor argues that Georgia\nrecognizes the common law form of tenancy by the entirety. For this proposition, the Debtor cites\nSams v. McDonald, 117 Ga.App. 336, 160 S.E.2d 594 (1968). In Sams v. McDonald, the court\nconsidered whether a bank account in the names of two unmarried individuals was held with right of\nsurvivorship. One account holder had died and the other claimed sole ownership. The account\napplication was in \xe2\x80\x9cthe joint names of the undersigned as tenants by the entireties.\xe2\x80\x9d Sams v.\nMcDonald, 160 S.E.2d at 597. To define the term \xe2\x80\x9ctenants by the entireties\xe2\x80\x9d the Sams court reviewed\ncase law in Tennessee, Mississippi, Oregon, Pennsylvania, South Carolina, and the District of\nColumbia, and treatises such as American Jurisprudence and Blackstone\xe2\x80\x99s Commentaries. The Sams\ncourt did not cite a single Georgia case addressing tenancy by the entireties. The court concluded\nthat tenancy by the entireties is a species of joint tenancy reserved for married couples, and that\nwhere a tenancy by the entireties is stated, and the parties are not married, a joint tenancy is created\nunless the evidence supports a contrary intent. Id. at 598. Noting that the account application before\nthe court also stated that it was for a \xe2\x80\x9cmembership of joint holders (with right of survivorship) of a\nshare account,\xe2\x80\x9d the Sams court determined that the account in question was held with right of\nsurvivorship. Id. The court held that the surviving account holder was the sole owner of the account.\nId. The Sams court addressed the concept of tenants by the entireties only to assist the court in\ndetermining the intent of the parties before it. There is nothing in Sams v. McDonald to suggest that\n178\n\n\x0cGeorgia then recognized, or now recognizes, tenancy by the entireties.\nOther persuasive authority confirms that Georgia does not recognize the common law form\nof tenancy by the entirety. 1 Ga. Wills & Administration \xc2\xa7 2:3 (7th ed.) (\xe2\x80\x9cGeorgia does not authorize\nthe creation of a tenancy by the entirety. Tenancy by the entirety has been referred to in Georgia\ncase law as \xe2\x80\x98a species of joint tenancy\xe2\x80\x99 and the \xe2\x80\x98nomenclature for a joint tenancy between husband\nand wife.\xe2\x80\x99\xe2\x80\x9c) (citing Sams v. McDonald, 160 S.E.2d at 597-98); 1 Ga. Real Estate Law & Procedure \xc2\xa7 780 (6th ed.) (\xe2\x80\x9cEntireties seem never to have been recognized in Georgia. Under our present Code,\nwherever two or more persons \xe2\x80\x98from any cause\xe2\x80\x99 are entitled to the possession simultaneously, a\ntenancy in common is created, and this is accepted as true equally of husband and wife as any other\ntwo grantees.\xe2\x80\x9d); 1 Ga. Jur. Property \xc2\xa7 5:1 (\xe2\x80\x9cGeorgia has referred to a tenancy by the entirety as a\nspecies of joint tenancy between husband and wife. An estate by the entirety is, at common law, one\ncreated by conveyance to a husband and wife jointly, the two holding as a unit title to the whole.\nHowever, this type of joint tenancy has largely lost its relevancy now that the husband and wife are\nno longer one person in the law.\xe2\x80\x9d).\nBecause the Debtor holds a severable interest in the Georgia Property as a tenant in\ncommon, the Debtor may not exempt her interest in the Georgia Property under section\n522(b)(3)(B). The Debtor\xe2\x80\x99s interest in the Georgia Property is property of the estate under section\n541 and may be administered by the Trustee. The Trustee\xe2\x80\x99s objection to the Debtor\xe2\x80\x99s claimed\nexemption with regard to the Georgia Property will be sustained.\nSection 44-6-190(a) of the Official Code of Georgia provides: \xe2\x80\x9cDeeds and other\ninstruments of title, including any instrument in which one person conveys to himself and one or\nmore other persons, any instrument in which two or more persons convey to themselves or to\nthemselves and another or others, and wills, taking effect after January 1, 1977, may create a joint\ninterest with survivorship in two or more persons. Any instrument of title in favor of two or more\npersons shall be construed to create interests in common without survivorship between or among\nthe owners unless the instrument expressly refers to the takers as \xe2\x80\x98joint tenants,\xe2\x80\x99 \xe2\x80\x98joint tenants and\nnot as tenants in common,\xe2\x80\x99 or \xe2\x80\x98joint tenants with survivorship\xe2\x80\x99 or as taking \xe2\x80\x98jointly with\nsurvivorship.\xe2\x80\x99\xe2\x80\x9d \xe2\x86\xa9\n\n179\n\n\x0c4.4. Relationships and Property\n4.4.1. Marriage and Divorce\nWright v. Wright,\n277 Ga. 133 (2003)\n\nWilliam R. Oliver, Cornelia, for appellant.\nBrowning & Tanksley, Thomas J. Browning, Marietta, for appellee.\nCarley, Justice.\nLinda (Wife) and Seaborn (Husband) Wright were married in 1985. It was a second marriage\nfor both, and they had no children. Each brought assets and debts to the marriage, including\nHusband\xe2\x80\x99s house which was mortgaged. In 1991, his mother died and left her estate to him. He used\nhis inheritance to start a family business, in which he and Wife both worked and were salaried\nemployees. In 2000, she filed for divorce. After conducting a hearing, the trial court entered an order\ngranting a divorce and dividing the marital property. We granted Wife\xe2\x80\x99s application for discretionary\nappeal pursuant to this Court\xe2\x80\x99s pilot project, pursuant to which we grant all non-frivolous\napplications seeking discretionary appeal from a final divorce decree.\n1. Wife contends that the trial court erred in determining which portions of the property\nwere marital and non-marital assets.\nWhat items of property can legally constitute a marital or non-marital asset is a question of\nlaw for the court. However, whether a particular item of property actually constitutes a marital or\nnon-marital asset may be a question of fact for the trier of fact to determine from the evidence. [Cit.]\nBass v. Bass, 264 Ga. 506, 507, 448 S.E.2d 366 (1994). A review of the record shows that, in\nmaking the award, the trial court correctly applied the legal principle that \xe2\x80\x9c[o]nly property acquired\nas a direct result of the labor and investments of the parties during the marriage is subject to\nequitable division. [Cit.]\xe2\x80\x9d Payson v. Payson, 274 Ga. 231, 232(1), 552 S.E.2d 839 (2001). Because\nHusband brought the house to the marriage, only the subsequent increase in the net equity\nattributable to marital contributions was a marital asset. Hubby v. Hubby, 274 Ga. 525, 556 S.E.2d 127\n(2001); Thomas v. Thomas, 259 Ga. 73, 76, 377 S.E.2d 666 (1989). Husband started the family business\nafter the marriage, but used his own separate funds to do so. Bailey v. Bailey, 250 Ga. 15, 295 S.E.2d\n304 (1982). Therefore, only the appreciation in the value of the business attributable either to his\nand Wife\xe2\x80\x99s individual efforts or to their joint efforts was subject to an equitable division. >Bass v.\nBass, supra.\n2. Wife\xe2\x80\x99s primary contention is that the trial court erroneously failed to award her an\nappropriate share of that portion of the equity in the house and the appreciation in the business\nwhich was a marital asset. According to her, she should receive one-half of the divisible equity and\nappreciation. However, an equitable division of marital property does not necessarily mean an equal\n180\n\n\x0cdivision. Goldstein v. Goldstein, 262 Ga. 136(1), 414 S.E.2d 474 (1992). \xe2\x80\x9cThe purpose behind the\ndoctrine of equitable division of marital property is \xe2\x80\x98to assure that property accumulated during the\nmarriage be fairly distributed between the parties.\xe2\x80\x99 [Cit.]\xe2\x80\x9dPayson v. Payson, supra at 232(1), 552 S.E.2d\n839. Each spouse is entitled to an allocation of the marital property based upon his or her respective\nequitable interest therein. Byers v. Caldwell, 273 Ga. 228, 229, 539 S.E.2d 141 (2000). Thus, an award\nis not erroneous simply because one party receives a seemingly greater share of the marital property.\nSee Mitchely v. Mitchely, 237 Ga. 138, 139, 227 S.E.2d 34 (1976). See also Clements v. Clements, 255 Ga.\n714, 342 S.E.2d 463 (1986); Stokes v. Stokes, 246 Ga. 765, 273 S.E.2d 169 (1980) (trier of fact may\naward whole or part interest in property to one spouse or require the parties to sell property).\n3. The fact finder has broad discretion to distribute marital property to assure that it is fairly\ndivided between the divorcing spouses. Jones v. Jones, 264 Ga. 169, 441 S.E.2d 745 (1994). In the\nexercise of that discretion, the fact finder should consider \xe2\x80\x9call the relevant factors, including each\nparty\xe2\x80\x99s contribution to the acquisition and maintenance of the property (which would include\nmonetary contributions and contributions of a spouse as a homemaker), as well as the purpose and\nintent of the parties regarding the ownership of the property. (Cits.)\xe2\x80\x9d\nMorrow v. Morrow, 272 Ga. 557, 558, 532 S.E.2d 672 (2000). Here, the record shows that the\ntrial court, sitting as the trier of fact, considered all of the relevant factors and, in the exercise of its\nbroad discretion, awarded each party what it considered to be a fair and equitable portion of the\nmarital property.\n[R]eviewing all the evidence adduced in this case we cannot say that the trial court treated\n[Wife] inequitably in its decision regarding what constituted a fair division between the parties of the\nmarital property. Therefore, we hold that [she] failed to carry [her] burden of proving error in the\ntrial court\xe2\x80\x99s award to [Husband].\nMorrow v. Morrow, supra at 559, 532 S.E.2d 672.\nJudgment affirmed.\n\n181\n\n\x0cIn Re Marriage of King,\n700 P.2d 591 (Mont. 1985).\n\nWilliam Law Firm, Richard Ranney, Missoula, for respondent and appellant.\nGoldman & Goldman, Joseph M. Goldman, Missoula, for petitioner and respondent.\nMilodragovich, Dale & Dye, Karl Boehm, Missoula, for children.\nHunt, Justice.\nJack King appeals an order and an amended order of the Missoula County District Court\nwhich divided his and Pamela King\xe2\x80\x99s marital property, and established custody and visitation rights,\nand the support obligations of the parties to their two minor children. Two issues are presented for\nreview: first, whether substantial evidence supports the District Court\xe2\x80\x99s award of nearly all the\nmarital estate to the wife; and second, whether the District Court erred in awarding the parties\xe2\x80\x99 real\nproperty to the wife in lieu of requiring the husband to make child support payments. We affirm the\nDistrict Court.\nJack and Pamela King married in March 1971, in Mexico. Thereafter, they resided in\nCalifornia, where their two children were born, in 1971 and 1973. In 1977, they moved to Montana.\nThey separated in June 1980, and the District Court dissolved their marriage in June 1981, reserving\nthe issues of division of marital property, custody, visitation rights and child support until a later\ntime. Maintenance was neither sought nor awarded, and custody and visitation rights are not in issue\non this appeal.\nOn February 29, 1984, the District Court entered findings of fact, conclusions of law and its\norder deciding those reserved issues. All parties filed certain objections to the order, and thereafter,\non April 16, 1984, the court entered its amended findings, conclusions and order. That amended\norder awarded each party the personal property then in their possession, and awarded the family\nresidence to Pamela.\nJack asserts several of the court\xe2\x80\x99s findings of fact are unsupported by substantial evidence.\nWe will address them in order. In its finding no. 2, the court noted: \xe2\x80\x9cThe distribution of the\nproceeds of the sale of the family home if it is ordered sold makes inadequate provision for the\nsupport of the minor children of the parties.\xe2\x80\x9d\nFinding no. 3: \xe2\x80\x9cA substantial hardship would be imposed upon the children of the parties if\nthey would be required to vacate the family home if it is ordered sold.\xe2\x80\x9d\nFinding no. 4: \xe2\x80\x9cThe expenses of sale, including realtors\xe2\x80\x99 commissions, attorneys\xe2\x80\x99 fees and\npotential capital gain tax liability would take a disproportionate amount of marital assets needed for\nchild support.\xe2\x80\x9d\nAnd no. 5: \xe2\x80\x9cIt would be in the best interests of the minor children of the parties to continue\nto reside in the family home.\xe2\x80\x9d\nJack contends the division of property should be separate from and not contingent upon\nchild support. However, a fair reading of s 40-4-202, MCA, shows that the District Court, in a\nproceeding for dissolution of marriage, may take into account support considerations, and may\nprotect and promote the best interests of the children by setting aside a portion of the jointly and\nseparately held estate of the parties for the support of their children. In reaching such a result, the\ncourt shall equitably apportion between the parties, the property or assets belonging to either or\nboth. The court is neither required to divide each asset 50-50, nor to sell all the parties\xe2\x80\x99 property and\n182\n\n\x0cdivide the proceeds 50-50. Equitable apportionment is the guideline under any or all of the many\nfactors which apply. To order the sale of the family residence would subject the marital estate to\nrealty fees, would lose a favorable interest rate, and would uproot the children from their home and\npossibly from their neighborhood. These findings are well supported in the record.\nFinding no. 7 provided that if Pamela were awarded the residence, she would be able to\ndevote sufficient monies from her earnings to support the children. Jack contends the finding is not\nsupported by substantial evidence because she probably would be able to support the children\nwithout the award of the residence. His contention, even if correct, neither per se invalidates the\nfinding, nor begs the conclusion that she would not be able to support them without the home.\nRather, it is reasonable to view the finding in light of the court\xe2\x80\x99s order relieving Jack of a financial\nsupport obligation. Viewing the record in its entirety, as we must, we cannot say the finding was\nerroneous.\nJack also attacks finding no. 8, wherein the court noted he had not presented satisfactory\nmeans of verifying his present or future income, given the nature of his occupation as a professional\ngambler. He did testify without objection that he earned approximately $1,000.00 per month in\nCalifornia from gambling winnings, and approximately $500.00 per month therefrom after the\nparties moved to Montana. Yet, when questioned further about his income, Jack was very evasive,\nand eventually conceded that there was no way of verifying his income. That makes it difficult to\nascertain whether he would be able to make support payments. It is reasonable to conclude the\ncourt meant he did not have a regular paycheck as such. It is also reasonable to infer the court meant\nhe had not presented sufficient income evidence to justify a different property division. In light of\nthose considerations, we feel the finding is supported by record evidence.\nJack next contends finding no. 9, that he would not pay any portion of the childrens\xe2\x80\x99\nattorney fees, was based on the court\xe2\x80\x99s \xe2\x80\x9csuspicions and distaste for Jack\xe2\x80\x99s method of earning a\nliving.\xe2\x80\x9d The Supreme Court, in reviewing evidence on appeal, is not concerned with the motives of\nthe trial court. Nor may we express our opinion as to the wisdom of its decisions. Rather, we look to\ndetermine whether the result comports with the law. The District Court was in the best position to\nexamine the demeanor of the parties, the witnesses and the evidence, and the District Court has\nbroad discretion in arriving at its decisions. We will not substitute our judgment for the District\nCourt absent a clear abuse of that discretion. We fail to see how the court\xe2\x80\x99s finding that Jack would\nnot pay the childrens\xe2\x80\x99 attorney fees abused its discretion.\nFinally, Jack assails finding no. 10: \xe2\x80\x9cAwarding the Petitioner the Respondent\xe2\x80\x99s share of the\nequity in the family home is the only reasonable means to insure that the Respondent will contribute\nto the care and support of the minor children of the parties.\xe2\x80\x9d\nAgain, the District Court was in the best position to view the parties, the witnesses and the\nevidence, and to render a decision based on its view. Our role is not to examine other possible\nmeans of ensuring Jack will contribute to the care and support of his and Pamela\xe2\x80\x99s children, but to\ndetermine whether the means chosen has a lawful basis of support in the record. The income earned\nfrom Jack\xe2\x80\x99s chosen occupation as a professional gambler, is by its very nature, inadequate to ensure\nhe will always or regularly or even predictably have that income. To accede to such speculation is a\ngamble that neither party nor the District Court is advised to undertake. We find substantial\nevidence supports the findings of the District Court.\nThe second issue Jack presents is whether the District Court erred in awarding the custodial\nspouse the family residence \xe2\x80\x9cin lieu of any child support obligation on the part of the [non-custodial\nspouse.]\xe2\x80\x9d He contends the award was erroneous because the issues of property and support are\ntotally irrelevant to each other. Pamela, on the other hand, claims the award was proper because the\nissues of property, support, custody and visitation rights are \xe2\x80\x9cinextricably interwoven.\xe2\x80\x9d The record\ndoes not support a conclusion favoring either of those extremes. Rather, the District Court\n183\n\n\x0cconsidered all the factors, and made a decision based on the extent to which they were interrelated.\nCustody and visitation rights are not issues raised on appeal. The property division and support\nfindings, however, do call for a discussion.\nWe held in Perkins v. Perkins (1975), 168 Mont. 78, 540 P.2d 957, that where the husband\nwas financially unable to contribute to the support of the minor children, it was not error to grant\nthe wife a proportionally larger share of the marital property to offset her increased obligation.\nSimilarly, in Bailey v. Bailey (1979), 184 Mont. 418, 603 P.2d 259, the trial court awarded the family\nresidence to the wife, plus other property, for a total award of approximately 67% of the marital\nestate. After noting the District Court weighed all the applicable factors of s 40-4-202, MCA, we\nheld a division of the marital estate which favors one party over the other may be acceptable if there\nis reason for it. Here, the District Court stated its reasons-the best interests of the children are\nserved by allowing them to remain in the family home; forced sale of the family home would divert\nand dissipate assets needed for support; and the only reasonable means to protect and promote the\nbest interests of the children is to award the home to Pamela. That award was made in lieu of a\nsupport obligation.\nNo reasonable purpose would be served by ordering the residence sold. Jack would not\nreside there in any event, the children would be uprooted, and the marital estate would be lessened\nbecause of realty fees attendant to the sale.\nThe District Court\xe2\x80\x99s findings and conclusions are embodied in a ten-page summary attached\nto its order, delineating all the statutory criteria.\nWe believe the District Court did a thorough job of dividing the marital assets and resolving\nthe respective support obligations of the parties. We hold there was no abuse of discretion.\nAffirmed.\nHarrison, Weber, Sheehy, and Gulbrandson, JJ.\n\n184\n\n\x0cBehrens v. Behrens,\n143 A.D.2d 617 (N.Y. App. Div. 1988)\n\n\xe2\x80\xa6.\nThe plaintiff is contesting various provisions of the judgment of divorce with emphasis on\nthat section which ordered the sale of the marital residence. In its memorandum decision dated\nMarch 10, 1987, the trial court determined that the home had to be sold to pay off debts incurred by\nthe parties and because the upkeep of the home was more than the parties could afford. The\nplaintiff argues that a sale of the marital residence will force her and the children to leave their\npresent community, with which the family has established strong ties, and relocate to an entirely new\narea without realizing a substantial decrease in housing expenses. The record reveals that the couple\npurchased the marital residence in Dix Hills, in 1982 for $153,000. It was stipulated that at the time\nof trial the house was worth $310,000. The mortgage payment, including real estate taxes, was\n$1,907 per month. The other expenses, including utilities, telephone, gardening and insurance,\nbrought the total monthly cost up to $2,700. According to the plaintiff the cost of obtaining\nreplacement housing in the Dix Hills area would be between $2,500 and $3,500 per month. The\ndefendant testified that he had investigated the availability of housing in other \xe2\x80\x9cnice neighborhoods\xe2\x80\x9d\non Long Island and found that a three-bedroom house could be rented for between $1,100 and\n$1,300 per month. While this court has generally favored allowing a custodial parent to remain in the\nmarital residence at least until the youngest child reaches the age of 18 years or is sooner\nemancipated (see, Cassano v Cassano, 111 AD2d 208; Hillmann v Hillmann, 109 AD2d 777; Patti v Patti,\n99 AD2d 772), in this case we agree with the finding of the trial court that the home must be sold.\nThe parties are financially incapable of maintaining the marital residence and there is no doubt that\nreplacement housing can be found at a substantial saving on Long Island. The children are young\nenough to make the necessary social adjustments that a move from Dix Hills will entail (see, Cassano v\nCassano, supra; Patti v Patti, supra). Given the defendant\xe2\x80\x99s testimony that the cost of alternative\nhousing would be at least $1,100 to $1,300 per month, we direct that the housing allowance award\nbe increased from $1,000 to $1,500 per month, which award is to be treated as a maintenance\npayment to the wife for income tax purposes. Furthermore the child support payments will be\nincreased from $100 per week to $150 per week per child.\nEven with the increases herein granted it will be necessary for the wife to return to work as\nsoon as possible in order to supplement the family\xe2\x80\x99s income. We therefore agree with the trial\ncourt\xe2\x80\x99s award of maintenance in the amount of $100 per week. The wife expects to resume\nemployment as a school teacher and her hours of work will correspond with the children\xe2\x80\x99s school\nhours; therefore, her return to work in the near future will not significantly interfere with their care\n(see, Hillmann v Hillmann, supra). Since there may be a short delay until she begins to receive her\nsalary, we are extending the maintenance payments for an additional month until the first Friday of\nOctober 1988.\n\xe2\x80\xa6.\nWeinstein, J., concurring\n\xe2\x80\xa6.\n185\n\n\x0cIn the instant case, the trial court ordered the sale of the marital residence based upon its\nbelief that the parties could simply not afford to incur the costs of maintaining that particular\nresidence. In the language of the court, \xe2\x80\x9cQuite simply, the parties could not afford the luxuries they\ngave to themselves\xe2\x80\x9d. Furthermore, the court viewed the residence as the only major salable asset of\nsufficient value to pay off the marital debts with sufficient funds remaining to allow for a substantial\ndistribution to each party.\nAlthough it appears, at first blush, that the cost of housing outside the Dix Hills area would\nbe substantially below the cost of maintaining the marital residence, the projected savings may be\nsomewhat illusory when certain factors are considered. While the defendant testified that his\ninvestigations had revealed that the plaintiff could rent a three-bedroom home in a \xe2\x80\x9cnice\xe2\x80\x9d area of\nLong Island for between $1,100 and $1,300 per month, the record is devoid of any indication that\nthis sum includes any of the expenses necessarily associated with the upkeep of a home, i.e., utilities,\ntelephone and insurance. Based on the ages of the three children, alternative housing of at least three\nbedrooms would be required for the next 10 years. Considering the increases in rent which could be\nexpected during that period, it is reasonable to conclude that it would not be long before the cost of\nrenting would exceed the present mortgage payment on the marital residence. In view of the ages of\nthe children and their strong ties to the community, I believe that the wife should be permitted to\nretain possession of the marital residence until the youngest child becomes 18 or is sooner\nemancipated. Notwithstanding the defendant\xe2\x80\x99s contention that he is in debt and unable to afford the\nmaintenance of the marital residence, the record reveals that at the time of trial, his position in West\nVirginia guaranteed him an income of $100,000 per year and, based on his past income, he is readily\ncapable of earning substantially more. There is no reason to doubt that once he settles into a new\npractice, his earnings will soon reach levels equalling or exceeding those of his New York practice.\nConsequently, he should be compelled to assume a substantial portion of the cost of maintaining his\nfamily in the marital residence.\nAlthough the trial court believed that the sale of the marital residence was required in order\nto pay off what the court termed \xe2\x80\x9cmarital debts\xe2\x80\x9d, the record reveals that the major portion of this\nmarital debt was incurred by the defendant as a means of paying income taxes. The total debt\ncomputed by the court was $47,623. In light of the husband\xe2\x80\x99s substantial income and in view of the\nfact that the trial court awarded him $50,000 worth of accounts receivable from the sale of his New\nYork practice, equity dictates that the husband should be responsible for the payment of these debts.\nIn conclusion, I concur with the majority\xe2\x80\x99s modifications of the judgment appealed from.\nHowever, consistent with my view that the immediate sale of the marital residence should not have\nbeen ordered, I would also further modify the judgment appealed from as set forth above.\n\n186\n\n\x0cStolow v. Stolow,\n149 A.D.2d 683 (1989)\n\nThe plaintiff and the defendant, who were married in 1970, have two children, Michael, born\nJanuary 12, 1976, and Jordana, born February 9, 1979.\nIn 1976, the couple purchased a large residence located on a three-quarter-acre lot in Pelham\nManor, New York, with five bedrooms, seven baths, four fireplaces, a butler\xe2\x80\x99s pantry, two\nsunrooms, a den, a playroom, two maid\xe2\x80\x99s quarters, and two living rooms, in addition to the kitchen\nand dining room. In order to properly maintain the house, the services of a housekeeper, cleaning\nperson and gardener are required in addition to normal repair services such as those provided by\nplumbers and electricians. The parties stipulated that the fair market value of the marital residence\nwas $960,000 at the time of trial.\nThe defendant is the chief executive officer in a closely held family philately corporation\nwhich sells stamps, both by mail and at public auction. The defendant\xe2\x80\x99s salary during the marriage\nwas supplemented by generous perquisites, such as Porsche automobiles, country club dues, garage\nspace, insurance, and vacations which were considered corporate expenses and not charged to the\ndefendant as earnings. He additionally supplemented his income by borrowing from an officer\xe2\x80\x99s loan\naccount to which he owed $222,879 in 1985.\nThe court, in distributing the marital assets, found that the plaintiff\xe2\x80\x99s interest in the marital\nresidence was $455,000 (50% of the $960,000 less an outstanding mortgage of $50,000), her 30%\ninterest in the defendant\xe2\x80\x99s business, for which she had worked part time, was $364,000, and her\ninterest in the defendant\xe2\x80\x99s current residence was $91,500.\nBecause the defendant did not have sufficient liquid assets to satisfy the plaintiff\xe2\x80\x99s equitable\naward of the marital assets, the court allowed the plaintiff to accept title to the marital residence in\nlieu of a cash payment. The court directed joint custody of the children, who were to live with the\nplaintiff. In order to cover the expenses of the house and because the plaintiff\xe2\x80\x99s equitable share was\nnot in liquid form, the court awarded the plaintiff $1,000 per week maintenance until the youngest\nchild was 14 years old or entered high school, and $375 per week in child support for each child, to\nbe raised to $500 per week as each child entered high school.\nAlthough it is a well-settled principle of matrimonial law that exclusive possession of a\nmarital residence is generally awarded to a custodial spouse with minor children (see, e.g., Parris v\nParris, 136 AD2d 685; Flanagan v Flanagan, 118 AD2d 681), we find that under the circumstances at\nbar, the immediate sale of the marital residence is indicated since the expenses involved in\nmaintaining the property are wastefully extravagant. The sale of the marital residence will leave the\nplaintiff sufficient liquid assets to purchase a fine residence, albeit on a smaller scale, in the same\nneighborhood, thus obviating the need to continue the high maintenance and child support\npayments necessitated by the plaintiff\xe2\x80\x99s living in what the court had termed a \xe2\x80\x9cmini-mansion\xe2\x80\x9d. While\nthe record demonstrates that the defendant may be able to afford the substantial amounts directed\nto be paid for maintenance, child support and other expenses, it is unjust to require that he do so\nwhile an asset valued at nearly $1,000,000 sits idly by consuming income. In deciding whether to\ndirect the sale of the marital residence, the court must weigh the need for the custodial parent to\nremain in it against the financial situation of the parties (see, Behrens v Behrens, 143 AD2d 617;\nBlackman v Blackman, 131 AD2d 801). In this case the financial circumstances of the parties dictate\nthe sale of the marital residence.\n\xe2\x80\xa6.\n187\n\n\x0cAccordingly, we direct the immediate sale of the marital residence and remit the matter to\nthe Supreme Court, Westchester County, for a new determination as to the value of J & H Stolow,\nInc., maintenance, child support and the share of the plaintiff\xe2\x80\x99s attorneys\xe2\x80\x99 fees to be paid by the\ndefendant.\nWe have reviewed the parties\xe2\x80\x99 remaining contentions and find them to be without merit.\n\n188\n\n\x0c4.4.2. Professional Degrees\nSimmons v. Simmons,\n244 Conn. 158 (1998)\n\nFrank J. Kolb, with whom were David E. Crow and, on the brief, Louis A. Crisci, Jr., for the\nappellant (defendant).\nBarbara J. Radlauer, with whom was Ralph P. Dupont, for the appellee (plaintiff).\nLouis I. Parley and S. Deborah Eldrich filed a brief for the Connecticut Chapter of the\nAmerican Academy of Matrimonial Lawyers as amicus curiae.\nCallahan, C.J.\nThe defendant, Aura R. Simmons, appeals from the judgment of the trial court in an action\nfor dissolution of her marriage to the plaintiff, Duncan R. Simmons. She raises three issues: (1)\nwhether the trial court properly concluded that a medical degree is not property subject to equitable\ndistribution pursuant to General Statutes \xc2\xa7 46b-811 upon dissolution of the marriage; (2) whether, if\nit is assumed that the medical degree is not property, the trial court abused its discretion in its\ndistribution of the remaining marital property and in denying alimony to the defendant; and (3)\nwhether a contract existed between the parties with regard to the medical degree, which affords the\ndefendant a contractual remedy. We affirm the judgment of the trial court on the first issue and\nreverse its judgment, in part, on the second issue. We decline to address the third issue.\nThe trial court made the following findings of fact. The plaintiff and the defendant were\nmarried on September 23, 1983, in Fayetteville, North Carolina. At the time of their marriage, the\nplaintiff was twenty-three years of age and was a sergeant in the United States Army. The defendant\nwas forty-three years of age and was working as a bartender. There are no children of the marriage.\nThe defendant, however, had six children of her own prior to her marriage to the plaintiff.\nDuring the course of the marriage, both the plaintiff and the defendant pursued their\nindividual educational goals. The defendant obtained two associates degrees, one as a surgical\ntechnician and one in nursing, culminating in her becoming a registered nurse in 1991. The plaintiff\nreceived his undergraduate degree in 1990 and entered medical school. He completed medical\nschool in 1994 and entered a surgical residency program at St. Raphael\xe2\x80\x99s Hospital in New Haven,\ncausing the family to relocate to Connecticut from North Carolina. The defendant and the plaintiff\nboth paid their own educational expenses and both were employed and jointly supporting the family\nunit until the plaintiff entered medical school, when he was prohibited from maintaining outside\nemployment. The plaintiff received loans and grants to pay for medical school and to defray some of\nthe household expenses. The defendant worked and supported the family while the plaintiff\nattended medical school. She provided financial and emotional support as well as her services as a\nhomemaker. She did not, however, make any direct financial contribution toward the cost of the\nplaintiffs medical school education.\nIn the third year of his five year surgical residency, the plaintiff filed an action for dissolution\n189\n\n\x0cof marriage. At trial, the defendant argued that the plaintiffs medical degree was property subject to\nequitable distribution pursuant to \xc2\xa7 46b-81 upon dissolution of the marriage. She presented an\nexpert witness, Steven Shapiro, an economist, who testified regarding the present value of the\nplaintiff\xe2\x80\x99s medical degree. Shapiro testified that the plaintiffs future earning potential, reduced to\npresent value, was approximately $3.4 million as a plastic surgeon and $2.8 million as a general\nsurgeon. He concluded that the average of the two, $3.1 million, represents the appropriate value to\nbe assigned to the plaintiffs medical degree.2 The defendant claimed that the degree\xe2\x80\x99s present value\nshould be equitably distributed between the parties and demanded in excess of $1.5 million as a\nproperty settlement. In its memorandum of decision analyzing the state of the law of this and other\njurisdictions, the trial court concluded that the plaintiff\xe2\x80\x99s medical degree was not property subject to\nequitable distribution pursuant to \xc2\xa7 46b-81. The court then issued an order dissolving the marriage,\ndenying alimony to both parties and ordering distribution of the parties\xe2\x80\x99 debts and assets. The\ndefendant appealed from the judgment of the trial court to the Appellate Court, and we transferred\nthe appeal to this court pursuant to Practice Book \xc2\xa7 4023 and General Statutes \xc2\xa7 51-199 (c).\n\nI\n\nThe first issue raised by the defendant is whether the plaintiffs medical degree is property\nsubject to equitable distribution pursuant to \xc2\xa7 46b-81 upon dissolution of the marriage. This is a\nquestion of first impression for Connecticut. It is not, however, a new question nationwide. At least\nthirty-five states have addressed the issue and substantial ink has been expended by academicians\nand practitioners on this subject. It has been labeled with a number of appellations, the most\ncommon of which is the \xe2\x80\x9cworking spouse/student spouse syndrome,\xe2\x80\x9d apparently so called because\nit represents an unfortunate circumstance that too often arises in family courts. In its most basic\nform, it is typified by one spouse who works to provide primary support for the family unit while\nthe other spouse obtains an education, meanwhile earning either nothing or substantially less than he\nor she otherwise might have earned. Typically, it is also characterized by a relatively short marriage3\nand a working spouse who has made significant sacrifices, for example, forgoing or delaying\neducational or childrearing opportunities and the current enjoyment of income that could have been\nproduced by the student spouse. The expectation that the future benefit of increased earning\ncapacity would be the reward shared by both is dashed when the marriage disintegrates and one of\nthe parties files an action for dissolution before the anticipated benefits are realized. The critical\nproblem in these situations is that the couple usually has few, if any, assets to be distributed at the\ntime of the dissolution of the marriage. The degree, with its potential for increased earning power, is,\ntherefore, the only thing of real economic value to the parties. See, e.g., Haugan v. Haugan, 117 Wis.\n2d 200, 206-207, 343 N.W.2d 796 (1984), and cases cited there; B. Herring, \xe2\x80\x9cDivisibility of\nAdvanced Degrees in Equitable Distribution States,\xe2\x80\x9d 19 J. Marshall L. Rev. 1, 1-2 (1985).\nThe defendant argues that she fits within this paradigm and is entitled to share in the\nbenefits of the plaintiffs medical degree by way of a distribution pursuant to \xc2\xa7 46b-81 conferring on\nher an equitable portion of the value of the plaintiffs medical degree.4 In support of this argument,\nthe defendant asserts that \xc2\xa7 46b-81 adopts an \xe2\x80\x9c\xe2\x80\x98all property,\xe2\x80\x99 equitable distribution scheme\xe2\x80\x9d; Krafick\nv. Krafick, 234 Conn. 783, 792, 663 A.2d 365 (1995); pursuant to which this court has given an\nexpansive definition of property that necessarily includes an advanced degree obtained during the\n190\n\n\x0cmarriage.5 The crux of the defendant\xe2\x80\x99s argument rests upon selected language from our opinion in\nKrafick. The plaintiff counters that a medical degree cannot be distributed as property because it has\nno inherent value independent of the holder and does not fit within the statutory definition of\nproperty. We conclude that the plaintiff\xe2\x80\x99s medical degree is not property subject to distribution\npursuant to \xc2\xa7 46b-81.\nWe are supported in this conclusion by what we deem to be the intent of the legislature, the\noverwhelming weight of authority in other jurisdictions that have addressed this issue; see footnote 7\nof this opinion; and sound public policy considerations. We begin our analysis with the relevant\nstatute, \xc2\xa7 46b-81. \xe2\x80\x9cWe approach this question according to well established principles of statutory\nconstruction designed to further our fundamental objective of ascertaining and giving effect to the\napparent intent of the legislature\xe2\x80\xa6. In seeking to discern that intent, we look to the words of the\nstatute itself, to the legislative history and circumstances surrounding its enactment, to the legislative\npolicy it was designed to implement, and to its relationship to existing legislation and common law\nprinciples governing the same general subject matter\xe2\x80\xa6.\xe2\x80\x9d (Citations omitted; internal quotation\nmarks omitted.) Krafick v. Krafick, supra, 234 Conn. 793-94.\nIn Krafick, we were called upon to determine whether the term property in \xc2\xa7 46b-81, which is\nnot defined by the statute or clarified by its legislative history, was broad enough to include vested,\nthough unmatured, pension rights. To that end, we concluded that the legislature intended to adopt\nthe commonly accepted legal definition of property as set forth in Black\xe2\x80\x99s Law Dictionary (6th Ed.\n1990) p. 1095, which \xe2\x80\x9cdefines \xe2\x80\x98property\xe2\x80\x99 as the term \xe2\x80\x98commonly used to denote everything which is\nthe subject of ownership, corporeal or incorporeal, tangible or intangible, visible or invisible, real or\npersonal; everything that has an exchangeable value or which goes to make up wealth or estate. It\nextends to every species of valuable right and interest, and includes real and personal property,\neasements, franchises, and incorporeal hereditament.\xe2\x80\x99\xe2\x80\x9d Krafick v. Krafick, supra, 234 Conn. 794. By\nadopting that definition, we acknowledged that the legislature intended the term to be broad in\nscope. Id., 793-94. While we do not retreat from the definition of property espoused in Krafick, we\nalso recognize that it is not without limits. We conclude that the plaintiffs medical degree falls\noutside those limits.\nWhether the interest of a party to a dissolution is subject to distribution pursuant to \xc2\xa7 46b81,6 depends on whether that interest is: (1) a presently existing property interest or (2) a mere\nexpectancy. See id., 797. \xe2\x80\x9c[Section] 46b-81 applies only to presently existing property interests, not\n\xe2\x80\x98mere expectancies.\xe2\x80\x99\xe2\x80\x9d Id. Therefore, the former interest is subject to equitable distribution upon\ndissolution, while the latter is not. The prototypical nonproperty interest is an anticipated\ninheritance, which we consistently have deemed to be a mere expectancy that is precluded from\nequitable distribution under \xc2\xa7 46b-81. See Rubin v. Rubin, 204 Conn. 224, 236-39, 527 A.2d 1184\n(1987); Krause v. Krause, 174 Conn. 361, 387 A.2d 548 (1978). In Krafick, we stated that unlike a\nproperty interest, an \xe2\x80\x9cexpectancy may never be realized \xe2\x80\xa6. The term expectancy describes the\ninterest of a person who merely foresees that he might receive a future beneficence\xe2\x80\xa6. [T]he defining\ncharacteristic of an expectancy is that its holder has no enforceable right to his beneficence.\xe2\x80\x9d (Citations omitted;\nemphasis altered; internal quotation marks omitted.) Krafick v. Krafick, supra, 234 Conn. 797.\nBy contrast, a vested pension benefit is property within the meaning of \xc2\xa7 46b-81 and, thus, is\nsubject to equitable distribution because it represents a presently existing, enforceable contract right.\nId., 795. We reasoned that \xe2\x80\x9cvested pension benefits represent an employee\xe2\x80\x99s right to receive payment\nin the future, subject ordinarily to his or her living until the age of retirement. The fact that a\ncontractual right is contingent upon future events does not degrade that right to an expectancy.\xe2\x80\x9d\n(Emphasis altered; internal quotation marks omitted.) Id., 797. Consequently, the defining\ncharacteristic of property for purposes of \xc2\xa7 46b-81 is the present existence of the right and the\nability to enforce that right. Id.\n191\n\n\x0cThe defendant first argues, by analogy, that a medical degree is substantially similar to\npension benefits because both are a means to obtain deferred compensation. In both circumstances,\nshe argues, the marital unit forgoes current income and invests those resources to acquire the benefit\nof future income. The defendant misconstrues the import of our analysis in Krafick.\nThere, we acknowledged in dicta that a vested pension represents deferred compensation\nand is often the only substantial asset of the marital unit. Id., 796. Relying on the law of contracts,\nhowever, we went on to conclude that \xe2\x80\x9c[a]s contractual rights, pension benefits are \xe2\x80\x98a type of intangible\nproperty,\xe2\x80\x99 and, as such, are encompassed in Black\xe2\x80\x99s definition of \xe2\x80\x98property.\xe2\x80\x99\xe2\x80\x9d (Emphasis altered.) Id.,\n795. We repeatedly emphasized the fact that the owner of the pension has a presently existing,\nenforceable contract right attendant to a vested pension. Id., 795. In conclusion, we stated \xe2\x80\x9cthat\n\xe2\x80\x98property\xe2\x80\x99 as used in \xc2\xa7 46b-81, includes the right, contractual in nature, to receive vested pension\nbenefits in the future.\xe2\x80\x9d (Emphasis added.) Id., 798. Thus, it is not the pension\xe2\x80\x99s character as deferred\ncompensation that makes it property subject to equitable distribution pursuant to \xc2\xa7 46b-81, but the\npresently existing, enforceable contract right to receive the benefits that does so.\nThe defendant\xe2\x80\x99s argument is, therefore, unpersuasive because an advanced degree entails no\npresently existing, enforceable right to receive any particular income in the future. It represents\nnothing more than an opportunity for the degree holder, through his or her own efforts, in the\nabsence of any contingency that might limit or frustrate those efforts, to earn income in the future.\nSee Mahoney v. Mahoney, 91 N.J. 488, 496, 453 A.2d 527 (1982) (concluding that professional degree\nor license is not analogous to vested pension benefits).\nThe defendant next relies on our statement in Krafick that \xe2\x80\x9c[t]he fact that a contractual right\nis contingent upon future events does not degrade that right to an expectancy.\xe2\x80\x9d (Internal quotation\nmarks omitted.) Krafick v. Krafick, supra, 234 Conn. 797. She argues, again by analogy, that the fact\nthat an advanced degree is also subject to contingencies in the future should not prevent its\nclassification as property. This argument misses the crucial prerequisite that the interest must first\nqualify as an existing right before it qualifies as property subject to distribution pursuant to \xc2\xa7 46b-81.\nThe enforceable rights inherent in a vested pension make it distinctly different from the expectation\nof possible benefits afforded by an advanced degree. Additionally, the right to a vested pension\nbenefit has already accrued prior to the action for dissolution. It is presently existing and\nenforceable, notwithstanding that it is contingent on certain factors such as survival of the pensioner\nuntil maturity.\nBy contrast, the benefits attendant on a newly acquired professional degree have not vested\nat the time of dissolution, and any benefits derived will accrue only after the dissolution of the\nmarriage. These benefits may never accrue for any number of reasons because the holder has no\nenforceable right to earn any particular income in his or her chosen profession. Consequently, we\nconclude that an advanced degree is properly classified as an expectancy rather than a presently\nexisting property interest. It is not, therefore, subject to equitable distribution upon dissolution\npursuant to \xc2\xa7 46b-81.\nThe great weight of authority supports this conclusion.7 The oft-cited rationale for\nconcluding that a degree is not property subject to distribution is found in Graham v. Graham, 194\nColo. 429, 574 P.2d 75 (1978). There, the Colorado Supreme Court concluded that \xe2\x80\x9c[a]n educational\ndegree \xe2\x80\xa6 is simply not encompassed even by the broad views of the concept of \xe2\x80\x98property.\xe2\x80\x99 It does\nnot have an exchange value or any objective transferable value on an open market. It is personal to\nthe holder. It terminates on death of the holder and is not inheritable. It cannot be assigned, sold,\ntransferred, conveyed or pledged. An advanced degree is a cumulative product of many years of\nprevious education, combined with diligence and hard work. It may not be acquired by mere\nexpenditure of money. It is simply an intellectual achievement that may potentially assist in future\nacquisition of property. In our view, it has none of the attributes of property in the usual sense of\n192\n\n\x0cthe term.\xe2\x80\x9d Id., 432.\nWe agree that an advanced degree has no inherent value extrinsic to the recipient. Its only\nvalue rests in the possibility of the enhanced earning capacity that it might afford sometime in the\nfuture. The possibility of future earnings, however, represents a mere expectancy, not a present\nright. We previously have concluded that \xe2\x80\x9c[t]he terms \xe2\x80\x98estate\xe2\x80\x99 and \xe2\x80\x98property,\xe2\x80\x99 as used in the statute [\xc2\xa7\n46b-81] connote presently existing interests. \xe2\x80\x98Property\xe2\x80\x99 entails \xe2\x80\x98interests that a person has already acquired in\nspecific benefits.\xe2\x80\x99\xe2\x80\x9d (Emphasis added.) Rubin v. Rubin, supra, 204 Conn. 230-31. In Rubin, we declined\nto allow a property division in contemplation of an anticipated inheritance. We concluded that \xe2\x80\x9cthe\nrelevance of probable future income in determining the fair and equitable division of existing\nproperty \xe2\x80\xa6 does not establish jurisdiction to make allowances from \xe2\x80\xa6 property other than that held at\nthe time.\xe2\x80\x9d (Emphasis added; internal quotation marks omitted.) Id., 231. \xe2\x80\x9cUntil our legislature amends\n\xc2\xa7 46b-81 to authorize contingent transfers of expected property, we shall not read such an intent\ninto the statute.\xe2\x80\x9d Id., 232.\nIn this regard, we find the rationale of the Supreme Court of Pennsylvania persuasive. In\nHodge v. Hodge, 513 Pa. 264, 520 A.2d 15 (1986), the court denied a professional degree the status of\nproperty, concluding that \xe2\x80\x9c[i]n instances such as the one now before the Court, the real value being\nsought is not the diploma but the future earned income of the former spouse which will be attained\nas a result of the advanced degree. The property being sought is actually acquired subsequent to the\nparties\xe2\x80\x99 separation. Thus, the future income sought cannot be \xe2\x80\x98marital property\xe2\x80\x99 because it has not\nbeen earned. If it has not been earned, it has not been acquired during the marriage.\xe2\x80\x9d (Emphasis in\noriginal.) Id., 269.\nThe court in Hodge went on to note that \xe2\x80\x9cthe contribution made by one spouse to another\nspouse\xe2\x80\x99s advanced degree plays only a small part in the overall achievement.\xe2\x80\x9d Id. In the same vein,\nthe Supreme Court of Appeals of West Virginia, concluded that \xe2\x80\x9c[o]n the whole, a degree of any\nkind results primarily from the efforts of the student who earns it. Financial and emotional support\nare important, as are homemaker services, but they bear no logical relation to the value of the\nresulting degree.\xe2\x80\x9dHoak v. Hoak, 179 W. Va. 509, 513, 370 S.E.2d 473 (1988). The defendant\nmaintains in her reply brief that this assertion \xe2\x80\x9creflects a paleolithic view of marriage\xe2\x80\x9d that is\ninconsistent with the partnership theory of marriage embraced in Connecticut. We disagree.\nThe defendant reminds us that \xe2\x80\x9cthe primary aim of property distribution is to recognize that\nmarriage is, among other things, \xe2\x80\x98a shared enterprise or joint undertaking in the nature of a\npartnership to which both spouses contribute\xe2\x80\x93directly and indirectly, financially and nonfinancially\xe2\x80\x93\nthe fruits of which are distributable at divorce.\xe2\x80\x99\xe2\x80\x9d (Emphasis added.) Krafick v. Krafick, supra, 234 Conn.\n795. She argues that the only way to effectuate this purpose in these circumstances is to conclude\nthat the plaintiffs medical degree is marital property. We disagree.\nThere are other ways to compensate the defendant for her contribution to the plaintiffs\ndegree without subjecting it to classification as property subject to equitable distribution. See B.\nHerring, supra, 19 J. Marshall L. Rev. 1 (analyzing variety of solutions adopted by courts).\nFurthermore, while we have acknowledged that the marital union is akin to a partnership, we have\nnever held that it is an actual economic partnership. The parties to a marriage do not enter into the\nrelationship with a set of ledgers and make yearly adjustments to their capital accounts. \xe2\x80\x9cMarriage is\nnot a business arrangement, and this Court would be loathe to promote any more tallying of\nrespective debits and credits than already occurs in the average household.\xe2\x80\x9d Hoak v. Hoak, supra,\n179 W. Va. 514; accord Mahoney v. Mahoney, supra, 91 N.J. 500. Reducing the relationship, even when\nit has broken down, to such base terms serves only to degrade and undermine that relationship and\nthe parties.\nOf the numerous states that have passed on this question, only one has concluded that an\nadvanced degree is distributable as marital property. The New York Court of Appeals, in O\xe2\x80\x99Brien v.\n193\n\n\x0cO\xe2\x80\x99Brien, 66 N.Y.2d 576, 583-84, 489 N.E.2d 712, 498 N.Y.S.2d 743 (1985), concluded that a\nprofessional license is \xe2\x80\x9cmarital property\xe2\x80\x9d within the context of the governing New York statute. The\nNew York Appellate Division, relying on the rationale of O\xe2\x80\x99Brien, subsequently also concluded, in\nMcGowan v. McGowan, 136 Misc. 2d 225, 518 N.Y.S.2d 346 (1987), that a professional degree is\nmarital property. In O\xe2\x80\x99Brien, the working wife supported the student husband through medical\nschool only to have the husband file for divorce two months after obtaining a medical license. The\ncourt concluded that New York\xe2\x80\x99s unique statutory scheme was broader than those of other states\nthat had declined to consider degrees and licenses marital property, and that, unlike other states, \xe2\x80\x9cour\nstatute recognizes that spouses have an equitable claim to things of value arising out of the marital\nrelationship and classifies them as subject to distribution by focusing on the marital status of the\nparties at the time of acquisition\xe2\x80\xa6. [T]hey hardly fall within the traditional property concepts\nbecause there is no common-law property interest remotely resembling marital property.\xe2\x80\x9d\n(Emphasis added; internal quotation marks omitted.) O\xe2\x80\x99Brien v. O\xe2\x80\x99Brien, supra, 583. The court further\nacknowledged that \xe2\x80\x9cthe New York Legislature deliberately went beyond traditional concepts when it\nformulated the Equitable Distribution Law\xe2\x80\xa6.\xe2\x80\x9d (Citation omitted.) Id.\nBy contrast, we have interpreted our equitable distribution scheme under \xc2\xa7 46b-81 as\nembracing the traditional, albeit broad, legal concept of property as defined in Black\xe2\x80\x99s Law\nDictionary. Krafick v. Krafick, supra, 234 Conn. 794. In Krafick, we concluded that this definition\nrepresents the \xe2\x80\x9ccommon understanding\xe2\x80\x9d of the term. Id. Furthermore, the New York statute\nspecifically states that the court must consider the contribution and expenditures of each spouse to the\ncareer of the other spouse when making a property distribution. O\xe2\x80\x99Brien v. O\xe2\x80\x99Brien, supra, 66 N.Y.2d 583.\nThere is no concomitant directive in \xc2\xa7 46b-81 (c), which requires only that courts consider various\nfactors including \xe2\x80\x9coccupation, amount and sources of income, vocational skills, employability, estate,\nliabilities and needs of each of the parties and the opportunity of each for future acquisition of\ncapital assets and income \xe2\x80\xa6 [and] the contribution of each of the parties in the acquisition,\npreservation or appreciation in value of their respective estates.\xe2\x80\x9d Accordingly, we are not persuaded\nthat we should follow New York\xe2\x80\x99s minority approach, which is based exclusively on its unique\nstatute and the statute\xe2\x80\x99s illustrative legislative history. We conclude that the plaintiff\xe2\x80\x99s medical degree\nis not property subject to equitable distribution pursuant to \xc2\xa7 46b-81 upon dissolution of the parties\xe2\x80\x99\nmarriage.\n\nII\n\nThe second issue raised by the defendant is whether, if it is assumed that the plaintiffs degree\nis not property subject to distribution pursuant to \xc2\xa7 46b-81, the trial court abused its discretion by\nfailing to take proper account of the plaintiffs degree in structuring a property settlement and in\ndenying her alimony. The following additional facts are relevant to this issue. When this case was\ndecided by the trial court, the plaintiff was thirty-six years of age with an annual gross income of\n$45,660 from his residency position. The defendant was fifty-six years of age and employed part\ntime as a registered nurse earning approximately $36,000 annually. She had earned approximately\n$67,000 in the previous year. The parties owned minimal assets, including their older automobiles,8\napproximately $5800 in cash, some collectibles, including rare books and stamps, and other\nmiscellaneous personalty. After concluding that neither party was solely responsible for the\n194\n\n\x0cirretrievable breakdown, the trial court ordered the dissolution of the marriage; denied alimony to\neither party; allowed each party to retain the personal property currently in that party\xe2\x80\x99s possession;9\nmade the plaintiff solely responsible for a joint debt to the Internal Revenue Service, but otherwise\nmade each party responsible for that party\xe2\x80\x99s own debts, which included the plaintiff\xe2\x80\x99s medical school\nloans amounting to approximately $40,000; ordered the plaintiff to pay the defendant $5800, which\nwas the total amount of cash in the joint accounts of the parties at the time of the parties\xe2\x80\x99 separation\nand which the plaintiff unilaterally had withdrawn; and ordered both parties to be responsible for\ntheir own attorneys\xe2\x80\x99 fees.\n\xe2\x80\x9cThe well settled standard of review in domestic relations cases is that this court will not\ndisturb trial court orders unless the trial court has abused its legal discretion or its findings have no\nreasonable basis in the facts\xe2\x80\xa6. As has often been explained, the foundation for this standard is that\nthe trial court is in a clearly advantageous position to assess the personal factors significant to a\ndomestic relations case, such as demeanor and attitude of the parties at the hearing.\xe2\x80\x9d (Citations\nomitted; internal quotation marks omitted.) McPhee v. McPhee, 186 Conn. 167, 177, 440 A.2d 274\n(1982); see also Rostain v. Rostain, 213 Conn. 686, 693, 569 A.2d 1126 (1990). \xe2\x80\x9cIn determining\nwhether there has been an abuse of discretion, the ultimate issue is whether the court could\nreasonably conclude as it did.\xe2\x80\x9d (Internal quotation marks omitted.) Sands v. Sands, 188 Conn. 98, 101,\n448 A.2d 822 (1982), cert. denied, 459 U.S. 1148, 103 S. Ct. 792, 74 L. Ed. 2d 997 (1983).\nAccordingly, \xe2\x80\x9cit is only in rare instances that the trial court\xe2\x80\x99s decision will be disturbed.\xe2\x80\x9d Id.; accord\nTutalo v. Tutalo, 187 Conn. 249, 252, 445 A.2d 598 (1982); McPhee v. McPhee, supra, 177. Our statutory\nscheme, specifically \xc2\xa7\xc2\xa7 46b-81 and 46b-82,10 \xe2\x80\x9cset[s] forth the criteria that a trial court must consider\nwhen resolving property and alimony disputes in a dissolution of marriage action. The court must\nconsider all of these criteria\xe2\x80\xa6. It need not, however, make explicit reference to the statutory criteria\nthat it considered in making its decision or make express finding as to each statutory factor. A\nritualistic rendition of each and every statutory element would serve no useful purpose\xe2\x80\xa6. [T]he trial\ncourt is free to weigh the relevant statutory criteria without having to detail what importance it has\nassigned to the various statutory factors.\xe2\x80\x9d (Citations omitted; emphasis in original; internal quotation\nmarks omitted.) Caffe v. Caffe, 240 Conn. 79, 82-83, 689 A.2d 468 (1997). With this standard in mind,\nwe turn to the defendant\xe2\x80\x99s claims.\n\nA\n\nThe defendant first argues that the trial court abused its discretion in distributing the\nproperty between the parties. She maintains in her brief that \xe2\x80\x9c[t]he court awarded the plaintiffappellee the degree and subsequent training and left the defendant-appellant with $5800.\xe2\x80\x9d\nAdditionally, she argues that the court failed to take account of the plaintiff\xe2\x80\x99s collectibles, which she\nclaims are worth between $70,000 and $80,000. Neither of the defendant\xe2\x80\x99s arguments is persuasive.\n\xe2\x80\x9cIt is often the case that the appellant, in arguing abuse of discretion, would in reality have this court\nvary either the weight placed upon specific statutory criteria or the weight placed upon documentary\nor testimonial evidence.Fucci v. Fucci, 179 Conn. 174, 183, 425 A.2d 592 (1979). Such an excursion by\nthis court into the domain of the trier is unacceptable. Schaffer v. Schaffer, 187 Conn. 224, 227, 445\nA.2d 589 (1982).\xe2\x80\x9d Carpenter v. Carpenter, 188 Conn. 736, 741-42, 453 A.2d 1151 (1982).\nSection 46b-81 (c) directs that, \xe2\x80\x9c[i]n fixing the nature and value of the property, if any, to be\n195\n\n\x0cassigned, the court \xe2\x80\xa6 shall consider the length of the marriage, the causes for the annulment, dissolution of the\nmarriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills,\nemployability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of\ncapital assets and income. The court shall also consider the contribution of each of the parties in the\nacquisition, preservation or appreciation in value of their respective estates.\xe2\x80\x9d (Emphasis added.) The\ntrial court\xe2\x80\x99s comprehensive memorandum of decision demonstrates that it evaluated all of the\nstatutory factors in making its decision concerning the property distribution. It acknowledged the\nneed to consider the \xe2\x80\x9cvocational skills and employability of the parties\xe2\x80\x9d and,\xe2\x80\x9c\xe2\x80\x98the opportunity of\neach [party] for future acquisition of capital assets and income\xe2\x80\x99 and \xe2\x80\xa6 \xe2\x80\x98the contribution of each of\nthe parties in the acquisition, preservation or appreciation in value of their respective estates.\xe2\x80\x99\xe2\x80\x9d We\nconclude that \xe2\x80\x9cthe trial court made sufficient reference, [if] not in form [then] in substance, to the\nfactors it considered so that an appellate court would have guidance as to whether the trial court\xe2\x80\x99s\ndiscretion was properly exercised.\xe2\x80\x9d Caffe v. Caffe, supra, 240 Conn. 83.\nThe memorandum of decision reveals that the trial court did take account of the plaintiffs\ndegree and the potential for enhanced earning capacity when it distributed property pursuant to \xc2\xa7\n46b-81. There appear to have been only four assets of any significance\xe2\x80\x93 $5800 in cash, two\nautomobiles, and some collectibles, which included gifts to the plaintiff from his father. On the\nliabilities side of the ledger were two significant debts\xe2\x80\x93the plaintiffs $40,000 in education loans and a\ndebt to the Internal Revenue Service. The plaintiff was ordered to assume both of those debts. The\nplaintiff also was ordered to pay over the full amount of the parties\xe2\x80\x99 cash assets to the defendant.\nEach was allowed to keep his or her own automobile and any other miscellaneous personalty already\nwithin his or her possession.\nWith respect to the collectibles, it appears that a substantial portion of their value was either\ndestroyed or retained by the defendant after the plaintiff had left the marital home and that the\ndefendant returned only a portion of the stamps to the plaintiff. In allowing each party to keep the\npersonalty already within his or her possession, the court accounted for and distributed the\ncollectibles. In light of the defendant\xe2\x80\x99s possible misconduct with respect to these collectibles, which\nthe trial court reasonably could have found, we cannot say that such a distribution was inequitable or\nan abuse of discretion. The purpose of a distribution of property upon dissolution of the marriage is\nto \xe2\x80\x9cgiv[e] each spouse what is equitably his [or hers].\xe2\x80\x9d (Emphasis added.) McPhee v. McPhee, supra, 186\nConn. 170. Of the assets that did exist at the time of trial, all that were liquid went to the defendant\nand all the debt went to the plaintiff. We cannot say that this distribution is inequitable.\nThe defendant\xe2\x80\x99s attempt to obfuscate this issue by claiming that the plaintiff was awarded\nthe value of the degree is unavailing. As resolved under our consideration of the first issue, the court\nproperly made no distribution of the value of the medical degree because it is not property. The\ndegree, however, was taken into account in the distribution of what property the parties currently\ndid possess. Accordingly, we find no abuse of discretion in the trial court\xe2\x80\x99s distribution of the\nproperty of the parties pursuant to \xc2\xa7 46b-81.\n\nB\n\nWe do, however, find merit in the defendant\xe2\x80\x99s second claim, that the trial court abused its\ndiscretion in failing to award her alimony. An award of alimony is governed by \xc2\xa7 46b-82,11 which\n196\n\n\x0cmandates that the court \xe2\x80\x9cshall consider the length of the marriage, the causes for the annulment,\ndissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of\nincome, vocational skills, employ ability, estate and needs of each of the parties and the award, if any, which the court\nmay make pursuant to section 46b-81\xe2\x80\xa6.\xe2\x80\x9d (Emphasis added.) We continue mindful of the substantial\ndeference that this court affords the decisions of the trial court in a dissolution case. See, e.g., Caffe v.\nCaffe, supra, 240 Conn. 82-83. We consider this case, however, to present one of those rare\nsituations in which we must conclude that there was an abuse of that discretion. See Sands v. Sands,\nsupra, 188 Conn. 100; McPhee v. McPhee, supra, 186 Conn. 177.\nThe trial court, in its memorandum of decision, acknowledged the need to consider the\nplaintiff\xe2\x80\x99s medical degree in determining an award of alimony. Further, the court specifically referred\nto the statutory factors related to the earning capacity of both parties as well as other economic\nfactors in making that determination. It went on, however, to conclude that \xe2\x80\x9cconsideration of the\nstatutory factors in this case [does] not justify the award of alimony to the defendant.\xe2\x80\x9d In support of\nits conclusion, the court analyzed the facts, noting that \xe2\x80\x9c[t]he defendant provided no direct financial\ncontributions to the plaintiff\xe2\x80\x99s attainment of his medical degree. He paid for his own education costs\nand incurred large medical school loans, of which approximately $40,000 remains outstanding. The\ndefendant also did not forgo educational and career opportunities in order to support her husband.\nMuch to her credit, she was able to further her education and attain her career goal of becoming a\nlicensed nurse during the marriage. She is presently employed as a nurse and is able to financially\nsupport herself at a standard of living to which she was accustomed during marriage.\n\xe2\x80\x9cThe economic condition in which a divorce decree leaves the parties is a paramount\nconcern for the court in a dissolution proceeding. A severing of the marriage bond in this case will\nnot result in just one party facing a rewarding professional future. Both parties will remain able to\nsupport themselves and able to pursue their chosen career[s].\xe2\x80\x9d We have three problems with respect\nto the trial court\xe2\x80\x99s analysis.\nFirst, we find no reference to the age of the defendant. This court does not mandate that any\none factor should be given greater weight than other factors, nor do we require that the court recite\nevery factor in its memorandum of decision. Caffe v. Caffe, supra, 240 Conn. 83. We believe, however,\nthat this particular omission is significant in light of the substantial age disparity between the parties.\nThe defendant was fifty-six years of age at the time of trial, while the plaintiff was thirty-six years of\nage. Although the defendant may be able to continue to pursue her chosen career, she is significantly\nlimited in the duration of that career because of her age. Moreover, she currently has no significant\nassets and she is not likely to accumulate any prior to her retirement. Any savings she might have\ngarnered in anticipation of her retirement were necessarily consumed during the years of the\nplaintiffs medical education because she was the sole support of the family unit. It is not unlikely or\nunreasonable to believe that the plaintiffs medical degree was the defendant\xe2\x80\x99s retirement plan.\nWe also take exception to the trial court\xe2\x80\x99s emphasis of the fact that the defendant did not\ncontribute direct financial aid to the cost of the plaintiffs schooling. The absence of direct financial\ncontribution is of little consequence in an award of alimony in these circumstances. The defendant\nprovided emotional support and homemaker services during the years of the plaintiff\xe2\x80\x99s medical\neducation. Moreover, she was the primary financial support of the family unit and forsook earnings\nby her spouse during his years in medical school in anticipation of the future enhanced earning\ncapacity of the family. Just prior to the time when she reasonably might have anticipated a return on\nher sacrifice, the breakdown of the marriage effectively prevented her from realizing anything for\nher efforts.\nFinally, we are concerned by the trial court\xe2\x80\x99s reference to the defendant\xe2\x80\x99s ability to sustain\nherself at a level to which she had become accustomed during the marriage. While an absence of\nneed may be a customary criterion for determining the propriety of an award of alimony, this is an\n197\n\n\x0catypical case. \xe2\x80\x9cNeed is to be satisfied if it can be, but those cases and the authorities on which [this\nrule] rest[s] are not to be read as necessarily limiting alimony by the dependent spouse\xe2\x80\x99s need.\xe2\x80\x9d\nRosenberg v. Rosenberg, 33 Mass. App. 903, 904, 595 N.E.2d 792 (1992). The only reason the defendant\nwas accustomed to a standard of living commensurate with her salary alone is that she had become\nthe sole support of the family unit in order to allow the plaintiff an opportunity to attain his medical\ndegree. In view of the foregoing factors, we conclude that the trial court abused its discretion by not\nawarding the defendant some alimony, thereby depriving her of any opportunity for future support.\nIn concluding that the trial court abused its discretion by failing to award the defendant any\nalimony, we are guided by the analysis of the Wisconsin Supreme Court in Haugan v. Haugan, supra,\n117 Wis. 2d 215-23. In Haugan, the court faced the typical working spouse/ student spouse situation\nand concluded that it was an abuse of discretion to deny alimony to the working spouse. The court\ndetermined that notions of fairness demand that the working wife be compensated for her lost\nexpectation of the enjoyment of her husband\xe2\x80\x99s enhanced future earnings in light of her\ncontributions to his education, particularly in view of the fact that there was inadequate property to\ndistribute. Id., 207. The court concluded that it was an abuse of discretion to deny alimony because\nof a lack of need, that the trial court failed to provide an adequate articulation of its reason for the\ndenial, and that the award was clearly inadequate under the circumstances. Id., 216. We are\npersuaded by this rationale and conclude, for the same reasons, that the trial court abused its\ndiscretion in denying alimony to the defendant.\nIn concluding that alimony is a proper means of sharing the future earning of a spouse\xe2\x80\x99s\nadvanced degree, we are supported by the conclusions of courts interpreting statutes similar to ours.\nParticularly, the Massachusetts12 and Rhode Island13 statutes use language parallel to that of \xc2\xa7\xc2\xa7 46b81 and 46b-82. The courts of both states have concluded that their respective statutes do not permit\nequitable distribution of an advanced degree as property, but that alimony is the proper means of\ncompensating the working spouse. Drapek v. Drapek, 399 Mass. 240, 246-47, 503 N.E.2d 946 (1987);\nBecker v. Perkins-Becker, 669 A.2d 524, 531-32 (R.I. 1996). In Drapek, the Massachusetts Supreme\nJudicial Court concluded that distribution of a degree as property would be improper in that it\nwould not take into account the possibility of future events because property settlements are not\nsubject to future modification.14 Drapek v. Drapek, supra, 244. The court went on to conclude that in\nsuch circumstances, it is more appropriate to employ an award of alimony to account for the\nenhanced earning capacity engendered by an advanced degree. Id., 245-46. The Rhode Island\nSupreme Court, in Becker v. Perkins-Becker, supra, 531-32, adopted the rationale of Drapek.\nThe conclusions of both the Massachusetts and Rhode Island courts that the unmodifiable\nnature of a property settlement sometimes makes it an inappropriate method for sharing the wealth\ngenerated by the student spouse\xe2\x80\x99s increased earning capacity is persuasive. The further conclusions\nof those courts that alimony is an appropriate vehicle by which to compensate the working spouse\nwhen there is inadequate property to distribute is equally compelling. We previously have concluded\nthat \xe2\x80\x9cproperty distributions, unlike alimony awards, cannot be modified to alleviate hardships that\nmay result from enforcement of the original dissolution decree in the face of changes in the situation\nof either party. See Connolly v. Connolly, [191 Conn. 468, 477, 464 A.2d 837 (1983)]; H. Clark,\n[Domestic Relations in the United States (1968)] \xc2\xa7 14.8, p. 449, and \xc2\xa7 14.9, p. 453.\xe2\x80\x9d (Emphasis\nadded.) Rubin v. Rubin, supra, 204 Conn. 232; see also General Statutes \xc2\xa7 46b-86.15 An alimony\naward, on the other hand, is an appropriate method to take into account future earning capacity\nbecause it can be modified whenever there is a change in the circumstances of the parties that\njustifies the modification. Bartlett v. Bartlett, 220 Conn. 372, 381, 599 A.2d 14 (1991);16Rubin v. Rubin,\nsupra, 235-36; see General Statutes \xc2\xa7 46b-86.\nSound public policy militates in favor of using an alimony award rather than a property\nsettlement in these circumstances. To conclude that the plaintiffs medical degree is property and to\n198\n\n\x0cdistribute it to the defendant as such would, in effect, sentence the plaintiff to a life of involuntary\nservitude in order to achieve the financial value that has been attributed to his degree. The plaintiff\nmay become disabled, die or fail his medical boards and be precluded from the practice of medicine.\nHe may chose an alternative career either within medicine or in an unrelated field or a career as a\nmedical missionary, earning only a subsistence income. An award of alimony will allow the court to\nconsider these changes if and when they occur.\nBecause this case represents our first foray into this particular aspect of marriage\ndissolutions, we take this opportunity to clarify certain questions that may arise in interpreting the\nscope of this decision. First, we caution that we have not established a blanket rule that alimony\nmust always be awarded to the working spouse.17 Nor do we conclude that enhanced earning\ncapacity, and the contributions of the parties thereto, are necessarily factors of greater significance\nthan other statutory factors. The trial courts continue to retain their traditional discretion in that\nregard. We do conclude, however, that a working spouse is normally entitled to some compensation\nfor contributions made during the marriage and for the loss of enhanced future earnings, particularly\nwhen there are inadequate assets to distribute. The absence of need or direct financial contribution\nto a spouse\xe2\x80\x99s education are not sufficient bases upon which to deny alimony when it is the only\nequitable compensation available to the working spouse.\nAdditionally, we are mindful that in ordering alimony or a property distribution in cases\nwhere there is an advanced degree obtained with the aid of a working spouse, the trial court also\nmust take into account factors relating to the student spouse. The court must recognize the fact that\nthe student spouse has worked and studied hard to obtain the degree and will have to continue to\nwork hard in the future to realize the earning potential attributable to the degree. Haugan v. Haugan,\nsupra, 117 Wis. 2d 215. \xe2\x80\x9cGranting equity to the supporting spouse should not result in inequity to\nthe student spouse.\xe2\x80\x9d Id.\nFinally, we recognize that a nominal alimony award may often be appropriate when the\npresent circumstances will not support a substantial award. Nominal awards, however, are all that\nare necessary to afford the court continuing jurisdiction to make appropriate modifications. We have\nstated that \xe2\x80\x9cbecause some alimony was awarded, [one dollar per year] with no preclusion of\nmodification, if the circumstances warrant, a change in the award can be obtained at some future\ndate.\xe2\x80\x9d Ridgeway v. Ridgeway, 180 Conn. 533, 543, 429 A.2d 801 (1980); see also General Statutes \xc2\xa7\n46b-86; Ridolfi v. Ridolfi, 178 Conn. 377, 379-80, 423 A.2d 85 (1979). Concededly, in this case, no\nsignificant alimony appears to have been warranted at the time of trial. This was particularly true\nbecause, at the time of dissolution, the defendant\xe2\x80\x99s salary was roughly equal to that of the plaintiff\nand, with further effort, could have been increased significantly. The failure to award any alimony at\nthe time of trial, however, permanently precluded the defendant from seeking alimony at a future\ndate should those circumstances change.18\n\nIII\n\nThe final issue presented for our consideration is the existence of an implied in fact contract\nbetween the parties with respect to the plaintiffs medical degree. There are two subparts to this issue\narticulated by the defendant. First, she asks this court to find that a contract did exist between the\nparties, and, second, she asks us to conclude that the trial court improperly failed to enforce that\n199\n\n\x0ccontract. Because these issues were not properly raised in the trial court, we decline to address them.\nThe existence of a contract is, at least initially, a question of fact; Fortier v. Newington Group,\nInc., 30 Conn. App. 505, 509, 620 A.2d 1321, cert. denied, 225 Conn. 922, 625 A.2d 823 (1993);\nparticularly with respect to the existence of an implied in fact contract as alleged here. Bolmer v. Kocet,\n6 Conn. App. 595, 609, 507 A.2d 129 (1986). \xe2\x80\x9cIt is the function of the trial court, not this court, to\nfind facts.\xe2\x80\x9d State v. Lefferty, 189 Conn. 360, 363, 456 A.2d 272 (1983). Since a contractual claim was\nnot properly raised at trial, it is not reviewable by this court. \xe2\x80\x9c[T]o review [a] claim, which has been\narticulated for the first time on appeal and not before the trial court, would result in a trial by\nambuscade of the trial judge.\xe2\x80\x9d (Internal quotation marks omitted.) State v. Robinson, 227 Conn. 711,\n741, 631 A.2d 288 (1993). \xe2\x80\x9cWe have repeatedly indicated our disfavor with the failure, whether\nbecause of a mistake of law, inattention or design, to object to errors occurring in the course of a\ntrial until it is too late for them to be corrected, and thereafter, if the outcome of the trial proves\nunsatisfactory, with the assignment of such errors as grounds of appeal.\xe2\x80\x9d (Internal quotation marks\nomitted.) Knock v. Knock, 224 Conn. 776, 792, 621 A.2d 267 (1993).\nThe defendant contends that this issue was raised at trial because her attorney cited Boland v.\nCatalano, 202 Conn. 333, 521 A.2d 142 (1987) (unmarried, cohabiting couple may be found to have\nan implied contractual agreement regarding property distribution), in closing argument.19 Reference\nto Boland appears to have been made, however, solely for comparative purposes. It was an effort to\nhighlight the inequity of the situation between the paucity of what the defendant would take from\nthe marriage compared to the substantial benefits that the plaintiff would take from the marriage if\nhis medical degree was not to be considered property available for distribution. At no point did the\ndefendant suggest that the rationale of Boland, i.e., the existence of an implied contract, was\napplicable in this case. Furthermore, a claim sounding in contract was neither pleaded nor proved.20\nSuch a passing reference to Boland, without any analysis or explanation of its applicability to this case\ndoes not constitute sufficient raising of an issue at trial to warrant review by this court. See, e.g.,\nSicaras v. Hartford, 44 Conn. App. 771, 783-84, 692 A.2d 1290, cert. denied, 241 Conn. 916, 696 A.2d\n340 (1997).\nThe judgment is reversed in part and the case is remanded to the trial court for further\nproceedings consistent with this opinion.\nIn this opinion the other justices concurred.\nGeneral Statutes \xc2\xa7 46b-81 provides in relevant part: \xe2\x80\x9c(a) At the time of entering a decree\nannulling or dissolving a marriage or for legal separation pursuant to a complaint under section 46b45, the Superior Court may assign to either the husband or wife all or any part of the estate of the\nother. The court may pass title to real property to either party or to a third person or may order the\nsale of such real property, without any act by either the husband or the wife, when in the judgment\nof the court it is the proper mode to carry the decree into effect\xe2\x80\xa6. \xe2\x80\x9c(c) In fixing the nature and\nvalue of the property, if any, to be assigned, the court, after hearing the witnesses, if any, of each\nparty, except as provided in subsection (a) of section 46b-51, shall consider the length of the\nmarriage, the causes for the annulment, dissolution of the marriage or legal separation, the age,\nhealth, station, occupation, amount and sources of income, vocational skills, employability, estate,\nliabilities and needs of each of the parties and the opportunity of each for future acquisition of\ncapital assets and income. The court shall also consider the contribution of each of the parties in the\nacquisition, preservation or appreciation in value of their respective estates.\xe2\x80\x9d \xe2\x86\xa9\nAt the time of trial, the plaintiff had not yet decided which surgical specialty he intended to\npursue. In point of fact, the plaintiff subsequently was not invited to return to the surgical residency\nprogram and, thus, apparently he will be unable to pursue either career. \xe2\x86\xa9\nAlthough the short duration of the marriage is not an essential element, it is typical because\n200\n\n\x0cin longer marriages the parties usually will have completed their education and entered the\nworkforce before the end of the marriage. They are also more likely to have accumulated property in\nlonger marriages. \xe2\x86\xa9\nAlthough the present facts are not an exact fit with the more typical model, the relationship\nhere generally falls within the basic framework of the paradigm. Unlike the typical working spouse\nwho has forgone educational opportunities, the defendant here did attain a postsecondary education\nduring the marriage and is currently working in her chosen field. Moreover, there is no allegation\nthat the defendant has forgone childrearing opportunities as is often the case. The parties do,\nhowever, lack substantial assets, and the marriage was of only moderate duration. \xe2\x86\xa9\nAt oral argument, the defendant conceded that such a rule would have to apply to any\ndegree, not simply an advanced degree. \xe2\x86\xa9\nIn interpreting \xc2\xa7 46b-81, we have concluded that \xe2\x80\x9c[t]here are three stages of analysis\nregarding the equitable distribution of each resource: first, whether the resource is property within \xc2\xa7\n46b-81 to be equitably distributed (classification); second, what is the appropriate method for\ndetermining the value of the property (valuation); and third, what is the most equitable distribution\nof the property between the parties (distribution).\xe2\x80\x9d Krafick v. Krafick, supra, 234 Conn. 792-93. The\nissue presented in the instant case addresses exclusively the first stage, classification. \xe2\x86\xa9\nThirty-five states have addressed this issue. Of them, thirty-four have declined to consider\nan educational degree marital property subject to equitable distribution. See Jones v. Jones, 454 So. 2d\n1006 (Ala. Civ. App. 1984); Nelson v. Nelson, 736 P.2d 1145 (Alaska 1987); Wisner v. Wisner, 129 Ariz.\n333, 631 P.2d 115 (1981); In re Marriage of Sullivan, 37 Cal. 3d 762, 691 P.2d 1020, 209 Cal. Rptr. 354\n(1984); Graham v. Graham, 194 Colo. 429, 574 P.2d 75 (1978); Hughes v. Hughes, 438 So. 2d 146 (Fla.\nApp. 1983); Lowery v. Lowery, 262 Ga. 20, 413 S.E.2d 731 (1992); In re Marriage of Weinstein, 128 Ill.\nApp. 3d 234, 470 N.E.2d 551 (1984); Roberts v. Roberts. 670 N.E.2d 72 (Ind. App. 1996); In re Marriage\nof Plasencia, 541 N.W.2d 923 (Iowa App. 1995); Inman v. Inman, 648 S.W.2d 847 (Ky. 1982); Sweeney v.\nSweeney, 534 A.2d 1290 (Me. 1987); Archer v. Archer, 303 Md. 347, 493 A.2d 1074 (1985); Drapek v.\nDrapek, 399 Mass. 240, 503 N.E.2d 946 (1987); Krause v. Krause, 177 Mich. App. 184, 441 N.W.2d 66\n(1989), but see Moss v. Moss, 80 Mich. App. 693, 264 N.W.2d 97 (1978) (representing conflict\nbetween Michigan appellate courts that is not yet resolved); Riaz v. Riaz, 789 S.W.2d 224 (Mo. App.\n1990); Ruben v. Ruben, 123 N.H. 358, 461 A.2d 733 (1983); Mahoney v. Mahoney, supra, 91 N.J. 488;\nMuckleroy v. Muckleroy, 84 N.M. 14, 498 P.2d 1357 (1972); Haywood v. Haywood, 106 N.C. App. 91, 415\nS.E.2d 565 (1992), rev\xe2\x80\x99d on other grounds, 333 N.C. 342, 425 S.E.2d 696 (1993); Stevens v. Stevens, 23\nOhio St. 3d 115, 492 N.E.2d 131 (1986); Hubbard v. Hubbard, 603 P.2d 747 (Okla. 1979); Stuart and\nStuart, 107 Or. App. 549, 813 P.2d 49 (1991); Hodge v. Hodge, 513 Pa. 264, 520 A.2d 15 (1986); Becker\nv. Perkins-Becker, 669 A.2d 524 (R.I. 1996); Helm v. Helm, 289 S.C. 169, 345 S.E.2d 720 (1986);\nWehrkamp v. Wehrkamp, 357 N.W.2d 264 (S.D. 1984); Beeler v. Beeler, 715 S.W.2d 625 (Tenn. App.\n1986); Frausto v. Frausto, 611 S.W.2d 656 (Tex. App. 1980); Martinez v. Martinez, 754 P.2d 69 (Utah\n1988); Downs v. Downs, 154 Vt. 161, 574 A.2d 156 (1990); In re Marriage of Anglin, 52 Wash. App. 317,\n759 P.2d 1224 (1988); Hoak v. Hoak, 370 S.E.2d 473 (W. Va. 1988); Grosskopf v. Grosskopf, 677 P.2d\n814 (Wy. 1984); but see O\xe2\x80\x99Brien v. O\xe2\x80\x99Brien, 66 N.Y.2d 576, 489 N.E.2d 712, 498 N.Y.S.2d 743 (1985)\n(professional license is distributable as marital property); McGowan v. McGowan, 136 Misc. 2d 225,\n518 N.Y.S.2d 346 (1987) (professional degree is distributable as marital property). \xe2\x86\xa9\nThe plaintiff owned a 1985 Subaru GL-10 Wagon and the plaintiff and the defendant jointly\nowned a 1979 Chevrolet K-5 Blazer. The Blazer was in the defendant\xe2\x80\x99s possession, and the Subaru\nwas in the plaintiff\xe2\x80\x99s possession. \xe2\x86\xa9\nThe defendant alleges that the plaintiff owns $70,000 to $80,000 worth of collectibles\nincluding rare books and a stamp collection. This is the valuation listed on the plaintiffs answers to\n201\n\n\x0cinterrogatories. There is no specific reference to this property in the memorandum of decision. The\nplaintiff admits that he owned these items, but alleged that the defendant retained these items for a\ntime after their separation. The defendant returned some of the stamp collection during the trial, but\na significant number of stamps were missing. The plaintiff maintained that he is no longer in\npossession of the rare books and believes that the defendant destroyed them. The defendant admits\nthat she left the books outside the house when she left the house permanently. No subsequent\nvaluation of the reduced stamp collection was entered at trial. We have no reason to believe, and the\ndefendant points to none, that the trial court failed to take this into account in distributing the\npersonalty, allowing each to keep that which was already in his or her possession. \xe2\x86\xa9\nAlthough \xc2\xa7 46b-84, governing child support considerations in making property settlements\nand alimony awards, is usually also relevant, it is inapplicable in this case because the parties had no\nchildren of the marriage. \xe2\x86\xa9\nGeneral Statutes \xc2\xa7 46b-82 provides: \xe2\x80\x9cAt the time of entering the decree, the Superior Court\nmay order either of the parties to pay alimony to the other, in addition to or in lieu of an award\npursuant to section 46b-81. The order may direct that security be given therefor on such terms as\nthe court may deem desirable, including an order to either party to contract with a third party for\nperiodic payments or payments contingent on a life to the other party. In determining whether\nalimony shall be awarded, and the duration and amount of the award, the court shall hear the\nwitnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider\nthe length of the marriage, the causes for the annulment, dissolution of the marriage or legal\nseparation, the age, health, station, occupation, amount and sources of income, vocational skills,\nemployability, estate and needs of each of the parties and the award, if any, which the court may\nmake pursuant to section 46b-81, and, in the case of a parent to whom the custody of minor\nchildren has been awarded, the desirability of such parent\xe2\x80\x99s securing employment.\xe2\x80\x9d \xe2\x86\xa9\nMassachusetts General Laws c. 208, \xc2\xa7 34 provides in relevant part: \xe2\x80\x9cUpon divorce \xe2\x80\xa6 the\ncourt of the commonwealth \xe2\x80\xa6 may make a judgment for either of the parties to pay alimony to the\nother. In addition or in lieu of a judgment to pay alimony, the court may assign to either husband or\nwife all or any part of the estate of the other\xe2\x80\xa6. In determining the amount of alimony, if any, to be\npaid, or in fixing the nature and value of the property, if any, to be so assigned, the court \xe2\x80\xa6 shall\nconsider the length of the marriage, the conduct of the parties during the marriage, the age, health, station, occupation,\namount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and\nthe opportunity of each for future acquisition of capital assets and income\xe2\x80\xa6. The court may also consider the\ncontribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates and\nthe contributions of each of the parties as a homemaker to the family unit.\xe2\x80\x9d (Emphasis added.)\nCompare General Statutes \xc2\xa7 46b-81 (c) as set forth in footnote 1 of this opinion. \xe2\x86\xa9\nRhode Island General Laws \xc2\xa7 15-5-16.1 (1956, 1988 Reenactment) provides in relevant part:\n\xe2\x80\x9cIn addition to or in lieu of an order to pay alimony made pursuant to a complaint for divorce, the\ncourt may assign to either the husband or wife a portion of the estate of the other. In determining\nthe nature and value of the property, if any, to be assigned, the court \xe2\x80\xa6 shall consider the length of the\nmarriage, the conduct of the parties during the marriage, and the contribution of each of the parties in the acquisition,\npreservation, or appreciation in value of their respective estates, and the contribution and services of either\nparty as a homemaker.\xe2\x80\x9d (Emphasis added.) This statute was amended in 1992 by 1992 Rhode Island\nPublic Laws , c. 269, \xc2\xa7 2, to include a provision for the courts to consider \xe2\x80\x9c[t]he contribution by one\n(1) party to the education, training, licensure, business, or, increased earning power of the other\xe2\x80\x9d\nwhen making property distributions. This directive was not part of the statute considered by the\ncourt in Becker v. Perkins-Becker, 669 A.2d 524, 530 n.4 (R.I. 1996). \xe2\x86\xa9\nThe court initially concluded that the degree was not property subject to equitable\n202\n\n\x0cdistribution because it represents future earned income, the value of which is too speculative and\nsubject to too many variables. Drapek v. Drapek, supra, 399 Mass. 244. \xe2\x86\xa9\nGeneral Statutes \xc2\xa7 46b-86 authorizes modification of alimony and child support payments\n\xe2\x80\x9cupon a showing of a substantial change in circumstances of either party\xe2\x80\xa6.\xe2\x80\x9d It provides in relevant\npart: \xe2\x80\x9cThis section shall not apply to assignments under \xc2\xa7 46b-81 or to any assignment of the estate\nor a portion thereof of one party to the other party under prior law\xe2\x80\xa6.\xe2\x80\x9d \xe2\x86\xa9\nIn Bartlett v. Bartlett, supra, 220 Conn. 381, we concluded that an inheritance, once vested in\nthe heir upon death of the donor, constitutes changed circumstances and is properly considered in a\nrequest to modify alimony, notwithstanding the fact that the property was still pending probate and,\nthus, had not yet been distributed. \xe2\x86\xa9\nWe also note that our analysis and conclusion are limited to the circumstances presented in\nthis case and should not be expanded beyond the context of the working spouse/student spouse\nparadigm. In future similar cases, if the trial court concludes that alimony is inappropriate, it should\nclearly set forth its reasoning. See Haugan v. Haugan, supra, 117 Wis. 2d 215. \xe2\x86\xa9\nWe are also mindful of our prior holdings recognizing that\xe2\x80\x9d\xe2\x80\x99[t]he rendering of a judgment in\na complicated dissolution case is a carefully crafted mosaic, each element of which may be\ndependent on the other.\xe2\x80\x99\xe2\x80\x9d Sunbury v. Sunbury, 210 Conn. 170, 175, 553 A.2d 612 (1989). In light of\nthat truism, we concluded in Sunbury that \xe2\x80\x9c[t]o limit the remand in this case to the issue of periodic\nalimony would impede the trial court\xe2\x80\x99s ability to weigh the statutory criteria for financial orders to\nachieve an equitable result [because t]he issues involving financial orders are entirely interwoven.\xe2\x80\x9d\nId., 174-75. Accordingly, notwithstanding our conclusion that the property distribution pursuant to\n\xc2\xa7 46b-81 was fair and within the discretion of the trial court, it is necessary on remand for the trial\ncourt to reevaluate its prior order distributing the marital property in light of our conclusion that an\naward of alimony should be granted. This case presents unique circumstances and we leave the\ndecision whether to alter the prior property distribution to the sound discretion of the trial court. \xe2\x86\xa9\nThe relevant portion of the defendant\xe2\x80\x99s summation is as follows: \xe2\x80\x9cI would suggest to the\nCourt that the Court can recognize that this degree, this medical degree, has a current value. That he\nalso has a current earning capacity higher than what he\xe2\x80\x99s doing, if he chooses to exercise it, and we\nare not asking him to exercise it. I will, however, ask the Court to recognize that this marriage was a\npartnership, and I refer the Court to the case Boland [v.] Catalano, which is a Connecticut case. That\ncase was not a marriage case. That case was a case where two parties lived together, and everything\nended up in the fellow\xe2\x80\x99s name and nothing ended up in the lady\xe2\x80\x99s name. And it was their game plan\nthat they live as husband and wife, acted as husband and wife, and were planning their future. Well, I\nthink we have a bit of a parallel here. We have a Doctor with a medical degree\xe2\x80\xa6. [H]e is getting the\nbenefit of her income and education [in the form of reduced requests for alimony]. He, on the other\nhand, if allowed to walk out and never look back, she worked those three jobs while he was in\nmedical school.\xe2\x80\x9d \xe2\x86\xa9\nAlthough there was some testimony by both parties that there was an understanding\nbetween them, particularly the plaintiffs acknowledgment that the defendant could \xe2\x80\x9ctake it easy\xe2\x80\x9d\nafter the plaintiff obtained his degree, this is hardly adequate proof of an implied contract, especially\nwhen such a legal theory was never placed before the court. The plaintiff refused to characterize this\nas an agreement, but rather thought that it might be viewed as a \xe2\x80\x9cplan.\xe2\x80\x9d \xe2\x86\xa9\n\n203\n\n\x0cLowery v. Lowery,\n262 Ga. 20 (1992)\n\nStone, Christian & Raymond, Philip T. Raymond III, Susan L. Dalton, for appellant.\nHarrison & Willis, Randall P. Harrison, J. Stephen Clifford, for appellee.\nHunt, Justice.\nWe granted this application to appeal to determine whether the husband\xe2\x80\x99s medical school\neducation and license may be considered \xe2\x80\x9cmarital property,\xe2\x80\x9d subject to equitable division. We agree\nwith the trial court, and the majority of jurisdictions that have decided this issue, that they are not.\nSee generally Annot. Spouse\xe2\x80\x99s Professional Degree or License as Marital Property for Purposes of\nAlimony, Support, or Property Settlement, 4 ALR 4th 1294; see, e.g., Hughes v. Hughes, 438 S2d 146\n(Fla. 1983); In re Marriage of Goldstein, 423 NE2d 1201 (Ill. 1981). These \xe2\x80\x9cassets\xe2\x80\x9d bear no similarity to\neven the broadest view of property for purposes of equitable division. Their value is too speculative\nto calculate, being simply the possibility of enhanced earnings they provide. That potential may\nnever be realized for any number of reasons. The husband\xe2\x80\x99s education and license have no exchange\nvalue or transferrable value on an open market, are personal to him, terminate on his death, and\ncannot be assigned, sold, transferred or pledged. In re Marriage of Graham, 574 P2d 75 (Colo. 1978).1\nHowever, on the issue of alimony, we disagree with the trial court that the wife\xe2\x80\x99s expert\xe2\x80\x99s\ntestimony regarding the husband\xe2\x80\x99s earnings must be limited to the husband\xe2\x80\x99s actual present income.\nThe expert may testify regarding the husband\xe2\x80\x99s earning capacity, to the extent the wife contends that\ndiffers from his present income. OCGA \xc2\xa7 19-6-5 (4) and (7). Worrell v. Worrell, 242 Ga. 44, 45 (2)\n(247 SE2d 847) (1978).\nOf course, the wife\xe2\x80\x99s contributions to the marriage during the time the husband earned his\ndegree and license, including her contributions to the husband to help him attain the degree and\nlicense, may be considered relative to alimony, OCGA \xc2\xa7 19-6-5 (5), (6) and (7), and the division of\nmarital property. Stokes v. Stokes, 246 Ga. 765, 772 (273 SE2d 169) (1980) (Hill, J., concurring). \xe2\x86\xa9\n\n204\n\n\x0c4.4.3. Unmarried Partners\nWatts v. Watts,\n137 Wis.2d 506 (1987)\n\nFor the plaintiff-appellant there was an appellant\xe2\x80\x99s brief (in the court of appeals) by David\nG. Walsh, Margaret A. Satterthwaite, and Walsh, Walsh, Sweeney and Whitney, S.C., Madison, and a\nreply brief by David G. Walsh. The cause was argued by David G. Walsh.\nFor the defendant-respondent there was a brief (in the court of appeals) and oral argument\nby Daniel G. Sandell, Madison.\nShirley S. Abrahamson, J.\nThis is an appeal from a judgment of the circuit court for Dane County, William D. Byrne,\nJudge, dismissing Sue Ann Watts\xe2\x80\x99 amended complaint, pursuant to sec. 802.06(2)(f), Stats. 1985-86,\nfor failure to state a claim upon which relief may be granted. This court took jurisdiction of the\nappeal upon certification by the court of appeals under sec. (Rule) 809.61, Stats. 1985-86. For the\nreasons set forth, we hold that the complaint states a claim upon which relief may be granted.\nAccordingly, we reverse the judgment of the circuit court and remand the cause to the circuit court\nfor further proceedings consistent with this opinion.\nThe case involves a dispute between Sue Ann Evans Watts, the plaintiff, and James Watts,\nthe defendant, over their respective interests in property accumulated during their nonmarital\ncohabitation relationship which spanned 12 years and produced two children. The case presents an\nissue of first impression and comes to this court at the pleading stage of the case, before trial and\nbefore the facts have been determined.\nThe plaintiff asked the circuit court to order an accounting of the defendant\xe2\x80\x99s personal and\nbusiness assets accumulated between June 1969 through December 1981 (the duration of the\nparties\xe2\x80\x99 cohabitation) and to determine plaintiff\xe2\x80\x99s share of this property. The circuit court\xe2\x80\x99s dismissal\nof plaintiff\xe2\x80\x99s amended complaint is the subject of this appeal. The plaintiff rests her claim for an\naccounting and a share in the accumulated property on the following legal theories: (1) she is entitled\nto an equitable division of property under sec. 767.255, Stats. 1985-86; (2) the defendant is estopped\nto assert as a defense to plaintiff\xe2\x80\x99s claim under sec. 767.255, that the parties are not married; (3) the\nplaintiff is entitled to damages for defendant\xe2\x80\x99s breach of an express contract or an implied-in-fact\ncontract between the parties; (4) the defendant holds the accumulated property under a constructive\ntrust based upon unjust enrichment; and (5) the plaintiff is entitled to partition of the parties\xe2\x80\x99 real\nand personal property pursuant to the partition statutes, secs. 820.01 and 842.02(1), 1985-86, and\ncommon law principles of partition.1\nThe circuit court dismissed the amended complaint, concluding that sec. 767.255, Stats.\n1985-86, authorizing a court to divide property, does not apply to the division of property between\nunmarried persons. Without analyzing the four other legal theories upon which the plaintiff rests her\nclaim, the circuit court simply concluded that the legislature, not the court, should provide relief to\nparties who have accumulated property in nonmarital cohabitation relationships. The circuit court\n205\n\n\x0cgave no further explanation for its decision.\nWe agree with the circuit court that the legislature did not intend sec. 767.255 to apply to an\nunmarried couple. We disagree with the circuit court\xe2\x80\x99s implicit conclusion that courts cannot or\nshould not, without express authorization from the legislature, divide property between persons who\nhave engaged in nonmarital cohabitation. Courts traditionally have settled contract and property\ndisputes between unmarried persons, some of whom have cohabited. Nonmarital cohabitation does\nnot render every agreement between the cohabiting parties illegal and does not automatically\npreclude one of the parties from seeking judicial relief, such as statutory or common law partition,\ndamages for breach of express or implied contract, constructive trust and quantum merit where the\nparty alleges, and later proves, facts supporting the legal theory. The issue for the court in each case\nis whether the complaining party has set forth any legally cognizable claim.\nA motion to dismiss a complaint for failure to state a claim tests the legal sufficiency of the\ncomplaint. All facts pleaded and all reasonable inferences therefrom are admitted as true, but only\nfor the purpose of testing the legal sufficiency of the claim, not for trial. Scarpaci v. Milwaukee County,\n96 Wis. 2d 663, 669, 292 N.W.2d 816, 18 A.L.R.4th 829 (1980). A complaint should not be\ndismissed for failure to state a claim unless it appears certain that no relief can be granted under any\nset of facts that a plaintiff can prove in support of his or her allegations. Kranzush v. Badger State\nMutual Cas. Co., 103 Wis. 2d 56, 82, 307 N.W.2d 256 (1981). The pleadings are to be liberally\nconstrued to do substantial justice to the parties. Sec. 802.02(6), Stats. 1985-86; Scarpaci, supra, 96\nWis. 2d at 669. Whether a complaint states a claim upon which relief may be granted is a question of\nlaw and this court need not defer to the circuit court\xe2\x80\x99s determination.\nWe test the sufficiency of the plaintiff\xe2\x80\x99s amended complaint by first setting forth the facts\nasserted in the complaint and then analyzing each of the five legal theories upon which the plaintiff\nrests her claim for relief.\nI.\nThe plaintiff commenced this action in 1982. The plaintiff\xe2\x80\x99s amended complaint alleges the\nfollowing facts, which for purposes of this appeal must be accepted as true. The plaintiff and the\ndefendant met in 1967, when she was 19 years old, was living with her parents and was working full\ntime as a nurse\xe2\x80\x99s aide in preparation for a nursing career. Shortly after the parties met, the defendant\npersuaded the plaintiff to move into an apartment paid for by him and to quit her job. According to\nthe amended complaint, the defendant \xe2\x80\x9cindicated\xe2\x80\x9d to the plaintiff that he would provide for her.\nEarly in 1969, the parties began living together in a \xe2\x80\x9cmarriage-like\xe2\x80\x9d relationship, holding\nthemselves out to the public as husband and wife. The plaintiff assumed the defendant\xe2\x80\x99s surname as\nher own. Subsequently, she gave birth to two children who were also given the defendant\xe2\x80\x99s surname.\nThe parties filed joint income tax returns and maintained joint bank accounts asserting that they\nwere husband and wife. The defendant insured the plaintiff as his wife on his medical insurance\npolicy. He also took out a life insurance policy on her as his wife, naming himself as the beneficiary.\nThe parties purchased real and personal property as husband and wife. The plaintiff executed\ndocuments and obligated herself on promissory notes to lending institutions as the defendant\xe2\x80\x99s wife.\nDuring their relationship, the plaintiff contributed childcare and homemaking services,\nincluding cleaning, cooking, laundering, shopping, running errands, and maintaining the grounds\nsurrounding the parties\xe2\x80\x99 home. Additionally, the plaintiff contributed personal property to the\nrelationship which she owned at the beginning of the relationship or acquired through gifts or\npurchases during the relationship. She served as hostess for the defendant for social and business206\n\n\x0crelated events. The amended complaint further asserts that periodically, between 1969 and 1975, the\nplaintiff cooked and cleaned for the defendant and his employees while his business, a landscaping\nservice, was building and landscaping a golf course.\nFrom 1973 to 1976, the plaintiff worked 20-25 hours per week at the defendant\xe2\x80\x99s office,\nperforming duties as a receptionist, typist, and assistant bookkeeper. From 1976 to 1981, the\nplaintiff worked 40-60 hours per week at a business she started with the defendant\xe2\x80\x99s sister-in-law,\nthen continued and managed herself after the dissolution of that partnership. The plaintiff further\nalleges that in 1981 the defendant made their relationship so intolerable that she was forced to move\nfrom their home and their relationship was irretrievably broken. Subsequently, the defendant barred\nthe plaintiff from returning to her business.\nThe plaintiff alleges that during the parties\xe2\x80\x99 relationship, and because of her domestic and\nbusiness contributions, the business and personal wealth of the couple increased. Furthermore, the\nplaintiff alleges that she never received any compensation for these contributions to the relationship\nand that the defendant indicated to the plaintiff both orally and through his conduct that he\nconsidered her to be his wife and that she would share equally in the increased wealth.\nThe plaintiff asserts that since the breakdown of the relationship the defendant has refused\nto share equally with her the wealth accumulated through their joint efforts or to compensate her in\nany way for her contributions to the relationship.\nII.\nThe plaintiff\xe2\x80\x99s first legal theory to support her claim against the property accumulated during\nthe cohabitation is that the plaintiff, defendant, and their children constitute a \xe2\x80\x9cfamily,\xe2\x80\x9d thus\nentitling the plaintiff to bring an action for property division under sec. 767.02(1)(h), Stats. 1985-86,2\nand to have the court \xe2\x80\x9cdivide the property of the parties and divest and transfer the title of any such\nproperty\xe2\x80\x9d pursuant to sec. 767.255, 1985-86.3\nThe plaintiff asserts that the legislature intended secs. 767.02(1)(h) and 767.255, which\nusually govern division of property between married persons in divorce or legal separation\nproceedings, to govern a property division action between unmarried cohabitants who constitute a\nfamily. The plaintiff points out that secs. 767.02(1)(h) and 767.255 are part of chapter 767, which is\nentitled \xe2\x80\x9cActions Affecting the Family,\xe2\x80\x9d and that in 1979 the legislature deliberately changed the title\nof the chapter from \xe2\x80\x9cActions Affecting Marriage\xe2\x80\x9d to \xe2\x80\x9cActions Affecting the Family.\xe2\x80\x9d4 The\nlegislature has failed to provide any definition for \xe2\x80\x9cfamily\xe2\x80\x9d under ch. 767, or for that matter under\nany chapter of the Family Code.5\nThe plaintiff relies on Warden v. Warden, 36 Wash. App. 693, 676 P.2d 1037 (1984), to\nsupport her claim for relief under secs. 767.02(1)(h) and 767.255. In Warden, the Washington court\nof appeals held that the statute providing guidelines for property division upon dissolution of\nmarriage, legal separation, etc., could also be applied to divide property acquired by unmarried\ncohabitants in what was \xe2\x80\x9ctantamount to a marital family except for a legal marriage.\xe2\x80\x9d Warden, 36\nWash. App. at 698, 676 P.2d at 1039. Warden is remarkably similar on its facts to the instant case.\nThe parties in Warden had lived together for 11 years, had two children, held themselves out as\nhusband and wife, acquired property together, and filed joint tax returns. On those facts, the\nWashington court of appeals held that the trial court correctly treated the parties as a \xe2\x80\x9cfamily\xe2\x80\x9d within\nthe meaning of the Washington marriage dissolution statute. In addition, the trial court had\nconsidered such statutory factors as the length and purpose of the parties\xe2\x80\x99 relationship, their two\nchildren, and the contributions and future prospects of each in determining their respective shares\n207\n\n\x0cof the property.\nAlthough the Warden case provides support for the plaintiff\xe2\x80\x99s argument, most courts which\nhave addressed the issue of whether marriage dissolution statutes provide relief to unmarried\ncohabitants have either rejected or avoided application of a marriage dissolution statute to unmarried\ncohabitants. See, e.g., Marvin v. Marvin, 18 Cal. 3d 660, 681, 134 Cal. Rptr. 815, 557 P.2d 106 (1976);\nMetten v. Benge, 366 N.W.2d 577, 579-80 (Iowa 1985); Glasgo v. Glasgo, 410 N.E.2d 1325, 1331 (Ind.\nCt. App. 1980); Kozlowski v. Kozlowski, 80 N.J. 378, 383, 403 A.2d 902, 905 (1979).6\nThe purpose of statutory construction is to ascertain the intent of the legislature and give\neffect to that intent. If the language of the statute is unclear, the court will endeavor to discover the\nlegislature\xe2\x80\x99s intent as disclosed by the scope, history, context, subject matter and purpose of the\nstatute. Ball v. District No. 4, Area Bd., 117 Wis. 2d 529, 538, 345 N.W.2d 389 (1984).\nWhile we agree with the plaintiff that some provisions in ch. 767 govern a mother, father,\nand their children, regardless of marriage,7 upon our analysis of sec. 767.255 and the Family Code,\nwe conclude that the legislature did not intend sec. 767.255 to extend to unmarried cohabitants.\nWhen the legislature added what is now sec. 767.255 in 1977 as part of the no fault divorce\nbill, it stated that its \xe2\x80\x9csole purpose\xe2\x80\x9d was \xe2\x80\x9cto promote an equitable and reasonable adjudication of the\neconomic and custodial issues involved in marriage relationships.\xe2\x80\x9d8 (Emphasis supplied.) Moreover,\nthe unambiguous language of sec. 767.255 and the criteria for property division listed in sec. 767.255\nplainly contemplate that the parties who are governed by that section are or have been married.9\nFinally, secs. 767.02(1)(h) and 767.255 were both in existence before the 1979 legislature changed\nthe title of ch. 767 from \xe2\x80\x9cMarriage\xe2\x80\x9d to \xe2\x80\x9cFamily.\xe2\x80\x9d A change in the title of the chapter would not\nchange the import of these statutory provisions.\nFurthermore, the Family Code emphasizes marriage. The entire Family Code, of which ch.\n767 is an integral part, is governed generally by the provisions of sec. 765.001(2), which states in part\nthat \xe2\x80\x9c[i]t is the intent of chs. 765 to 768 to promote the stability and best interests of marriage and the\nfamily. \xe2\x80\xa6 Marriage is the institution that is the foundation of family and of society. Its stability is basic to\nmorality and civilization, and of vital interest to society and the state.\xe2\x80\x9d (Emphasis supplied.) Section\n765.001(3) further states that \xe2\x80\x9c[c]hapters 765 to 768 shall be liberally construed to effect the\nobjectives of sub. (2).\xe2\x80\x9d The conclusion is almost inescapable from this language in sec. 765.001 (2),\n(3) that the legislature not only intended chs. 765-768 to protect and promote the \xe2\x80\x9cfamily,\xe2\x80\x9d but also\nintended \xe2\x80\x9cfamily\xe2\x80\x9d to be within the \xe2\x80\x9cmarriage\xe2\x80\x9d context.10\nThe statutory prohibition of marriages which do not conform to statutory requirements, sec.\n765.21, Stats. 1985-86,11 further suggests that the legislature intended that the Family Code applies,\nfor the most part, to those couples who have been joined in marriage according to law.\nOn the basis of our analysis of sec. 767.255 and the Family Code which revealed no clear\nevidence that the legislature intended sec. 767.255 to apply to unmarried persons, we decline the\ninvitation to extend the application of sec. 767.255 to unmarried cohabitants. We therefore hold that\nthe plaintiff has not stated a claim for property division under sec. 767.255.\nIII.\nThe plaintiff urges that the defendant, as a result of his own words and conduct, be estopped\nfrom asserting the lack of a legal marriage as a defense against the plaintiff\xe2\x80\x99s claim for property\ndivision under sec. 767.255. As support for her position, the plaintiff cites a 1905 Tennessee case\nand two law review articles that do no more than cite to the Tennessee case law.12\nAlthough the defendant has not discussed this legal theory, we conclude that the doctrine of\n208\n\n\x0c\xe2\x80\x9cmarriage by estoppel\xe2\x80\x9d should not be applied in this case. We reach this result primarily because we\nhave already concluded that the legislature did not intend sec. 767.255 to govern property division\nbetween unmarried cohabitants.13 We do not think the parties\xe2\x80\x99 conduct should place them within the\nambit of a statute which the legislature did not intend to govern them.\nIV.\nThe plaintiffs third legal theory on which her claim rests is that she and the defendant had a\ncontract to share equally the property accumulated during their relationship. The essence of the\ncomplaint is that the parties had a contract, either an express or implied in fact contract, which the\ndefendant breached.\nWisconsin courts have long recognized the importance of freedom of contract and have\nendeavored to protect the right to contract. A contract will not be enforced, however, if it violates\npublic policy. A declaration that the contract is against public policy should be made only after a\ncareful balancing, in the light of all the circumstances, of the interest in enforcing a particular\npromise against the policy against enforcement. Courts should be reluctant to frustrate a party\xe2\x80\x99s\nreasonable expectations without a corresponding benefit to be gained in deterring \xe2\x80\x9cmisconduct\xe2\x80\x9d or\navoiding inappropriate use of the judicial system. Merten v. Nathan, 108 Wis. 2d 205, 211, 321\nN.W.2d 173, 177 (1982); Continental Ins. Co. v. Daily Express, Inc., 68 Wis. 2d 581, 589, 229 N.W.2d\n617 (1975); Schaal v. Great Lakes Mutual Fire & Marine Ins. Co., 6 Wis. 2d 350, 356, 94 N.W.2d 646,\n649 (1959); Trumpf v. Shoudy, 166 Wis. 353, 359, 164 N.W. 454, 456 (1917); Restatement (Second) of\nContracts sec. 178 comments b and e (1981).\nThe defendant appears to attack the plaintiff\xe2\x80\x99s contract theory on three grounds. First, the\ndefendant apparently asserts that the court\xe2\x80\x99s recognition of plaintiff\xe2\x80\x99s contract claim for a share of\nthe parties\xe2\x80\x99 property contravenes the Wisconsin Family Code. Second, the defendant asserts that the\nlegislature, not the courts, should determine the property and contract rights of unmarried\ncohabitating parties. Third, the defendant intimates that the parties\xe2\x80\x99 relationship was immoral and\nillegal and that any recognition of a contract between the parties or plaintiff\xe2\x80\x99s claim for a share of the\nproperty accumulated during the cohabitation contravenes public policy.\nThe defendant rests his argument that judicial recognition of a contract between unmarried\ncohabitants for property division violates the Wisconsin Family Code on Hewitt v. Hewitt, 77 Ill. 2d\n49, 31 Ill. Dec. 827, 394 N.E.2d 1204, 3 A.L.R.4th 1 (1979). In Hewitt the Illinois Supreme Court\nconcluded that judicial recognition of mutual property rights between unmarried cohabitants would\nviolate the policy of the Illinois Marriage and Dissolution Act because enhancing the attractiveness\nof a private arrangement contravenes the Act\xe2\x80\x99s policy of strengthening and preserving the integrity\nof marriage. The Illinois court concluded that allowing such a contract claim would weaken the\nsanctity of marriage, put in doubt the rights of inheritance, and open the door to false pretenses of\nmarriage. Hewitt, 77 Ill. 2d at 65, 394 N.E.2d at 1211.\nWe agree with Professor Prince and other commentators that the Hewitt court made an\nunsupportable inferential leap when it found that cohabitation agreements run contrary to statutory\npolicy and that the Hewitt court\xe2\x80\x99s approach is patently inconsistent with the principle that public\npolicy limits are to be narrowly and exactly applied.14\nFurthermore, the Illinois statutes upon which the Illinois supreme court rested its decision\nare distinguishable from the Wisconsin statutes. The Illinois supreme court relied on the fact that\nIllinois still retained \xe2\x80\x9cfault\xe2\x80\x9d divorce and that cohabitation was unlawful. By contrast, Wisconsin\nabolished \xe2\x80\x9cfault\xe2\x80\x9d in divorce in 1977 and abolished criminal sanctions for nonmarital cohabitation in\n209\n\n\x0c1983.15\nThe defendant has failed to persuade this court that enforcing an express or implied in fact\ncontract between these parties would in fact violate the Wisconsin Family Code. The Family Code,\nchs. 765-768, Stats. 1985-86, is intended to promote the institution of marriage and the family. We\nfind no indication, however, that the Wisconsin legislature intended the Family Code to restrict in\nany way a court\xe2\x80\x99s resolution of property or contract disputes between unmarried cohabitants.\nThe defendant also urges that if the court is not willing to say that the Family Code\nproscribes contracts between unmarried cohabiting parties, then the court should refuse to resolve\nthe contract and property rights of unmarried cohabitants without legislative guidance. The\ndefendant asserts that this court should conclude, as the Hewitt court did, that the task of\ndetermining the rights of cohabiting parties is too complex and difficult for the court and should be\nleft to the legislature. We are not persuaded by the defendant\xe2\x80\x99s argument. Courts have traditionally\ndeveloped principles of contract and property law through the case-by-case method of the common\nlaw. While ultimately the legislature may resolve the problems raised by unmarried cohabiting\nparties, we are not persuaded that the court should refrain from resolving such disputes until the\nlegislature gives us direction.16 Our survey of the cases in other jurisdictions reveals that Hewitt is not\nwidely followed.\nWe turn to the defendant\xe2\x80\x99s third point, namely, that any contract between the parties\nregarding property division contravenes public policy because the contract is based on immoral or\nillegal sexual activity. The defendant does not appear to make this argument directly. It is not well\ndeveloped in the brief, and at oral argument defendant\xe2\x80\x99s attorney indicated that he did not find this\nargument persuasive in light of the current community mores, the substantial number of unmarried\npeople who cohabit, and the legislature\xe2\x80\x99s abolition of criminal sanctions for cohabitation. Although\nthe parties in the instant case cohabited at a time when cohabitation was illegal, the defendant\xe2\x80\x99s\ncounsel at oral argument thought that the present law should govern this aspect of the case. Because\nillegal sexual activity has posed a problem for courts in contract actions, we discuss this issue even\nthough the defendant did not emphasize it.\nCourts have generally refused to enforce contracts for which the sole consideration is sexual\nrelations, sometimes referred to as \xe2\x80\x9cmeretricious\xe2\x80\x9d relationships. See In Matter of Estate of Steffes, 95\nWis. 2d 490, 514, 290 N.W.2d 697 (1980), citing Restatement of Contracts sec. 589 (1932). Courts\ndistinguish, however, between contracts that are explicitly and inseparably founded on sexual\nservices and those that are not. This court, and numerous other courts,17 have concluded that \xe2\x80\x9ca\nbargain between two people is not illegal merely because there is an illicit relationship between the\ntwo so long as the bargain is independent of the illicit relationship and the illicit relationship does\nnot constitute any part of the consideration bargained for and is not a condition of the bargain.\xe2\x80\x9d\nSteffes, supra, 95 Wis. 2d at 514.\nWhile not condoning the illicit sexual relationship of the parties, many courts have\nrecognized that the result of a court\xe2\x80\x99s refusal to enforce contract and property rights between\nunmarried cohabitants is that one party keeps all or most of the assets accumulated during the\nrelationship, while the other party, no more or less \xe2\x80\x9cguilty,\xe2\x80\x9d is deprived of property which he or she\nhas helped to accumulate. See e.g., Glasgo v. Glasgo, 410 N.E.2d 1325, 1330 (Ind. App. 1980); Latham v.\nLatham, 274 Or. 421, 426, 547 P.2d 144 (Or. 1976); Marvin v. Marvin, supra, 18 Cal. 3d at 682, 134\nCal. Rptr at 830, 557 P.2d at 121; West v. Knowles, 50 Wash. 2d 311, 315-16, 311 P.2d 689 (1957).\nThe Hewitt decision, which leaves one party to the relationship enriched at the expense of the\nother party who had contributed to the acquisition of the property, has often been criticized by\ncourts and commentators as being unduly harsh.18 Moreover, courts recognize that their refusal to\nenforce what are in other contexts clearly lawful promises will not undo the parties\xe2\x80\x99 relationship and\nmay not discourage others from entering into such relationships. Tyranski v. Piggins, 44 Mich. App.\n210\n\n\x0c570, 577, 205 N.W.2d 595 (1973). A harsh, per se rule that the contract and property rights of\nunmarried cohabitating parties will not be recognized might actually encourage a partner with greater\nincome potential to avoid marriage in order to retain all accumulated assets, leaving the other party\nwith nothing. See Marvin v. Marvin, supra, 18 Cal. 3d at 683, 134 Cal. Rptr. at 831, 557 P.2d at 122.\n[The court distinguishes an earlier case disapproving of equitable division on \xe2\x80\x9cdivorce\xe2\x80\x9d of\nunmarried couples.]\nThe plaintiff has alleged that she quit her job and abandoned her career training upon the\ndefendant\xe2\x80\x99s promise to take care of her. A change in one party\xe2\x80\x99s circumstances in performance of\nthe agreement may imply an agreement between the parties. Steffes, supra, 95 Wis. 2d at 504; Tyranski,\nsupra, 44 Mich. App. at 574, 205 N.W.2d at 597.\nIn addition, the plaintiff alleges that she performed housekeeping, childbearing, childbearing,\nand other services related to the maintenance of the parties\xe2\x80\x99 home, in addition to various services for\nthe defendant\xe2\x80\x99s business and her own business, for which she received no compensation. Courts\nhave recognized that money, property, or services (including housekeeping or childbearing) may\nconstitute adequate consideration independent of the parties\xe2\x80\x99 sexual relationship to support an\nagreement to share or transfer property. See Tyranski, supra, 44 Mich. App. at 574, 205 N.W.2d at\n597; Carlson v. Olson, 256 N.W.2d 249, 253-254 (Minn. 1977); Carroll v. Lee, 148 Ariz. 10, 14, 712 P.2d\n923, 927 (1986); Steffes, supra 95 Wis. 2d at 501.19\nAccording to the plaintiff\xe2\x80\x99s complaint, the parties cohabited for more than twelve years, held\njoint bank accounts, made joint purchases, filed joint income tax returns, and were listed as husband\nand wife on other legal documents. Courts have held that such a relationship and \xe2\x80\x9cjoint acts of a\nfinancial nature can give rise to an inference that the parties intended to share equally.\xe2\x80\x9d Beal v. Beal,\n282 Or. 115, 122, 577 P.2d 507, 510 (1978). The joint ownership of property and the filing of joint\nincome tax returns strongly implies that the parties intended their relationship to be in the nature of\na joint enterprise, financially as well as personally. See Beal, 282 Or. at 122, 577 P.2d at 510; Warden v.\nWarden, supra, 36 Wash. App. at 696-97, 676 P.2d at 1038.\nHaving reviewed the complaint and surveyed the law in this and other jurisdictions, we hold\nthat the Family Code does not preclude an unmarried cohabitant from asserting contract and\nproperty claims against the other party to the cohabitation. We further conclude that public policy\ndoes not necessarily preclude an unmarried cohabitant from asserting a contract claim against the\nother party to the cohabitation so long as the claim exists independently of the sexual relationship\nand is supported by separate consideration. Accordingly, we conclude that the plaintiff in this case\nhas pleaded the facts necessary to state a claim for damages resulting from the defendant\xe2\x80\x99s breach of\nan express or an implied in fact contract to share with the plaintiff the property accumulated\nthrough the efforts of both parties during their relationship. Once again, we do not judge the merits\nof the plaintiff\xe2\x80\x99s claim; we merely hold that she be given her day in court to prove her claim.\nV.\nThe plaintiff\xe2\x80\x99s fourth theory of recovery involves unjust enrichment. Essentially, she alleges\nthat the defendant accepted and retained the benefit of services she provided knowing that she\nexpected to share equally in the wealth accumulated during their relationship. She argues that it is\nunfair for the defendant to retain all the assets they accumulated under these circumstances and that\na constructive trust should be imposed on the property as a result of the defendant\xe2\x80\x99s unjust\nenrichment. In his brief, the defendant does not attack specifically either the legal theory or the\nfactual allegations made by the plaintiff.\n211\n\n\x0cUnlike claims for breach of an express or implied in fact contract, a claim of unjust\nenrichment does not arise out of an agreement entered into by the parties. Rather, an action for\nrecovery based upon unjust enrichment is grounded on the moral principle that one who has\nreceived a benefit has a duty to make restitution where retaining such a benefit would be\nunjust.Puttkammer v. Minth, 83 Wis. 2d 686, 689, 266 N.W.2d 361, 363 (1978).\nBecause no express or implied in fact agreement exists between the parties, recovery based\nupon unjust enrichment is sometimes referred to as \xe2\x80\x9cquasi contract,\xe2\x80\x9d or contract \xe2\x80\x9cimplied in law\xe2\x80\x9d\nrather than \xe2\x80\x9cimplied in fact.\xe2\x80\x9d Quasi contracts are obligations created by law to prevent injustice.\nShellse v. City of Mayville, 223 Wis. 624, 632, 271 N.W.2d 643 (1937).20\nIn Wisconsin, an action for unjust enrichment, or quasi contract, is based upon proof of\nthree elements: (1) a benefit conferred on the defendant by the plaintiff, (2) appreciation or\nknowledge by the defendant of the benefit, and (3) acceptance or retention of the benefit by the\ndefendant under circumstances making it inequitable for the defendant to retain the benefit.\nPuttkammer, supra, 83 Wis. 2d at 689; Wis. J.I. Civil No. 3028 (1981).\nThe plaintiff has cited no cases directly supporting actions in unjust enrichment by\nunmarried cohabitants, and the defendant provides no authority against it.\n[The court reviews cases that provide some support for an unjust enrichment cause of\naction.]\n[A]llowing no relief at all to one party in a so-called \xe2\x80\x9cillicit\xe2\x80\x9d relationship effectively provides\ntotal relief to the other, by leaving that party owner of all the assets acquired through the efforts of\nboth. Yet it cannot seriously be argued that the party retaining all the assets is less \xe2\x80\x9cguilty\xe2\x80\x9d than the\nother. Such a result is contrary to the principles of equity. Many courts have held, and we now so\nhold, that unmarried cohabitants may raise claims based upon unjust enrichment following the\ntermination of their relationships where one of the parties attempts to retain an unreasonable\namount of the property acquired through the efforts of both.21\nIn this case, the plaintiff alleges that she contributed both property and services to the\nparties\xe2\x80\x99 relationship. She claims that because of these contributions the parties\xe2\x80\x99 assets increased, but\nthat she was never compensated for her contributions. She further alleges that the defendant,\nknowing that the plaintiff expected to share in the property accumulated, \xe2\x80\x9caccepted the services\nrendered to him by the plaintiff\xe2\x80\x9d and that it would be unfair under the circumstances to allow him to\nretain everything while she receives nothing. We conclude that the facts alleged are sufficient to state\na claim for recovery based upon unjust enrichment.\nAs part of the plaintiff\xe2\x80\x99s unjust enrichment claim, she has asked that a constructive trust be\nimposed on the assets that the defendant acquired during their relationship. A constructive trust is\nan equitable device created by law to prevent unjust enrichment. Wilharms v. Wilharms, 93 Wis. 2d\n671, 678, 287 N.W.2d 779, 783 (1980). To state a claim on the theory of constructive trust the\ncomplaint must state facts sufficient to show (1) unjust enrichment and (2) abuse of a confidential\nrelationship or some other form of unconscionable conduct. The latter element can be inferred from\nallegations in the complaint which show, for example, a family relationship, a close personal\nrelationship, or the parties\xe2\x80\x99 mutual trust. These facts are alleged in this complaint or may be inferred.\nGorski v. Gorski, 82 Wis. 2d 248, 254-55, 262 N.W.2d 120 (1978). Therefore, we hold that if the\nplaintiff can prove the elements of unjust enrichment to the satisfaction of the circuit court, she will\nbe entitled to demonstrate further that a constructive trust should be imposed as a remedy.\nVI.\n\n212\n\n\x0cThe plaintiff\xe2\x80\x99s last alternative legal theory on which her claim rests is the doctrine of\npartition. The plaintiff has asserted in her complaint a claim for partition of \xe2\x80\x9call real and personal\nproperty accumulated by the couple during their relationship according to the plaintiff\xe2\x80\x99s interest\ntherein and pursuant to Chapters 820 and 842, Wis. Stats.\xe2\x80\x9d\nChapter 820, Stats. 1985-86, provides for partition of personal property. Sec. 820.01 states in\npart: \xe2\x80\x9cWhen any of the owners of personal property in common shall desire to have a division and\nthey are unable to agree upon the same an action may be commenced for that purpose.\xe2\x80\x9d Sec. 820.01\nthus states on its face that anyone owning property \xe2\x80\x9cin common\xe2\x80\x9d with someone else can maintain\nan action for partition of personal property held by the parties. This section codifies a remedy long\nrecognized at common law. See Laing v. Williams, 135 Wis. 253, 257, 115 N.W. 821, 128 Am. St. R.\n1025 (1908) (courts of equity have general jurisdiction to maintain actions for partition of personalty\nand to provide any kind of relief necessary to do justice).\nCh. 842, Stats. 1985-86, provides for partition of interests in real property. Sec. 842.02(1)\nstates in relevant part: \xe2\x80\x9cA person having an interest in real property jointly or in common with others may\nsue for judgment partitioning such interest unless an action for partition is prohibited elsewhere in\nthe statutes \xe2\x80\xa6.\xe2\x80\x9d (Emphasis supplied.) Sec. 842.02(1) also codifies an action well known at common\nlaw. See Kubina v. Nichols, 241 Wis. 644, 648, 6 N.W.2d 657 (1943), cert. denied, Nichols v. Kubina, 318\nU.S. 784, 63 S. Ct. 852, 87 L.Ed. 2d 1151 (1943) (partition of real property is an equitable action).\nIn Wisconsin partition is a remedy under both the statutes and common law. Partition\napplies generally to all disputes over property held by more than one party. This court has already\nheld, in Jezo v. Jezo, 19 Wis. 2d 78, 81, 119 N.W.2d 471 (1964), that the principles of partition could\nbe applied to determine the respective property interests of a husband and wife in jointly owned\nproperty where the divorce law governing property division did not apply. Because the action was\nnot incident to divorce, separation, or annulment, the Jezo court rejected the parties\xe2\x80\x99 claim for\nproperty division under the divorce law, but did hold that a circuit court should apply the principles\nof partition to settle the parties\xe2\x80\x99 property dispute. The court stated that the \xe2\x80\x9cdetermination of the\nissues relating to the property of the parties to this action is to be made \xe2\x80\xa6 on the basis of those\nlegal and equitable principles which would govern the rights to property between strangers.\xe2\x80\x9d Id.\nThus, Jezo appears to say that persons, regardless of their marital status, may sue for partition of\nproperty.\n\xe2\x80\xa6.\nIn this case, the plaintiff has alleged that she and the defendant were engaged in a joint\nventure or partnership, that they purchased real and personal property as husband and wife, and that\nthey intended to share all the property acquired during their relationship. In our opinion, these\nallegations, together with other facts alleged in the plaintiff\xe2\x80\x99s complaint (e.g., the plaintiff\xe2\x80\x99s\ncontributions to the acquisition of their property) and reasonable inferences therefrom, are sufficient\nunder Wisconsin\xe2\x80\x99s liberal notice pleading rule to state a claim for an accounting of the property\nacquired during the parties\xe2\x80\x99 relationship and partition. We do not, of course, presume to judge the\nmerits of the plaintiff\xe2\x80\x99s claim. Proof of her allegations must be made to the circuit court. We merely\nhold that the plaintiff has alleged sufficient facts in her complaint to state a claim for relief statutory\nor common law partition.\nIn summary, we hold that the plaintiff\xe2\x80\x99s complaint has stated a claim upon which relief may\nbe granted. We conclude that her claim may not rest on sec. 767.255, Stats. 1985-86, or the doctrine\nof \xe2\x80\x9cmarriage by estoppel,\xe2\x80\x9d but that it may rest on contract, unjust enrichment or partition.\nAccordingly, we reverse the judgment of the circuit court, and remand the cause to the circuit court\nfor further proceedings consistent with this opinion.\nBy the Court.\xe2\x80\x94The judgment of the circuit court is reversed and the cause remanded.\nThe complaint also includes five tort claims based on allegations regarding the defendant\xe2\x80\x99s\n213\n\n\x0cconduct after the termination of their relationship. The parties stipulated to the dismissal of the tort\nclaims and they are not the subject of the appeals. \xe2\x86\xa9\nSec. 767.02(1)(h), Stats. 1985-86, provides that \xe2\x80\x9cActions affecting the family are: \xe2\x80\xa6 (h) For\nproperty division.\xe2\x80\x9d \xe2\x86\xa9\nSec. 767.255, Stats. 1985-86, provides in relevant part: \xe2\x80\x9cUpon every judgment of annulment,\ndivorce or legal separation, or in rendering a judgment in an action under s. 767.02(1)(h), the court shall\ndivide the property of the parties and divest and transfer the title of any such property accordingly.\xe2\x80\x9d\n(Emphasis supplied.) \xe2\x86\xa9\nLaws of 1979, ch. 352, sec. 19. In a supplemental submission, and at oral argument, the\nplaintiff analogized its interpretation of sec. 767.255 to this court\xe2\x80\x99s adoption of a broad definition of\n\xe2\x80\x9cfamily\xe2\x80\x9d in the context of zoning and land use. See, e.g. Crowley v. Knapp, 94 Wis. 2d 421, 437, 288\nN.W.2d 815 (1980), in which this court stated that a \xe2\x80\x9cfamily\xe2\x80\x9d in that context \xe2\x80\x9cmay mean a group of\npeople who live, sleep, cook, and eat upon the premises as a single housekeeping unit.\xe2\x80\x9d In Crowley,\nthe court adopted a definition of \xe2\x80\x9cfamily\xe2\x80\x9d serving that public policy favoring the free and\nunrestricted use of property. By contrast, the plaintiff here has failed to convince us that extending\nthe definition of \xe2\x80\x9cfamily\xe2\x80\x9d in this case to include unmarried cohabitants will further in any way the\nexpressed public policy of ch. 767 to promote marriage and the family. \xe2\x86\xa9\nThe \xe2\x80\x9cFamily Code\xe2\x80\x9d is comprised of ch. 765, Marriage; ch. 766, Marital Property; ch. 767,\nActions Affecting the Family; and ch. 768, Actions Abolished. \xe2\x86\xa9\nFor a discussion of whether cohabitation should be viewed as analogous to marriage, see\nFineman, Law and Changing Patterns of Behavior: Sanctions on NonMarital Cohabitation, 1981 Wis. L. Rev.\n275, 316-32. \xe2\x86\xa9\nThe plaintiff correctly points out that ch. 767 includes actions for determining paternity,\nwhich are not dependent upon the marital status of the parents. See, secs. 767.45-767.53, Stats. 198586. \xe2\x86\xa9\n1977 Wis. Laws ch. 105, sec. 1(4). \xe2\x86\xa9\nSome of the criteria listed under sec. 767.255, Stats. (1985-86), are as follows: \xe2\x80\x9c(1) The\nlength of the marriage. \xe2\x80\x9c(2) The property brought to the marriage by each party. \xe2\x80\xa6 \xe2\x80\x9c(3) The\ncontribution of each party to the marriage, giving appropriate economic value to each party\xe2\x80\x99s\ncontribution in homemaking and child care services. \xe2\x80\xa6 \xe2\x80\x9c(11) Any written agreement made by the\nparties before or during the marriage concerning any arrangement for property distribution; \xe2\x80\xa6\xe2\x80\x9d\n(Emphasis supplied.) \xe2\x86\xa9\nWhen the legislature abolished criminal sanctions for cohabitation in 1983, it nevertheless\nadded a section to the criminal code stating that while the state does not regulate private sexual\nactivity of consenting adults, the state does not condone or encourage sexual conduct outside the\ninstitution of marriage. The legislature adopted the language of sec. 765.001 that \xe2\x80\x9c[m]arriage is the\nfoundation of family and society. Its stability is basic to morality and civilization, and of vital interest\nto society and this state.\xe2\x80\x9d Sec. 944.01, Stats. 1985-86. \xe2\x86\xa9\nCommon law marriages were abolished in 1917. Laws of 1917, ch. 218, sec. 21. Sec. 765.21,\nStats. 1985-86, provides that marriages contracted in violation of specified provisions of ch. 765 are\nvoid. \xe2\x86\xa9\nPlaintiff cites to Smith v. North Memphis Savings Bank, 89 S.W. 392 (Tenn. 1905), which is one\nof the more \xe2\x80\x9crecent\xe2\x80\x9d in a series of Tennessee cases to apply \xe2\x80\x9cmarriage by estoppel.\xe2\x80\x9d The plaintiff\nalso cites Comment, Property Rights Upon Termination of Unmarried Cohabitation: Marvin v. Marvin, 90\nHarv. L. Rev. 1708, 1711-12 (1977); and Weyrauch, Informal and Formal Marriage\xe2\x80\x94 An Appraisal of\nTrends in Family Organization, 28 U. Chi. L. Rev. 88, 105 (1960). Weyrauch cites to Tennessee law, and\nthe comment cites to Weyrauch. \xe2\x86\xa9\n214\n\n\x0cThis court has previously rejected application of the \xe2\x80\x9cmarriage by estoppel\xe2\x80\x9d doctrine in\ncertain cases. In Eliot v. Eliot, 81 Wis. 295, 299, 51 N.W. 81, 82, 15 L.R.A. 259 (1892), a man was\nheld not estopped from pleading that he was under age to be married in an annulment action he\nbrought, even though he fraudulently induced the defendant into marriage. Accord Swenson v. Swenson,\n179 Wis. 536, 540-41, 192 N.W. 70, 72 (1923). \xe2\x86\xa9\nPrince, Public Policy Limitations in Cohabitation Agreements: Unruly Horse or Circus Pony, 70 Minn.\nL. Rev. 163, 189-205 (1985). \xe2\x86\xa9\nBoth Illinois and Wisconsin have abolished common law marriages. In our view this\nabolition does not invalidate a private cohabitation contract. Cohabitation agreements differ in effect\nfrom common law marriage. There is a significant difference between the consequences of achieving\ncommon law marriage status and of having an enforceable cohabitation agreement. In Latham v.\nLatham, 274 Or. 421, 426-27, 547 P.2d 144, 147 (1976), the Oregon supreme court found that the\nLegislature\xe2\x80\x99s decriminalization of cohabitation represented strong evidence that enforcing\nagreements made by parties during cohabitation relationships would not be contrary to Oregon\npublic policy. \xe2\x86\xa9\nWe have previously acted in the absence of express legislative direction. See Estate of Fox,\n178 Wis. 369, 190 N.W. 90 (1922), in which the court allowed relief under the doctrine of unjust\nenrichment to a woman who in good faith believed that she was married when she actually was not,\ndiscussed infra. See also Smith v. Smith, 255 Wis. 96, 38 N.W.2d 12 (1949), in which the court refused\nequitable property division to one party to an illegal common law marriage, discussed infra; and\nSteffes. \xe2\x86\xa9\nSee, e.g., Glasgo v. Glasgo, 410 N.E.2d 1325, 1331 (Ind. App. 1980); Tyranski v. Piggins, 44 Mich.\nApp. 570, 573-74, 205 N.W.2d 595, 598-99 (1973); Kozlowski v. Kozlowski, 80 N.J. 378, 387, 403 A.2d\n902, 907 (1979); Latham v. Latham, 274 Or. 421, 426-27, 547 P.2d 144, 147 (Or. 1976); Marvin v.\nMarvin, 18 Cal. 3d 660, 670-71, 134 Cal. Rptr. 815, 822, 557 P.2d 106, 113 (1976). \xe2\x86\xa9\nSee Prince, Public Policy Limitations on Cohabitation Agreements: Unruly Horse or Circus Pony, 70\nMinn. L. Rev. 163, 189-205 (1985); Oldham & Caudill, A Reconnaissance of Public Policy Restrictions upon\nEnforcement of Contracts between Cohabitants, 18 Fam. L.Q. 93, 132 (Spring 1984); Comment, Marvin v.\nMarvin: Five Years Later, 65 Marq. L. Rev. 389, 414 (1982). \xe2\x86\xa9\nUntil recently, the prevailing view was that services performed in the context of a \xe2\x80\x9cfamily or\nmarriage relationship\xe2\x80\x9d were presumed gratuitous. However, that presumption was rebuttable. See\nSteffes, 95 Wis. 2d at 501, 290 N.W.2d at 703-704. In Steffes, we held the presumption to be irrelevant\nwhere the plaintiff can show either an express or implied agreement to pay for those services, even\nwhere the plaintiff has rendered them \xe2\x80\x9cwith a sense of affection, devotion and duty.\xe2\x80\x9d Id. 95 Wis. 2d\nat 503, 290 N.W.2d at 703-704. For a discussion of the evolution of thought regarding the economic\nvalue of homemaking service by cohabitants, see Brush, Property Rights of De Facto Spouses Including\nThoughts on the Value of Homemakers\xe2\x80\x99 Services, 10 Fam. L.Q. 101, 110-14 (Summer 1976). \xe2\x86\xa9\nFor a discussion regarding the relationship between express, implied-in-fact, and implied-inlaw contracts, see Steffes, supra, 95 Wis. 2d at 497 & n.4. \xe2\x86\xa9\nSee, e.g., Harman v. Rogers, 147 Vt. 11, 510 A.2d 161, 164-65 (1986); Collins v. Davis, 68 N.C.\nApp. 588, 315 S.E.2d 759, 761-62 (1984), aff\xe2\x80\x99d, 312 N.C. 324, 321 S.E.2d 892; Mason v. Rostad, 476\nA.2d 662 (D.C. 1984); Coney v. Coney, 207 N.J. Super. 63, 503 A.2d 912, 918 (1985); In re Estate of\nEriksen, 337 N.W.2d 671 (Minn. 1983). \xe2\x86\xa9\n\n215\n\n\x0cGrant v. Butt,\n198 S.C. 298 (1941)\n\nA. R. McGowan, of Charleston, for appellant.\nJ. D. E. Meyer and George H. Momeier, both of Charleston, for respondents.\nOrder of Special Judge Timmerman follows:\nThis case is before me on a demurrer to the complaint, the grounds of which will be\nadverted to later. Oral arguments were made in open Court, the case was marked \xe2\x80\x9cHeard\xe2\x80\x9d and, by\nagreement of counsel, decision on the issues raised was reserved to be entered nunc pro tunc.\nThe complaint alleges a most extraordinary state of facts dealing with the lives of two\nindividuals, one a negro woman, or part negro and part Indian, and the other a white man, now\ndeceased. The plaintiff alleges that she is a descendant of the American or Indian race; that prior to\n1907, she had married a negro man by whom she had two children, only one of whom is now living;\nthat her negro husband died prior to 1907 and after his death she met defendant\xe2\x80\x99s intestate, a white\nman, who \xe2\x80\x9cbecame interested in, infatuated with, and fell desperately in love with this plaintiff\xe2\x80\x9d; that\nfor a long time the intestate forced his attentions upon her, insisted on being in her company and in\nher home and repeatedly and insistently begged her \xe2\x80\x9cto marry him and live with him as his wife\xe2\x80\x9d;\nand that the plaintiff, \xe2\x80\x9cappreciating that under the laws of the State of South Carolina a negro could\nnot legally contract marriage with a person of the Caucasian race,\xe2\x80\x9d refused the offer of marriage.\nThe plaintiff then alleges that the intestate \xe2\x80\x9cinsisted and entreated that this plaintiff should leave the\nState of South Carolina and go with him to some State where they could legally marry,\xe2\x80\x9d but that she\n\xe2\x80\x9crefused to either marry him in the State of South Carolina or move with him to any other State as\nhis wife,\xe2\x80\x9d although she was fond of him and enjoyed his company and companionship.\nFollowing the foregoing, the plaintiff alleges, in the fourth paragraph of the complaint, an\noral contract between herself and the intestate as having been made on Thanksgiving Day in 1907.\nShe says it was agreed on her part: (a) That she would not marry so long as the deceased lived; and (b)\nthat she would give the deceased the full benefit of her presence, companionship, care and\nassistance, and the absolute freedom of her home.\nShe then alleges that the intestate agreed on his part: (a) To give plaintiff his undivided affection\nand companionship; (b) to furnish plaintiff money for the maintenance of herself, her home and her\nchildren; (c) to take out a life insurance policy, and make the plaintiff the beneficiary thereof; (d) to\nassign to the plaintiff certain of his assets; and (e) to make a will giving the plaintiff one-half of his\nestate if she survived him and kept her agreements.\nThe plaintiff claims to have fully performed her part of said contract and that the intestate\nhad fully performed his part, except that he neglected to leave her one-half of his estate on his death.\nThe plaintiff specifically alleges, as evidence of her complete compliance with the terms of\nthe contract, that she gave the intestate \xe2\x80\x9cher presence, companionship, care and assistance, and the\nabsolute freedom of her home and table; and the deceased, regularly and without interruption, over\nthe span of years, accepted her companionship, care, assistance, and the absolute freedom of her\nhome and table\xe2\x80\x9d; that the intestate \xe2\x80\x9centertained his white friends in her home,\xe2\x80\x9d that he \xe2\x80\x9cate at her\ntable,\xe2\x80\x9d that he \xe2\x80\x9cslept in her bed,\xe2\x80\x9d that he \xe2\x80\x9ctreated her home *** as his home,\xe2\x80\x9d that he \xe2\x80\x9cacted there as\n216\n\n\x0cthough it were his home,\xe2\x80\x9d that he \xe2\x80\x9ckept at all times in his possession a key to her dresser drawer, her\ntrunk, and her lock box,\xe2\x80\x9d and that he \xe2\x80\x9cexercised complete access to her every and most personal and\nintimate belonging.\xe2\x80\x9d In fact the plaintiff alleges that both she and the intestate fully performed every\nobligation assumed under the oral contract, except that the intestate had failed to will or leave her\none-half of his property on his death.\nThe plaintiff then proceeds to allege certain acts on the part of the intestate in confirmation\nof the oral contract originally entered into, as the giving of a ring with one diamond after the\ncontract had been in force for ten years, then a ring with two diamonds after the contract had been\nin force twenty years, and finally a ring with three diamonds after the contract had been in force for\nthirty years.\nThe plaintiff concludes by alleging that, after due diligence, she had been unable to find any\nwill or other instrument in writing, left by the intestate, through which she could enforce her rights\nunder the contract, and that by reason of the contract she is entitled to one-half of the net assets of\nthe intestate\xe2\x80\x99s estate. She fixes the value of the estate at $143,000.\nThe demurrer makes seven grounds of attack upon the complaint. They are as follows:\nIn that it appears from the facts set forth on the face of complaint that the Court has no\njurisdiction of the subject of the action, the principle of public policy being dolo malo non oritur\nactio.\nIn that it appears upon the face of the complaint that the plaintiff has not the legal capacity\nto sue, in that no Court will lend its aid to one who founds his cause of action upon an illegal act.\nIn that it appears upon the face of the complaint that the plaintiff has not the legal capacity\nto sue, in that the contract alleged in the complaint and the part performance alleged therein are\nrepugnant to the public policy of the State of South Carolina, and no Court of this State will lend its\naid to one who founds his cause of action upon a contract that contravenes the public policy of this\nState.\nIn that it appears upon the face of the complaint that the complaint does not state facts\nsufficient to constitute a cause of action in that it appears upon the face of the complaint that\nplaintiff\xe2\x80\x99s cause of action is based upon a contract, and part performance thereof, which are\nrepugnant to the public policy of the State of South Carolina, and the public policy of the State of\nSouth Carolina demands that plaintiff cannot benefit by virtue of her own wrong in entering into a\ncontract which is void in its inception as being against the public policy of the State of South\nCarolina.\nIn that it appears upon the face of the complaint that the complaint does not state facts\nsufficient to constitute a cause of action, in that it appears upon the face of the complaint that the\nplaintiff\xe2\x80\x99s cause of action is based upon an alleged contract, the consideration of which is illegal and\nagainst public policy.\nIn that it appears upon the face of the complaint that the complaint does not state facts\nsufficient to constitute a cause of action in that it appears upon the face of the complaint that the\nplaintiff\xe2\x80\x99s cause of action is based upon an alleged contract which lacks mutuality and which could\nnot be enforced by the deceased against the plaintiff.\nIn that the complaint does not state facts sufficient to constitute a cause of action in that\nthere appears upon the face of the complaint no legal cause of action in favor of the plaintiff.\nThe defendant contends that the contract is inherently illegal, that it is against public policy,\nthat it lacks proper legal consideration and mutuality, that it contemplates illicit relations between a\nman and woman as the primary consideration thereof, that it contravenes the statutes and the\nConstitution of the State of South Carolina relating to marriage between the races, that it attempts to\n217\n\n\x0caccomplish by indirection what the law directly prohibits, that it is a contract in general restraint of\nmarriage as to each of the parties for the life of the contract and for so long as both shall live; and\nthat, therefore, it is unenforceable as against the public policy of the State.\nAssuming all of the allegations of the Complaint to be true and drawing therefrom the\ninferences that reason would require one to draw from such a state of facts, it appears that the\ncontracting parties agreed that they could not legally contract matrimony, or otherwise legally sustain\nthe relationship toward each other of man and wife; that they desired to sustain that relationship to\neach other and did sustain it, the law to the contrary notwithstanding; that they agreed to maintain\nthat illegal relationship with each other, and that each would refrain from entering into the legal\nstatus of marriage which the law so highly favors between persons legally entitled to enter into such\na relationship.\nCertainly the plaintiff could not have given to \xe2\x80\x9cthe deceased the full benefit of her presence,\nher companionship, and the absolute freedom of her home and table\xe2\x80\x9d or have allowed him to sleep\nin her bed, if she had married another; nor could the intestate have given the plaintiff \xe2\x80\x9chis undivided\naffection and companionship\xe2\x80\x9d or \xe2\x80\x9cslept in her bed,\xe2\x80\x9d if he had contracted marriage with a woman\nlegally competent to enter into such a relationship with him.\nThe conclusion seems inescapable that the parties really intended by their alleged contract to\nestablish illicit sexual relations, to circumvent the Constitution and statutes of the State of South\nCarolina relating to the intermarriage of the races, and to set at defiance a sound public policy which\ngives to every person of age and discretion, white or black, male or female, the right of marriage to\nanother of the same race and of the opposite sex. This contract strikes at the sanctity of the home,\nthe security of family relationships, the legitimate propagation of the race to which one belongs, and\nat moral standards that have been recognized and enforced, voluntarily and by compulsion of law,\nsince the foundation of this republic.\nArticle III, Section 33, of the State Constitution provides: \xe2\x80\x9cThe marriage of a white person\nwith a negro or mulatto, or person who shall have one-eighth or more negro blood shall be unlawful\nand void.\xe2\x80\x9d\nSection 1438 of the Code 1932, provides:\nIt shall be unlawful for any white man to intermarry with any woman of either the Indian or\nnegro races, or any mulatto, mestizo, or half-breed, or for any white woman to intermarry with any person\nother than a white man, or for any mulatto, half-breed, Indian, negro or mestizo to intermarry with a\nwhite woman; and any such marriage, or attempted marriage, shall be utterly null and void and of none effect; and\nany person who shall violate this section, or any one of the provisions thereof, shall be guilty of a\nmisdemeanor, and, on conviction thereof, shall be punished by a fine of not less than five hundred\ndollars, or imprisonment for not less than twelve months, or both, in the discretion of the court.\nAny clergyman, minister of the gospel, magistrate, or other person authorized by law to perform the\nmarriage ceremony, who shall knowingly and wilfully unite in the bonds of matrimony any persons\nof different races, as above prohibited, shall be guilty of a misdemeanor, and, upon conviction\nthereof, shall be liable to the same penalty or penalties as provided in this section.\n(Emphasis added.)\nSection 8571 of the Code 1932, provides:\nIt shall be unlawful for any white man to intermarry with any woman of either the Indian or\nnegro races, or any mulatto, mestizo, or half-breed, or for any white woman to intermarry with any person\nother than a white man, or for any mulatto, half-breed, negro, Indian or mestizo to intermarry with a\nwhite woman; and any such marriage, or attempted marriage, shall be utterly null and void and of\nnone effect.\n(Emphasis added.)\nThen there are the laws against adultery and fornication. Sections 1435, 1436 and 1437, Code\n218\n\n\x0cof 1932.\nThe action here is based upon an alleged express contract. There is no claim that defendant\nis indebted to plaintiff on quantum meruit for services rendered, of a purely domestic nature or\notherwise. The plaintiff simply says, in effect, that she agreed to live with the intestate in a state of\nconcubinage, after the fashion of a married couple, and that the intestate in turn agreed, in\nconsideration of plaintiff\xe2\x80\x99s meretricious conduct, to do certain things for her, one of which was to\nleave her one-half of his estate on his death.\nIt appears from the allegations of the complaint, and I hold that the only logical conclusion\nto be drawn therefrom is, that the primary consideration of said contract, on the part of plaintiff, as\ncontemplated by the parties, was that she would live with the intestate and submit herself completely\nto his adulterous embraces; and that, as secondary considerations therefor, the plaintiff would\nremain unmarried and maintain a home for the two of them, at the intestate\xe2\x80\x99s expense, so that the\nillicit relations agreed upon could be conveniently consummated to the satisfaction of both parties.\nThis contract not only violates the law of the land the plaintiff now invokes for its\nenforcement, it defies the basic moral principles upon which family relationships exist and upon\nwhich the social order of the State must of necessity rest.\nMr. Justice McIver, writing the unanimous opinion in McConnell v. Kitchens, 20 S.C. 430, said:\n\xe2\x80\x9cThe general rule, undoubtedly is, that a contract to do an act which is prohibited by statute, or\nwhich is contrary to public policy, is void, and cannot be enforced in a court of justice.\xe2\x80\x9d\nIn Wiggins vs. Postal Telegraph Co., 130 S.C. 292, 125 S.E. 568, 569, 44 A.L.R. 781, the Court\nsaid:\nWe know of no principle of law based upon comity or interstate commerce transactions,\nwhich would require a state court to recognize the validity of a contract which under its laws is\ndeclared to be against public policy, immoral and void. [Building & Loan] Association v. Rice, 68 S.C. ,\n241; 2 Kent Comm., 458; Thornton v. Dean, 19 S.C. 587; 3 A. & E. Enc. Law, 561.\nIt seems to be well established in this State that contracts having for their object anything\nthat is obnoxious to the principles of the common law, or contrary to statutory enactments or\nconstitutional provisions, or repugnant to justice and morality, are void; and that the Courts of this\nState will not lend aid to the enforcement of contracts that are in violation of law or opposed to\nsound public policy. Magwood v. Duggan, 1 Hill 182; Craig v. U.S. Health & Accident Ins. Co., 80 S.C.\n151.\nIn Weeks v. New York Life Ins. Co., 128 S.C. 223, Mr. Justice Marion speaking for the Court\nsaid:\nPublic policy has been aptly described by one of our judges as \xe2\x80\x9ca wide domain of shifting\nsands.\xe2\x80\x9d Gage, J., in McKendree v. Southern States Life Insurance Co., 112 S.C. 335. The term in itself\nimports something that is uncertain and fluctuating, varying, with the changing economic needs,\nsocial customs, and moral aspirations of a people. Story on Contracts (5th Ed.) \xc2\xa7 675; 23 A. & E. Ency. (2d\nEd.) 456. For that reason it has frequently been said that the expressive public policy is not\nsusceptible of exact definition. But for purposes of juridical application it may be regarded as well\nsettled that a state has no public policy, properly cognizable by the courts, which is not derived or\nderivable by clear implication from the established law of the state, as found in its Constitution,\nstatutes, and judicial decisions.\n(Emphasis added.)\nThe Weeks case was cited with approval in Sandel v. Philadelphia Life Ins. Co., 128 S.C. 239, and\nin Temple v. McKay, 172 S.C. 305. See also Alderman v. Alderman, 178 S.C. 9; Tedder vTedder, 108 S.C.\n271; 6 R.C.L. 689, Section 104, 701, Section 107, 707, Section 114, and 712, Section 120.\n219\n\n\x0cAmong the early cases of this State, the following principles were announced: Bostick v.\nMcClaren, 2 Brev. 275: \xe2\x80\x9cWhere a note, under seal, was given for an illegal consideration, it was\ndeclared that, as both parties had acted illegally in the transaction, neither could be entitled to the countenance of a\ncourt of justice.\xe2\x80\x9d (Emphasis added.)\nLowe v. Moore, 1 McCord Eq. 243: \xe2\x80\x9cThe general principle is correct that equity will not\ninterfere to set aside an executed contract; as in case of an unlawful contract, both parties being in\npari delicto.\xe2\x80\x9d\nWallace v. Lark, 12 S.C. 576: \xe2\x80\x9cThere can be no recovery on a contract based upon an illegal transaction in\nwhich the prosecutor actually participated.\xe2\x80\x9d (Emphasis added.)\nIn the late case of Rountree v. Ingle, 94 S.C. 231, the Court said: \xe2\x80\x9cThe authorities in this state are\nfull to the effect that, where a plaintiff brings into court on a claim which has no other support than a contract\nforbidden by law, he cannot recover. McConnell v. Kitchens, 20 S.C. 430.\xe2\x80\x9d (Emphasis added.) Elder Harrison\nCo. v. Jervey, 97 S.C. 185; McMullen v. Hoffman, 174 U.S. 639.\nThe case of Prince v. Mathews, 159 S.Ct. 526, appears to be conclusive of this case. In that case\nMr. Justice Cothran, speaking for the Court, said:\nThe authorities hold that a consideration of past cohabitation is good; but that for future\ncohabitation, or in part for past and in part for future, it is bad. Cusack v. White, 2 Mill Const. 284; Singleton v.\nBremar, Harp. 213; Burton v. Belvin, 142 N.C. 151; Smith v. Du Bose, 78 Ga. 413; Sherman v. Barrett, 1\nMcMul. 147; McConnell v. Kitchens, 20 S.C. 430; Harlow v. Leclair, 82 N.H. 506; Bank [of United States] v.\nOwens, 2 Pet. 527; Gordon v. Gordon, 168 Ky. 409; Maybank [& Co.] v. Rodgers, 98 S.C. 279; Rountree v.\nIngle, 94 S.C. 234; Groesbeck v. Marshall, 44 S.C. 538; Hall v. [James T.] Latimer [& Son], 81 S.C. 90;\nDenton v. English, 2 Nott & McC. 581.[Emphasis added.]\nIt is impossible, in the light of the circumstances surrounding the assignor, and of the letter to\nMathews, set forth above, to conclude otherwise than that the consideration of the assignment was future as well as\npast cohabitation. That conclusion renders it impossible for the plaintiff to recover upon the assignment or upon a claim\nfor breach of warranty in the assignment.\n(Emphasis added.)\nThe prevailing rule in other jurisdictions is clearly stated in 12 American Jurisprudence 675,\nSection 176, as follows:\nWhere a woman lives with a man as his mistress and performs only such services as are\nincidental to such relationship she cannot recover compensation therefor, even though she alleges a\nseparate agreement. Likewise, where a part of the consideration for the agreement is a continuance of the illicit\nrelations, the agreement is for that reason wholly void and unenforceable. An agreement or understanding\nfounded upon a consideration in whole or in part for the commencement or continuance of\nmeretricious sexual intercourse if directly contrary to law or public policy and the best interests of\nsociety. Thus, a loan by a man to a woman on consideration that she serve as his mistress cannot be\nrecovered.\n(Emphasis added.)\nMr. Justice Holmes, speaking for the United States Supreme Court in Sage v. Hampe, 235 U.S.\n99 said:\nA contract that on its face requires an illegal act, either of the contractor or a third person,\nno more imposes a liability to damages for nonperformance than it creates an equity to compel the\ncontractor to perform. A contract that invokes prohibited conduct makes the contractor a\ncontributor to such conduct. Kalem Co. v. Harper Bros., 222 U.S. 55, 63. And more broadly, it long has\nbeen recognized that contracts that obviously and directly tend in a marked degree to bring about\nresults that the law seeks to prevent cannot be made the ground of a successful suit.\nIt seems to be equally well settled that contracts in restraint of marriage are nonenforceable,\nfor \xe2\x80\x9cas a general rule, restrictions on marriage are contrary to public policy, and therefore\n220\n\n\x0cagreements or conditions creating or involving such restrictions are illegal and void.\xe2\x80\x9d 17 Corpus\nJuris Secundum, Contracts, p. 615, \xc2\xa7 233.\nMr. Justice Field in delivering the opinion in the case of Maynard v. Hill, 125 U. S. 190, in\nreferring to marriage, used this language: \xe2\x80\x9cIt is an institution, in the maintenance of which in its\npurity the public is deeply interested, for it is the foundation of the family and of society, without\nwhich there would be neither civilization nor progress.\xe2\x80\x9d\nIn Strickland v. Anderson, 186 S.C. 482, Mr. Justice Fishburne, speaking for the Court, quoted\nfrom Noice vs. Brown, 38 N.J.L. 228, affirmed in 39 N.J.L. 133, as follows: \xe2\x80\x9cA contract is totally void, if,\nwhen it is made, it is opposed to morality or public policy. The institution of marriage is the first act\nof civilization, and the protection of the married state against all molestation or disturbance is a part\nof the policy of every people possessed of morals and laws.\xe2\x80\x9d\nSuppose the intestate, prior to his death, had applied to the Court to require his paramour to\nspecifically perform the obligation of the contract to permit him access to her bed and person for\nthe satisfaction of his licentious appetite, would the Court have heard him, or, what is more, would\nthe Court have granted the relief demanded? I think not.\nI am of the opinion that the demurrer to the complaint should be sustained; and it is so\nordered.\nStukes, Justice.\nThis Court is in full accord with the result of the judgment of the Circuit Court reached on\nseveral grounds in the order of Special Judge George Bell Timmerman sustaining the demurrer to\nthe complaint. This order sufficiently states the pleadings and issues; it will be reported. Appellant\xe2\x80\x99s\nexceptions thereto have been carefully considered and are overruled and the judgment below\naffirmed.\nBonham, C.J., Baker, and Fishburne, JJ., and G. Duncan Bellinger, A. A. J., concur.\n\n221\n\n\x0c4.4.4. Children\'s Claims on Family Assets\nEx parte Bayliss,\n550 So.2d 986 (Ala. 1989)\n\nFrank M. Bainbridge of Porterfield, Scholl, Bainbridge, Mims & Harper, Birmingham, for\npetitioner.\nStephen R. Arnold of Durwood & Arnold, Birmingham, for respondent.\nHouston, Justice.\nWe granted certiorari in this case to address the following issue: In Alabama, does a trial\ncourt have jurisdiction to require parents to provide post-minority support for college education to\nchildren of a marriage that has been terminated by divorce?\n\xe2\x80\xa6.\nPatrick Bayliss was born of the marriage of Cherry R. Bayliss and John Martin Bayliss III.\nThis marriage was terminated by divorce when Patrick was 12 years old. When Patrick was 18, his\nmother filed a petition to modify the final judgment of divorce; that petition, as amended, alleged:\n(5) That the child, Patrick Bayliss, completed high school at a private school in Birmingham,\nAlabama, The Altamont School, with an outstanding record and graduated with honors. That after\ngraduation, said child sought admission to, and was accepted as a student at a four-year institution of\nhigher learning, namely, Trinity College, located in Hartford, Connecticut. That the child, Patrick\nBayliss, enrolled in Trinity College in the Fall of 1987, has successfully completed his first semester\nand as of the date hereof, is attending Trinity College. That the said minor child desires and deserves\nto be allowed to complete a four-year college education.\n(6) That the child, Patrick Bayliss, is now and after he attains nineteen years of age will\ncontinue to be a \xe2\x80\x98dependent\xe2\x80\x99 child of John Martin Bayliss, III, and absent support from his said\nfather, the said child will not be able to complete his college education. The said minor child was not\nself-supporting or self-sustaining at the time of the Final Decree of Divorce, is not self-supporting\nor self-sustaining as of the date hereof, and will not be self-supporting or self-sustaining until he has\ncompleted his college education. That the plaintiff lacks the funds to finance the college education\nfor the child, Patrick Bayliss.\n(7) That the defendant, John Martin Bayliss, III, the father of Patrick Bayliss, is an extremely\nwealthy individual, having a net worth in excess of $1,000,000.00). The defendant had total income\nin 1986, the last year for which a Federal Tax Return is available, in excess of $370,000.00, and in\nexcess of $330,000.00 for 1985. That the defendant has no substantial debts and has sufficient\nestate, earning capacity, and income to enable him to pay the cost of a college education at Trinity\nCollege without undue hardship.\n(8) That both the plaintiff and defendant attended colleges and universities and that but for\nthe divorce in this cause, the defendant father, in all likelihood, would have paid and provided for a\ncollege education of the type and kind being pursued by Patrick Bayliss.\n222\n\n\x0c(9) That the defendant has failed and refused to contribute any sum toward the college\nexpenses of the child, Patrick Bayliss\xe2\x80\xa6.\n\xe2\x80\xa6.\nAlabama Code 1975, \xc2\xa7 30-3-1, provides, in pertinent part:\nUpon granting a divorce, the court may give the custody and education of the children of the\nmarriage to either father or mother, as may seem right and proper\xe2\x80\xa6.\n(Emphasis supplied.)\n\xe2\x80\xa6.\nIn Ex parte Brewington, 445 So.2d 294 (Ala.1983), this Court held that the term \xe2\x80\x9cchildren\xe2\x80\x9d in \xc2\xa7\n30-3-1 did not apply only to \xe2\x80\x9cminor\xe2\x80\x9d children. Mr. Justice Beatty, in overruling cases that had given\nthe word \xe2\x80\x9cchildren\xe2\x80\x9d that limited definition, wrote, for a majority of the Court:\nThe statute, however, does not express such a limitation, and such a narrow interpretation is\nunacceptable. In the frame of reference of the present case, we believe the legislature intended that\nsupport be provided for dependent children, regardless of whether that dependency results from\nminority, or from physical and/or mental disabilities that continue to render them incapable of selfsupport beyond minority.\n445 So.2d at 296.\nLooking at the word \xe2\x80\x9cchildren,\xe2\x80\x9d \xe2\x80\x9c[i]n the frame of reference of the present case,\xe2\x80\x9d we note\nthat the pertinent portions of \xc2\xa7 30-3-1 have been part of the codified law of Alabama continuously\nsince Alabama Code 1852, \xc2\xa7 1977. From 1852 to 1975, the age of majority in Alabama was 21 years.\nWe have found no early Alabama appellate court cases that even discussed whether a college\neducation was a \xe2\x80\x9cnecessary\xe2\x80\x9d that a divorced parent had to provide a minor child. The earliest case that\nwe have found involving the question of whether a college education is a necessary is Middlebury\nCollege v. Chandler, 16 Vt. 683, 42 Am.Dec. 537 (1844). In that case, which involved a suit brought by\nMiddlebury College against the father of a minor college student for the student\xe2\x80\x99s tuition and other\ncollege expenses, the Vermont Supreme Court refused to hold that a college education was a\nnecessary, for the following reasons:\nThe practical meaning of the term [necessaries] has always been in some measure relative,\nhaving reference as well to what may be called the conventional necessities of others in the same\nwalks of life with the infant, as to his own pecuniary condition and other circumstances. Hence a\ngood common school education, at the least, is now fully recognized as one of the necessaries for an\ninfant. Without it he would lack an acquisition which would be common among his associates, he\nwould suffer in his subsequent influence and usefulness in society, and would ever be liable to suffer\nin his transactions of business. Such an education is moreover essential to the intelligent discharge of\ncivil, political, and religious duties.\nBut it is obvious that the more extensive attainments in literature and science must be\nviewed in a light somewhat different. Though they tend greatly to elevate and adorn personal\ncharacter, are a source of much private enjoyment, and may justly be expected to prove of public\nutility, yet in reference to men in general they are far from being necessary in a legal sense. The mass\nof our citizens pass through life without them. I would not be understood as making any allusion to\nprofessional studies, or to the education and training which is requisite to the knowledge and\npractice of mechanic arts. These partake of the nature of apprenticeships, and stand on peculiar\ngrounds of reason and policy. I speak only of the regular and full course of collegiate study; for such\nwas the course upon which the defendant professedly entered. Now it does not appear that\nextraneous circumstances existed in the defendant\xe2\x80\x99s case, such as wealth, or station in society, or that\nhe exhibited peculiar indications of genius or talent, which would suggest the fitness and expediency\nof a college education for him, more than for the generality of youth in community.\xe2\x80\x9d\n16 Vt. at 538-39.\n223\n\n\x0cBeginning with the landmark case of Esteb v. Esteb, 138 Wash. 174, 244 P. 264 (1926), courts\nhave increasingly recognized a college education as a legal necessary for minor children of divorced\nparents. Justice Askren wrote:\n\xe2\x80\xa6.\n\xe2\x80\x9cApplying the rule as stated by the courts and the text-writers, it will be seen that the question of\nwhat sort of an education is necessary, being a relative one, the court should determine this in a\nproper case from all the facts and circumstances. Nor should the court be restricted to the station of\nthe minor in society, but should, in determining this fact, take into consideration the progress of\nsociety, and the attendant requirements upon the citizens of to-day. The rule in Middlebury College v.\nChandler, supra, was clearly based upon conditions which existed at that time. An opportunity at that\nearly date for a common school education was small, for a high school education less, and for a\ncollege education was almost impossible to the average family, and was generally considered as being\nonly within the reach of the most affluent citizens. While there is no reported case, it is hardly to be\ndoubted that the courts at that time would have even held that a high school education was not\nnecessary, inasmuch as very few were able to avail themselves of it. But conditions have changed\ngreatly in almost a century that has elapsed since that time. Where the college graduate of that day\nwas the exception, to-day such a person may almost be said to be the rule. The law in an attempt to\nkeep up with the progress of society has gradually placed minimum standards for attendance upon\npublic schools, and even provides punishment for those parents who fail to see that their children\nreceive at least such minimum education. That it is the public policy of the state that a college\neducation should be had, if possible, by all its citizens, is made manifest by the fact that the state of\nWashington maintains so many institutions of higher learning at public expense. It cannot be\ndoubted that the minor who is unable to secure a college education is generally handicapped in\npursuing most of the trades or professions of life, for most of those with whom he is required to\ncompete will be possessed of that greater skill and ability which comes from such an education.\n138 Wash. at 181, 244 P. at 266-67.\nThis Court in deciding this issue in Ogle v. Ogle, 275 Ala. 483, 486, 156 So.2d 345, 348 (1963),\nwrote:\nWhile there are divergent views on the question, it seems to us that the cases from other\njurisdictions holding that a father may be required to contribute toward the college education of his\nminor child, who is in his mother\xe2\x80\x99s custody pursuant to a divorce decree, are supported by the better\nreasoning.\nPatrick was born March 5, 1969. If the age of majority had remained 21 years, as it was from\n1852 to 1975, Patrick would have been entitled to have his father contribute toward his college\neducation, at least until March 5, 1991. But in 1975, the age of majority was reduced to 19 years in\nAlabama, with certain exceptions. Alabama Code 1975, \xc2\xa7 26-1-1; for exceptions see \xc2\xa7 26-1-1(d)\n(youthful offenders) and \xc2\xa7 28-1-5 (purchase of alcoholic beverages, since May 29, 1985).\nIt is ironic that legislatures reduced the age of majority in a period when college education\nwas becoming available to all. In the past, when a college education was relatively uncommon,\nchildren were accustomed to supporting themselves at an earlier age. In contrast, \xe2\x80\x98today, since\nchildren remain in school longer, they frequently do not mature or become self-sufficient until later\nin life.\xe2\x80\x99 Thus, they are maturing later and assuming responsibility earlier.\nKathleen Conrey Horan, Postminority Support for College Education\xe2\x80\x93A Legally Enforceable\nObligation in Divorce Proceedings? 20 Family Law Quarterly (American Bar Association) 589, 604 (1987).\nIn Davenport v. Davenport, 356 So.2d 205, 208 (Ala.Civ.App.1978), the Court of Civil Appeals\nheld that \xe2\x80\x9cminority is a status rather than a fixed or vested right and\xe2\x80\xa6 the legislature has full power\nto fix and change the age of majority.\xe2\x80\x9d See, Hutchinson v. Till, 212 Ala. 64, 101 So. 676 (1924). In New\nJersey St. Pol. Ben. Ass\xe2\x80\x99n v. Town of Morristown, 65 N.J. 160, 320 A.2d 465, 470 (1974), Justice Pashman\n224\n\n\x0cwrote of the pragmatic age of majority:\nThere is no magic to the age of 21. The 21-year age of maturity is derived only from\nhistorical accident. It is not a mystical figure whose importance as the age of majority has captured\nevery civilization. While many societies have had laws or conventions regulating the age at which\nyoung people were considered adults, those ages have varied. Military service has frequently been a\ndetermining factor. Historians of the Roman empire indicate that the barbarians considered 15 as\nthe proper age of majority because young people then became eligible for military service. The\nability to bear arms and the age of majority were identical under Ripuarian tradition.\nThe male child of an Athenian citizen reached majority at 18 and was qualified for\nmembership in the assembly at age 20; however, age 30 was a requirement for service on a jury. In\nancient Sparta, males did not reach majority until 31. In Rome, increased emphasis on education led\nto a correlation of understanding of the law to the age of majority, which was eventually set at 14.\nThis prevailed in northern parts of Europe and in England during the ninth, tenth and eleventh\ncenturies. The expanding role of the mounted knight after the Norman Conquest led to heavier mail\nshirts and coifs, as well as shields and armor. With the advent of knighthood, the age of majority\nrose to 21; for at that time, young men were first capable of meeting its physical and mental\ndemands. This age, however, did not initially apply to agricultural tenants, where one\xe2\x80\x99s ability to\ncomplete husbandry and farming chores was paramount. Such commoners reached majority at age\n15, although 21 later became the age of majority for all classes.\nFrom this point on, the age of 21 [seemed] gradually to be accepted, even though the\nspecific reasons for its appearance had long since passed. The province of Massachusetts Bay, in\n1641, established 21 as the age for giving votes, verdicts or sentences.\nUntil Brewington, supra, our cases and the cases of the Court of Civil Appeals held that a trial\ncourt had no continuing equitable jurisdiction over the issues or parties to a divorce to require that a\nnoncustodial parent provide support of any kind to any child that had reached the legislatively\nprescribed age of majority. See, Hutton v. Hutton, 284 Ala. 91, 222 So.2d 348 (1969); Davenport v.\nDavenport, supra. In Brewington, supra, we expanded our interpretation of the word \xe2\x80\x9cchildren\xe2\x80\x9d in the\nAlabama child support statute, to impose a duty on a divorced, noncustodial parent to support his\nchildren who continue to be disabled beyond the legislatively prescribed age of majority. We have\npreviously interpreted the word \xe2\x80\x9ceducation\xe2\x80\x9d in the Alabama child support statute to include a\ncollege education as a necessary. (Ogle v. Ogle, supra). We now expand the exception to the general\nrule\xe2\x80\x93i.e., the rule that a divorced, noncustodial parent has no duty to contribute to the support of his\nor her child after that child has reached the legislatively prescribed age of majority\xe2\x80\x93 beyond\nBrewington, supra (dealing with a physically or mentally disabled child) to include the college\neducation exception.\n\xe2\x80\xa6.\nIn the six years since Brewington was announced, the Legislature has not seen fit to modify \xc2\xa7\n30-3-1 by adding the word \xe2\x80\x9cminor\xe2\x80\x9d before the word \xe2\x80\x9cchildren.\xe2\x80\x9d We do not suggest that the failure\nof the Legislature to act in this area necessarily constitutes its approval of our construction in\nBrewington of \xc2\xa7 30-3-1;1 however, clearly it knew how to alter the status quo by adding the word\n\xe2\x80\x9cminor\xe2\x80\x9d before \xe2\x80\x9cchildren\xe2\x80\x9d in \xc2\xa7 30-3-1 as it did in \xc2\xa7 30-3-4.\nIn expanding the exception to the general rule (that a divorced, noncustodial parent has no\nduty to support his child after that child reaches majority) to include the college education exception,\nwe are merely refusing to limit the word \xe2\x80\x9cchildren\xe2\x80\x9d to minor children, because of what we perceive\nto be just and reasonable in 1989. The Latin phrase \xe2\x80\x9cstare decisis et not quieta movere\xe2\x80\x9d (stare decisis)\nexpresses the legal principle of certainty and predictability; for it is literally translated as \xe2\x80\x9cto adhere to\nprecedents, and not to unsettle things which are established.\xe2\x80\x9d Black\xe2\x80\x99s Law Dictionary (5th ed. 1979).\nBy this opinion, we are unsettling things that have been established by the appellate court of this\n225\n\n\x0cState (the Court of Civil Appeals) that has exclusive appellate jurisdiction of \xe2\x80\x9call appeals in domestic\nrelations cases, including annulment, divorce, adoption and child custody cases.\xe2\x80\x9d Ala.Code 1975, \xc2\xa7\n12-3-10. However, we are persuaded that the ground or reason of those prior decisions by the Court\nof Civil Appeals would not be consented to today by the conscience and the feeling of justice of all\nthose whose obedience is required by the rule on which the ratio decidendi of those prior decisions\nwas logically based.\nTherefore, we overrule that portion of the following cases that are inconsistent with this\nopinion: English v. English, 510 So.2d 272 (Ala.Civ.App.1987); [and seven other cases.].\nIn making this holding, we are not the first by whom this new is tried, for we have cases\nfrom other jurisdictions, referred to by Justice Holmes as \xe2\x80\x9cthe evening dress which the newcomer\nputs on to make itself presentable according to conventional requirements,\xe2\x80\x9d Book Notice, 14\nAm.L.Rev. 233-34 (1880). We had cases from other jurisdictions that we followed in Ogle v. Ogle, 275\nAla. at 486, 156 So.2d at 348.\nHad the Bayliss family unit not been put asunder by divorce, would the father, who had\nattended college and was a man of significant means, have continued to provide a college education\nfor Patrick (a young man who would be an Alpha Plus if this were Huxley\xe2\x80\x99s Brave New World) after\nPatrick reached 19 years of age? If so, the father\xe2\x80\x99s educational support obligations should not cease\nwhen Patrick reached 19 years of age.\nThe Legislature has given circuit courts the \xe2\x80\x9cpower\xe2\x80\x9d to divorce persons for certain causes.\nWhile the rights of the parties to the divorce action must be fully respected, the public occupies the\nposition of a third party in a divorce action; and the court is bound to act for the public. Flowers v.\nFlowers, 334 So.2d 856 (Ala.1976); Hartigan v. Hartigan, 272 Ala. 67, 128 So.2d 725 (1961); Ex parte\nWeissinger, 247 Ala. 113, 22 So.2d 510 (1945).\nThis Court in Ogle, 275 Ala. at 487, 156 So.2d at 349, quoted the following from Pass v. Pass,\n238 Miss. 449, 118 So.2d 769, 773 (1960), with approval:\n[W]e are living today in an age of keen competition, and if the children of today\xe2\x80\xa6 are to\ntake their rightful place in a complex order of society and government, and discharge the duties of\ncitizenship as well as meet with success the responsibilities devolving upon them in their relations\nwith their fellow man, the church, the state and nation, it must be recognized that their parents owe\nthem the duty to the extent of their financial capacity to provide for them the training and education\nwhich will be of such benefit to them in the discharge of the responsibilities of citizenship. It is a\nduty which the parent not only owes to his child, but to the state as well, since the stability of our\ngovernment must depend upon a well-equipped, a well-trained, and well-educated citizenship. We\ncan see no good reason why this duty should not extend to a college education. Our statutes do not\nprohibit it, but they are rather susceptible of an interpretation to allow it. The fact is that the\nimportance of a college education is being more and more recognized in matters of commerce,\nsociety, government, and all human relations, and the college graduate is being more and more\npreferred over those who are not so fortunate. No parent should subject his worthy child to this\ndisadvantage if he has the financial capacity to avoid it.\nThis is the public policy of our State. Since the normal age for attending college extends\nbeyond the age of 19 years, under \xc2\xa7 30-3-1 courts have the right to assure that the children of\ndivorced parents, who are minors at the time of the divorce, are given the same right to a college\neducation before and after they reach the age of 19 years that they probably would have had if their\nparents had not divorced.\nThe trial courts of this state that handle the dissolution of marriages have long dealt with\nhard problems of alimony and child support and the hardest problem of all, child custody. King\nSolomon is noted for his wisdom, primarily because of his judgment in a child custody case. Our\ntrial courts have demonstrated that they have the wisdom of Solomon in these domestic matters. We\n226\n\n\x0cknow that they will continue to demonstrate that wisdom in deciding whether to require a parent to\nprovide, or help defray the cost of, a college education for a child, even after that child attains the\nage of 19 years.\nThe father suggests that to require him to pay for Patrick\xe2\x80\x99s college education after Patrick\nattained the age of 19 years, would deny the father equal protection under the law. We adopt the\nfollowing reasoning from Smith, Educational Support Obligations of Noncustodial Parents, 36 Rutgers\nL.Rev. 588, which discusses, in some detail at pages 626-41, the constitutionality of post-minority\ncollege support obligations, and concludes with this observation:\nFollowing divorce the noncustodial parent, most frequently the father, often establishes a\nnew life for himself, possibly including a new spouse, stepchildren, and new children. One result is\nthat the interest, concern, care, and money of the noncustodial parent that is available for the\nchildren of the original marriage often declines or vanishes altogether. This is particularly true in\nsuch matters as the cost of education for their post-majority children. By imposing an educational\nsupport obligation on these parents, at least one of the disadvantages caused children by divorce can\nbe reduced or eliminated. It is true that the imposition of this burden on divorced noncustodial\nparents establishes a classification with discriminatory obligations. However, as the Childers [v.\nChilders] [89 Wash.2d 592, 604, 575 P.2d 201, 208 (1978)] court pointed out, instead of an arbitrary,\ninequitable, unreasonable, or unjust classification, what exists is a package of special powers in equity\nthat the courts, regardless of legislation, have long used to protect the interests of children of broken\nhomes and to assure that the disadvantages of divorce on these children are minimized. In short, the\ncourts have found a reasonable relationship between this classification and the legitimate state\ninterest in minimizing the disadvantages to children of divorced parents\xe2\x80\xa6.\n36 Rutgers L.Rev. at 641.\nAlmon, Justice (dissenting).\nThe writ of certiorari was improvidently granted in this case. Therefore, the writ should be\nquashed. For that reason, I dissent.\nJustice Scalia, in his dissent in Johnson v. Transportation Agency, 480 U.S. 616, 671-72, 107 S.Ct.\n1442, 1473, 94 L.Ed.2d 615 (1987), wrote: \xe2\x80\x9c[O]ne must ignore rudimentary principles of political\nscience to draw any conclusions regarding that intent from the failure to enact legislation. The\n\xe2\x80\x98complicated check on legislation,\xe2\x80\x99 The Federalist No. 62, p. 378 (C. Rossiter ed. 1961), erected by\nour Constitution creates an inertia that makes it impossible to assert with any degree of assurance\nthat congressional failure to act represents (1) approval of the status quo, as opposed to (2) inability\nto agree upon how to alter the status quo, (3) unawareness of the status quo, (4) indifference to the\nstatus quo, or even (5) political cowardice.\xe2\x80\x9d \xe2\x86\xa9\n\n227\n\n\x0c5. Easements\nAN INTRODUCTION TO SERVITUDES\nOur discussion of future interests introduced us to the ways that people can share property\nover time and the problems that tend to arise when they do so. The materials on co-ownership\nshowed ways that people can actually own property together at the same time. We now come to\nanother kind of shared, concurrent interest in land.\nServitudes are interests in the lands of others that confer the power to use another\xe2\x80\x99s land or to\ncontrol what a landowner does with his land. Though courts and commentators have used a variety of\nwords and modifiers to describe servitudes, they can be boiled down to two basic types: easements\nand covenants. At bottom, these are just contracts. One party promises to allow access to her land\nor that she will do or not do something on her own land, and the other party promises something in\nreturn.\nWhat distinguishes easements and covenants from other contracts is that they can be made\nto bind not just the parties who agree to them but also the people who later acquire the lands these\nagreements burden and benefit. For example, assume two people come to an agreement that would\nlet one of them drive over the property of the other. After a number of years, both parties have sold\nthese lands. This easement, assuming a few conditions were met, will bind the new owners, even\nthough these new owners were not parties to the original agreement and did not come to any new\nagreement among themselves.\nThe binding of future owners to an agreement struck by their predecessors is described as an\neasement\xe2\x80\x99s or covenant\xe2\x80\x99s running with the land. But for this feature, easements and covenants would be\ngoverned by more ordinary contract principles. While some of the historical cruft that has\naccumulated around these interests in land may still have arisen - after all, this is land we\xe2\x80\x99re talking\nabout - it likely would have been jettisoned far sooner. Now, however, the Third Restatement is\nmaking a concerted and explicit effort to clean up the doctrine of servitudes and to replace as much\nof it as possible with ordinary contract law, too much of it according to some critics.\nSome sort of clean-up was plainly necessary. In fact, this area of law has been described as\n\xe2\x80\x9can unspeakable quagmire\xe2\x80\x9d of silly and useless distinctions. This is at once unsurprising, given the\nhistorical development of the area, and surprising, given the simplicity of the underlying ideas.\nSimply put, an easement is the right to use the land of another. A covenant is an obligation to do\nsomething or to refrain from doing something on one\xe2\x80\x99s own land. Repeat those sentences to\nyourself a few times. As always, keeping in mind key examples makes things much easier.\nExamples of easements: a trail across A\xe2\x80\x99s property that connects B\xe2\x80\x99s property to a lake; a\ndriveway across A\xe2\x80\x99s property that B uses to get from his property to a public road; the right of the\nutility company, B, to string wires on poles across a strip of A\xe2\x80\x99s property.\nExamples of covenants: a promise by A to B that A will not make commercial use of his\nproperty; a promise that A will not build a second story; a promise that A will only build additions\nthat meet with the approval of a homeowner association\xe2\x80\x99s architectural review committee; a promise\nthat A will maintain a wall that separates his property from B\xe2\x80\x99s.\nIt is worth re-emphasizing that easements and covenants are really just particular kinds of\ncontracts (or perhaps gifts). Though they are often distinguished as being \xe2\x80\x9cproperty rights\xe2\x80\x9d rather\nthan \xe2\x80\x9ccontractual,\xe2\x80\x9d this distinction does not mean much. Rather than thinking about these\nobligations as completely different from ordinary contracts, it is more useful to concentrate on the\n228\n\n\x0cdoctrine specific to these kinds of contracts, in particular the practical and policy problems posed by\ncontracts that run with the land.\nEasements\nRemember that an easement is the right to use the land of another. When you go to a friend\xe2\x80\x99s\nhouse for dinner, you are using their land. But you do not have a right to do so. Rather, you are\nthere by the permission of your host. Such permission to use the land of another is called a license.\nWhat\xe2\x80\x99s the difference between a license and an easement? Well, plainly, it comes down to the\ndifference between permission to use land and a right to use land. Permission can be granted and\nrevoked at will. A right to use land, however, is irrevocable. Once A grants an easement, A cannot\nchange his or her mind and end the arrangement unilaterally. If A invites you over for dinner,\ngranting you a license, A can revoke the offer at anytime, and kick you off the property.\nThis is not to say that easements are necessarily permanent. Irrevocable does not mean the\neasement lasts forever. By its own terms, the easement may expire after one year, one day, when a\ncertain event happens, or otherwise. The key is that the grantor cannot unilaterally rescind the grant.\nThere are a few instances in which licenses are deemed irrevocable, and thus essentially converted\ninto easements by the court. We will study a few of them.\nCreation\nBeing interests in land, easements are subject to the statute of frauds, meaning that they\nmust be in writing in order to be valid. The writing requirement contains a number of exceptions,\nincluding estoppel and implication, which we will study. But it is useful to remember that writing is\nat least formally a \xe2\x80\x9crequirement\xe2\x80\x9d that must be met unless an exception applies. In particular,\neasements are granted by deeds, just like grants of land. Sometimes an easement is created or\ntransferred in a deed that also grant lands subject to the easement, and sometimes an easement is the\nonly thing granted in a deed.\nRunning with the land\nWhen we say an easement \xe2\x80\x9cruns with the land,\xe2\x80\x9d we are really talking about two different\nthings, and it is important that we analyze each of these separately. First, we must decide whether the\nburden of an easement runs with ownership of the burdened land. That is, if I own land that another\nhas a right to cross, I am burdened by an easement. If when I grant this land to another the burden\nremains on the land, we say that the burden of the easement has run with the ownership of the\nburdened or servient holding.\nSo when does this happen? In a nutshell, there are three requirements that must be met\nbefore the burden is determined to run. (1) The easement must be in writing. It need not appear in\nevery deed subsequent to the one in which was created, so long as the easement is in the chain of\ntitle. (2) The burden of the easement must be intended to run with the burdened land. Intent may be\npresumed, and so ambiguity doesn\xe2\x80\x99t defeat this element. But if it is plain that the easement was not\n229\n\n\x0cintended to run, then this element will not be met. (3) The owner of the burdened property must\nhave had notice of the easement.\nNote that the third requirement differs from the first two in the following respect. The first\ntwo elements are directed at the original grant of the easement. That is, we can decide whether they\nare met by looking only at what was going on, perhaps a long time ago, when the easement was\ncreated. What did the original parties to the easement intent? And did they put it in writing?\nThe third element, by contrast, looks at whether the new owner of the burdened land had\nnotice of the easement, without regard to the effect of the easement on prior owners of that land,\nhowever many of them there may have been. If the new owner lacked notice, the easement does not\nburden him or her. Notice can come in three forms: (1) actual notice, which means that the new\nowner actually knows about the easement, (2) record (or constructive) notice, which exists if the\neasement could have been found in a title search, and (3) inquiry notice, which exists if there is\nsomething about the land or some other clue that should have led the new owner to inquire further\nthus discovering the existence of the easement. Importantly, if an easement expressing an intent to\nrun with the land is duly recorded, all three elements will be met, and the burden of the easement\nwill run with the land.\nSecond, we must decide whether the benefit of an easement runs with the ownership of some\nparcel of land. That is, if I have the right to use someone else\xe2\x80\x99s land, I have the benefit of an\neasement. If when I sell property I own, the benefit of that easement automatically transfers to the\ngrantee, then we say that the benefit of the easement runs with the ownership of the benefitted, or\ndominant holding.\nFormally, it is simple for the benefit of an easement to run. It does so whenever it was\nintended to run. An easement intended to run with some benefitted land is called appurtenant to the\nbenefitted land (also called the dominant tenement holding or dominant estate). Otherwise, the\neasement is personal to the grantee and is called in gross.\nUnfortunately, it is not always clear whether a grantor intended for an easement to stay with\nthe grantee or run with the grantee\xe2\x80\x99s land. What then? Consider the easement examples above,\nwhere B is given a right to use A\xe2\x80\x99s property. Sometimes the easement benefits B because of B\xe2\x80\x99s\nlocation. That is, the easement benefits B because of the relation of the easement to land B owns.\nFor example, the driveway and the trail are useful to B because B owns property that is made more\nconvenient or enjoyable by the easement. Such easements are deemed to be appurtenant absent\ngrantor intent to the contrary. Courts will often presume an easement is appurtenant unless it is\nclearly otherwise.\nWhen, on the other hand, the easement is useful to B regardless of any land B might hold,\nthe easement is deemed to be in gross absent contrary intent. The easement to run utility lines across\na strip of A\xe2\x80\x99s property is the most common example. There the utility company has the easement\nand will benefit from the easement to the same degree no matter where it moves its corporate\nheadquarters or other property, including power plants. The usefulness of the easement is the same,\npractically regardless of where B owns land.\nIn sum: The burden runs when there is writing, intent, and notice. The benefit runs if\nintended, i.e. appurtenant rather than in gross.\nTransferability\nAppurtenant easements are transferred automatically with the transfer of the lands burdened\nand benefitted by them. They may not be severed. That is, one may not prevent the benefit of an\n230\n\n\x0cappurtenant easement from passing to the grantee of the dominant parcel without terminating or\nmodifying the easement, which requires the agreement of the holder of the burdened parcel.\nThe benefit of easements held in gross was traditionally held to be nontransferable. This has\nchanged. Unless the benefit of the easement was intended to be nontransferable, must courts will\nallow it to be alienated. Some courts distinguish commercial, in gross easements from personal, in\ngross easements, allowing the former but not the latter to be transferred. (Remember that when we\nsay that the benefit can be transferred, we mean that the holder of the benefit can give that benefit\naway to someone else, without obtaining the consent of the servient holder.)\nTermination\nEasements will last until they are not terminated. This can occur when: (1) the terms of the\neasement itself set a time or condition for termination; (2) the dominant and servient holders agree to\nterminate the easement; (3) the dominant and servient lands are merged under a single owner (one\ncannot have an easement over one\xe2\x80\x99s own land); (4) the dominant holder by words or deed abandons\nthe easement; (5) the servient holder takes over the easement by prescription; (6) condemnation by the\nstate; (7) the death of the in-gross holder if not intended to be transferable.\nIn addition to these courts have long had ways to terminate easements that have outlived\ntheir usefulness. Courts have readily found abandonment in such cases or have declared that the\neasement\xe2\x80\x99s purpose has been frustrated. The modern trend is towards applying the changed\nconditions doctrine of covenants to easements as well. We will study this doctrine in the covenants\ncontext.\n\n231\n\n\x0c5.1. Easements by Estoppel\nHolbrook v. Taylor,\n532 S.W.2d 763 (Ky. 1976)\n\nHarry M. Caudill, Whitesburg, for appellants.\nRonald G. Polly, Polly & Craft, Whitesburg, for appellees.\nSternberg, J.\nThis is an action to establish a right to the use of a roadway, which is 10 to 12 feet wide and\nabout 250 feet long, over the unenclosed, hilly woodlands of another. The claimed right to the use\nof the roadway is twofold: by prescription and by estoppel. Both issues are heatedly contested. The\nevidence is in conflict as to the nature and type of use that had been made of the roadway. The\nlower court determined that a right to the use of the roadway by prescription had not been\nestablished, but that it had been established by estoppel. The landowners, feeling themselves\naggrieved, appeal. We will consider the two issues separately.\nIn Grinestaff v. Grinestaff, Ky., 318 S.W.2d 881 (1958), we said that an easement may be\ncreated by express written grant, by implication, by prescription, or by estoppel. It has long been the\nlaw of this commonwealth that \xe2\x80\x9c(an) easement, such as a right of way, is created when the owner of\na tenement to which the right is claimed to be appurtenant, or those under whom he claims title,\nhave openly, peaceably, continuously, and under a claim of right adverse to the owner of the soil,\nand with his knowledge and acquiescence, used a way over the lands of another for as much as 15\nyears.\xe2\x80\x9d Flener v. Lawrence, 187 Ky. 384, 220 S.W. 1041 (1920); Rominger v. City Realty Company, Ky., 324\nS.W.2d 806 (1959).\nIn 1942 appellants purchased the subject property. In 1944 they gave permission for a haul\nroad to be cut for the purpose of moving coal from a newly opened mine. The roadway was so used\nuntil 1949, when the mine closed. During that time the appellants were paid a royalty for the use of\nthe road. In 1957 appellants built a tenant house on their property and the roadway was used by\nthem and their tenant. The tenant house burned in 1961 and was not replaced. In 1964 the appellees\nbought their three-acre building site, which adjoins appellants, and the following year built their\nresidence thereon. At all times prior to 1965, the use of the haul road was by permission of\nappellants. There is no evidence of any probative value which would indicate that the use of the haul\nroad during that period of time was either adverse, continuous, or uninterrupted. The trial court was\nfully justified, therefore, in finding that the right to the use of this easement was not established by\nprescription.\nAs to the issue on estoppel, we have long recognized that a right to the use of a roadway\never the lands of another may be established by estoppel. In Lashley Telephone Co. v. Durbin, 190 Ky.\n792, 228 S.W. 423 (1921), we said:\nThough many courts hold that a licensee is conclusively presumed as a matter of law to\nknow that a license is revocable at the pleasure of the licensor, and if he expend money in\nconnection with his entry upon the land of the latter, he does so at his peril *, yet it is the\nestablished rule in this state that HN3where a license is not a bare, naked right of entry, but includes\n232\n\n\x0cthe right to erect structures and acquire an interest in the land in the nature of an easement by the\nconstruction of improvements thereon, the licensor may not revoke the license and restore his\npremises to their former condition after the licensee has exercised the privilege given by the license\nand erected the improvements at considerable expense; *.\nIn Gibbs v. Anderson, 288 Ky. 488, 156 S.W.2d 876 (1941), Gibbs claimed the right, by\nestoppel, to the use of a roadway over the lands of Anderson. The lower court denied the claim. We\nreversed. Anderson\xe2\x80\x99s immediate predecessor in title admitted that he had discussed the passway with\nGibbs before it was constructed and had agreed that it might be built through his land. He stood by\nand saw Gibbs expend considerable money in this construction. We applied the rule announced in\nLashley Telephone Co. v. Durbin, supra, and reversed with directions that a judgment be entered\ngranting Gibbs the right to the use of the passway.\nIn McCoy v. Hoffman, Ky., 295 S.W.2d 560 (1956), the facts are that Hoffman had acquired\nthe verbal consent of the landowner to build a passway over the lands of the owner to the state\nhighway. Subsequently, the owner of the servient estate sold the property to McCoy, who at the time\nof the purchase was fully aware of the existence of the roadway and the use to which it was being\nput. McCoy challenged Hoffman\xe2\x80\x99s right to use the road. The lower court found that a right had been\ngained by prescription. In this court\xe2\x80\x99s consideration of the case, we affirmed, not on the theory of\nprescriptive right but on the basis that the owner of the servient estate was estopped. After\nannouncing the rule for establishing a right by prescription, we went on to say:\n* On the other hand, the right of revocation of the license is subject to the qualification\nthat where the licensee has exercised the privilege given him and erected improvements or made\nsubstantial expenditures on the faith or strength of the license, it becomes irrevocable and continues\nfor so long a time as the nature of the license calls for. In effect, under this condition the license\nbecomes in reality a grant through estoppel. *.\nIn Akers v. Moore, Ky., 309 S.W.2d 758 (1958), this court again considered the right to the use\nof a passway by estoppel. Akers and others had used the Moore branch as a public way of ingress\nand egress from their property. They sued Moore and others who owned property along the branch\nseeking to have the court recognize their right to the use of the roadway and to order the removal of\nobstructions which had been placed in the roadway. The trial court found that Akers and others had\nacquired a prescriptive right to the use of the portion of the road lying on the left side of the creek\nbed, but had not acquired the right to the use of so much of the road as lay on the right side of the\ncreek bed. Consequently, an appeal and a cross-appeal were filed. Considering the right to the use of\nthe strip of land between the right side of the creek bed and the highway, this court found that the\nevidence portrayed it very rough and apparently never improved, that it ran alongside the house in\nwhich one of the protestors lived, and that by acquiescence or by express consent of at least one of\nthe protestors the right side of the roadway was opened up so as to change the roadway from its\nclose proximity to the Moore residence. The relocated portion of the highway had only been used as\na passway for about six years before the suit was filed. The trial court found that this section of the\nroad had not been established as a public way by estoppel. We reversed. In doing so, we stated:\nWe consider the fact that the appellees, Artie Moore, et al, had stood by and acquiesced in (if\nin fact they had not affirmatively consented) the change being made and permitted the appellants to\nspend money in fixing it up to make it passable and use it for six years without objecting. Of course,\nthe element of time was not sufficient for the acquisition of the right of way by adverse possession.\nBut the law recognizes that one may acquire a license to use a passway or roadway where, with the\n233\n\n\x0cknowledge of the licensor, he has in the exercise of the privilege spent money in improving the way\nor for other purposes connected with its use on the faith or strength of the license. Under such\nconditions the license becomes irrevocable and continues for so long a time as its nature calls for.\nThis, in effect, becomes a grant through estoppel. Gibbs v. Anderson, 288 Ky. 488, 156 S.W.2d 876;\nMcCoy v. Hoffman, Ky., 295 S.W.2d 560. It would be unconscionable to permit the owners of this\nstrip of land of trivial value to revoke the license by obstructing and preventing its use.\nIn the present case the roadway had been used since 1944 by permission of the owners of\nthe servient estate. The evidence is conflicting as to whether the use of the road subsequent to 1965\nwas by permission or by claim of right. Appellees contend that it had been used by them and others\nwithout the permission of appellants; on the other hand, it is contended by appellants that the use of\nthe roadway at all times was by their permission. The evidence discloses that during the period of\npreparation for the construction of appellees\xe2\x80\x99 home and during the time the house was being built,\nappellees were permitted to use the roadway as ingress and egress for workmen, for hauling\nmachinery and material to the building site, for construction of the dwelling, and for making\nimprovements generally to the premises. Further, the evidence reflects that after construction of the\nresidence, which cost $25,000, was completed, appellees continued to regularly use the roadway as\nthey had been doing. Appellant J. S. Holbrook testified that in order for appellees to get up to their\nhouse he gave them permission to use and repair the roadway. They widened it, put in a culvert, and\ngraveled part of it with \xe2\x80\x9cred dog\xe2\x80\x9d, also known as cinders, at a cost of approximately $100. There is\nno other location over which a roadway could reasonably be built to provide an outlet for appellees.\nNo dispute had arisen between the parties at any time over the use of the roadway until the\nfall of 1970. Appellant J. S. Holbrook contends that he wanted to secure a writing from the appellees\nin order to relieve him from any responsibility for any damage that might happen to anyone on the\nsubject road. On the other hand, Mrs. Holbrook testified that the writing was desired to avoid any\nclaim which may be made by appellees of a right to the use of the roadway. Appellees testified that\nthe writing was an effort to force them to purchase a small strip of land over which the roadway\ntraversed, for the sum of $500. The dispute was not resolved and appellants erected a steel cable\nacross the roadway to prevent its use and also constructed \xe2\x80\x9cno trespassing\xe2\x80\x9d signs. Shortly thereafter,\nthe suit was filed to require the removal of the obstruction and to declare the right of appellees to\nthe use of the roadway without interference.\nThe use of the roadway by appellees to get to their home from the public highway, the use\nof the roadway to take in heavy equipment and material and supplies for construction of the\nresidence, the general improvement of the premises, the maintenance of the roadway, and the\nconstruction by appellees of a $25,000 residence, all with the actual consent of appellants or at least\nwith their tacit approval, clearly demonstrates the rule laid down in Lashley Telephone Co. v. Durbin,\nsupra, that the license to use the subject roadway may not be revoked.\nThe evidence justifies the finding of the lower court that the right to the use of the roadway\nhad been established by estoppel.\nThe judgment is affirmed.\nAll concur, except Stephenson, J., who dissents.\n\n234\n\n\x0cHenry v. Dalton,\n89 R.I. 150 (1959)\n\nGoodman, Mackenzie, Gorin & Blease, for complainants.\nShannahan & Cunningham, James M. Shannahan, Matthew C. Cunningham, for respondent.\nPowers, J.\nThis bill in equity was brought to establish an irrevocable right in the land of the respondent\nfor use as a driveway to the garage of the complainants. The cause was heard in the superior court\non bill, answer and proof, and thereafter a decree was entered denying and dismissing the bill of\ncomplaint. From such decree the complainants have prosecuted an appeal to this court.\nTheir reasons of appeal are that the decree and the decision on which it is based are against\nthe law, against the evidence and against the law and the evidence and the weight thereof.\nThe testimony discloses that on May 27, 1922 the complainants purchased a house on\nCarver street in the city of Pawtucket and that within a month thereafter respondent\xe2\x80\x99s husband\npurchased the adjoining property. It further appears that the distance between the foundations of\nboth houses is approximately 14.5 feet, only 5.8 feet of which is the property of complainants. It is\nmutually agreed that at the time the parties purchased their respective properties a wooden fence\nseparated the properties along the boundary lines. A few years later this fence was taken down and\nreplaced by a hedge, which although planted by respondent\xe2\x80\x99s husband was a joint venture and Henry\nand Dalton each contributed one half of its cost.\nIt is undisputed that prior to 1938 the respondent and her husband owned a garage in the\nrear of their property, which from time to time was rented to different tenants, one of whom was\nthe complainant William E. Henry. Access to the garage was had over the property of respondent\nbetween her house and the hedge.\nIn 1938 complainant William E. Henry spoke to respondent\xe2\x80\x99s husband about removing the\nhedge from the boundary line and making common use of their respective properties as a driveway.\nHenry explained that he wished to construct a two-car garage at the rear of his property since he and\nhis son each had a car. It is undisputed that William Dalton, husband of respondent, readily gave his\npermission and respondent states in her deposition that her husband advised her of the request and\nof his consent. The hedge was removed and complainants filled in their own strip to bring it up to\ngrade with their neighbors\xe2\x80\x99 land. At the same time the Henrys constructed a two-car garage at the\nrear of their property.\nAlthough there is conflicting testimony as to whether or not thereafter the Daltons were\ncareful to drive only over the strip which constituted their exclusive property, it is undisputed that\nuntil sometime in 1957 the Henrys and the Daltons and their friends used the driveway freely\nwithout incident and relations between the parties were friendly and harmonious. In 1954\nrespondent and her husband placed two posts in the driveway with a chain between them to prevent\nstrangers from backing in and out. It appears that this was done because the Daltons were\nconcerned for the safety of their grandchildren. This measure was taken without consulting the\nHenrys, but complainant William Henry testified that relations remained as friendly as ever.\nIn November 1956 complainants negotiated for the sale of their home in Pawtucket\nintending to purchase a home in the town of Cumberland, which property they had visited with the\nDaltons in June of that year. The complainant husband testified that in June 1956 he told William\n235\n\n\x0cDalton of this intention. He stated that both Mr. and Mrs. Dalton accompanied them on a visit to\nthe Cumberland property and at that time Mr. Dalton assured him that there would be no trouble\nabout the driveway in the sale of the Pawtucket property.\nIt is undisputed that about the second week in November 1956 Mr. Henry called on the\nDaltons and requested that they execute an instrument which would have granted an easement in\nthe driveway, with covenants for each of the parties to maintain one-half thereof and binding on\nthem, their heirs and assigns forever. William Dalton, who at that time was seriously ill and died the\nfollowing January, refused to execute the agreement stating that signing it was out of the question\nand he intended to close the driveway.\nAfter the death of William Dalton in January 1957 relations between complainants and\nrespondent apparently became strained. It appears from the testimony of complainants\xe2\x80\x99 daughter\nDorothy L. Henry that until September 1957 complainants continued to use the driveway despite\nadmitted differences, but in that month she and Mrs. Dalton exchanged words and two days\nthereafter complainants were notified by Mrs. Dalton\xe2\x80\x99s attorney that, unless the wishes of his client\nregarding the use of the driveway were respected, permission for its use by complainants would be\nwithdrawn. It does not appear in the record whether any discussions or conferences were had\nbetween the parties following receipt of this communication, but on December 4, 1957,\ncomplainants brought their bill of complaint.\nThe testimony of complainant William E. Henry was substantially corroborated by that of\nhis wife and their daughter. Because of illness, respondent Jane E. Dalton was unable to testify at the\ntrial, but her testimony was taken by deposition and was substantially corroborated by her son\nRaymond.\nThe parties differed in their testimony in that while the Henrys insisted that they had paid\nfor the crushed stone, that maintenance of the driveway in such things as clearing it of snow was a\njoint venture without regard for boundary lines, and that the Daltons drove their car down the\ncenter, respondent and her son insisted that William Dalton paid for the crushed stone, that each\nfamily removed snow only from their respective portion of the driveway, and that the Daltons drove\nonly on that part of the driveway constituting a part of their land. The trial justice found these\nconflicting statements were not material to the issue and we agree with him.\nThe complainants make no claim that they have acquired an easement by adverse use. They\ncould not prevail on such a theory since it is undisputed that the use originated by permission. Earle\nv. Briggs, 49 R.I. 6, 139 A. 499; Foley v. Lyons, 85 R.I. 86, 125 A.2d 247. However, they contend that a\nlicense even though orally granted becomes irrevocable when the licensee, relying on the parol\nagreement, changes his position by making alterations on his property. They argue that in such\ncircumstances withdrawal of the permission by the licensor would constitute \xe2\x80\x9cfraud\xe2\x80\x9d within the\nmeaning of proceedings in equity.\nThe complainants maintain that when they expended money and labor in bringing the grade\nof their property up to respondent\xe2\x80\x99s property and constructed a garage, ingress and egress to which\ndepended upon the permanence of the license, they had changed their position in reliance upon\ntheir understanding with Mr. Dalton and by implication with respondent, so that the license became\nexecuted and by the rule adopted in some jurisdictions was irrevocable. They rely on a line of cases\napparently beginning with Rerick v. Kern, 14 S. & R. (Pa.) 267.\nIn that case the respondent gave oral permission to the complainant to divert a stream of\nwater and thus permit the complainant to construct a mill which after considerable expense\napparently became very profitable. The Pennsylvania court held that, when the complainant relying\non the respondent\xe2\x80\x99s permission expended money and labor, the license became executed and on the\ntheory of estoppel could not be revoked. That principle has been adopted in some other\njurisdictions, notably Ohio, Maine, New Hampshire, Oregon, Georgia, Minnesota and Indiana. The\n236\n\n\x0ccomplainants have commended for our consideration decisions in the latter four of these\njurisdictions, citing Powers v. Coos Bay Lumber Co., 200 Ore. 329, 263 P.2d 913; Shepard v. Purvine, 196\nOre. 348, 248 P.2d 352; Brantley v. Perry, 120 Ga. 760, 48 S.E. 332; Stoering v. Swanson, 139 Minn. 115,\n165 N.W. 875; Indianapolis & Cincinnati Traction Co. v. Arlington Tel. Co., 47 Ind. App. 657, 95 N.E.\n280.\nThey acknowledge that the authorities are divided on the question, but contend that this\ncourt indicated commendation of their contention in Foster v. Browning, 4 R.I. 47. That was an action\nof trespass for breaking and entering the plaintiff\xe2\x80\x99s close in which the court reversed the trial justice\nfor instructing the jury that if the plaintiff\xe2\x80\x99s predecessor in title had orally licensed a right of way to\nBrowning, and the latter relying on said license had expended moneys in opening and building the\nway, the license thereby became irrevocable. This was an action at law and Ames, C. J., in speaking\nfor this court, stated at page 52: \xe2\x80\x9cIn Maine, New Hampshire, Pennsylvania, and Ohio, and perhaps\nin some other states, the exploded doctrine of some of the earlier English cases is still maintained at\nlaw upon equitable grounds of estoppel, and part-performance of a parol contract, which certainly\nfrom their inherent justice would commend themselves to our attention as a court of law, had we\nnot full powers as a court of equity to do justice in a proper case of this sort when applied to on that\nside of the court.\xe2\x80\x9d\nIt appears from the discussion by Ames, C. J. that the license to Browning, although parol,\nwas to him and his heirs in perpetuity. In the instant case there was no definiteness as to time. We\nare convinced furthermore that the Foster case, as it relates to the case at bar, is authority only for\nthe proposition that a contention such as that made by complainants here has no validity in law and\ncould be advanced for consideration only in equity proceedings. We are persuaded that the rule\ncontended for is in the minority and should not be adopted by this court.\nWe are of the opinion that in reason and justice the better rule is expressed in the case of\nCrosdale v. Lanigan, 129 N.Y. 604, 29 N.E. 824. There the plaintiff was required to remove a wall built\non the property of the defendant pursuant to a license. The court stated the rule at page 610 as\nfollows:\n* a parol license to do an act on the land of the licensor, while it justifies anything done by\nthe licensee before revocation, is, nevertheless, revocable at the option of the licensor, and this,\nalthough the intention was to confer a continuing right and money had been expended by the\nlicensee upon the faith of the license. This is plainly the rule of the statute. It is also, we believe, the\nrule required by public policy. It prevents the burdening of lands with restrictions founded upon oral\nagreements, easily misunderstood. It gives security and certainty to titles, which are most important\nto be preserved against defects and qualifications not founded upon solemn instruments. The\njurisdiction of courts to enforce oral contracts for the sale of land, is clearly defined and well\nunderstood, and is indisputable; but to change what commenced in a license into an irrevocable\nright, on the ground of equitable estoppel, is another and quite different matter. It is far better, we\nthink, that the law requiring interests in land to be evidenced by deed, should be observed, than to\nleave it to the chancellor to construe an executed license as a grant, depending upon what, in his\nview, may be equity in the special case.\nThe complainants call to our attention the case of Weeden v. Babcock, apparently decided in\nthis jurisdiction, and of which some discussion is had by Ames, C. J. in Foster v. Browning, supra. It is\nnot published in our reports and we are unable to discover that it is otherwise reported. In any event\nit would appear that in the Weeden case the complainant yielded up an existing easement in return for\na promise from the respondent that an equally acceptable easement would be substituted for that\nsurrendered by the complainant. No such circumstances are present in the instant case and for\n237\n\n\x0cwhatever authority Weeden v. Babcock may stand, it is not applicable to the case at bar.\nCounsel for the complainants urge that the statute of frauds was conceived and is designed\nto protect against fraud and should not be used to assist in the perpetration of fraud. We are in\naccord with this contention, but are not convinced that in the circumstances of the instant case the\nrespondent\xe2\x80\x99s revocation of the complainants\xe2\x80\x99 license is fraudulent within any acceptable definition\nof that term. The right which complainants seek to establish in the land of the respondent is\nessentially an easement and should be the subject of a grant, expressed in the solemnity of a written\ninstrument. It is no hardship for one in the position of these complainants either to secure an\neasement in perpetuity in the manner provided by the statute, or, such being refused, to weigh the\nadvantages inuring to them as against the uncertainty implicit in the making of expenditures on the\nbasis of a revocable license.\nThe complainants\xe2\x80\x99 appeal is denied and dismissed, the decree appealed from is affirmed, and\nthe cause is remanded to the superior court for further proceedings.\n\n238\n\n\x0cDecker Car Wash, Inc. v. BP Products North America, Inc.,\n649 S.E.2d 317 (Ct. App. Ga. 2007)\n\nW. Dent Acree, Atlanta, for Appellant.\nKarsten Bicknese, Seacrest, Karesn, Tate & Bicknese, Atlanta, for Appellee.\nEllington, Judge.\nThe Superior Court of Fulton County granted the motion for summary judgment filed by\nBP Products North America, Inc. in the action to enforce an easement filed by Decker Car Wash,\nInc. The trial court denied Decker\xe2\x80\x99s cross-motion for summary judgment. Decker appeals,\ncontending that, pursuant to OCGA \xc2\xa7 44-9-4, a parol license to use BP\xe2\x80\x99s property had ripened into\nan easement running with the land in favor of Decker\xe2\x80\x99s property. For the reasons that follow, we\naffirm.\nViewed in the light most favorable to Decker,1 the undisputed evidence showed that Miles F.\nDaly, Sr. bought 2980 Piedmont Road, Atlanta, in 1964 and operated a car dealership there for the\nnext 30 years. When Daly bought the property, Gulf Oil owned and operated a gas station on the\nadjacent property, which was at the corner of Piedmont Road and Pharr Road. Daly deposed,\nwithout contradiction, that\n[s]tarting in approximately 1965, and continuing to 1995, [he] had several verbal\nconversations with the owners and operators of the Gulf Station property[.] \xe2\x80\xa6 In the course of\nthese conversations, [Daly and the owners and operators of the Gulf Station] agreed to maintain a\nmutually beneficial black topped driveway on an area of [Daly\xe2\x80\x99s] property, whereby parties leaving\n[Daly\xe2\x80\x99s] property could use this area for egress to the Gulf Station property for vehicular and\npedestrian traffic, to allow [his] customers to go and purchase gas at the station, and exit through the\nGulf Property to the curb cuts on Pharr Road and to enable such customers to turn left onto Pharr\nRoad or to turn right onto Pharr Road to use the traffic signal at that corner.\nDaly and Gulf Oil constructed a driveway connecting the properties. BP became the owner\nof the gas station in 1985, through a corporate merger, and Daly\xe2\x80\x99s customers continued using the\ndriveway.\nDaly closed the car dealership in 1995. After dividing 2980 Piedmont Road into two\nsubparcels, Daly leased the subparcel adjacent to the gas station to Decker in 2001. Decker built a\nlarge car wash on the property, at great expense, which opened in 2003. In 2004, Decker\xe2\x80\x99s owner,\nFrancis Lynch, learned that BP had decided to replace the store on its property and to reconfigure\nthe parking lot. BP erected a chain barricade across the driveway that connected the BP station and\nDecker\xe2\x80\x99s car wash and later built a solid wall there.\nDecker brought this action seeking a declaratory judgment, a temporary restraining order,\nand damages. After a hearing, the trial court denied Decker\xe2\x80\x99s request for injunctive relief. After a\nsecond hearing to consider the parties\xe2\x80\x99 cross-motions for summary judgment, the trial court granted\nBP\xe2\x80\x99s motion and denied Decker\xe2\x80\x99s motion.\nDecker asserts that, because Daly and Gulf Oil mutually agreed to link their properties with\na driveway and to allow use by the other for ingress and egress and then Daly incurred expenses in\nthe execution of the license, the license ripened into an easement running with the land which\n239\n\n\x0cDecker is entitled to enforce. In the alternative, Decker asserts that in 2003 BP gave Decker a parol\nlicense to use the gas station property for ingress and egress, and similarly that it incurred expenses\nin the execution of the license which ripened into an easement running with the land.\nUnder the Statute of Frauds, an oral agreement conveying an interest in land is\nunenforceable. OCGA \xc2\xa7 13-5-30(4). One limited exception to the Statute of Frauds is set out in\nOCGA \xc2\xa7 44-9-4, as follows:\nA parol license to use another\xe2\x80\x99s land is revocable at any time if its revocation does no harm\nto the person to whom it has been granted. A parol license is not revocable when the licensee has\nacted pursuant thereto and in so doing has incurred expense; in such a case it becomes an easement\nrunning with the land.\nThis executed parol license doctrine is essentially one of estoppel.2 As the Supreme Court of\nGeorgia explained in a case upon which the Code section was based, \xe2\x80\x9cwhere acts have been done by\none party, upon the faith of a license given by another, the [licensor] will be estopped from revoking\nit to the injury of the [licensee], and this even if the exercise of the right given by the license, is of a\nnature to amount to the enjoyment of an easement or other incorporated hereditament.\xe2\x80\x9d Sheffield v.\nCollier, 3 Ga. 82, 87 (1847). A license subject to this exception is one such as permission to erect a\nbuilding or other structure, \xe2\x80\x9cwhich in its own nature seems intended to be permanent and\ncontinuing.\xe2\x80\x9d Id. at 86. In the case of such a license, the licensee would necessarily have to incur\nexpense to execute the agreement and would sustain a resulting loss if the licensor were entitled to\nlater revoke the license. Id.3 When the enjoyment of a license must necessarily be preceded by the\nexpenditure of money, and when the licensee \xe2\x80\x9chas made improvements or invested capital in\nconsequence of it, he has become a purchaser for a valuable consideration.\xe2\x80\x9d Id. at 88.4 This is so\nbecause such a license \xe2\x80\x9cis a direct encouragement to expend money, and it would be against all\nconscience to annul it, as soon as the benefit expected from the expenditure is beginning to be\nperceived.\xe2\x80\x9d (Punctuation omitted.) Id. at 88-89. In other words, where the license has been executed,\n\xe2\x80\x9cin distinction from cases where it is executory only,\xe2\x80\x9d it becomes irrevocable. Id. at 85.5\nAs noted in the Restatement, \xe2\x80\x9c[t]he power to dispense with the Statute [of Fraud]\xe2\x80\x99s\nrequirements to give effect to the intent of the parties [to an oral agreement to create a servitude]\nshould be exercised with caution[,] because of the risk that exceptions will undermine the policies\nunderlying the Statute of Frauds[,]\xe2\x80\x9d and only when necessary to prevent injustice. Restatement of the\nLaw (Third) of Property: Servitudes, \xc2\xa7 2.9(b). Where the execution of a parol license does not\nrequire erecting a structure on the licensor\xe2\x80\x99s land, Georgia courts have generally recognized the\ncreation of an irrevocable easement only where the licensee\xe2\x80\x99s enjoyment of the license is necessarily\npreceded by some investment of funds which increases the value of the licensor\xe2\x80\x99s land to the\nlicensor. Cox v. Zucker, 214 Ga. 44, 51-52(3), 102 S.E.2d 580 (1958) (despite the fact that in reliance\non a license the licensee erected a building that could only be reached by crossing the licensor\xe2\x80\x99s\nproperty, the license was revocable where the licensee did nothing to improve the burdened estate);\nTift v. Golden Hardware Co., 204 Ga. 654, 667-669(6), 51 S.E.2d 435 (1949) (license was revocable\nwhere a hardware company built a warehouse in anticipation of using a spur track across the\nlicensor\xe2\x80\x99s property but did nothing to enhance the value of the spur track on the subservient\nproperty). In these cases, the mere fact that a licensee erects improvements upon his own land in the\nexpectation of enjoying a parol license, and thereby incurs expense, is not enough to make the\nlicense irrevocable under OCGA \xc2\xa7 44-9-4.6\nTo the extent Decker contends a license of ingress and egress granted to Daly ripened into\nan easement that runs with the land, there is no evidence that Daly built any structure or\nimprovement on BP\xe2\x80\x99s land such as would bring it within the cases cited in note 5, supra.\nFurthermore, despite Daly\xe2\x80\x99s expenditures improving his own land in the expectation of enjoying the\nlicense, there is no evidence Daly invested a substantial amount in improving BP\xe2\x80\x99s land. As a result,\n240\n\n\x0cwe conclude that the undisputed evidence established that Daly did not act pursuant to the oral\nlicense of ingress and egress and in so doing incur expense in consequence of the license, as those\nterms are used in OCGA \xc2\xa7 44-9-4. See McCorkle v. Morgan, 268 Ga. 730, 731, 492 S.E.2d 891 (1997)\n(where licensees used a parking lot for six years before incurring any expenses in connection with it,\n\xe2\x80\x9cthe licensee\xe2\x80\x99s enjoyment of the license was not preceded necessarily by the expenditure of money,\xe2\x80\x9d\nand, therefore, the license did not ripen into an easement pursuant to OCGA \xc2\xa7 44-9-4). Before BP\xe2\x80\x99s\npredecessor-in-interest granted Daly the license, Daly operated a car dealership (and later Decker\noperated a car wash) on his property, and ingress and egress was on Piedmont Road. After BP\nrevoked the license, Decker operated the existing car wash, and ingress and egress for Daly\xe2\x80\x99s\nproperty was on Piedmont Road. Because Daly\xe2\x80\x99s parol license to use BP\xe2\x80\x99s land did not ripen into an\neasement pursuant to OCGA \xc2\xa7 44-9-4, it follows that BP was entitled to revoke the license.\nTo the extent Decker contends a license of ingress and egress granted directly to it ripened\ninto an easement, there is no evidence that BP granted Decker any such license. OCGA \xc2\xa7 44-9-4 \xe2\x80\x9cis\noperative only where there is an express oral license; [i]t does not apply to implied licenses[,]\xe2\x80\x9d as may\nbe presumed from the acts of the licensor. Berolzheimer v. Taylor, 230 Ga. 595, 600, 198 S.E.2d 301\n(1973). While there is evidence that Decker\xe2\x80\x99s owner believed and assumed that Decker had\npermission to use the gas station for ingress and egress, there is no evidence that an authorized agent\nof BP ever granted Decker express permission to do so.7 It follows that BP was entitled to terminate\nDecker\xe2\x80\x99s use of the BP\xe2\x80\x99s property. Id.\nBecause no jury issue has been presented regarding whether any parol license to use the gas\nstation property ripened into an easement running with the land, the trial court correctly granted\nBP\xe2\x80\x99s motion for summary judgment.\nJudgment affirmed.\nAndrews, P.J., and Adams J., concur.\nIn order to prevail on a motion for summary judgment under OCGA \xc2\xa7 9-11-56, the moving\nparty must show that there exists no genuine issue of material fact, and that the undisputed facts,\nviewed in the light most favorable to the nonmoving party, demand judgment as a matter of law.\nMoreover, on appeal from the denial or grant of summary judgment the appellate court is to\nconduct a de novo review of the evidence to determine whether there exists a genuine issue of\nmaterial fact, and whether the undisputed facts, viewed in the light most favorable to the nonmoving\nparty, warrant judgment as a matter of law. (Citations and punctuation omitted.) Benton v. Benton, 280\nGa. 468, 470, 629 S.E.2d 204 (2006). \xe2\x86\xa9\nSee Cherokee Mills v. Standard Cotton Mills, 138 Ga. 856, 859-860(1), (2), 76 S.E. 373 (1912)\n(where one mill company granted another company a license to use a spur railroad track that crossed\nlicensor\xe2\x80\x99s property, and in reliance thereon the licensee built a mill on its own property at great\nexpense and thereby executed the license, the license ripened into an easement appurtenant to the\nland). See also, Restatement of the Law (Third) of Property: Servitudes, \xc2\xa7 2.9 (2000 ed.); Herbert T.\nTiffany and Basil Jones, 3 Tiffany Real Prop. \xc2\xa7 834 (Revocability of license Effect of improvements\nby licensee) (1939). \xe2\x86\xa9\nAs examples of licenses not subject to this exception, on the other hand, the Court noted\n\xe2\x80\x9cacts which consist in repetition, as to walk in a park, to use a carriage-way, to fish in the waters of\nanother, or the like; which license, if countermanded, the party is but in the same situation he was\nbefore it was granted.\xe2\x80\x9d Sheffield v. Collier, 3 Ga. at 86. See also Strozzo v. Coffee Bluff Marina Property, 250\nGa.App. 212, 215-216(2), 550 S.E.2d 122 (2001) (where the licensor expressly permitted the licensee\nto erect a gear shack on her riverfront property and to conduct its marine rescue operations from\nthere, and licensee built the gear shack and thereby executed the license, which was \xe2\x80\x9ca license to\nconstruct something permanent and enduring attended with expense\xe2\x80\x9d and \xe2\x80\x9cnot a mere license to\n241\n\n\x0cwalk in a park, to use a roadway, to fish in the waters of another, or the like,\xe2\x80\x9d the license ripened\ninto an easement). \xe2\x86\xa9\nSee also McCorkle v. Morgan, 268 Ga. 730, 731, 492 S.E.2d 891 (1997) (OCGA \xc2\xa7 44-9-4 \xe2\x80\x9cis\nbased on the principle that a license becomes an agreement for a valuable consideration, and the\nlicensee a purchaser for value, where the enjoyment of the license must necessarily be preceded by\nthe expenditure of money\xe2\x80\x9d) (citations and emphasis omitted). \xe2\x86\xa9\nSee also Bell Indus. v. Jones, 220 Ga. 684, 686-688, 141 S.E.2d 533 (1965) (where a licensor\ngranted a licensee permission to install a pipe on the licensor\xe2\x80\x99s land and to use it to dispose of its\nindustrial waste water on the licensor\xe2\x80\x99s land, and the licensee expended money to install the pipe and\nthereby executed the license, the license ripened into an easement running with the land); Mathis v.\nHolcomb, 215 Ga. 488, 488-490(1), 111 S.E.2d 50 (1959) (where a licensor granted a licensee\npermission to build a private way on the licensor\xe2\x80\x99s land and to use it to pass from a public road to\nthe licensee\xe2\x80\x99s back yard, and the licensee expended money to build the driveway and thereby\nexecuted the license, the license ripened into an easement running with the land); Brantley v. Perry,\n120 Ga. 760, 761-762, 48 S.E. 332 (1904) (where a licensor granted a licensee permission to\nconstruct a ditch on the licensor\xe2\x80\x99s land and to use it to drain the licensee\xe2\x80\x99s land, and the licensee\nexpended money to construct the ditch and thereby executed the license, the license ripened into an\nirrevocable easement); Southwestern R. v. Mitchell, 69 Ga. 114, 122-125(2) (1882) (where a licensor\ngranted a licensee permission to erect a part of a mill dam on the licensor\xe2\x80\x99s land and to overflow a\npart of that land, and the licensee expended money to build the dam and thereby executed the\nlicense, the license became irrevocable); Lowe\xe2\x80\x99s Home Centers v. Garrison Ridge Shopping Center, 283\nGa.App. 854, 855-856, 643 S.E.2d 288 (2007) (where a licensor granted a licensee permission to\ninstall a sign on the licensor\xe2\x80\x99s property, and the licensee expended money to install the sign and\nthereby executed the license, the license ripened into an easement running with the land); Hopkins v.\nVirginia Highland Assoc., 247 Ga.App. 243, 244-245(1), 541 S.E.2d 386 (2000) (where a licensor\ngranted a licensee permission to install a sewer line across the licensor\xe2\x80\x99s property and to use it to\nconnect with the municipal water system, and the licensee expended money to install the sewer line\nand thereby executed the license, the license ripened into an easement running with the land). \xe2\x86\xa9\nSee also Dolvin v. Caldwell, 214 Ga. 687, 689-690(2), 107 S.E.2d 199 (1959) (approving this\njury instruction: \xe2\x80\x9c[I]n cases where a person claims that he has an irrevocable parol license to use\nlands of another, the person claiming such right must show that he has invested some substantial\namount in exercising the license on the land effected thereby, and expenditures made in connection\nwith improvements on adjacent land of the one claiming the license are not to be considered as such\nexpense as will prevent the revocation of such license, even though these improvements were made\nwith the expectation of being able to continue using the license.\xe2\x80\x9d); Miller v. Slater, 182 Ga. 552, 558559(2), 186 S.E. 413 (1936) (license to use a neighbor\xe2\x80\x99s driveway was revocable, even though the\nplaintiff built a garage \xe2\x80\x9cso near to the driveway that it is impossible for her to drive a car in or out of\nthe garage without at the same time using the way\xe2\x80\x9d on the licensor\xe2\x80\x99s property, based on the\nfollowing factors: the driveway was already intact and suitable for use and there was no necessity for\nthe licensee to incur any expense in passing over the driveway or in putting it in condition for such\nuse; the improvements the licensee made were on her own property \xe2\x80\x9cin the expectation of enjoying\nthe license\xe2\x80\x9d and \xe2\x80\x9cdid not enhance the value of the driveway in the slightest degree so far as the\nlicensor was concerned\xe2\x80\x9d; there was nothing to show that the \xe2\x80\x9clocation of the garage was actually\nnecessary to the enjoyment of the license or that a different and equally suitable location could not\nhave been selected\xe2\x80\x9d; and the licensee did not part with anything amounting to a consideration, in\nthat she had surrendered no right and still had her lot and all of the improvements made thereon);\nBlake v. RGL Assoc., 267 Ga.App. 709, 710(1), 600 S.E.2d 765 (2004) (where a licensor granted a\n242\n\n\x0cparol license to cross the licensor\xe2\x80\x99s property to access an adjacent highway and the licensee incurred\nexpenses in making necessary improvements both to its property and to the licensor\xe2\x80\x99s property, the\nlicense ripened into an easement). \xe2\x86\xa9\nDecker\xe2\x80\x99s owner deposed that, before leasing the subparcel from Daly, he \xe2\x80\x9csaw that cars\nwere exiting onto [Pharr Road] \xe2\x80\x93 it was defacto an exit, so [he] imagined that that was something\nyou could do.\xe2\x80\x9d Use of the driveway connecting the parcels \xe2\x80\x9cdidn\xe2\x80\x99t need to be discussed because it\nwas defacto, a fact. There was no need\xe2\x80\xa6 . Everybody knew \xe2\x80\xa6 that the cars were going in both\ndirections through this\xe2\x80\x9d driveway. Decker\xe2\x80\x99s owner further deposed that a man he \xe2\x80\x9ctook to \xe2\x80\xa6 be\xe2\x80\x9d a\nBP manager told him that BP\xe2\x80\x99s business had increased as a result of the opening of Decker\xe2\x80\x99s car\nwash and that someone a Decker employee \xe2\x80\x9cbelieved to be like an area manager type person\xe2\x80\x9d\nreportedly \xe2\x80\x9cdiscussed the beneficial effects of the [car wash] patrons going to purchase gas at the BP\npumps.\xe2\x80\x9d Pretermitting whether these statements were admissible, they do not amount to an express\nlicense to use BP\xe2\x80\x99s property. \xe2\x86\xa9\n\n243\n\n\x0c5.2. Easements by Implication\nVan Sandt v. Royster,\n148 Kan. 495 (1938)\n\nGuy Lamer and DeWitt M. Stiles, both of Iola, for appellant.\nT. R. Evans, B. M. Dunham, and James A. Allen, all of Chanute, for appellees.\nAllen, Justice.\nThe action was brought to enjoin defendants from using and maintaining an underground\nlateral sewer drain through and across plaintiff\xe2\x80\x99s land. The case was tried by the court, judgment was\nrendered in favor of defendants, and plaintiff appeals.\nIn the city of Chanute, Highland avenue running north and south intersects Tenth street\nrunning east and west. In the early part of 1904 Laura A. J. Bailey was the owner of a plot of ground\nlying east of Highland avenue and south of Tenth street. Running east from Highland avenue and\nfacing north on Tenth street the lots are numbered, respectively, 19, 20 and 4. In 1904 the residence\nof Mrs. Bailey was on lot 4 on the east part of her land.\nIn the latter part of 1903, or the early part of 1904, the city of Chanute constructed a public\nsewer in Highland avenue, west of lot 19. About the same time a private lateral drain was\nconstructed from the Bailey residence on lot 4 running in a westerly direction through and across\nlots 20 and 19 to the public sewer.\nOn January 15, 1904, Laura A. J. Bailey conveyed lot 19 to John J. Jones, by general warranty\ndeed with usual covenants against encumbrances, and containing no exceptions or reservations.\nJones erected a dwelling on the north part of the lot. In 1920 Jones conveyed the north 156 feet of\nlot 19 to Carl D. Reynolds; in 1924 Reynolds conveyed to the plaintiff, who has owned and\noccupied the premises since that time.\nIn 1904 Laura A. J. Bailey conveyed lot 20 to one Murphy, who built a house thereon and by\nmesne conveyances the title passed to the defendant Louise Royster. The deed to Murphy was a\ngeneral warranty deed without exceptions or reservations. The defendant Gray has succeeded to the\ntitle to lot 4 upon which the old Bailey home stood at the time Laura A. J. Bailey sold lots 19 and 20.\nIn March, 1936, plaintiff discovered his basement flooded with sewage and filth to a depth\nof six or eight inches, and upon investigation he found for the first time that there existed on and\nacross his property a sewer drain extending in an easterly direction across the property of Royster to\nthe property of Gray. The refusal of defendants to cease draining and discharging their sewage\nacross plaintiff\xe2\x80\x99s land resulted in this lawsuit.\nThe trial court returned findings of fact, from which we quote:\nThe plaintiff and the defendants Louise Royster and Lael Bailey Gray are the present\nowners, respectively, of properties adjoining one another in Bailey\xe2\x80\x99s Addition to the City of Chanute,\nKansas, on each of which properties there is a residence, the plaintiff being the owner of Lot 19, the\ndefendant Louise Royster being the owner of part of Lot 20, and the defendant Lael Bailey Gray\nbeing the owner of Lot 4, part of original Lot 9 in Block 3, in said Addition. All of said properties\nfront to the north on Tenth Street. Plaintiff\xe2\x80\x99s property is farthest west. Immediately adjoining it on\n244\n\n\x0cthe east is the Royster property and immediately adjoining the Royster property on the east is the\nGray property. Immediately adjoining plaintiff\xe2\x80\x99s property on the west is Highland Avenue, a public\nstreet.\n2. Laura A. J. Bailey was originally the owner of all the above described properties and other\nland adjacent thereto and prior to the summer of 1904 the only residence or dwelling house on any\nof said properties was the house on the property fartherest east, namely Lot 4, being the property\nnow owned by Gray.\n3. On January 15, 1904, Laura A. J. Bailey sold to John J. Jones said Lot 19 (and other land)\nand conveyed same to him by general warranty deed, and with usual covenants against\nencumbrances, and containing no exceptions or reservations whatsoever. The deed was duly\nrecorded. John Jones erected a dwelling house on the north 156 feet of Lot 19. On January 12, 1920,\nJohn Jones conveyed the north 156 feet of Lot 19 to Carl D. Reynolds by general warranty deed\ncontaining usual covenants against encumbrances, and containing no exceptions or reservations\nwhatsoever, but also included the \xe2\x80\x9cappurtenances thereunto belonging,\xe2\x80\x9d etc. This deed was duly\nrecorded. On November 7, 1934, Carl D. Reynolds conveyed said last described property to plaintiff\nby general warranty deed with usual covenants against encumbrances excepting only a mortgage\nthereon, but also including the \xe2\x80\x9cappurtenances thereunto belonging,\xe2\x80\x9d etc. Plaintiff has owned and\noccupied said property ever since.\n4. On April 14, 1904, Laura A. J. Bailey conveyed part of Lot 20 to W. P. Murphy who\nerected a dwelling house on the lot and later sold that property to W. E. Royster, conveying the\nsame by general warranty deed without reservation but including the \xe2\x80\x98appurtenances thereunto\nbelonging,\xe2\x80\x99 etc., and from said W. E. Royster the property passed to the defendant Louise Royster.\n5. The defendant Lael Bailey Gray has succeeded to the title to Lot 4 upon which the old\nBailey house stood at the time Laura Bailey sold the other lots.\n6. In the latter part of the year 1903 or the early part of 1904 the City of Chanute extended\nits public sewer system and constructed a public sewer running north and south in Highland Avenue\nimmediately west of Lot 19 above mentioned. When this public sewer was constructed a private\nsewer was laid from the old Bailey house on Lot 4 in a general westerly direction across Lots 20 and\n19 to the public sewer in Highland Avenue and the old Bailey house was connected through this\nprivate sewer to the public sewer. When the houses were erected on Lot 19 and Lot 20 respectively,\nthese houses were connected with this private sewer, and the same has been in continuous use for all\nof said properties ever since.\n7. At the time Laura A. J. Bailey sold Lot 19 to Jones she owned Lot 18 which lies south of\nLots 19 and 20, extends in an east and west direction from the west boundary of Lot 4 (or original\nLot 9) near the southwest corner thereof to Highland Avenue. The east boundary of Lot 18 is\ncontiguous with the west boundary of original Lot 9 for a distance of at least 20 feet north from the\nsouthwest corner of said Lot 9. Lot 18 was not sold by Mrs. Bailey until November, 1905.\n8. There is not now and was not at the time plaintiff purchased his property anything on\nrecord in the office of the Register of Deeds of the county pertaining to the private sewer above\nreferred to.\n9. At the time plaintiff purchased his property he and his wife made a careful and thorough\ninspection of the same, knew that the house they were buying was equipped with modern plumbing\nand knew that the plumbing had to drain into a sewer, but otherwise had no further knowledge of\nthe existence of said lateral sewer.\n10. That the lateral sewer in controversy was installed prior to the sale of the property by\nMrs. Laura A. J. Bailey to John J. Jones on January 15, 1904; but if not, the said lateral sewer\ncertainly was installed shortly after the sale to John J. Jones and with the knowledge and\nacquiescence of said John J. Jones, and that the said John J. Jones paid the said Mrs. Laura A. J.\n245\n\n\x0cBailey one-third of the cost of the installation of the said sewer.\n11. That all of the original owners of the three properties in controversy, to-wit, Laura A. J.\nBailey, John J. Jones and W. P. Murphy, had notice and knowledge of the existence of the lateral\nsewer in controversy, and all acquiesced in the use of the sewer by all parties, and the use of the\nsewer by the said parties and their successors in interest has been continuous from the time of its\ninstallation to the present time-a period of more than 33 years-and has been a mutual enterprise and\nthe said lateral sewer was an appurtenance to the properties belonging to plaintiff and Louise\nRoyster, and the same is necessary to the reasonable use and enjoyment of the said properties of the\nparties.\nThe drain pipe in the lateral sewer was several feet under the surface of the ground. There\nwas nothing visible on the ground in the rear of the houses to indicate the existence of the drain or\nthe connection of the drain with the houses.\nAs a conclusion of law the court found that \xe2\x80\x9can appurtenant easement existed in the said\nlateral sewer as to all three of the properties involved in the controversy here.\xe2\x80\x9d Plaintiff\xe2\x80\x99s prayer for\nrelief was denied and it was decreed that plaintiff be restrained from interfering in any way with the\nlateral drain or sewer.\nPlaintiff contends that the evidence fails to show that an easement was ever created in his\nland, and assuming there was an easement created, as alleged, that he took the premises free from\nthe burden of the easement for the reason that he was a bona fide purchaser, without notice actual\nor constructive.\nDefendants contend: (1) That an easement was created by implied reservation on the\nseverance of the servient from the dominant estate of the deed from Mrs. Bailey to Jones; (2) there\nis a valid easement by prescription.\nIn finding No. 11, the court found that the lateral sewer \xe2\x80\x9cwas an appurtenance to the\nproperties belonging to plaintiff and Louise Royster, and the same is necessary to the reasonable use\nand enjoyment of the said properties of the parties.\xe2\x80\x9d\nAs an easement is an interest which a person has in land in the possession of another, it\nnecessarily follows that an owner cannot have an easement in his own land. Johnston v. City of\nKingman, 141 Kan. 131, 39 P.2d 924, 98 A.L.R. 588; Ferguson v. Ferguson, 106 Kan. 823, 189 P. 925.\nHowever, an owner may make use of one part of his land for the benefit of another part,\nand this is frequently spoken of as a quasi easement. \xe2\x80\x9cWhen one thus utilizes part of his land for the\nbenefit of another part, it is frequently said that a quasi easement exists, and the part of the land\nwhich is benefited being referred to as the \xe2\x80\x98quasi dominant tenement\xe2\x80\x99 and the part which is utilized\nfor the benefit of the other part being referred to as the \xe2\x80\x98quasi servient tenement.\xe2\x80\x99 The so called\nquasi easement is evidently not a legal relation in any sense, but the expression is a convenient one\nto describe the particular mode in which the owner utilizes one part of the land for the benefit of\nthe other.\n\xe2\x80\x9cIf the owner of land, one part of which is subject to a quasi easement in favor of another\npart, conveys the quasi dominant tenement, an easement corresponding to such quasi easement is\nordinarily regarded as thereby vested in the grantee of the land, provided, it is said, the quasi\neasement is of an apparent continuous and necessary character.\xe2\x80\x9d 2 Tiffany, Real Property (2d Ed.) pp.\n1272, 1273.\nFollowing the famous case of Pyer v. Carter, 1 Hurl. & N. 916, some of the English cases, and\nmany early American cases, held that upon the transfer of the quasi servient tenement there was an\nimplied reservation of an easement in favor of the conveyor. Under the doctrine of Pyer v. Carter, no\ndistinction was made between an implied reservation and an implied grant.\n246\n\n\x0cThe case, however, was overthrown in England by Suffield v. Brown, 4 De G.J. & S. 185, and\nWheeldon v. Burrows, L.R. 12 Ch.D. 31. In the former case the court said:\nIt seems to me more reasonable and just to hold that if the grantor intends to reserve any\nright over the property granted, it is his duty to reserve it expressly in the grant, rather than to limit\nand cut down the operation of a plain grant (which is not pretended to be otherwise than in\nconformity with the contract between the parties), by the fiction of an implied reservation. If this\nplain rule be adhered to, men will know what they have to trust, and will place confidence in the\nlanguage of their contracts and assurances.\n*\nBut I cannot agree that the grantor can derogate from his own absolute grant so as to claim\nrights over the thing granted, even if they were at the time of the grant continuous and apparent\neasements enjoyed by an adjoining tenement which remains the property of him the grantor.\nMany American courts of high standing assert that the rule regarding implied grants and\nimplied reservations is reciprocal and that the rule applies with equal force and in like circumstances\nto both grants and reservations. Washburn on Easements, 4th Ed., 75; Miller v. Skaggs, 79 W.Va. 645, 91\nS.E. 536, Ann.Cas.1918 D, 929.\nOn the other hand perhaps a majority of the cases hold that in order to establish an\neasement by implied reservation in favor of the grantor the easement must be one of strict necessity,\neven when there was an existing drain or sewer at the time of the severance.\nThus in Howley v. Chaffee et al., 88 Vt. 468, 474, 93 A. 120, 122, L.R.A.1915D, 1010, the court\nsaid:\nWith the character and extent of implied grants, we now have nothing to do. We are here\nonly concerned with determining the circumstances which will give rise to an implied reservation.\nOn this precise question the authorities are in conflict. Courts of high standing assert that the rule\nregarding implied grants and implied reservation of \xe2\x80\x9cvisible servitudes\xe2\x80\x9d is reciprocal, and that it\napplies with equal force and in like circumstances to both grants and reservations. But upon a\ncareful consideration of the whole subject, studied in the light of the many cases in which it is\ndiscussed, we are convinced that there is a clear distinction between implied grants and implied\nreservations, and that this distinction is well founded in principle and well supported by authority. It\nis apparent that no question of public policy is here involved, as we have seen is the case where a\nway of necessity is involved. To say that a grantor reserves to himself something out of the property\ngranted, wholly by implication, not only offends the rule that one shall not derogate from his own\ngrant, but conflicts with the grantor\xe2\x80\x99s language in the conveyance, which by the rule is to be taken\nagainst him, and is wholly inconsistent with the theory on which our registry laws are based. If such\nan illogical result is to follow an absolute grant, it must be by virtue of some legal rule of compelling\nforce. The correct rule is, we think, that where, as here, one grants a parcel of land by metes and\nbounds, by a deed containing full covenants of warranty and without any express reservation, there\ncan be no reservation by implication, unless the easement claimed is one of \xe2\x80\x9cstrict necessity,\xe2\x80\x9d within\nthe meaning of that term as explained in Dee v. King, 73 Vt. 375, 50 A. 1109.\nSee, also, Brown v. Fuller, 165 Mich. 162, 130 N.W. 621, 33 L.R.A.,N.S., 459, Ann.Cas.1912C,\n853. The cases are collected in 58 A.L.R. 837.\nWe are inclined to the view that the circumstance that the claimant of the easement is the\ngrantor instead of the grantee, is but one of many factors to be considered in determining whether\nan easement will arise by implication. An easement created by implication arises as an inference of\nthe intentions of the parties to a conveyance of land. The inference is drawn from the circumstances\nunder which the conveyance was made rather than from the language of the conveyance. The\n247\n\n\x0ceasement may arise in favor of the conveyor or the conveyee. In the Restatement of Property,\nTentative draft No. 8, Section 28, the factors determining the implication of an easement are stated:\nSec. 28. Factors Determining Implication of Easements or Profits.\nIn determining whether the circumstances under which a conveyance of land is made imply\nan easement or a profit, the following factors are important: (a) whether the claimant is the conveyor\nor the conveyee, (b) the terms of the conveyance, (c) the consideration given for it, (d) whether the\nclaim is made against a simultaneous conveyee, (e) the extent of necessity of the easement or the\nprofit to the claimant, (f) whether reciprocal benefits result to the conveyor and the conveyee, (g)\nthe manner in which the land was used prior to its conveyance, and (h) the extent to which the\nmanner of prior use was or might have been known to the parties.\nComment (j) under the same Section, reads:\nThe extent to which the manner of prior use was or might have been known to the parties.\nThe effect of the prior use as a circumstance in implying, upon a severance of possession by\nconveyance, an easement or a profit results from an inference as to the intention of the parties. To\ndraw such an inference, the prior use must have been known to the parties at the time of the\nconveyance, or, at least, have been within the possibility of their knowledge at the time. Each party\nto a conveyance is bound not merely to what he intended, but also to what he might reasonably have\nforeseen the other party to the conveyance expected. Parties to a conveyance may, therefore, be\nassumed to intend the continuance of uses known to them which are in a considerable degree\nnecessary to the continued usefulness of the land. Also they will be assumed to know and to\ncontemplate the continuance of reasonably necessary uses which have so altered the premises as to\nmake them apparent upon reasonably prudent investigation. The degree of necessity required to\nimply an easement in favor of the conveyor is greater than that required in the case of the conveyee\n(see Comment b). Yet, even in the case of the conveyor, the implication from necessity will be aided\nby a previous use made apparent by the physical adaptation of the premises to it.\nIllustrations:\n9. A is the owner of two adjacent tracts of land, Blackacre and Whiteacre. Blackacre has on it\na dwelling house. Whiteacre is unimproved. Drainage from the house to a public sewer is across\nWhiteacre. This fact is unknown to A who purchased the two tracts with the house already built. By\nreasonable effort, A might discover the manner of drainage and the location of the drain. A sells\nBlackacre to B who has been informed as to the manner of drainage and the location of the drain\nand assumes that A is aware of it. There is created by implication an easement of drainage in favor\nof B across Whiteacre.\n10. Same facts as in Illustration 9, except that both A and B are unaware of the manner of\ndrainage and the location of the drain. However, each had reasonable opportunity to learn of such\nfacts. A holding that there is created by implication an easement of drainage in favor of B across\nWhiteacre is proper.\nAt the time John J. Jones purchased lot 19 he was aware of the lateral sewer, and knew that it\nwas installed for the benefit of the lots owned by Mrs. Bailey, the common owner. The easement\nwas necessary to the comfortable enjoyment of the grantor\xe2\x80\x99s property. If land may be used without\nan easement, but cannot be used without disproportionate effort and expense, an easement may still\nbe implied in favor of either the grantor or grantee on the basis of necessity alone. This is the\nsituation as found by the trial court.\nNeither can it be claimed that plaintiff purchased without notice. At the time plaintiff\npurchased the property he and his wife made a careful and thorough inspection of the property.\nThey knew the house was equipped with modern plumbing and that the plumbing had to drain into\n248\n\n\x0ca sewer. Under the facts as found by the court, we think the purchaser was charged with notice of\nthe lateral sewer. It was an apparent easement as that term is used in the books. Wiesel v. Smira, 49\nR.I. 246, 142 A. 148, 58 A.L.R. 818; 19 C.J. 868.\nThe author of the annotation on easements by implication in 58 A.L.R. at page 832, states\nthe rule as follows: \xe2\x80\x9cWhile there is some conflict of authority as to whether existing drains, pipes,\nand sewers may be properly characterized as apparent, within the rule as to apparent or visible\neasements, the majority of the cases which have considered the question have taken the view that\nappearance and visibility are not synonymous, and that the fact that the pipe, sewer, or drain may be\nhidden underground does not negative its character as an apparent condition; at least, where the\nappliances connected with and leading to it are obvious.\xe2\x80\x9d\nAs we are clear that an easement by implication was created under the facts as found by the\ntrial court, it is unnecessary to discuss the question of prescription.\nThe judgment is affirmed.\nHarvey, J., concurs in the order of affirmance, but not in all that is said in the opinion.\nWedell, J., not sitting.\n\n249\n\n\x0c5.3. Easements by Necessity\nPierce v. Wise,\n639 S.E.2d 348 (Ga. Ct. App. 2006)\n\nGreer, Klosik, Daugherty, Swank & McCune, Frank J. Klosik, Jr., Alina A. Krivitsky,\nAtlanta, for appellant.\nCharles D. Joyner, Buford, for appellees.\nPhipps, Judge.\n\xe2\x80\xa6.\nPierce owns a triangular 0.40-acre parcel of property located in Lot 31 of Lawson Manor\nSubdivision. He bought the property for $10,000 in 2000. The adjacent Lots 30 and 32 are owned by\nWise and Hopeful, respectively. According to Pierce, the tip of his triangular parcel touches the\nadjacent public roadway, Lawson Drive, at a point so narrow that it does not permit him to access\nthe roadway without traversing either Wise\xe2\x80\x99s property on the one side or Hopeful\xe2\x80\x99s property on the\nother. According to Pierce, the base of the triangle gives him approximately \xe2\x80\x9c100 foot coverage of\nwaterfront on Lake Lanier.\xe2\x80\x9d\nFollowing his purchase, the United States Army Corps of Engineers allowed Pierce to build\na boat dock in Lake Lanier, thereby giving Pierce access to his property via the waterway. In\naddition, Wise orally gave Pierce permission to cross over Wise\xe2\x80\x99s Lot 30 to gain access to Pierce\xe2\x80\x99s\nLot 31 via Lawson Drive. Subsequently, however, Wise and Hopeful sent Pierce letters instructing\nhim to cease and desist from gaining access to his property from Lawson Drive over their\nproperties.\nEvidence was presented showing that Pierce currently accesses his property by land by\nparking at the end of Lawson Drive and walking about 650 to 700 feet along the shore of Lake\nLanier through Army Corps of Engineers property down a path that is between four and ten feet\nwide depending on the height of the lake water. As a member of the public, Pierce may use this\npathway and remove minor landscaping insofar as that obstructs his ability to traverse the pathway\nby foot. But he cannot construct improvements to the pathway to provide vehicular access.\nEvidence sought to be admitted by Pierce showed that Wise\xe2\x80\x99s ex-wife\xe2\x80\x99s mother acquired\nownership of Lots 30, 31, and 32 in 1986; that she had the property surveyed in 1993; and that Lot\n30 (which had been a rectangular lot with adequate access to Lawson Drive) became a triangularshaped lot with no usable road frontage only as a result of an error in the survey. Hopeful, through\nits owner Newt Anderson, subsequently acquired Lot 32 as a real estate investment in foreclosure\nproceedings. After purchasing the property, Anderson discovered that Lot 32 included property that\nhe thought would have been in Lot 31. Wise acquired Lot 30 from his ex-wife. For over 25 years, he\nhad used the property as a lake house and then as his primary residence.\n1. Pierce first contends that the trial court erred in denying his pretrial motion for partial\nsummary judgment, as well as his motion for directed verdict at the conclusion of the presentation\n250\n\n\x0cof evidence at trial, on the question of necessity for the private way.\nOCGA \xc2\xa7 44-9-40(b) permits any person or corporation who owns real estate in this state to\nfile a petition in the superior court of the county having jurisdiction praying for a judgment\ncondemning an easement of access, ingress, and egress over and across the property of another. To\nprove the necessity of such a private way, OCGA \xc2\xa7 44-9-40(b) requires the petitioner or condemnor\nto show he has no other reasonable means of access to his property, i.e., that he is landlocked.1\nOCGA \xc2\xa7 44-9-40(b) additionally authorizes the court to find that the condemnation and declaration\nof necessity constitute an abuse of discretion and to enjoin the proceeding based on a finding that\nthe exercise of such right of condemnation by the condemnor is \xe2\x80\x9cotherwise unreasonable.\xe2\x80\x9d2\nIntl. Paper Realty Corp. v. Miller3 addressed the issue of whether, under the statute, navigable\nwaters alone may afford a person \xe2\x80\x9creasonable\xe2\x80\x9d access to his property. Miller held that in this day and\nage, a navigable stream is seldom considered a reasonable way to travel to and from one\xe2\x80\x99s property.\nAccordingly, Miller decided to treat property to which there is no access other than by navigable\nwaterway as property to which there is presumptively no reasonable means of access for purposes of\nproving necessity under OCGA \xc2\xa7 44-9-40(b).\nThus where the condemnor establishes that the only access to his property is by way of\nnavigable waters, he has established a prima facie case that he has no reasonable means of access\nunder OCGA \xc2\xa7 44-9-40(b). The burden then shifts to the condemnee to go forward with the\nevidence and demonstrate that access to the navigable waters constitutes a reasonable means of\naccess under the peculiar circumstances of the case.4\nMersac, Inc. v. Nat. Hills Condo. Assn.5 held that where a property owner landlocks himself\nvoluntarily or as a result of negligence in selling off surrounding property and failing to reserve an\neasement, condemnation of a private way of necessity over lands of another may be found to be\n\xe2\x80\x9cotherwise unreasonable\xe2\x80\x9d under OCGA \xc2\xa7 44-9-40(b). Blount v. Chambers6 found declaration of a\nprivate way unreasonable where the petitioners had other, albeit more inconvenient, means of access\nto their property and condemnation of the private way would have greatly inconvenienced the\ncondemnees.\nClearly, Pierce has no vehicular access to his property; his pedestrian access by land either is\nextremely cumbersome and inconvenient via the Lake Lanier shoreline or is limited to no more than\na two-foot gap between his lot and one of the adjacent lots along Lawson Drive; and his only\nremaining access is by the navigable waters of Lake Lanier. Unlike the petitioner in Mersac, Pierce did\nnot landlock himself either voluntarily or negligently by failing to reserve an easement. Property\nowners\xe2\x80\x99 \xe2\x80\x9cactions in voluntarily creating their hardship are distinguishable from cases [such as this]\nwherein the landowner purchases property with knowledge that it is landlocked. In such a case, the\npurchaser\xe2\x80\x99s knowledge does not preclude a finding of \xe2\x80\x98strict necessity.\xe2\x80\x99 \xe2\x80\xa6\xe2\x80\x9d7 The law of this state\ngives a property owner the right to condemn an easement over his neighbors\xe2\x80\x99 property if he needs\nthat land as a means of ingress and egress to his property and if condemnation of the easement\nwould not unreasonably inconvenience them. Unquestionably, Pierce needs the easement to provide\nvehicular access to his property. And, unlike in Blount, no undue inconvenience to the condemnees\nappears. In fact, evidence proffered by Pierce shows that all three lots were previously rectangularly\nshaped, but became irregularly reconfigured so as to deny his tract adequate access to Lawson Drive\nonly as a result of a surveying error. Grant of the private way would simply restore his property\xe2\x80\x99s\nprior access. The trial court thus erred in denying Pierce\xe2\x80\x99s motions for partial summary judgment\nand directed verdict.\n\xe2\x80\xa6.\nIntl. Paper Realty Corp. v. Miller, 255 Ga. 676, 677, 341 S.E.2d 445 (1986). \xe2\x86\xa9\nMersac, Inc. v. Nat. Hills Condo. Assn., 267 Ga. 493, 494(1), 480 S.E.2d 16 (1997); see Blount v.\n251\n\n\x0cChambers, 257 Ga.App. 663, 572 S.E.2d 32 (2002). \xe2\x86\xa9\nSupra. \xe2\x86\xa9\n255 Ga. at 677-678, 341 S.E.2d 445. \xe2\x86\xa9\nSupra. \xe2\x86\xa9\nSupra. \xe2\x86\xa9\nGraff v. Scanlan, 673 A.2d 1028, 1035, n. 12 (Pa.Commw.Ct.1996) (citation omitted). \xe2\x86\xa9\n\n252\n\n\x0c5.4. Scope and Overburdening\nCox v. Glenbrook Company,\n371 P.2d 647 (Nev. 1962)\n\nBible, McDonald & Jensen and Donald L. Carano, Reno, for appellants.\nLaxalt & Laxalt, Carson City, for respondent.\nThompson, Justice.\nIn this case Glenbrook Company, a family corporation, by complaint, and Cox and Detrick,\ncopartners, by answer and counterclaim, each request a declaratory judgment as to the scope and\nextent of a certain right-of-way berein referred to as the \xe2\x80\x98Quill Easement,\xe2\x80\x99 granted Henry Quill by\nthe Glenbrook Company in 1938. The conveying instrument reads:\nThat said grantor, in consideration of the sum of ten dollars ($10.00), lawful money of the\nUnited States of America, to it in hand paid by the grantee, receipt whereof is hereby acknowledged,\ndoes by these presents grant, bargain, sell and convey to the said grantee an easement and right-ofway, with full right of use over the roads of the grantor as now located or as they may be located\nhereafter (but such relocation to be entirely at the expense of the grantor) from the State Highway\nknown as U. S. Route 50 to the following described property: [description of Quill property]\nTo have and to hold said right-of-way and easement unto the said grantee, his heirs and\nassigns forever.\n1. The Facts.\nThe relevant facts are not disputed. The Quill property contains 80 acres. Henry Quill died\nin 1943. In 1945 the administratrix of his estate sold the property, with appurtenances, to Kenneth\nF. Johnson for $8,600. In 1960 Johnson sold the property to Cox and Detrick for $250,000, $50,000\ndown, with the balance secured by trust deed and payable over an extended period.\nCox and Detrick propose to subdivide their property into parcels of one acre or more,\nresulting in a minimum of 40 or a maximum of 60 separate parcels.1 The building on each parcel is\nto be limited to a residence and a guesthouse. Permanent, as distinguished from seasonal, homes are\nplanned. A commercial development of the property is not contemplated. Zoning will permit the\nproposed development. Cox and Detrick have incurred expenses of about $17,000 in preliminary\ndevelopment work, including leveling of the \xe2\x80\x98back road,\xe2\x80\x99 drilling a well, testing the soil, and staking\nout four one-acre parcels which were released from the deed of trust. In leveling the \xe2\x80\x98back road,\xe2\x80\x99\nfour pieces of equipment were taken on a transport from U. S. Highway 50 to said road. In doing\nthe work some trees were \xe2\x80\x98barked\xe2\x80\x99 and at least two trees were knocked down. The \xe2\x80\x98back road\xe2\x80\x99 was\ntoo narrow to permit passage of the caterpillars. An advertising program to sell the individual parcels\nwas commenced. Cox and Detrick anticipate a fully developed subdivision in ten years. The 80 acres\nare said to be surrounded on two sides by property owned by George Whittel, and on two sides by\n253\n\n\x0cthe property of Glenbrook Company. The Quill Easement is the only existing ingress to and egress\nfrom that tract.\nThe property of Glenbrook Company fronts on Glenbrook Bay, Lake Tahoe. For more than\n25 years it has operated a resort business. Its facilities consist of a beach, approximately 30 guest\ncottages, a tennis court, riding stables, foot paths for hiking, horse trails for riding, a golf course, a\npost office, a rodeo area, a service station, a bar, and a dining room and lounge at the Glenbrook\nInn. The golf course may be used by nonguests upon paying a higher green fee. The bar is open to\nthe public, as is the dining room when not completely reserved by guests. There is no gambling.\nGlenbrook is operated on a seasonal basis from mid-June through September and is widely known\nas a beautiful summer vacation resort for families, many of whom return year after year. The\natmosphere sought to be maintained is that of peace, seclusion and quiet. The roads through the\nproperty are generally unpaved except for the main road from U. S. Highway 50 to the golf course.\nAt the entrance to the main road is a sign stating that permission to pass over is revocable at any\ntime. The main road is the only way in or out from the Glenbrook properties. In years past, from\ntime to time, Glenbrook Company has sold small parcels of its property to individuals. In each\ninstance it has granted the purchaser a right-of-way for ingress and egress.\nThe following rought sketch will, perhaps, be of some assistance.\nTo get to the Cox and Detrick property one may take either the \xe2\x80\x98golf course road\xe2\x80\x99 or the\n\xe2\x80\x98back road.\xe2\x80\x99 Before this action started, the \xe2\x80\x98golf course road\xe2\x80\x99 was fenced off at the point indicated. A\nportion of the \xe2\x80\x98back road\xe2\x80\x99 was built in 1936 to provide a way to water tanks which supplied water for\nthe solf course. In the late 1930\xe2\x80\x99s it was extended to the Quill (now Cox and Detrick) properties.\nGlenbrook Company, because of friendship with Quill, supplied the tractor and blade used in so\nextending the road. The road was, and is, narrow and unpaved. In most places it is wide enough for\nonly one car. Trees, rocks and manzanita generally border it. There is an occasional \xe2\x80\x98turn out.\xe2\x80\x99 A\nworker, who extended the road to the Quill property in the late 1930\xe2\x80\x99s, stated that Quill just wanted\n\xe2\x80\x98a rought road, so that he could go on up with a car.\xe2\x80\x99Cox frankly stated that he would like to use the\n\xe2\x80\x98back road\xe2\x80\x99 if it \xe2\x80\x98were passable,\xe2\x80\x99 and that he definitely wanted to widen the road. That road has\nseldom been used by anyone except the four or five families having homes along its course, and\ntheir guests.\n2. The lower court\xe2\x80\x99s judgment.\nAfter trial before the court without a jury, judgment was entered declaring that the Quill\nEasement is limited in three respects: (a) \xe2\x80\x98to such uses as are and will be reasonably consistent with\nthe use to which the servient property is employed, that is, a conservative, family, mountain resort\noperation, and is further limited, as to reasonable use, to the use contemplated in the original grant\nto Quill, that is, access to and egress from the entire dominant parcel by a single family in\noccupancy, and their guests\xe2\x80\x99; (b) \xe2\x80\x98to use of the Glenbrook roads as those roads are presently\nconstructed and maintained, or as the Glenbrook Company by its own action or by mutual\nagreement with interested parties, may hereafter locate and construct roads in the Glenbrook estate\xe2\x80\x99;\nand (c) that \xe2\x80\x98The proposed use of the so-called Quill Easement by the defendants herein, that is, the\nuse of the Glenbrook roads by purchasers of subdivided parcels of the former Quill property, would\nconstitute an illegal and unjustified burden and surcharge upon the servient estate.\xe2\x80\x99\n3.Area of contention.\n254\n\n\x0cThe primary contentions which we are called upon to resolve are: first, whether the Quill\nconveyance with regard to its extent is clear and without ambiguity; and, second, whether the\nlimitations of its use placed thereon by the lower court are justified by the law and the facts\npresented. The assignments of error by appellants Cox and Detrick are primarily directed to these\ntwo areas of contention and related matters. However, they also assigned, as error, two incidental\npoints which are referred to and disposed of by footnote.2\n4. Is the Quill conveyance clear as to its extent?\nWe have heretofore quoted the Quill Easement. By its terms the grantor conveyed \xe2\x80\x98an\neasement and right-of-way, with full right of use over the roads of the grantor as now located or as\nthey may be located hereafter\xe2\x80\xa6 from the State Highway known as U. S. Route 50 to the following\ndescribed property: \xe2\x80\xa6\xe2\x80\x99 The trial court announced in a conclusion of law that the terms of the grant\nare not so clear and precise as to exclude interpretation regarding its true extent and limit. The\nappellant subdividers urge that the meaning of the conveyance is clear; that \xe2\x80\x98full right of use\xe2\x80\x99 cannot\nmean a restricted or limited use; that the lower court should not have looked to extrinsic evidence to\naid it in ascertaining the parties\xe2\x80\x99 intention at the time the grant was made. On the other hand,\nGlenbrook Company argues that the phrase \xe2\x80\x98full right of use\xe2\x80\x99 must be considered in the light of\ncircumstances existing at the time the grant was made, and the actual use of the way thereafter; that\nsuch circumstances are relevant and admissible to aid the court in ascertaining the extent of an\neasement created by conveyance.\nNo issue regarding admissibility of evidence was raised during trial. Objection was not made\nto any of the evidence offered, except as to testimony relating to whether the grant was gratuitously\nmade, which we have already discussed.3 Yet the court below, by way of a conclusion of law after\ntrial, held that it could refer to \xe2\x80\x98extrinsic evidence\xe2\x80\x99 for the purpose of interpreting the meaning of the\ngrant with regard to its \xe2\x80\x98true extent and limits.\xe2\x80\x99 The record does not reveal what \xe2\x80\x98extrinsic evidence\xe2\x80\x99\nwas considered by the lower court for this purpose, and we do not propose to speculate in this\nconnection.\nBy the phrase \xe2\x80\x98extent of an easement\xe2\x80\x99 is meant the scope of the privilege of use authorized\nby the easement. Here the grantor conveyed an easement with \xe2\x80\x98full right of use.\xe2\x80\x99 To our mind, that\nphrase is clear and without ambiguity. It may not, under the veil of interpretation, be considered to\nmean a \xe2\x80\x98restricted right of use.\xe2\x80\x99 Keeler v. Haky, 160 Cal.App.2d 471, 325 P.2d 648. In Keeler, the\ngrantor gave \xe2\x80\x98the full and free right, to pass and repass along, over and upon said private road.\xe2\x80\x99 The\ncourt there said: \xe2\x80\x98The language of the grant deed, dated April 17, 1934, is clear and free from\nambiguity and uncertainty and does not create such a condition as to require or authorize the court\nto consider extrinsic evidence as to the meaning of the written agreement between the\nparties.\xe2\x80\x99Furthermore, the court held that the right to pass and repass over the private road was\nunrestricted.\nThe process which creates an easement necessarily fixes its extent. The extent of an\neasement created by prescription, is fixed by the use which created it. Likewise, the extent of an\neasement created by conveyance is fixed by the conveyance, Restatement, property, s 482, comment\n(a), at p. 3010, if clear and unambiguous.4\nWe therefore conclude that the trial court committed error in deciding that the phrase \xe2\x80\x98full\nright of use\xe2\x80\x99 was subject to judicial interpretation. This error probably resulted in the restrictions\n255\n\n\x0cplaced upon the Quill Easement by the judgment entered. However, we cannot be certain that this is\nso. In any event, it is our view that the judgment is too restrictive in certain respects, incomplete in\nothers, and premature as to a third aspect of the litigation. It will be our purpose to point out\nwherein the judgment imposes unwarranted restrictions upon the possessors of the dominant\ntenement, to define the rights of the parties in the areas where the judgment is silent, and announce\nwhy, as to a certain phase of this case, a definitive determination cannot yet be made.\n5.The unwarranted restrictions.\n(A)\nWe shall first discuss that portion of the judgment restricting the use to ingress to and egress\nfrom the entire dominant parcel \xe2\x80\x98by a single family in occupancy and their guests.\xe2\x80\x99Such a restriction,\nin our view, destroys the appurtenant character of the easement. Yet, there can be no question but\nthat the Quill Easement was appurtenant to the 80 acre tract then owned by him. The terms of the\nconveyance, \xe2\x80\x98to have and to hold said right-of-way and easement unto the said grantee, his heirs and\nassigns forever\xe2\x80\x99, make it clear that one who succeeds to the possession of the dominant tenement,\nsucceeds as well to the privileges of use of the servient tenement authorized by the conveyance.\nFurthermore, those who succeed to the possession of each of the parts into which the dominant\ntenement may be subdivided, also succeed to such privileges of use, unless otherwise provided by\nthe terms of the conveyance. Bang v. Forman, 244 Mich. 571, 222 N.W. 96; Crawford Realty\nCompany v. Ostrow (R.I.1959), 150 A.2d 5;Restatement, Property, s 488, comments (b) and (c);\nAkers v. Baril, 300 Mich. 619, 2 N.W.2d 791; Hewitt v. Perry, 309 Mass. 100, 34 N.E.2d 489; Martin\nv. Music (Ky.1953), 254 S.W.2d 701; Annots. 8 A.L.R. 1368, 34 A.L.R. 972. The Quill conveyance\ndoes not contain a restriction that the easement granted is to be appurtenant to the dominant estate\nonly while such estate remains in single possession, and none may be imposed by judicial\ndeclaration.\n(B)\nThe judgment further restricts the use of the easement to \xe2\x80\x98use of the Glenbrook roads as\nthose roads are presently constructed and maintained.\xe2\x80\x99We are uncertain as to the precise meaning of\nthis restriction. If such language prohibits the owner of the dominant estate from making any\nimprovements or repairs of the way, it is too restrictive. As a general rule, the owner of an easement\nmay prepare, maintain, improve or repair the way in a manner and to an extent reasonably calculated\nto promote the purposes for which it was created. The owner may not, however, by such action,\ncause an undue burden upon the servient estate, nor an unwarranted interference with the\nindependent rights of others who have a similar right of use.5 Annot. 112 A.L.R. 1303. The action of\nCox and Detrick in leveling or \xe2\x80\x98rough grading\xe2\x80\x99 the \xe2\x80\x98back road,\xe2\x80\x99 to the extent that it was confined to\nthe area within the exterior borders of the road as they existed when the easement was originally\ngranted, was an improvement reasonably calculated to promote the purposes for which the\neasement was created. Such leveling or rough grading as so confined, would not, in itself, cause an\nundue burden upon the servient estate, nor constitute an unwarranted interference with the\n256\n\n\x0ceasement rights of other private property owners.\nHowever, their conduct in attempting to widen the way is another matter. A careful study of\nthe record makes it clear that the ultimate intention of the subdividers is to widen the \xe2\x80\x98back road\xe2\x80\x99 in\norder that two cars going in opposite directions may pass comfortably at all points along its course.\nThe conveying instrument does not specify the width of the way expressly; it does, however, refer to\nthe \xe2\x80\x98roads as now located.\xe2\x80\x99 The \xe2\x80\x98back road\xe2\x80\x99 as it existed at the time of the grant of easement, was\ndescribed as a \xe2\x80\x98small road,\xe2\x80\x99 and wide enough for just one car. The record does not disclose that the\npredecessors of Cox and Detrick ever sought or attempted to widen the \xe2\x80\x98back road.\xe2\x80\x99 There is no\nevidence tending to indicate that either Glenbrook Company or Henry Quill contemplated or\nintended a wider road than existed when the grant was made. When the width is not specified, the\nconveying instrument must be construed in the light of the facts and circumstances existing at its\ndate and affecting the property, the intention of the parties being the object of inquiry. Annot. 28\nA.L.R.2d 253. Lipsky v. Heller, 199 Mass. 310, 85 N.E. 453; Dunham v. Dodge, 235 Mass. 367, 126\nN.E. 663; Drummond v. Foster, 107 Me. 401, 78 A. 470. Indeed, it is sometimes held, as a matter of\nlaw, that where the width of a right-of-way is not specified in the grant, it is limited to the width as it\nexisted at the time of the grant. Good v. Petticrew, 165 Va. 526, 183 S.E. 217. We need not go that\nfar. We believe that the intention of the parties at the time of the grant, when there is evidence to\nindicate such intention, controls as to width.6\nAs already stated, the only evidence in the record with reference to the \xe2\x80\x98back road\xe2\x80\x99 indicates\nthat Henry Quill desired a way wide enough for one car; that such was the character of the \xe2\x80\x98back\nroad\xe2\x80\x99 at that time, with occasional \xe2\x80\x98turn outs.\xe2\x80\x99 We must conclude, therefore, that such was the\nparties\xe2\x80\x99 intention in 1938 when the grant was made. If the width of the way is what the lower court\nhad in mind when it restricted the easement to \xe2\x80\x98use of the Glenbrook roads as those roads are\npresently constructed and maintained\xe2\x80\x99 (the record revealing no substantial change from 1938 to time\nof trial, except for the work of Cox and Detrick before mentioned), then we find ourselves in\naccord.\n6.Area wherein judgment is silent.\nGlenbrook Company erected a fence or barrier across the \xe2\x80\x98golf course road\xe2\x80\x99 at or near the\npoint indicated on the sketch. Cox and Detrick desire permission to use that road. They removed\nthe barrier, but it was again erected by Glenbrook Company. The predecessors of Cox and Detrick\nused the \xe2\x80\x98back road\xe2\x80\x99 for ingress and egress; the \xe2\x80\x98golf course road\xe2\x80\x99 was, however, used occasionally.\nThe judgment belower does not touch on this aspect of the case.\nThe conveyance gave full right of use over \xe2\x80\x98the roads.\xe2\x80\x99 Both roads existed at that time.\nHowever, the conveyance also permitted relocation of the roads by Glenbrook Company at its own\nexpense.\nThe evidence purpose of the conveyance is to assure ingress to and egress from the\ndominant parcel, over the servient estate, to U. S. Highway 50. It is admitted by Cox and Detrick\nthat Glenbrook Company could discontinue the use of, or barricade the existing roads, and relocate\nthem without infringing upon the Quill Easement so long as ingress and egress was given to the\ndominant parcel over the roads as relocated. The action by Glenbrook Company in barricading the\n\xe2\x80\x98golf course road\xe2\x80\x99 is, to a degree, a \xe2\x80\x98relocation\xe2\x80\x99 of that portion of the right-of-way, and authorized by\nthe terms of the conveyance. Cf. Heyna v. Lyons, 228 Ky. 211, 14 S.W.2d 766; Lyon v. Lea, 84 Me.\n254, 24 A. 844. The purpose of the conveyance is not frustrated by such conduct.\n257\n\n\x0c7.Area wherein judgment is premature.\nThe judgment entered also declared that the proposed use of the Quill Easement would\nconstitute an illegal burden and surcharge upon the servient estate. This declaration, we believe,\ndeals with the subject with which the parties are most deeply concerned. They earnestly desire a\nspecific declaration of their legal rights arising out of the Quill conveyance in order that their future\ncourses of action may be planned. Though this be so, every judgment following a trial upon the\nmerits must be based upon the evidence presented; it cannot be based upon an assumption made\nbefore the facts are known or have come into existence. The announced intention by the owners of\nthe dominant estate as to their proposed future use of the easement does not, of itself, constitute an\nunreasonable burden upon the servient estate. When the facts concerning that use become known,\nan unreasonable burden upon the servient estate may, or may not result. That determination must\nawait the presentation of evidence then in existence.\nNRS 30.110 of the Uniform Declaratory Judgments Act contemplates that the determination\nof an issue of fact is to be tried and determined in the same manner as issues of fact are tried and\ndetermined in other civil actions. All parties concede that the issue as to whether the actual use to\nwhich an easement is devoted, constitutes an unreasonable burden upon the servient estate, is\nprimarily a question of fact and not of law. The authorities so hold. Bang v. Forman, 244 Mich. 571,\n222 N.W. 96, a subdivision case, where the court said, \xe2\x80\x98The extent to which the use of the easement\nhad been increased was a question of fact for the court.\xe2\x80\x99; Wall v. Rudolph, Cal.App., 18 Cal.Rptr.\n123, 131,\xe2\x80\x99Ordinarily the question of whether there has been an unreasonable use of an easement is\none of fact\xe2\x80\xa6\xe2\x80\x99; Siedler v. Waln, 266 Pa. 361, 109 A. 643, 645, 8 A.L.R. 1363, where the court stated,\n\xe2\x80\x98While \xe2\x80\x98it is difficult, if not impossible, to lay down a clear and definite rule to determine what may\nbe construed a reasonable and proper use [of an easement], as distinguished from an unreasonable\nand improper one, and such questions must, of necessity, be usually left to the determination of a\njury or the trial court, as questions of fact\xe2\x80\x99\xe2\x80\xa6, here the chancellor has found the facts against\ndefendants; and we are convinced of reversible error in that regard.\xe2\x80\x99\nA distinction must be drawn between the construction of a writing as contemplated by NRS\n30.040 of the Uniform Declaratory Judgments Act, and the determination of an issue of fact\nprovided for by NRS 30.110 of that act. As applied to the case before us, matters respecting the\nextent of the privilege to use the easement are governed by the terms of the instrument itself, if\nmentioned. The phrase \xe2\x80\x98full right of use\xe2\x80\x99 as used therein we have declared to be clear, and not the\nsubject of interpretation. On the other hand, the problem respecting the width of the way, which\nwas not designated by the instrument itself, was the subject of determination based upon factual\ninformation in existence and received during trial. The conveying instrument was, therefore,\ninterpreted to mean the width of the way as it existed at the time of the grant. Each of these matters\ndealt with the extent of the privilege of use.\nHowever, problems arising from the actual use of the way as distinguished from the privilege\nto use it, do not, in most cases, depend upon a construction of the conveying instrument, but rather\nupon the consequences resulting from such actual use. This being so, factual circumstances which\nmay arise in the future cannot be fairly determined now. As to this phase of the case we are asked to\nmake a hypothetical adjudication, where there is presently no justiciable controversy, and where the\nexistence of a controversy is dependent upon the happening of future events. Cf. Prashker v. United\nStates Guarantee Company, 1 N.Y.2d 584, 154 N.Y.S.2d 910, 136 N.E.2d 871. A declaratory\njudgment should deal with a present, ascertained or ascertainable state of facts. See Hunt v. Smith\n(Fla.App.1962), 137 So.2d 232, where plaintiff asked the court to decree that it would have an\n258\n\n\x0ceasement of necessity if certain events occurred in the future.\nIndeed, Glenbrook Company has stated that its purpose in initiating this suit is not to enjoin\nthe proposed subdivision. It is vitally interested, however, in maintaining the atmosphere of peace,\nseclusion and quiet for which it is widely known. Whether a subdivision, on the one hand, can\ncoexist with the maintenance of such an atmosphere, on the other, cannot now be determined\nbecause of the lack of sufficient evidence. Consequently, a judgment cannot now be announced\nwhich will supply all of the answers desired by the parties. For example: Suppose we were to assume\na completed subdivision, 40 or 60 homes with guesthouses, within 10 years, and declared, at this\ntime, that the use of the Quill Easement by the possessors of the subdivided parcels, would\nunreasonably burden the servient estate. Such a declaration by us would not determine whether such\nuse by a lesser number would likewise surcharge the servient estate. Nor can we forecast whether\nthe character of Glenbrook will remain the same or change within the next 10 years. There is no\nfeasible method, at this time, by which we can declare in advance the point at which the burden\nupon the servient estate becomes unreasonable. Such court declaration must await the knowledge\nand presentation of proper evidence. In our judgment the lower court erred in declaring that the\nproposed use of the Quill Easement would constitute an unreasonable burden upon the servient\nestate, in the absence of existing evidence. It should have done no more than to announce, in\ngeneral terms, the applicable legal principle within which a subsequent factual determination could\nbe made if occasion therefor arises.\nConclusions:\nFrom the foregoing it is apparent that the parties seek a declaration of rights in the following\nrespects:\n1. The scope and extent of the easement as described by the words \xe2\x80\x98full right of use\xe2\x80\x99 in the\nconveying instrument.\n2. The legal right, if any, of the owners of the easement to maintain, repair and improve the\nway.\n3. The legal right, if any, of the owners of the easement to widen the way.\n4. The legal right, if any, of the owner of the servient estate to barricade that portion of the\nway referred to as the \xe2\x80\x98golf course road.\xe2\x80\x99\n5. A declaration now as to whether uses of the way, concomitant with a future proposed\nsubdivision, will, if completed, or during the course of its development, cause an unreasonable\nburden upon the servient estate.\nAs to these matters, we conclude:\nFirst: The privilege of use of the Glenbrook roads as located on January 7, 1938 (the date of\nthe grant of easement) is not restricted by the terms of the grant, and is appurtenant to the dominant\nestate, and may be enjoyed by those who succeed to the possession of the dominant estate in its\nentirety or by those who succeed to the possession of the parts into which such estate may be\nsubdivided.\nSecond: The owners of the easement may maintain, repair and improve the way in a manner\nreasonably calculated to promote the purposes for which the easement was created, provided,\nhowever, (a) such maintenance, repair or improvement is confined to the area within the exterior\nborders of the way as it existed on January 7, 1938 (the date of the grant of easement); (b) that such\nmaintenance, repair, or improvement will not cause an undue burden upon the servient estate; (c)\nthat such maintenance, repair or improvement will not cause an unwarranted interference with the\n259\n\n\x0cindependent rights of others who have a similar right of use.\nThird: The owners of the easement may not widen the way, its width being limited, by\nreason of the evidence introduced, to the width of the way on January 7, 1938 (the date of the grant\nof easement); and, insofar as the portion of the way herein referred to as the \xe2\x80\x98back road\xe2\x80\x99 is\nconcerned, that width is sufficient only for one car with occasioned \xe2\x80\x98turn outs.\xe2\x80\x99\nFourth: The owner of the servient estate has the right to relocate the way at its own expense,\nwhich right includes the right to barricade that portion of the existing way herein referred to as the\n\xe2\x80\x98golf course road.\xe2\x80\x99\nFifth: The owners of the easement may not, by reason of their proposed subdivision\ndevelopment, or otherwise, cause an undue burden upon the servient estate, or an unwarranted\ninterference with the independent rights of others who have a similar right of use. Whether such a\nburden or interference will occur cannot be conclusively declared upon existing evidence. In the\nevent the owners of the easement proceed with their announced plan, their use of the way is limited\nto the extent herein noted. We believe it proper, however, at this time, to note that, should they\nproceed with their proposed plan, the trier of the facts in subsequent litigation, if it occurs, might or\nmight not determine upon evidence then existing, that their use of the way causes an unreasonable\nburden upon the servient estate or an unwarranted interference with the independent rights of\nothers who have a similar right of use; hence, any further action on their part to develop their\nproperty in the manner proposed is subject to such contingency.\nModified and remanded for judgment in accordance with this opinion. Each party shall bear\nhis own costs on this appeal.\nMcNamee, J., concurs\nI concur in the conclusions reached by Mr. Justice Thompson, but fear that some of the\nexpressions used in the opinion might in some future case be taken to limit unduly the power of the\ncourt in actions under the Declaratory Judgments Act. While it is undoubtedly true that \xe2\x80\x98factual\ncircumstances which may arise in the future cannot be fairly determined now,\xe2\x80\x99 it is likewise true that\nan expressed purpose and intention to perform acts that will, under satisfactory proof, surcharge the\nservient tenement with an unreasonable burden is a present threat of invasion of plaintiff\xe2\x80\x99s rights\nand subject to declaratory determination. It need not await the event.NRS 30.030, 30.040, 30.050,\n30.070, 30.140. See Kress v. Corey, 65 Nev. 1, 189 P.2d 352, and cases therein cited.\nThe lower court apparently assumed that 80 separate parcels would be created. The\nevidence does not bear this out. \xe2\x86\xa9\n(a) Cox and Detrick objected to hearsay evidence offered to show that the Quill conveyance\nwas gratuitously given. Ruling upon the objection was reserved, and the record does not reflect that\na ruling was ever made. The original findings determined that a nominal consideration was paid for\nthe conveyance. That finding was deleted upon motion of Cox and Detrick. The amended findings\nare silent on the subject. In the absence of a ruling upon the objection, and it being apparent that the\npoint had no significance in the determination of the case, there can be no merit to this claim of\nerror. (b) Cox and Detrick urge that the lower court took judicial notice that the use of the\nGlenbrook roads was exclusive in nature. The record simply does not establish this to be so. It\nreflects only that the \xe2\x80\x98court has first-hand knowledge of that condition\xe2\x80\x99; it does not tell us what \xe2\x80\x98that\ncondition\xe2\x80\x99 was or is. Obviously this claim of error is without validity. \xe2\x86\xa9\nThe reason for the absence of objection is evident. No person was available to testify that\nthe terms of the grant did not state the true intention of the persons named therein. W. M. Bliss,\nwho signed as vice-president of grantor, is dead. His cosigner for grantor, Herbert E. Hall, at that\n260\n\n\x0ctime its assistant secretary, did not testify and the record does not tell us why. The grantee, Henry\nQuill, died in 1943. A witness was not presented who sought to declare the intention of those\npersons as being different than expressed in the grant of easement. Had such testimony been\noffered, perhaps objection would have been made. Under the circumstances here presented, no\nreason existed for any party to object to the evidence offered. \xe2\x86\xa9\nGlenbrook Company urges that the trial court, by virtue of the \xe2\x80\x98rule of practical\nconstruction\xe2\x80\x99 could properly consider evidence of the actual use of the way by predecessors of Cox\nand Detrick, to fix the extent of the use created by the conveying instrument. That rule does not\napply where the instrument is clear. Woods v. Bromley, 69 Nev. 96, 241 P.2d 1103. \xe2\x86\xa9\nThe factual background related mentions other property owners to whom Glenbrook\nCompany has given similar rights of ingress and egress. To the extent mentioned by the general rule\nof law, this litigation is of significance to them. \xe2\x86\xa9\nThe \xe2\x80\x98full right of use\xe2\x80\x99 phrase, previously discussed, does not embrace the problem of width.\nThere can be a \xe2\x80\x98full right to use\xe2\x80\x99 a narrow as well as a wide road. \xe2\x86\xa9\n\n261\n\n\x0c5.5. Easements in Gross\nGreen v. Lupo,\n647 P.2d 51 (Wash. Ct. App., 1982).\n\nChristopher Boutelle, Tacoma, for appellants.\nAlan Rasmussen, Spanaway, for respondents.\nPetrich, Acting Chief Judge.\nThe plaintiffs, Don Green and his wife Florence, initiated this suit to specifically enforce an\nagreement to grant an easement. From a decree which determined that the contemplated easement\nwas personal rather than appurtenant to their land as claimed, plaintiffs appeal. We reverse.\nThe issue raised on appeal is whether parol evidence is admissible to construe an easement\nas personal to the grantees where the easement is agreed in writing to be for ingress and egress for\nroad and utilities purposes but the writing does not expressly characterize the easement as either\npersonal or appurtenant. We believe that parol evidence was properly admitted here but the\nconclusion that the easement is personal to plaintiffs was erroneous.\nThe parties involved are adjoining landowners. The plaintiffs, once the owners of the entire\ntract, now retain several acres located south of the defendants\xe2\x80\x99 property. The defendants purchased\ntheir parcel (the north tract) from the plaintiffs by real estate contract. While they were still paying\non that contract, the defendants requested a deed release to a small section of the north tract to\nallow financing for the construction of a home. The plaintiffs agreed in return for the promise of an\neasement along the southern 30 feet of the north tract when the defendants eventually obtained title.\nThe express terms of the promised easement were contained in a written agreement which was\nexecuted in the form required for the conveyance of an interest in real property.RCW 64.04.\nThe plaintiffs\xe2\x80\x99 development of their land for mobile home occupancy caused tension\nbetween the landowners. Apparently some of the occupants of plaintiffs\xe2\x80\x99 mobile home development\nused the easement as a practice runway for their motorcycles. When the defendants obtained title to\nthe north tract they refused to formally grant the easement as promised. They also placed logs along\nthe southern boundary of the easement to restrict access from the plaintiffs\xe2\x80\x99 property. The plaintiffs\nbrought this action to obtain specific performance of the promise to grant an easement and to\nenjoin any interference with their use of the easement.\nEvidence was admitted describing a single-family cabin or residence built by or for the\nplaintiffs in the northeast corner of the plaintiffs\xe2\x80\x99 tract. It was defendants\xe2\x80\x99 contention, and they so\ntestified, that the purpose of the easement was to serve the plaintiffs in their personal use and\noccupancy of this cabin or home. They claimed the easement was not intended to serve the\nplaintiffs\xe2\x80\x99 entire tract, part of which had been developed as a mobile home site, and which had\naccess by other existing roads.\nThe trial court concluded that an easement was granted for the use and benefit of the\nplaintiffs alone and could not be assigned or conveyed. The court ordered the plaintiffs\xe2\x80\x99 use to be\nlimited to ingress and egress for their own home or cabin and prohibited the passage of motorcycles.\nIt was the duty of the court in construing the instrument which created the easement to\n262\n\n\x0cascertain and give effect to the intention of the parties. The intention of the parties is determined by\na proper construction of the language of the instrument. Where the language is unambiguous other\nmatters may not be considered; but where the language is ambiguous the court may consider the\nsituation of the property and of the parties, and the surrounding circumstances at the time the\ninstrument was executed, and the practical construction of the instrument given by the parties by\ntheir conduct or admissions. Seattle v. Nazarenus, 60 Wash.2d 657, 665, 374 P.2d 1014 (1962);\nBroadacres, Inc. v. Nelsen, 21 Wash.App. 11, 583 P.2d 651 (1978). Simply stated parol evidence may\nalways be used to explain ambiguities in written instruments and to ascertain the intent of the\nparties. Levy v. North American Ins. Co., 90 Wash.2d 846, 852, 586 P.2d 845 (1978); see also Green River\nValley Foundation, Inc. v. Foster, 78 Wash.2d 245, 473 P.2d 844 (1970); Corinthian Corp. v. White &\nBollard, 74 Wash.2d 50, 442 P.2d 950 (1968); The Brower Co. v. Baker & Ford Co., 71 Wash.2d 860, 431\nP.2d 595 (1967); Harding v. Warren, 30 Wash.App. 848, 639 P.2d 750 (1982); Weyerhaeuser Co. v.\nBurlington Northern, Inc., 15 Wash.App. 314, 549 P.2d 54 (1976); Lynch v. Higley, 8 Wash.App. 903,\n510 P.2d 663 (1973); Dennis v. Southworth, 2 Wash.App. 115, 467 P.2d 330 (1970).\nThe pivotal issue in deciding the propriety of admitting parol evidence is whether the written\ninstrument is ambiguous. A written instrument is ambiguous when its terms are uncertain or capable\nof being understood as having more than one meaning. Ladum v. Utility Cartage, Inc., 68 Wash.2d 109,\n116, 411 P.2d 868 (1966); Harding v. Warren, supra; Rydman v. Martinolich Shipbuilding Corp., 13\nWash.App. 150, 534 P.2d 62 (1975); Spahn v. Pierce County Medical Bureau, Inc., 7 Wash.App. 718, 502\nP.2d 1029 (1972); Murray v. Western Pacific Ins. Co., 2 Wash.App. 985, 472 P.2d 611 (1970).\nThe written instrument promised the easement specifically to the plaintiffs, to \xe2\x80\x9cDon Green\nand Florence B. Green,\xe2\x80\x9d and described the easement as \xe2\x80\x9cfor ingress and egress for road and utilities\npurpose.\xe2\x80\x9dThe designation of named individuals as dominant owners evidences an intent that the\neasement be personal to the named parties. Kemery v. Mylroie, 8 Wash.App. 344, 506 P.2d 319 (1973).\nThe grant of an easement for ingress, egress and utilities to the owners of adjacent land is evidence\nof an intent that the easement benefit the grantees\xe2\x80\x99 adjacent land. Winsten v. Prichard, 23 Wash.App.\n428, 597 P.2d 415 (1979). We find that the instrument was ambiguous as to whether the easement\ngranted was personal to the plaintiffs or appurtenant to their land. We therefore conclude that parol\nevidence was properly admitted.\nThe trial court\xe2\x80\x99s findings of fact are supported by competent evidence and are not assigned\nas error; they must be considered as verities on appeal. McIntyre v. Fort Vancouver Plywood Co., 24\nWash.App. 120, 600 P.2d 619 (1979). The court\xe2\x80\x99s findings do not, however, support the conclusion\nthat the easement was personal. The court found that the easement was granted for ingress, egress,\nfor road and utilities purposes. As we have noted, the grant of such an easement supports the\nconclusion that the easement was intended to be an easement appurtenant. In addition, the trial\ncourt found \xe2\x80\x9cthe use of the easement by the plaintiff was to obtain access to the land, retained by\nplaintiff, for the construction and habitation by plaintiff in a cabin.\xe2\x80\x9d(Italics ours.) This finding also\nsupports the conclusion that the easement was intended to benefit plaintiffs\xe2\x80\x99 land.\nThe trial court\xe2\x80\x99s conclusion that the easement was personal to the plaintiffs was erroneous.\nThere is a strong presumption in Washington that easements are appurtenant to some particular\ntract of land; personal easements, easements in gross, are not favored. Pioneer Sand & Gravel Co. v.\nSeattle Construction & Dry Dock Co., 102 Wash. 608, 173 P. 508 (1918); Roggow v. Hagerty, 27\nWash.App. 908, 621 P.2d 195 (1980); Kemery v. Mylroie, supra. An easement is not in gross when there\nis anything in the deed or the situation of the property which indicates that it was intended to be\nappurtenant to land retained or conveyed by the grantor. 2 G. Thompson, Real Property s 324 at 78\n(1980 repl.). Viewed in this light, the court\xe2\x80\x99s factual findings mandate the conclusion that the\neasement was intended to be appurtenant to plaintiffs\xe2\x80\x99 property.\nEasements appurtenant become part of the realty which they benefit. Unless limited by the\n263\n\n\x0cterms of creation or transfer, appurtenant easements follow possession of the dominant estate\nthrough successive transfers. The rule applies even when the dominant estate is subdivided into\nparcels, with each parcel continuing to enjoy the use of the servient tenement. Clippinger v. Birge, 14\nWash.App. 976, 547 P.2d 871 (1976). See also Winsten v. Prichard, supra. The terms of the easement\npromised do not limit its transfer. The easement promised the plaintiffs is appurtenant to their\nproperty and assignable to future owners of that property.\nThe defendants request that equitable limitations be imposed on any easement granted. A\nservient owner is entitled to impose reasonable restraints on a right of way to avoid a greater burden\non the servient owner\xe2\x80\x99s estate than that originally contemplated in the easement grant, so long as\nsuch restraints do not unreasonably interfere with the dominant owner\xe2\x80\x99s use. Rupert v. Gunter, 31\nWash.App. 27, 640 P.2d 36 (1982).\nTestimony presented at trial showed that youngsters who now live on the dominant estate\nuse their motorcycles on the easement in a fashion that constitutes a dangerous nuisance which was\nnot considered when the easement was created. This evidence supports the imposition of equitable\nrestrictions on the dominant owners\xe2\x80\x99 use, restrictions which will not unreasonably interfere with that\nuse.\nThe trial court enjoined the use of motorcycles on the easement. There is insufficient\nevidence on the record to assess the impact of a complete ban on motorcycle use on the dominant\nestate\xe2\x80\x99s owners. Motorcycles are a common means of transportation. On its face, the ban appears to\nunreasonably interfere with the dominant owners\xe2\x80\x99 use of the easement. Although an equitable\nsolution to the motorcycle problem is necessary, the trial court abused its discretion in imposing a\nban on motorcycles without proper consideration of the ban\xe2\x80\x99s effect on the dominant owners\xe2\x80\x99 use\nof the easement.\nReversed and remanded with directions to modify the decree so as to declare the easement\nfor ingress and egress for road and utility purposes to be appurtenant to plaintiffs\xe2\x80\x99 property and to\ndevise reasonable restrictions to assure that the easement shall not be used in such a manner as to\ncreate a dangerous nuisance.\nPetrie, J., and Thompson, J. pro tem., concur.\n\n264\n\n\x0cHenley v. Continental Cablevision of St. Louis County, Inc.,\n692 S.W.2d 825 (Mo. App. E.D. 1985)\n\nStuart M. Haw, Norman Bierman, St. Louis, for plaintiffs-appellants.\nNathan B. Kaufman, Shelley Weinhaus, S. Sheldon Weinhaus, St. Louis, for defendantrespondent.\nCarl. R. Gaertner, Judge.\nPlaintiffs, as trustees of University Park subdivision, appeal from an order dismissing their\npetition for failure to state a claim in an action against defendant Continental Cablevision of St.\nLouis County, Inc. We affirm.\nThe facts essential to a resolution of this matter are not in dispute.1 Pursuant to an indenture\nrecorded on April 8, 1922, plaintiffs\xe2\x80\x99 predecessors as trustees, were expressly granted the right to\nconstruct and maintain electric, telephone and telegraphic service on or over the rear five feet of all\nlots in the subdivision, and to grant easements to other parties for the purposes of creating and\nmaintaining such systems. In July, 1922 and August, 1922, respectively, the trustees conveyed an\neasement to Southwestern Bell Telephone Company to \xe2\x80\x9cconstruct, reconstruct, repair, operate and\nmaintain its lines for telephone and electric light purposes\xe2\x80\x9d and similarly to Union Electric to \xe2\x80\x9ckeep,\noperate and maintain its lines consisting of cables, manholes, wires, fixtures and appurtenances\nthereto.\xe2\x80\x9d Subsequently, in 1981 and 1982, defendant exercised licenses acquired from both utilities\nto enter upon these easements, and erected cables, wires and conduits for the purpose of\ntransmitting television programs.\nPlaintiffs filed an action for an injunction on December 29, 1983, seeking not only to enjoin\na continuing trespass and compel the removal of defendant\xe2\x80\x99s wires and cables, but also seeking\n$300,000 in damages and the reasonable value of the use of plaintiffs\xe2\x80\x99 property for defendant\xe2\x80\x99s profit\nbased upon quantum meruit. Defendants then filed a motion to dismiss for failure to state a cause of\naction, which was supported by both the affidavit of defendant\xe2\x80\x99s chief executive officer and copies\nof the easements granted by plaintiffs\xe2\x80\x99 predecessors to Southwestern Bell Telephone Company and\nUnion Electric.2 Said motion was sustained by the trial court on July 30, 1984 and this appeal ensued\nwith plaintiffs contending in effect that the easements granted the utilities were not apportionable\nand did not authorize the right to run television cables over the property in question.\nBoth parties agree that the subject easements are easements in gross, i.e. easements which\nbelong to the owner independently of his ownership or possession of other land, and thus lacking a\ndominant tenement. See Three-o-Three Investments, Inc. v. Moffitt, 622 S.W.2d 736 (Mo.App.1981); 3\nPowell, the Law of Real Property; 34-22 (1984). The dispositive issue here is whether or not these\neasements are exclusive and therefore apportionable by the utilities to, in this case, defendant\nContinental Cablevision.\nWe believe the very nature of the 1922 easements obtained by both utilities indicates that\nthey were intended to be exclusive and therefore apportionable. It is well settled that where the\nservient owner retains the privilege of sharing the benefit conferred by the easement, it is said to be\n\xe2\x80\x9ccommon\xe2\x80\x9d or non-exclusive and therefore not subject to apportionment by the easement owner.\nConversely, if the rights granted are exclusive of the servient owners\xe2\x80\x99 participation therein, divided\nutilization of the rights granted are presumptively allowable. This principle stems from the concept\nthat one who grants to another the right to use the grantor\xe2\x80\x99s land in a particular manner for a\n265\n\n\x0cspecified purpose but who retains no interest in exercising a similar right himself, sustains no loss if,\nwithin the specifications expressed in the grant, the use is shared by the grantee with others. On the\nother hand, if the grantor intends to participate in the use or privilege granted, then his retained right\nmay be diminished if the grantee shares his right with others. Thus, insofar as it relates to the\napportionability of an easement in gross, the term \xe2\x80\x9cexclusive\xe2\x80\x9d refers to the exclusion of the owner\nand possessor of the servient tenement from participation in the rights granted, not to the number\nof different easements in and over the same land. Powell at 344-224-25.3\nHere, there is no claim that plaintiffs\xe2\x80\x99 predecessors had at the time the easements were\ngranted, any intention to seek authority for, or any interest whatsoever in using the five foot strips\nfor the construction and maintenance of either an electric power system or telephone and\ntelegraphic service. Moreover, at no time during the ensuing sixty-three years have the trustees been\nauthorized to furnish such services by any certificate of convenience and necessity issued by the\nPublic Service Commission pursuant to ss 392.260 and 393.170, RSMo.1978. Accordingly, the\neasements granted to Southwestern Bell and Union Electric were exclusive as to the grantors thereof\nand therefore apportionable.\nPlaintiffs also argue defendant could acquire no rights from the utilities since their easements\ndid not mention television cables, and that the cable attachments themselves constituted an extra\nburden on the property. We disagree. The owner of an easement may license or authorize third\npersons to use its right of way for purposes not inconsistent with the principal use granted. Eureka\nReal Estate and Investment Company v. Southern Real E. and F. Company, 355 Mo. 1199, 200 S.W.2d 328,\n332 (1947). The 1922 easements granted to Union Electric expressly provided the right of ingress\nand egress by Union Electric, it successors and assigns, to \xe2\x80\x9cadd to the number of and relocate all\nwires, cables, conduits, manholes, adding thereto from time-to-time\xe2\x80\xa6.\xe2\x80\x9d Similarly, the easement\nconveyed to Southwestern Bell expressly contemplated the construction and maintenance of \xe2\x80\x9call\npoles, cables, wires, conduits, lateral pipes, anchor guys and all other fixtures and appurtenances\ndeemed necessary at anytime by [Southwestern Bell], its successors and assigns\xe2\x80\xa6.\xe2\x80\x9d It can hardly be\nsaid that the addition of a single coaxial cable to the existing poles for the purpose of transmitting\ntelevision images and sound by electric impulse increases the burden on the servient tenement\nbeyond the scope of the intended and authorized use.\nPlaintiffs\xe2\x80\x99 reliance on Consolidated Cable Utilities, Inc. v. City of Aurora, 108 Ill.App.3d 1035, 64\nIll.Dec. 464, 439 N.E.2d 1272 (1982) is misplaced. Basing their decision upon the undisputed\nprinciple that the owner of property subject to an easement burden is entitled to prevent such\nburden from being increased, the Illinois court held that landowners were necessary parties to an\naction by a cable television company against certain utilities seeking a mandatory injunction\nauthorizing the use of the utilities\xe2\x80\x99 easements. In 12 of the subdivisions involved, ordinances\nrequired underground installation of public utility equipment. In the absence of homeowner\nparticipation in the trial and evidence from them about the exact nature of the easements through\ntheir property, the cause was remanded for a more specific delineation of which easements the cable\ncompany did or did not have a right to use. Id. 64 Ill.Dec. at 469, 439 N.E.2d at 1277. Obviously,\nexcavation upon a homeowner\xe2\x80\x99s property for the installation of underground cable poses a much\ngreater burden than the attachment of an aerial cable to existing poles.\nAlthough this is a case of first impression in Missouri, courts in other jurisdictions have\naddressed the legal effect of adding coaxial cables for television transmission to existing electric and\ntelephone poles erected on easements without the consent of the owners of the fees. These courts\nhave uniformly rejected arguments identical to those made by plaintiffs herein and have reached a\nconclusion similar to ours.\nIn Jolliff v. Hardin Cable Television Co., 26 Ohio St.2d 103, 269 N.E.2d 588 (1971), an easement\ngranted to a power company for the transmission of electric power, including telegraph or telephone\n266\n\n\x0cwires, was held to be an apportionable easement in gross by reason of the express language of the\nconveyance authorizing the grantee to lease some portion of its interest to third parties. In\naddressing the question of an additional burden on the servient tenements, the court noted that the\nattachment of a television coaxial cable to existing poles constituted no more of a burden than\nwould installation of telephone wires, a burden clearly contemplated at the time of the grants. Id. 269\nN.E.2d at 591.\nIn Crowley v. New York Telephone Company, 80 Misc.2d 570, 363 N.Y.S.2d 292 (1975) it was\nheld that the failure to make specific mention of cable television in 1949 easement to locate\ntelephone poles and wires on plaintiff\xe2\x80\x99s property could not be so narrowly interpreted as to prohibit\nthe addition of television cables to the telephone poles. \xe2\x80\x9cJust as we must accept scientific advances,\nwe must translate the rights of parties to an agreement in the light of such developments.\xe2\x80\x9d Id. 363\nN.Y.S.2d at 294.\nIn Hoffman v. Capitol Cablevision System, Inc., 52 A.D.2d 313, 383 N.Y.S.2d 674 (1976), the\ncourt concluded that the rights granted to two utilities were exclusive vis a vis the landowner, and\nwere, therefore apportionable by the grantees. The addition of cable and equipment to already\nexisting poles was held to constitute no additional burden since the defendant was doing only what\nthe utilities were enabled to do. Id. 383 N.Y.S.2d at 677. The court noted the general rule that\neasements in gross for commercial purposes are particularly alienable and transferable. See 5\nRestatement of the Law, Property s 489. For these reasons, the court held the failure to foresee and\nspecifically refer to cable television in the grant was of no consequence. Id.\nThe reasoning of the Hoffman court has recently been found persuasive by the California\ncourt in Salvaty v. Falcon Cable Television, 165 Cal.App.3d 798, 212 Cal.Rptr. 31 (1985). The court\nstated:\nIn the case at bench, the addition of cable television equipment on surplus space on the\ntelephone pole was within the scope of the easement. Although the cable television industry did not\nexist at the time the easement was granted, it is part of the natural evolution of communications\ntechnology. Installation of the equipment was consistent with the primary goal of the easement, to\nprovide for wire transmission of power and communication. We fail to see how the addition of\ncable equipment to a pre-existing utility pole materially increased the burden on appellant\xe2\x80\x99s property.\nId. 212 Cal.Rptr. at pages 34-35.\nThe unsurprising fact that the drafters of the 1922 easements did not envision cable\ntelevision does not mandate the narrow interpretation of the purposes of the conveyance of rights\nand privileges urged by plaintiffs. The expressed intention of the predecessors of plaintiff trustees\nwas to obtain for the homeowners in the subdivision the benefits of electric power and telephonic\ncommunications. Scientific and technological progress over the ensuing years have added an\nunforeseen dimension to such contemplated benefits, the transmission by electric impulse of visual\nand audio communication over coaxial cable. It is an inescapable conclusion that the intention of\nplaintiffs\xe2\x80\x99 predecessors was the acquisition and continued maintenance of available means of\nbringing electrical power and communication into the homes of the subdivision. Clearly, it is in the\npublic interest to use the facilities already installed for the purpose of carrying out this intention to\nprovide the most economically feasible and least environmentally damaging vehicle for installing\ncable systems.\nAccordingly, the judgment of the trial court dismissing plaintiffs\xe2\x80\x99 petition for failure to state\na claim is affirmed.\nPudlowski, P.J., and Karohl, J., concur.\nDefendant has moved to strike from the legal file the indenture of University Park\n267\n\n\x0csubdivision contending it was not timely presented nor properly identified in the trial court.\nPlaintiffs have moved to strike from the legal file the copies of the recorded easements of\nSouthwestern Bell Telephone Company and Union Electric Company on the grounds they were not\nauthenticated in the trial court. No objection to any of these documents was made in the trial court\nnor was their consideration by the court complained of by pre or post-submission motion.\nObjections not presented to and decided by the trial court may not be considered by the appellate\ncourt for the first time on appeal. Ohlendorf v. Feinstein, 636 S.W.2d 687, 690 (Mo.App.1982). Both\nmotions are therefore overruled. \xe2\x86\xa9\nBecause the motion to dismiss was supported by matters outside the pleadings, it should\nhave been treated as a motion for summary judgment. Rule 55.26(a). In view of the fact that plaintiff\nhad ample opportunity from the date the motion was filed on March 5, 1984, until the date the\nmotion was argued and submitted on May 24, 1984, and did file on the latter date a copy of the\nsubdivision indenture, we find compliance with the intent of the rule and decline to remand this\ncause, sua sponte, for semantical corrections necessitated by the improper denomination of\ndefendant\xe2\x80\x99s motion. \xe2\x86\xa9\nA thorough explanation of the rule and its logical foundation is set forth in 5 Restatement\nof the Law, Property, section 493, Comments c and d. \xe2\x86\xa9\n\n268\n\n\x0c6. Covenants\nAN INTRODUCTION TO SERVITUDES, Part II\nCovenants\nRecall that a covenant is a contract that imposes an obligation to do something or to refrain\nfrom doing something on one\xe2\x80\x99s own land. Examples we cited included: a promise by A to B that A\nwill not make commercial use of his property; a promise that A will not build a second story; a\npromise that A will only build additions that meet with the approval of a homeowner association\xe2\x80\x99s\narchitectural review committee; a promise that A will maintain a wall that separates his property\nfrom B\xe2\x80\x99s.\nOne can distinguish affirmative and negative covenants as, respectively, requiring or\nprohibiting conduct on the part of the owner of the burdened land. Though some courts treat these\ntwo types of covenants differently, we note this difference only in one respect below.\nAnother distinction, often seen in the case law, is between real covenants and equitable servitudes.\nThis distinction goes back to the difference between law and equity. To make a long and complex\nstory short, we will refer to a covenant as a real covenant when damages are sought for breach and\nas an equitable servitude when an injunction is sought.\nRunning with the Land\nWe deal here with what a court will insist upon before it will decide that a covenant runs to\nsubsequent landowners. That is, when are people who buy land bound by a contract signed by prior\nowners of that land. As you will see in the cases, this area of the law is in flux. Below we will discuss\nthe traditional requirements. But some courts, and the Third Restatement, are taking the view that\nmany of the traditional elements should be dropped in favor of finding covenants to run whenever\n\xe2\x80\x9creasonable,\xe2\x80\x9d which word applies to the agreement of the original parties and the impact of the\ncovenant today. Because such an analysis tends to replicate many of the features of the traditional\nanalysis, and because many courts adhere to the traditional analysis, we will start there.\nAs with easements we look separately at whether the burden of a covenant runs with the\nburdened land and whether the benefit of a covenant runs with the benefitted land. For the burden of\na real covenant to run, the following elements, which will be defined below, must be found: (1)\nwriting, (2) intent, (3) notice, (4) horizontal privity, (5) vertical privity, and (6) touch and concern.\nThe privity elements are not required for the burden of an equitable servitude to run. For the benefit\nof a real covenant to run, the following elements must be found: (1) writing, (2) intent, (3) vertical\nprivity, and (4) touch and concern. Again, privity is not required to enforce an equitable servitude, so\nlong as the plaintiff is an intended beneficiary of the covenant.\nA successor of an owner of the servient, or burdened, land is only liable under a covenant if\nthe burden runs to that owner. Likewise, the successor of an owner of the dominant, or benefitted,\nland may only enforce a covenant if the benefit of the covenant runs to that owner. These are two\nseparate questions, and the running of the benefit and the running of the burden must be analyzed\n269\n\n\x0cseparately.\nWriting\nThis seems like a straightforward requirement. As with easements, we do not require that\nevery subsequent deed contain the covenant - only that the original covenant is in writing.\nCovenants may be included in original deeds of conveyance, or may be contained in separate\nagreements. They may also be contained in declarations, which are documents setting out covenants\napplicable to a whole subdivision rather than just individual parcels. The important thing here is that\nthere is a writing. Whether that writing provides notice is a separate matter considered below.\nIntent\nIntent is not difficult to find. A covenant may use magic words - expressly declaring that it\nbinds future owners or that it runs with the land - but will often be found to be intended to run with\nthe land regardless. Most, but not all, courts will find intent to run where the touch and concern\nelement is satisfied.\nNotice\nAs with easements, notice can be either actual, inquiry, or record. And what is needed to\nshow each is more or less identical to what is required there. Covenants contained in a declaration\napplicable to an entire subdivision are determined by some courts to constitute record notice even\nwhen the deeds of land in that subdivision do not reference the declaration. Other courts will insist\non a reference to the declaration in a deed of the individual parcel itself before determining that the\nowner of that parcel had notice. The question comes down to whether a court (or legislature)\nbelieves it is reasonable to require title searchers to look for declarations, rather than just looking at\nthe deeds of conveyance in the chain of title.\nHorizontal Privity\nThis requirement measures the relationship between the two original contracting parties to a\ncovenant. So if the covenant was executed in 1850, we care only about the relation between the\nparties that executed the agreement back in 1850, not about any subsequent owners. While the Third\nRestatement would do away with this requirement altogether, many states retain it. Note, though,\nthat it is not required when seeking an injunction (i.e., enforcement of an equitable servitude).\nThe requirement can be satisfied in few ways. The original form of horizontal privity is\nknown as tenurial privity and exists only when the parties are in a landlord-tenant relationship. Later,\nit was expanded to cover situations in which one party had an easement in the land of the other,\ncalled substituted privity. Together, these two kinds of privity are called mutual privity, which exists,\n270\n\n\x0cmore generally, when the parties have a simultaneous interest in the same parcel of land.\nBy far the most common way to find horizontal privity is also the most recent. Instantaneous\nprivity is found when the covenant is created at the same time as a parcel is transferred. So, a\ncovenant contained in a deed of sale will meet the horizontal privity requirement, as the covenant is\ncreated at the same instant as the parcel of land is deeded over.\nThere is no horizontal privity when neighbors simply come together and contract for\nrestrictions. Suppose a group of neighbors is concerned about preserving trees and wants to impose\nreciprocal covenants on each of them not to cut trees unless certain conditions exist. They will not\nbe in horizontal privity with one another, and therefore will not create a covenant enforceable by\ndamages by simply contracting among themselves. They can get around this, however, by deeding\nover their properties to a third party who deeds the properties back with the covenants. This straw\ntransaction creates horizontal privity.\nVertical Privity\nEach of the above elements is purely formal. People who want to create a covenant that will\nrun can do so by observing the requirements and executing the covenant so as to comply with them.\nVertical privity, however, cannot be created where it does not exist. This requirement measures the\nrelationship between an owner of land and his or predecessor in interest. So a real covenant may\nonly be enforced, for damages, against an owner of burdened land if that owner is in vertical privity\nwith a predecessor who was bound.\nThere are two kinds of vertical privity: relaxed and strict. Strict vertical privity between a\npredecessor and successor is found only if the predecessor retains no interest in the land. A\nlandlord-tenant relationship fails this test, because the landlord retains an interest when he or she\nleases to a tenant. In a nutshell, sellers and buyers are generally in strict vertical privity but landlords\nand tenants are not.\nRelaxed vertical privity is found between any two possessors. A neighbor of the owner of a\npiece of land is not in relaxed vertical privity with the predecessor of the owner. Also, an adverse\npossessor is usually deemed not to be in vertical privity with a predecessor.\nOnly relaxed vertical privity is required on the benefit side. Courts differ over which form is\nrequired on the burden side. The Third Restatement is a little more complex. It would eliminate the\nvertical privity requirement on the burden side of negative covenants but require strict vertical privity on\nthe burden side of affirmative covenants. This means that the Restatement would not bind lessees with\naffirmative obligations, only with negative obligations. However, there is an escape hatch: the Third\nRestatement would require enforcement without strict vertical privity even of an affirmative\ncovenant where the burden is \xe2\x80\x9cmore reasonably performed\xe2\x80\x9d by the person in possession (i.e., the\nlessee).\nTouch and Concern\nThis is the only requirement for a covenant to run with the land that looks at the substance\nof the covenant. Like strict vertical privity, it cannot be created if it does not exist. But further, it is a\nrestriction on the kinds of covenants that will be deemed to run. There are at least three different\nkinds of tests for touch and concern. Only a brief outline will be given here, with further elaboration\nof the doctrine in the cases below.\nFirst, under an older rule, courts will examine a covenant to see if provides physical benefits\n271\n\n\x0cto the dominant holding and imposes physical burdens on the servient holding. This creates problem\ncases where it seems as though the obligations ought to run, and yet the physical nature of the\ncovenant is difficult to discern. For example, a covenant to host a billboard on one\xe2\x80\x99s land physically\ntouches and concerns the burdened land but has no physical impact on any benefitted land. The\nobligation to pay money to keep up a communal gym or golf course does not seem to burden\nphysically the land of the owner who is required to pay money.\nSecond, courts may ask whether the covenant between the parties benefits and burdens\nthem \xe2\x80\x9cas landowners\xe2\x80\x9d rather than as individuals. This probably gets at whether the covenant\nprovides benefits and imposes burdens that are location-specific, that are tied to the parties\xe2\x80\x99 ownership\nof particular land, rather than burdens and benefits that would be unaffected if the parties lived\nelsewhere. Ask yourself whether the benefits of a covenant to an owner are greater because of where\nthat owner lives. Similarly are the burdens related to ownership of land?\nThe Third Restatement and some courts would jettison the touch and concern requirement\naltogether in an effort to modernize the law of covenants. Instead, the analysis would focus on\nwhether the covenant is unconscionable, a violation of public policy, and otherwise reasonable.\nWhen examining this approach, it is critical to remember that whether we think the contract\nbetween the original parties is violative of some important policies is a substantively different\nquestion from whether we think that contract should automatically bind successive landowners. We\nwill discuss further, below, the difference between these questions.\nSummary\nRunning of covenants is best appreciated in chart-form.\n\n272\n\n\x0c273\n\n\x0c6.1. Formation\n6.1.1. Written Covenants and Running with the Land\nDavidson Bros., Inc. v. D. Katz & Sons, Inc.,\n121 N.J. 196 (1990)\n\nSheppard A. Guryan argued the cause for appellant (Lasser, Hochman, Marcus, Guryan and\nKuskin, attorneys; Bruce H. Snyder, on the brief).\nArthur L. Phillips argued the cause for respondent D. Katz & Sons, Inc., a New Jersey\nCorporation.\nLinda K. Anderson, Assistant City Attorney, argued the cause for respondent City of New\nBrunswick, a Municipal Corporation (William J. Hamilton, Jr., City Attorney, attorney).\nMary M. Cheh argued the cause for respondent C-Town, a Division of Krasdale Foods, Inc.,\na New York Corporation (George J. Otlowski, Jr., attorney).\nRobert J. Lecky argued the cause for respondent New Brunswick Housing Authority, a Body\nCorporate and Political (Stamberger & Lecky, attorneys).\nThe opinion of the Court was delivered by Garibaldi, J.\nThis case presents two issues. The first is whether a restrictive covenant in a deed, providing\nthat the property shall not be used as a supermarket or grocery store, is enforceable against the\noriginal covenantor\xe2\x80\x99s successor, a subsequent purchaser with actual notice of the covenant. The\nsecond is whether an alleged rent-free lease of lands by a public entity to a private corporation for\nuse as a supermarket constitutes a gift of public property in violation of the New Jersey Constitution\nof 1947, article eight, section three, paragraphs two and three.\nI\nThe facts are not in dispute. Prior to September 1980 plaintiff, Davidson Bros., Inc., along\nwith Irisondra, Inc., a related corporation, owned certain premises located at 263-271 George Street\nand 30 Morris Street in New Brunswick (the \xe2\x80\x9cGeorge Street\xe2\x80\x9d property). Plaintiff operated a\nsupermarket on that property for approximately seven to eight months. The store operated at a loss\nallegedly because of competing business from plaintiff\xe2\x80\x99s other store, located two miles away (the\n\xe2\x80\x9cElizabeth Street\xe2\x80\x9d property). Consequently, plaintiff and Irisondra conveyed, by separate deeds, the\nGeorge Street property to defendant D. Katz & Sons, Inc., with a restrictive covenant not to operate\na supermarket on the premises. Specifically, each deed contained the following covenant:\nThe lands and premises described herein and conveyed hereby are conveyed subject to the\nrestriction that said lands and premises shall not be used as and for a supermarket or grocery store\nof a supermarket type, however designated, for a period of forty (40) years from the date of this\n274\n\n\x0cdeed. This restriction shall be a covenant attached to and running with the lands.\nThe deeds were duly recorded in Middlesex County Clerk\xe2\x80\x99s office on September 10, 1980.\nAccording to plaintiff\xe2\x80\x99s complaint, its operation of both stores resulted in losses in both stores.\nPlaintiff alleges that after the closure of the George Street store, its Elizabeth Street store increased\nin sales by twenty percent and became profitable. Plaintiff held a leasehold interest in the Elizabeth\nStreet property, which commenced in 1978 for a period of twenty years, plus two renewal terms of\nfive years.\nAccording to defendants New Brunswick Housing Authority (the \xe2\x80\x9cAuthority\xe2\x80\x9d) and City of\nNew Brunswick (the \xe2\x80\x9cCity\xe2\x80\x9d), the closure of the George Street store did not benefit the residents of\ndowntown New Brunswick. Defendants allege that many of the residents who lived two blocks away\nfrom the George Street store in multi-family and senior-citizen housing units were forced to take\npublic transportation and taxis to the Elizabeth Street store because there were no other markets in\ndowntown New Brunswick, save for two high-priced convenience stores.\nThe residents requested the aid of the City and the Authority in attracting a new food retailer\nto this urban-renewal area. For six years, those efforts were unsuccessful. Finally, in 1986, an\nexecutive of C-Town, a division of a supermarket chain, approached representatives of New\nBrunswick about securing financial help from the City to build a supermarket.\nDespite its actual notice of the covenant the Authority, on October 23, 1986, purchased the\nGeorge Street property from Katz for $450,000, and agreed to lease from Katz at an annual net rent\nof $19,800.00, the adjacent land at 263-265 George Street for use as a parking lot. The Authority\ninvited proposals for the lease of the property to use as a supermarket. C-Town was the only party\nto submit a proposal at a public auction. The proposal provided for an aggregate rent of one dollar\nper year during the five-year lease term with an agreement to make $10,000 in improvements to the\nexterior of the building and land. The Authority accepted the proposal in 1987. All the defendants in\nthis case had actual notice of the restrictions contained in the deed and of plaintiff\xe2\x80\x99s intent to\nenforce the same. Not only were the deeds recorded but the contract of sale between Katz and the\nHousing Authority specifically referred to the restrictive covenant and the pending action.\nPlaintiff filed this action in the Chancery Division against defendants D. Katz & Sons, Inc.,\nthe City of New Brunswick, and C-Town. The first count of the complaint requested a declaratory\njudgment that the noncompetition covenant was binding on all subsequent owners of the George\nStreet property. The second count requested an injunction against defendant City of New Brunswick\nfrom leasing the George Street property on any basis that would constitute a gift to a private party in\nviolation of the state constitution. Both counts sought compensatory and punitive damages. That\ncomplaint was then amended to include defendant the New Brunswick Housing Authority.\n[The trial court denied plaintiff\xe2\x80\x99s motion for summary judgment, and the Appellate Division\naffirmed.]\nII\nA. Genesis and Development of Covenants Regarding the Use of Property\nCovenants regarding property uses have historical roots in the courts of both law and equity.\nThe English common-law courts first dealt with the issue in Spencer\xe2\x80\x99s Case, 5 Co. 16a, 77 Eng.Rep. 72\n(Q.B. 1583). The court established two criteria for the enforcement of covenants against successors.\nFirst, the original covenanting parties must intend that the covenant run with the land. Second, the\n275\n\n\x0ccovenant must \xe2\x80\x9ctouch and concern\xe2\x80\x9d the land. Id. at 16b, 77 Eng.Rep. at 74. The court explained the\nconcept of \xe2\x80\x9ctouch and concern\xe2\x80\x9d in this manner:\nBut although the covenant be for him [an original party to the promise] and his assigns, yet if\nthe thing to be done be merely collateral to the land, and doth not touch and concern the thing\ndemised in any sort, there the assignee shall not be charged. As if the lessee covenants for him and\nhis assignees to build a house upon the land of the lessor which is no parcel of the demise, or to pay\nany collateral sum to the lessor, or to a stranger, it shall not bind the assignee, because it is merely\ncollateral, and in no manner touches or concerns the thing that was demised, or that is assigned\nover, and therefore in such case the assignee of the thing demised cannot be charged with it, no\nmore than any other stranger. [Ibid.]\nThe English common-law courts also developed additional requirements of horizontal\nprivity (succession of estate), vertical privity (a landlord-tenant relationship), and that the covenant\nhave \xe2\x80\x9cproper form,\xe2\x80\x9d in order for the covenant to run with the land. C. Clark, Real Covenants and Other\nInterests Which Run With the Land 94, 95 (2d ed. 1947) (Real Covenants). Those technical requirements\nmade it difficult, if not impossible, to protect property through the creation of real covenants.\nCommentary, \xe2\x80\x9cReal Covenants in Restraint of Trade \xe2\x80\x93 When Do They Run With the Land?,\xe2\x80\x9d 20\nAla.L.Rev. 114, 115 (1967).\nTo mitigate and to eliminate many of the formalities and privity rules formulated by the\ncommon-law courts, the English chancery courts in Tulk v. Moxhay, 2 Phil. 774, 41 Eng.Rep. 1143\n(Ch. 1848), created the doctrine of equitable servitudes. In Tulk, land was conveyed subject to an\nagreement that it would be kept open and maintained for park use. A subsequent grantee, with\nnotice of the restriction, acquired the park. The court held that it would be unfair for the original\ncovenantor to rid himself of the burden to maintain the park by simply selling the land. In enjoining\nthe new owner from violating the agreement, the court stated:\nIt is said that, the covenant being one which does not run with the land, this court cannot\nenforce it, but the question is, not whether the covenant runs with the land, but whether a party\nshall be permitted to use the land in a manner inconsistent with the contract entered into by his\nvendor, and with notice of which he purchased. Of course, the price would be affected by the\ncovenant, and nothing could be more inequitable than that the original purchaser should be able to\nsell the property the next day for a greater price, in consideration of the assignee being allowed to\nescape from the liability which he had himself undertaken.\n[Id. at 777-78, 41 Eng.Rep. 1144].\nThe court thus enforced the covenant on the basis that the successor had purchased the\nproperty with notice of the restriction. Adequate notice obliterated any express requirement of\n\xe2\x80\x9ctouch and concern.\xe2\x80\x9d Reichman, \xe2\x80\x9cToward a Unified Concept of Servitudes,\xe2\x80\x9d 55 S.Cal.L.Rev. 1177,\n1225 (1982); French, \xe2\x80\x9cToward a Modern Law of Servitudes: Reweaving Ancient Strands,\xe2\x80\x9d 55\nS.Cal.L.Rev. 1261, 1276-77 (1982). But see Burger, \xe2\x80\x9cA Policy Analysis of Promises Respecting the Use\nof Land,\xe2\x80\x9d 55 Minn.L.Rev. 167, 217 (1970) (focusing on language in Tulk that refers to \xe2\x80\x9cuse of land\xe2\x80\x9d\nand \xe2\x80\x9cattached to property\xe2\x80\x9d as implied recognition of \xe2\x80\x9ctouch and concern\xe2\x80\x9d rule).\nSome early commentators theorized that the omission of the technical elements of property\nlaw such as the \xe2\x80\x9ctouch and concern\xe2\x80\x9d requirement indicated that Tulk was based on a contractual as\nopposed to a property theory. C. Clark, supra, Real Covenants, at 171-72 nn. 3 and 4; 3 H. Tiffany, Real\nProperty \xc2\xa7 861, at 489 (3d ed. 1939); Ames, \xe2\x80\x9cSpecific Performance For and Against Strangers to\nContract,\xe2\x80\x9d 17 Harv.L.Rev. 174, 177-79 (1904); Stone, \xe2\x80\x9cThe Equitable Rights and Liabilities of\nStrangers to the Contract,\xe2\x80\x9d 18 Colum.L.Rev. 291, 294-95 (1918). Others contend that \xe2\x80\x9ctouch and\nconcern\xe2\x80\x9d is always, at the very least, an implicit element in any analysis regarding enforcement of\ncovenants because \xe2\x80\x9cany restrictive easement necessitates some relation between the restriction and\nthe land itself.\xe2\x80\x9d McLoone, \xe2\x80\x9cEquitable Servitudes \xe2\x80\x93 A Recent Case and Its Implications for the\n276\n\n\x0cEnforcement of Covenants Not to Compete,\xe2\x80\x9d 9 Ariz.L.Rev. 441, 444, 447 n. 5 (1968). Still others\nexplain the \xe2\x80\x9ctouch and concern\xe2\x80\x9d omission on the theory that equitable servitudes usually involve\nnegative covenants or promises on how the land should not be used. Thus, because those covenants\ntypically do touch and concern the land, the equity courts did not feel the necessity to state \xe2\x80\x9ctouch\nand concern\xe2\x80\x9d as a separate requirement. Berger, \xe2\x80\x9cIntegration of the Law of Easements, Real\nCovenants and Equitable Servitudes,\xe2\x80\x9d 43 Wash. & Lee L.Rev., 337, 362 (1986). Whatever the\nexplanation, the law of equitable servitudes did generally continue to diminish or omit the \xe2\x80\x9ctouch\nand concern\xe2\x80\x9d requirement.\nB. New Jersey\xe2\x80\x99s treatment of noncompetitive covenants restraining the use of property\nOur inquiry of New Jersey law on restrictive property use covenants commences with a reexamination of the rule set forth in Brewer v. Marshall & Cheeseman, supra, 19 N.J. Eq. at 537, that a\ncovenant will not run with the land unless it affects the physical use of the land. Hence, the burden\nside of a noncompetition covenant is personal to the covenantor and is, therefore, not enforceable\nagainst a purchaser. In Brewer v. Marshall & Cheeseman, the court objected to all noncompetition\ncovenants on the basis of public policy and refused to consider them in the context of the doctrine\nof equitable servitudes. Similarly, in National Union Bank at Dover v. Segur, 39 N.J.L. 173 (Sup.Ct.\n1877), the court held that only the benefit of a noncompetition covenant would run with the land,\nbut the burden would be personal to the covenantor. See 5 R. Powell, supra, \xc2\xa7 675[3] at 60-109.\nBecause the burden of a noncompetition covenant is deemed to be personal in these cases,\nenforcement would be possible only against the original covenantor. As soon as the covenantor sold\nthe property, the burden would cease to exist.\nBrewer and National Union Bank have been subsequently interpreted as embodying the\n\xe2\x80\x9cunnecessarily strict\xe2\x80\x9d position that \xe2\x80\x9cwhile the benefit of [a noncompetition covenant] will run with\nthe land, the burden of the covenant is necessarily personal to the covenantor.\xe2\x80\x9d 5 Powell, supra, \xc2\xa7\n675[3] at 60-109. This blanket prohibition of noncompetition covenants has been ignored in more\nrecent decisions that have allowed the burden of a noncompetition covenant to run, see Renee Cleaners\nInc. v. Good Deal Supermarkets of N.J., 89 N.J. Super. 186, 214 A.2d 437 (App.Div. 1965) (enforcing at\nlaw covenant not to lease property for dry-cleaning business as against subsequent purchaser of\nland); Alexander\xe2\x80\x99s v. Arnold Constable Corp., 105 N.J. Super. 14, 28, 250 A.2d 792 (Ch. 1969) (enforcing\npromise entered into by prior holders of land not to operate department store as against current\nlandowner). Nonetheless, Brewer may still retain some vitality, as evidenced by the trial court\xe2\x80\x99s\nreliance on it in this case.\nThe per se prohibition that noncompetition covenants regarding the use of property do not\nrun with the land is not supported by modern real-covenant law, and indeed, appears to have\nsupport only in the Restatement of Property section on the running of real covenants, \xc2\xa7 537 comment f.\n5 Powell, supra, at \xc2\xa7 675[3] at 60-109. Specifically, that approach is rejected in the Restatement\xe2\x80\x99s section\non equitable servitudes, see Restatement of Property, \xc2\xa7 539 comment k (1944); see also Whitinsville Plaza,\nInc. v. Kotseas, 378 Mass. 85, 95-96, 390 N.E.2d 243, 249 (1979) (overruling similarly strict approach\ninasmuch as it was \xe2\x80\x9canachronistic\xe2\x80\x9d compared to modern judicial analysis of noncompetition\ncovenants, which focuses on effects of covenant).\nCommentators also consider the Brewer rule an anachronism and in need of change, as do\nwe. 5 Powell, supra, \xc2\xb6 678 at 192. Accordingly, to the extent that Brewer holds that a noncompetition\ncovenant will not run with the land, it is overruled.\nPlaintiff also argues that the \xe2\x80\x9ctouch and concern\xe2\x80\x9d test likewise should be eliminated in\n277\n\n\x0cdetermining the enforceability of fully negotiated contracts, in favor of a simpler \xe2\x80\x9creasonableness\xe2\x80\x9d\nstandard that has been adopted in most jurisdictions. That argument has some support from\ncommentators, see, e.g., Epstein, \xe2\x80\x9cNotice and Freedom of Contract in the Law of Servitudes,\xe2\x80\x9d 55\nS.Cal.L.Rev. 1353, 1359-61 (1982) (contending that \xe2\x80\x9ctouch and concern\xe2\x80\x9d complicates the basic\nanalysis and limits the effectiveness of law of servitudes), including a reporter for the Restatement\n(Third) of Property, see French, \xe2\x80\x9cServitudes Reform and the New Restatement of Property: Creation\nDoctrines and Structural Simplification,\xe2\x80\x9d 73 Cornell L.Rev. 928, 939 (1988) (arguing that \xe2\x80\x9ctouch and\nconcern\xe2\x80\x9d rule should be completely eliminated and that the law should instead directly tackle the\n\xe2\x80\x9crunning\xe2\x80\x9d issue on public-policy grounds).\nNew Jersey courts, however, continue to focus on the \xe2\x80\x9ctouch and concern\xe2\x80\x9d requirement as\nthe pivotal inquiry in ascertaining whether a covenant runs with the land. Under New Jersey law, a\ncovenant that \xe2\x80\x9cexercise[s] [a] direct influence on the occupation, use or enjoyment of the premises\xe2\x80\x9d\nsatisfies the \xe2\x80\x9ctouch and concern\xe2\x80\x9d rule. Caullett v. Stanley Stilwell & Sons, Inc., 67 N.J. Super. 111, 116,\n170 A.2d 52 (App.Div. 1961). The covenant must touch and concern both the burdened and the\nbenefitted property in order to run with the land. Ibid; Hayes v. Waverly & Passaic R.R., 51 N.J. Eq. 3,\n27 A. 648 (Ch. 1893). Because the law frowns on the placing of restrictions on the freedom of\nalienation of land, New Jersey courts will enforce a covenant only if it produces a countervailing\nbenefit to justify the burden. Restatement of Property \xc2\xa7 543, comment c (1944); Reichman, supra, 55\nS.Cal.L.Rev. at 1229.\nUnlike New Jersey, which has continued to rely on the \xe2\x80\x9ctouch and concern\xe2\x80\x9d requirement,\nmost other jurisdictions have omitted \xe2\x80\x9ctouch and concern\xe2\x80\x9d from their analysis and have focused\ninstead on whether the covenant is reasonable. [A long list of citations is omitted.]\nEven the majority of courts that have retained the \xe2\x80\x9ctouch and concern\xe2\x80\x9d test have found that\nnoncompetition covenants meet the test\xe2\x80\x99s requirements. See, e.g., Dick v. Sears-Roebuck & Co., 115\nConn. 122, 160 A. 432 (1932) (holding \xe2\x80\x9ctouch and concern\xe2\x80\x9d element satisfied where noncompetition\ncovenants restrained \xe2\x80\x9cuse to which the land may be put in the future as well as in the present, and\nwhich might very likely affect its value\xe2\x80\x9d); Singer v. Wong, 35 Conn. Supp. 640, 404 A.2d 124 (1978)\n(restrictive covenant in deed providing that premises not be used as shopping center \xe2\x80\x9ctouched and\nconcerned\xe2\x80\x9d land because it materially affected value of land) [other cases omitted].\nThe \xe2\x80\x9ctouch and concern\xe2\x80\x9d test has, thus, ceased to be, in most jurisdictions, intricate and\nconfounding. Courts have decided as an initial matter that covenants not to compete do touch and\nconcern the land. The courts then have examined explicitly the more important question of whether\ncovenants are reasonable enough to warrant enforcement. The time has come to cut the gordian\nknot that binds this state\xe2\x80\x99s jurisprudence regarding covenants running with the land. Rigid adherence\nto the \xe2\x80\x9ctouch and concern\xe2\x80\x9d test as a means of determining the enforceability of a restrictive\ncovenant is not warranted. Reasonableness, not esoteric concepts of property law, should be the\nguiding inquiry into the validity of covenants at law. We do not abandon the \xe2\x80\x9ctouch and concern\xe2\x80\x9d\ntest, but rather hold that the test is but one of the factors a court should consider in determining the\nreasonableness of the covenant.\nA \xe2\x80\x9creasonableness\xe2\x80\x9d test allows a court to consider the enforceability of a covenant in view of\nthe realities of today\xe2\x80\x99s commercial world and not in the light of outmoded theories developed in a\nvastly different commercial environment. Originally strict adherence to \xe2\x80\x9ctouch and concern\xe2\x80\x9d rule in\nthe old English common-law cases and in Brewer, was to effectuate the then pervasive public policy\nof restricting many, if not all, encumbrances of the land. Courts today recognize that it is not\nunreasonable for parties in commercial-property transactions to protect themselves from\ncompetition by executing noncompetition covenants. Businesspersons, either as lessees or\npurchasers may be hesitant to invest substantial sums if they have no minimal protection from a\ncompetitor starting a business in the near vicinity. Hence, rather than limiting trade, in some\n278\n\n\x0cinstances, restrictive covenants may increase business activity.\nWe recognize that \xe2\x80\x9creasonableness\xe2\x80\x9d is necessarily a fact sensitive issue involving an inquiry\ninto present business conditions and other factors specific to the covenant at issue. Nonetheless, as\ndo most of the jurisdictions, we find that it is a better test for governing commercial transactions\nthan are obscure anachronisms that have little meaning in today\xe2\x80\x99s commercial world. The pivotal\ninquiry, therefore, becomes what factors should a court consider in determining whether such a\ncovenant is \xe2\x80\x9creasonable\xe2\x80\x9d and hence enforceable. We conclude that the following factors should be\nconsidered:\nThe intention of the parties when the covenant was executed, and whether the parties had a\nviable purpose which did not at the time interfere with existing commercial laws, such as antitrust\nlaws, or public policy.\nWhether the covenant had an impact on the considerations exchanged when the covenant\nwas originally executed. This may provide a measure of the value to the parties of the covenant at\nthe time.\nWhether the covenant clearly and expressly sets forth the restrictions.\nWhether the covenant was in writing, recorded, and if so, whether the subsequent grantee\nhad actual notice of the covenant.\nWhether the covenant is reasonable concerning area, time or duration. Covenants that\nextend for perpetuity or beyond the terms of a lease may often be unreasonable. Alexander\xe2\x80\x99s v. Arnold\nConstable, 105 N.J. Super. 14, 27, 250 A.2d 792 (Ch.Div. 1969); Cragmere Holding Corp. v. Socony Mobile\nOil Co., 65 N.J. Super. 322, 167 A.2d 825 (App.Div. 1961).\nWhether the covenant imposes an unreasonable restraint on trade or secures a monopoly\nfor the covenantor. This may be the case in areas where there is limited space available to conduct\ncertain business activities and a covenant not to compete burdens all or most available locales to\nprevent them from competing in such an activity. Doo v. Packwood, 265 Cal. App.2d 752, 71 Cal. Rptr.\n477 (1968); Kettle River R. v. Eastern Ry. Co., 41 Minn. 461, 43 N.W. 469 (1889).\nWhether the covenant interferes with the public interest. Natural Prods. Co. v. Dolese &\nShepard Co., 309 Ill. 230, 140 N.E. 840 (1923).\nWhether, even if the covenant was reasonable at the time it was executed, \xe2\x80\x9cchanged\ncircumstances\xe2\x80\x9d now make the covenant unreasonable. Welitoff v. Kohl, 105 N.J. Eq. 181, 147 A. 390\n(1929).\nIn applying the \xe2\x80\x9creasonableness\xe2\x80\x9d factors, trial courts may find useful the analogous standards\nwe have adopted in determining the validity of employee covenants not to compete after\ntermination of employment. Although enforcement of such a covenant is somewhat restricted\nbecause of countervailing policy considerations, we generally enforce an employee noncompetition\ncovenant as reasonable if it \xe2\x80\x9csimply protects the legitimate interests of the employer imposes no\nundue hardship on the employee, and is not injurious to the public.\xe2\x80\x9d Solari Indus. v. Malady, 55 N.J.\n571, 576, 264 A.2d 53 (1970). We also held in Solari that if such a covenant is found to be\noverbroad, it may be partially enforced to the extent reasonable under the circumstances. Id. at 585,\n264 A.2d 53. That approach to the enforcement of restrictive covenants in deeds offers a\nmechanism for recognizing and balancing the legitimate concerns of the grantor, the successors in\ninterest, and the public.\nThe concurrence maintains that the initial validity of the covenant is a question of contract\nlaw while its subsequent enforceability is one of property law. Post at 221, 579 A.2d at 300. The\nresult is that the concurrence uses reasonableness factors in construing the validity of the covenant\nbetween the original covenantors, but as to successors-in-interest, claims to adhere strictly to a\n\xe2\x80\x9ctouch and concern\xe2\x80\x9d test. Post at 222, 579 A.2d at 301. Such strict adherence to a \xe2\x80\x9ctouch and\nconcern\xe2\x80\x9d analysis turns a blind eye to whether a covenant has become unreasonable over time.\n279\n\n\x0cIndeed many past illogical and contorted applications of the \xe2\x80\x9ctouch and concern\xe2\x80\x9d rules have resulted\nbecause courts have been pressed to twist the rules of \xe2\x80\x9ctouch and concern\xe2\x80\x9d in order to achieve a\nresult that comports with public policy and a free market. Most jurisdictions acknowledge the\nreasonableness factors that affect enforcement of a covenant concerning successors-in-interest,\ninstead of engaging in the subterfuge of twisting the touch and concern test to meet the required\nresult. New Jersey should not remain part of the small minority of States that cling to an\nanachronistic rule of law. Supra at 210, 579 A.2d at 295.\nThere is insufficient evidence in this record to determine whether the covenant is reasonable.\nNevertheless, we think it instructive to comment briefly on the application of the \xe2\x80\x9creasonableness\xe2\x80\x9d\nfactors to this covenant. We consider first the intent of the parties when the covenant was executed.\nIt is undisputed that when plaintiff conveyed the property to Katz, it intended that the George\nStreet store would not be used as a supermarket or grocery store for a period of forty years to\nprotect his existing business at the Elizabeth Street store from competition. Plaintiff alleges that the\npurchase price negotiated between it and Katz took into account the value of the restrictive\ncovenant and that Katz paid less for the property because of the restriction. There is no evidence,\nhowever, of the purchase price. It is also undisputed that the covenant was expressly set forth in a\nrecorded deed, that the Authority took title to the premises with actual notice of the restrictive\ncovenant, and, indeed, that all the defendants, including C-Town, had actual notice of the covenant.\nThe parties do not specifically contest the reasonableness of either the duration or area of\nthe covenant. Aspects of the \xe2\x80\x9ctouch and concern\xe2\x80\x9d test also remain useful in evaluating the\nreasonableness of a covenant, insofar as it aids the courts in differentiating between promises that\nwere intended to bind only the individual parties to a land conveyance and promises affecting the\nuse and value of the land that was intended to be passed on to subsequent parties. Covenants not to\ncompete typically do touch and concern the land. In noncompetition cases, the \xe2\x80\x9cburden\xe2\x80\x9d factor of\nthe \xe2\x80\x9ctouch and concern\xe2\x80\x9d test is easily satisfied regardless of the definition chosen because the\ncovenant restricts the actual use of the land. Berger, supra, 52 Wash.L.Rev. at 872. The Appellate\nDivision properly concluded that the George Street store was burdened. However, we disagree with\nthe Appellate Division\xe2\x80\x99s conclusion that in view of the covenant\xe2\x80\x99s speculative impact, the covenant\ndid not provide a sufficient \xe2\x80\x9cbenefit\xe2\x80\x9d to the Elizabeth Street property because it burdened only a\nsmall portion (George Street store) of the \xe2\x80\x9cmarket circle\xe2\x80\x9d (less than one-half acre in a market circle\nof 2000 acres).\nThe size of the burdened property relative to the market area is not a probative measure of\nwhether the Elizabeth store was benefitted. Presumably, the use of the Elizabeth Street store as a\nsupermarket would be enhanced if competition were lessened in its market area. If plaintiff\xe2\x80\x99s\nallegations that the profits of the Elizabeth Street store increased after the sale of the George Street\nstore are true, this would be evidence that a benefit was \xe2\x80\x9cconveyed\xe2\x80\x9d on the Elizabeth Street store.\nLikewise, information that the area was so densely populated, that the George Street property was\nthe only unique property available for a supermarket, would show that the Elizabeth Street store\nproperty was benefitted by the covenant. In this connection the C-Town executive in his deposition\nnoted that the George Street store location \xe2\x80\x9cbusinesswise was promising because there\xe2\x80\x99s no other\nstore in town.\xe2\x80\x9d Such evidence, however, also should be considered in determining the\n\xe2\x80\x9creasonableness\xe2\x80\x9d of the area covered by the covenant and whether the covenant unduly restrained\ntrade.\nDefendants\xe2\x80\x99 primary contention is that due to the circumstances of the neighborhood and\nmore particularly the circumstances of the people of the neighborhood, plaintiff\xe2\x80\x99s covenant\ninterferes with the public\xe2\x80\x99s interest. Whether that claim is essentially that the community has\nchanged since the covenant was enacted or that the circumstances were such that when the covenant\nwas enacted, it interfered with the public interest, we are unable to ascertain from the record.\n280\n\n\x0c\xe2\x80\x9cPublic interest\xe2\x80\x9d and \xe2\x80\x9cchanged circumstances\xe2\x80\x9d arguments are extremely fact-sensitive. The only\nevidence that addresses those issues, the three affidavits of Mr. Keefe, Mr. Nero and Ms. Scott, are\ninsufficient to support any finding with respect to those arguments.\nThe fact-sensitive nature of a \xe2\x80\x9creasonableness\xe2\x80\x9d analysis make resolution of this dispute\nthrough summary judgment inappropriate. We therefore remand the case to the trial court for a\nthorough analysis of the \xe2\x80\x9creasonableness\xe2\x80\x9d factors delineated herein.\nThe trial court must first determine whether the covenant was reasonable at the time it was\nenacted. If it was reasonable then, but now adversely affects commercial development and the public\nwelfare of the people of New Brunswick, the trial court may consider whether allowing damages for\nbreach of the covenant is an appropriate remedy. C-Town could then continue to operate but\nDavidson would get damages for the value of his covenant. On the limited record before us,\nhowever, it is impossible to make a determination concerning either reasonableness of the covenant\nor whether damages, injunctive relief, or any relief is appropriate.\nIn sum, we reject the trial court\xe2\x80\x99s conclusion because it depends largely on the continued\nvitality of Brewer, which we hereby overrule. Supra at 201-202, 579 A.2d at 290-291. Likewise, we\nreject the Appellate Division\xe2\x80\x99s reliance on the \xe2\x80\x9ctouch and concern\xe2\x80\x9d test. Instead, the proper test to\ndetermine the enforceability of a restricted noncompetition covenant in a commercial land\ntransaction is a test of \xe2\x80\x9creasonableness,\xe2\x80\x9d an approach adopted by a majority of the jurisdictions.\nIII\nThe other issue before us concerns whether the lease granted by the Housing Authority to\nC-Town constitutes an impermissible gift of public property in violation of the State Constitution.\n\xe2\x80\xa6.\nWe remand to the trial court to determine whether the purchase, lease, and operation of the\nsupermarket constituted a public purpose, and, if so, whether the Housing Authority used justifiable\nmeans to attract a supermarket to the area of downtown New Brunswick.\nJudgment reversed and cause remanded for further proceedings consistent with this opinion.\nPollock, J., concurring.\nThe Court reverses the Appellate Division\xe2\x80\x99s affirmance of the Chancery Division\xe2\x80\x99s grant of\nsummary judgment invalidating the restrictive covenant and remands the matter to the Chancery\nDivision for a plenary hearing. Although I concur in the judgment of remand, I believe it should be\non different terms.\nMy basic difference with the majority is that I believe the critical consideration in\ndetermining the validity of this covenant is whether it is reasonable as to scope and duration, a point\nthat has never been at issue in this case. Nor has there ever been any question whether the original\nparties to the covenant, Davidson Bros., Inc. (Davidson), and D. Katz & Sons, Inc. (Katz) intended\nthat the covenant should run with the land. Likewise, the New Brunswick Housing Authority (the\nAuthority) and C-Town have never disputed that they did not have actual notice of the covenant or\nthat there was privity between them and Katz. Finally, the defendants have not contended that the\ncovenant constitutes an unreasonable restraint on trade or that it has an otherwise unlawful purpose,\nsuch as invidious discrimination. Davidson, moreover, makes the uncontradicted assertion that the\n281\n\n\x0ccovenant is a burden to the George Street property and benefits the Elizabeth Street property.\nHence, the covenant satisfies the requirement that it touch and concern the benefitted and burdened\nproperties.\nThe fundamental flaw in the majority\xe2\x80\x99s analysis is in positing that an otherwise-valid\ncovenant can become invalid not because it results in an unreasonable restraint on trade, but\nbecause invalidation facilitates a goal that the majority deems worthy. Considerations such as\n\xe2\x80\x9cchanged circumstances\xe2\x80\x9d and \xe2\x80\x9cthe public interest,\xe2\x80\x9d when they do not constitute such a restraint,\nshould not affect the enforceability of a covenant. Instead, they should relate to whether the\nappropriate method of enforcement is an injunction or damages. A court should not declare a\nnoncompetition covenant invalid merely because enforcement would lead to a result with which the\ncourt disagrees. This leads me to conclude that the only issue on remand should be whether the\nappropriate remedy is damages or an injunction.\nEnforcement of the restriction by an injunction will deprive the downtown residents of the\nconvenience of shopping at the George Street property. Refusal to enforce the covenant, on the\nother hand, will deprive Davidson of the benefit of its covenant. Thus, the case presents a tension\nbetween two worthy objectives: the continued operation of the supermarket for the benefit of needy\ncitizens, and the enforcement of the covenant. An award of damages to Davidson rather than the\ngrant of an injunction would permit the realization of both objectives.\n-II begin by questioning the majority\xe2\x80\x99s formulation and application of a reasonableness test for\ndetermining whether the covenant runs with the land. The law has long distinguished between the\nvalidity of a covenant between original-contracting parties from the enforceability of a covenant\nagainst the covenantor\xe2\x80\x99s successor-in-interest. Initial validity is a question of contract law;\nenforceability against subsequent parties is one of property law. Caullett v. Stanley Stilwell & Sons, 67\nN.J. Super. 111, 116, 170 A.2d 52 (App.Div. 1961); R. Cunningham, W. Stoebuck, and D. Whitman,\nThe Law of Property 467 (1984) (Cunningham). That distinction need not foreclose a subsequent\nowner of the burdened property from challenging the validity of the contract between the original\nparties. The distinction, however, sharpens the analysis of the effect of the covenant.\nIn this case, the basic issue is enforceability of the covenant against the Authority and CTown, successors in interest to Katz. Thus, the only relevant consideration is whether the covenant\n\xe2\x80\x9ctouches and concerns\xe2\x80\x9d the benefitted and burdened properties. For the Chancery Division, the\ncritical issue was \xe2\x80\x9cwhether the restriction burdens the land in the hands of the Authority.\xe2\x80\x9d As the\nmajority points out, \xe2\x80\x9c[i]n contrast to the trial court\xe2\x80\x99s decision, the Appellate Division\xe2\x80\x99s rationale was\npremised on the failure of the benefit of the covenant to run, not of the burden.\xe2\x80\x9d Ante at 202, 579\nA.2d at 291. The majority correctly disagrees with the Appellate Division\xe2\x80\x99s rationale, properly\nobserving that a covenant can provide a benefit even without burdening most of the properties in\nthe relevant market area. Ante at 214, 579 A.2d at 297. Concerning the running of the burden on the\nGeorge Street property, the majority views Brewer v. Marshall & Cheeseman, 19 N.J. Eq. 537 (E. & A.\n1868), as an anachronism. It properly overrules the holding of Brewer \xe2\x80\x9cthat a noncompetition\ncovenant will not run with the land *.\xe2\x80\x9d Ante at 207, 579 A.2d at 293. Continuing, the majority\nobserves that in most jurisdictions the \xe2\x80\x9c\xe2\x80\x98touch and concern\xe2\x80\x99 test has * ceased to be * intricate and\nconfounding,\xe2\x80\x9d and that \xe2\x80\x9c[c]ourts have decided as an initial matter that covenants not to compete do\ntouch and concern the land.\xe2\x80\x9d Ante at 209, 579 A.2d at 294. Instead of concluding its analysis, the\nmajority adds: \xe2\x80\x9cWe do not abandon the \xe2\x80\x98touch and concern\xe2\x80\x99 test, but rather hold that the test is but\n282\n\n\x0cone of the factors a court should consider in determining the reasonableness of the covenant.\xe2\x80\x9d Ante\nat 210, 579 A.2d at 295.\nThe Court can decide the present case without introducing a new test. On the present\nrecord, no question exists about the running of the benefit of the covenant. First, the party seeking\nto enforce the covenant is Davidson, the original leaseholder, not a successor in interest, of the\nElizabeth Street property. Second, as the language of the covenant indicates, the original contracting\nparties, Davidson and Katz, indicated that the covenant would run with the land. Third, Davidson\nmakes the uncontradicted assertions that both stores were unprofitable before the sale, that the\nElizabeth Street store after the sale of the George Street property enjoyed a twenty-per-cent sales\nincrease, and that the reopening of the George Street property caused it to suffer a loss of income.\nFinally, as the majority recognizes, the lower courts erred in concluding that the covenant did not\n\xe2\x80\x9ctouch and concern\xe2\x80\x9d the burdened and benefitted properties. Ante at 213, 579 A.2d at 296.\nIt is virtually inconceivable that the covenant does not benefit the Elizabeth Street property.\nNew Jersey courts have declared variously that the benefit \xe2\x80\x9cmust exercise direct influence upon the\noccupation, use or enjoyment of the premises,\xe2\x80\x9d Caullett, supra, 67 N.J. Super. at 116, 170 A.2d 52, and\nthat the covenant must confer \xe2\x80\x9ca direct benefit on the owner of land by reason of his ownership,\xe2\x80\x9d\nNational Union Bank at Dover v. Segur, 39 N.J.L. 173, 186 (Sup.Ct. 1877). Scholars have written that a\ncovenant\xe2\x80\x99s benefit touches and concerns land if it renders the owner\xe2\x80\x99s interest in the land more\nvaluable, Bigelow, The Content of Covenants in Leases, 12 Mich.L.Rev. 639, 645 (1914), or if \xe2\x80\x9cthe parties\nas laymen and not as lawyers\xe2\x80\x9d would naturally view the covenant as one that aids \xe2\x80\x9cthe promisee as\nlandowner,\xe2\x80\x9d C. Clark, Real Covenants and Other Interests Which Run with the Land 99 (2d ed. 1947)\n(Clark); see also 5 R. Powell & P. Rohan, Powell on Real Property \xc2\xb6 673[2][a] (1990) (Powell) (inclining\ntowards Clark\xe2\x80\x99s view). Like most courts, leading scholars, Powell, supra, \xc2\xa7 675[3]; Cunningham, supra,\nat 474-75; and Clark, supra, at 106, believe that under the \xe2\x80\x9ctouch and concern\xe2\x80\x9d test, the benefit of\nnoncompetition covenants should run with the land.\nThe conclusion that this covenant \xe2\x80\x9ctouches and concerns\xe2\x80\x9d the land should end the inquiry\nabout enforceability against the Authority and C-Town. The majority, however, holds that the\n\xe2\x80\x9ctouch and concern\xe2\x80\x9d test is \xe2\x80\x9cbut one of the factors a court should consider in determining the\nreasonableness of the covenant.\xe2\x80\x9d Ante at 210, 579 A.2d at 295. The majority\xe2\x80\x99s inquiry about\nreasonableness, however, confuses the issue of validity of the original contract between Davidson\nand Katz with enforceability against the subsequent owner, the Authority. This confusion of validity\nwith enforceability threatens to add uncertainty to an already troubled area of the law. As explained\nby one leading authority, \xe2\x80\x9c[t]he judicial reaction to this confusion [in the law of covenants and\nequitable servitudes] has often been to state the law so as to achieve the desired result in a particular\ncase. Obviously, this has caused frequent misstatements of the law, which has deepened the overall\nconfusion.\xe2\x80\x9d Powell, supra, \xc2\xb6 670[2].\nThe majority inaccurately asserts, ante at 208, 579 A.2d at 294, that most jurisdictions \xe2\x80\x9chave\nfocused on whether the covenant is reasonable enough to warrant enforcement.\xe2\x80\x9d Not one case cited\nby the majority has concluded that a covenant that is reasonable against the original covenantor\nwould be unreasonable against the covenantor\xe2\x80\x99s successor who takes with notice. For example, in\nHercules Powder Co. v. Continental Can Co., 196 Va. 935, 945, 86 S.E.2d 128, 133 (1955), only after first\nconcluding that the restriction was reasonable did the court consider \xe2\x80\x9cwhether it is enforceable by\nContinental Can, an assignee of the original covenantee, against Hercules, an assignee of the original\ncovenantor.\xe2\x80\x9d In determining that Hercules was subject to the restriction, the court considered only\nwhether it purchased the land with notice of the restriction. Id. at 946-48, 86 S.E.2d at 134-35.\nSimilarly, in Quadro Stations v. Gilley, 7 N.C. App. 227, 234, 172 S.E.2d 237, 242 (1970), the court first\nconcluded that the restriction was valid, and then held that it was enforceable against defendants,\nsuccessors in interest to the original covenanting parties. Nothing in the opinion implies that a\n283\n\n\x0crestriction that was reasonable between the original parties would be unenforceable against a\npurchaser of the burdened property who bought with notice. Doo v. Packwood, 265 Cal. App.2d 752,\n756, 71 Cal. Rptr. 477, 481 (1968), is likewise unavailing to the majority. There, when purchasing a\nlot on which Doo had operated a grocery store, Packwood agreed to a noncompetition covenant.\nAfter concluding that the covenant was reasonable as between the original parties, the court found\nthat it would be binding on a future purchaser with notice. Ibid. In effect, future purchasers would\nbe bound so long as Doo continued to operate a competitive grocery store. Ibid. To conclude, the\ncited cases hold that a reasonable noncompetition covenant binding on the original covenantor\nlikewise binds a subsequent purchaser with notice. Hence, the majority misperceives the focus of the\nout-of-state cases. The result is that the majority\xe2\x80\x99s reasonableness test introduces unnecessary\nuncertainty in the analysis of covenants running with the land.\nAs troublesome as uncertainty is in other areas of the law, it is particularly vexatious in the\nlaw of real property. The need for certainty in conveyancing, like that in estate planning, is necessary\nfor people to structure their affairs. Covenants that run with the land can affect the value of real\nproperty not only at the time of sale, but for many years thereafter. Consequently, vendors and\npurchasers, as well as their successors, need to know whether a covenant will run with the land. The\nmajority acknowledges that noncompetition covenants play a positive role in commercial\ndevelopment. Ante at 210, 579 A.2d at 295. Notwithstanding that acknowledgement, the majority\xe2\x80\x99s\nreasonableness test generates confusion that threatens the ability of commercial parties and their\nlawyers to determine the validity of such covenants. This, in turn, impairs the utility of\nnoncompetition covenants in real estate transactions.\nAs between the vendor and purchaser, a noncompetition covenant generally should be\ntreated as valid if it is reasonable in scope and duration, Irving Inv. Corp. v. Gordon, 3 N.J. 217, 221, 69\nA.2d 725 (1949); Heuer v. Rubin, 1 N.J. 251, 256-57, 62 A.2d 812 (1949); Scherman v. Stern, 93 N.J. Eq.\n626, 630, 117 A. 631 (E. & A. 1922), and neither an unreasonable restraint on trade nor otherwise\ncontrary to public policy. A covenant would contravene public policy if, for example, its purpose\nwere to secure a monopoly, Quadro Stations, supra, 7 N.C. App. at 235, 172 S.E.2d at 242; Hercules\nPowder Co., supra, 196 Va. at 944-45, 86 S.E.2d at 132-33, or to carry out an illegal object, such as\ninvidious discrimination, see, e.g., N.J.S.A. 46:3-23 (declaring restrictive covenants in real estate\ntransactions void if based on race, creed, color, national origin, ancestry, marital status, or sex).\nApplying those principles to the validity of the agreement between Davidson and Katz, I\nfind this covenant enforceable against defendants. The majority acknowledges that \xe2\x80\x9c[t]he parties do\nnot specifically contest the reasonableness of either the duration or the area of the covenant.\xe2\x80\x9d Ante\nat 213, 579 A.2d at 296. I agree. The covenant is limited to one parcel, the George Street property.\nDefendants do not assert that Davidson has restricted or even owns other property in New\nBrunswick. Furthermore, they do not allege that other property is not available for a supermarket. In\nbrief, the Authority has not alleged that at the time of the sale from Davidson to Katz, or even at\npresent, the George Street property was the only possible site in New Brunswick for a supermarket.\nConsequently, the covenant may not be construed to give rise to a monopoly. In all of New\nBrunswick it restricts a solitary one-half acre tract from use for a single purpose. Indeed, the record\ndemonstrates that the Authority explored other options, including expansion of a food cooperative\nand increasing the product lines at nearby convenience stores. Nothing in the record supports the\nconclusion that the covenant might be unreasonable respecting space.\nNor does anything indicate that the forty-year length of the restriction between Davidson\nand Katz is unreasonable in time. As we have stated, \xe2\x80\x9cwhere the space contained in the covenant is\nreasonable and proper there need be no limitation as to time.\xe2\x80\x9d Rubin, supra, 1 N.J. at 256-57, 62 A.2d\n812. That statement echoes the words \xe2\x80\x9ccertainly it is no objection to an agreement not to compete\nwith a mercantile business that the restraint is unlimited in point of time when [as here] it is\n284\n\n\x0creasonably limited in point of space.\xe2\x80\x9d Stern, supra, 93 N.J. Eq. at 630, 117 A. 631. To sustain the\nsubject covenant we need not go so far as to say that a covenant could never be unreasonably long.\nIn an appropriate case, a court, drawing on the analogy to restrictive covenants in employment\ncontracts, might reform a covenant so that it lasts only for a reasonable time. Solari Indus. v. Malady,\n55 N.J. 571, 264 A.2d 53 (1970). This is not such a case.\nHere, Davidson holds a lease on the Elizabeth Street property for a term of twenty years,\nwith two renewable five-year terms. Those lease terms are substantially, if not precisely, coextensive\nwith the term of the covenant. If, on remand, the Chancery Division should find that the additional\nten-year period is not enforceable by Davidson, it should also find that the restriction is valid for the\nthirty-year period during which Davidson\xe2\x80\x99s lease may run. In sum, I believe that the covenant is\nreasonable at least for the term of Davidson\xe2\x80\x99s lease.\nTo the extent that noncompetition covenants in real estate transactions are deemed valid if\nreasonable in scope and duration, they are more readily upheld than similar covenants arising out of\nemployment contracts. Solari Indus., supra, 55 N.J. at 576, 264 A.2d 53. In this regard, Williston\npoints out that \xe2\x80\x9c[r]estriction upon the use of real property is considered less likely to affect the\npublic interest adversely than restraint of the activities of individual parties and accordingly, such\ncovenants are usually held not contrary to public policy.\xe2\x80\x9d 14 Williston on Contracts \xc2\xa7 1642 (3d ed.\n1972) (Williston). Nothing in the record supports the conclusion that when made or at present the\nsubject covenant was an unreasonable restraint on trade or otherwise contrary to public policy.\nCertain of the factors identified by the majority must be present for a covenant to run apart\nfrom the considerations of reasonableness. Such factors are the intent of the parties that the\ncovenant run, clarity of the express restrictions, whether the covenant was in writing, and whether it\nwas recorded. Caullett, supra, 67 N.J. Super. at 116, 170 A.2d 52; Petersen v. Beekmere, 117 N.J. Super.\n155, 166-67, 283 A.2d 911 (Ch.Div. 1971); Clark, supra, at 94; Cunningham, supra, at 470. As\npreviously indicated, all those factors are present in this case. If they had not been present, the\ncovenant would have been unenforceable without reference to a reasonableness test. Duplicating\nthose factors in such a test is counterproductive.\nThe majority\xe2\x80\x99s three remaining factors also pose troubling problems. Without citing any\nauthority, the majority invites review of \xe2\x80\x9c[w]hether the covenant had an impact on the\nconsiderations exchanged when the covenant was originally executed.\xe2\x80\x9d Ante at 210, 579 A.2d at 295.\nAs the majority acknowledges, however, Davidson has made the uncontradicted assertion \xe2\x80\x9cthat the\npurchase price negotiated between it and Katz took into account the value of the restrictive\ncovenant and that Katz paid less for the property because of the restriction.\xe2\x80\x9d Ante at 213, 579 A.2d\nat 296.\nIn contract matters, courts ordinarily concern themselves with the existence, not the\nadequacy, of consideration. Kampf v. Franklin Life Ins. Co., 33 N.J. 36, 43, 161 A.2d 717 (1960).\nBecause a noncompetition covenant in a commercial-real-estate sale involves the sale of property in\nexchange for the payment of the purchase price and the noncompetition covenant, it would be\ndifficult to argue that the covenant was not supported by consideration. In fact, the majority does\nnot cite to a single case in which a noncompetition covenant in a real-estate transaction has been\ndeclared invalid for lack of consideration.\nRecognizing that the covenant should run is consistent with the intent of the contracting\nparties and reflects the economic consequences of their transaction. As Chief Justice Beasley wrote\nin National Union Bank at Dover, supra, 39 N.J.L. at 187, \xe2\x80\x9c[s]ince these parties most manifestly have\nthought that the stipulation in question gave additional value to the property, why, and on what\nground, should the court declare that such was not the case?\xe2\x80\x9d See DeGray v. Monmouth Beach Club\nHouse Co., 50 N.J. Eq. 329, 333, 24 A. 388 (Ch. 1892) (\xe2\x80\x9cThe equity thus enforced arises from the\ninference that the covenant has, to a material extent, entered into the consideration of the purchase,\n285\n\n\x0cand that it would be unjust to the original grantor to permit the covenant to be violated.\xe2\x80\x9d); Tulk v.\nMoxhay, 2 Phil. 774, 777-78, 41 Eng.Rep. 1143, 1144 (1848) (\xe2\x80\x9cOf course, the price would be affected\nby the covenant and nothing could be more inequitable than that the original purchaser should be\nable to sell the property the next day for a greater price, in consideration of the assignee being\nallowed to escape from the liability which he had himself undertaken.\xe2\x80\x9d).\nThe majority\xe2\x80\x99s other two factors are \xe2\x80\x9cwhether the covenant interferes with the public\ninterest,\xe2\x80\x9d and \xe2\x80\x9cwhether, even if the covenant was reasonable at the time it was executed, \xe2\x80\x98changed\ncircumstances\xe2\x80\x99 now make the covenant unreasonable.\xe2\x80\x9d Ante at 212, 579 A.2d at 295. In this regard,\nthe majority adds that\n[t]he trial court must first determine whether the covenant was reasonable at the time it was\nenacted. If it was reasonable then, but now adversely affects commercial development and the public\nwelfare of the people of New Brunswick, the trial court may consider whether allowing damages is\nan appropriate remedy. C-Town could continue to operate but Davidson would get damages for the\nvalue of his [sic] covenant. On the limited record before us, however, it is impossible to make a\ndetermination as to the reasonableness of the covenant or whether damages, injunctive relief, or any\nrelief is appropriate. [Ante at 215, 579 A.2d at 297.]\nImplicit in the statement is the notion that a court might declare a covenant invalid even if it\nis reasonable in scope and duration, does not have a pernicious objective, and creates neither a\nmonopoly nor an unreasonable restraint of trade. In brief, merely because it does not like a\ncovenant, a court may find it invalid. This implication infects the usefulness of such covenants and\nrepresents an unwarranted intrusion of the judiciary in private transactions. The statement also\npoints up the problem of blurring the contractual and property aspects of the covenant. Supra at\n221-222, 579 A.2d at 300-301. Fairly read, the factors are not relevant to the determination of\nenforceability, as the Court initially indicated, but to the determination whether the appropriate relief\nis the award of damages or an injunction. See Welitoff v. Kohl, 105 N.J. Eq. 181, 189, 147 A. 390 (E. &\nA. 1929).\nThe decided cases suggest that changed circumstances justify the refusal to enforce an\notherwise-enforceable covenant only when the change defeats the covenant\xe2\x80\x99s purpose. Thus, in Doo,\nsupra, 265 Cal. App.2d at 756, 71 Cal. Rptr. at 481, a claim of changed circumstances could not defeat\na restrictive covenant against a grocery store as long as the benefitted party continued to operate a\ncompetitive store on another property. Analogous New Jersey cases imply a similar conclusion. In\nWeinstein v. Swartz, 3 N.J. 80, 89, 68 A.2d 865 (1949), when business development elsewhere did not\naffect the residential character of the neighborhood in which the burdened property was located, the\nCourt recognized the continuing validity of restrictions limiting the use of the property to a singlefamily residence. Similarly, in Leasehold Estates v. Fulbro Holding Co., 47 N.J. Super. 534, 565, 136 A.2d\n423 (App.Div. 1957), the court refused to enforce a 103-year-old covenant limiting the use of the\nfront of an alley to barns and stables because enforcement would not provide the \xe2\x80\x9ccontemplated\nbenefit to the covenantee.\xe2\x80\x9d\nPerhaps the majority\xe2\x80\x99s opinion is best read as holding that Davidson is entitled to damages\nbut not an injunction if the covenant was reasonable when formed, but now adversely affects the\npublic welfare of the people of New Brunswick. See Gilpin v. Jacob Ellis Realties, 47 N.J. Super. 26, 3134, 135 A.2d 204 (App.Div. 1957). Such a holding would ensure that Davidson will not be \xe2\x80\x9cleft\nwithout any redress; * [it will be] given what plaintiffs are given in many types of cases \xe2\x80\x93 relief\nmeasured, so far as the court reasonably may do so, in damages.\xe2\x80\x9d Id. at 34, 135 A.2d 204.\nNothing in the record provides any basis for finding that in the six years that elapsed\nbetween 1980, when Davidson sold to Katz, and 1986, when Katz sold to the Authority,\ncircumstances changed so much that they render the covenant unenforceable. The record is devoid\nof any showing that anything has happened since 1980 that has deprived the Elizabeth Street store\n286\n\n\x0cof the covenant\xe2\x80\x99s benefit. Notions of \xe2\x80\x9cchanged circumstances\xe2\x80\x9d and the \xe2\x80\x9cpublic interest\xe2\x80\x9d thinly veil\nthe Authority\xe2\x80\x99s attempt to avoid compensating Davidson for the cost of the lost benefit of an\notherwise-enforceable covenant. I am left to wonder whether the majority would so readily condone\nthe Authority\xe2\x80\x99s taking of Davidson\xe2\x80\x99s property if the interest taken were one in fee simple and not a\nrestrictive covenant. It is wrong to take Davidson\xe2\x80\x99s covenant without compensation just as it would\nbe wrong to take its fee interest without paying for it. Shopkeepers in malls throughout the state will\nbe astonished to learn that noncompetition covenants that they have so carefully negotiated in their\nleases are subject to invalidation because they run counter to a court\xe2\x80\x99s perception of \xe2\x80\x9cchanged\ncircumstances\xe2\x80\x9d and the \xe2\x80\x9cpublic interest.\xe2\x80\x9d\n-IIFor me the critical issue is whether the appropriate remedy for enforcing the covenant is\ndamages or an injunction. Ordinarily, as between competing land users, the more efficient remedy\nfor breach of a covenant is an injunction. R. Posner, Economic Analysis of Law 62 (1986) (Posner); R.\nEpstein, Notice and Freedom of Contract in the Law of Servitudes, 55 S.Cal.L.Rev. 1353-67 (1962); Calabresi\nand Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 Harv.L.Rev.\n1089, 1118 (1972) (Calabresi and Melamed). But see Posner, supra, at 59; Calabresi and Melamed,\nsupra, at 119 (discussing situations in which damages are a more efficient remedy than an injunction).\nIf Katz still owned the George Street property, the efficient remedy, therefore, would be an\ninjunction. The Authority, which took title with knowledge of the covenant, is in no better position\nthan Katz insofar as the binding effect of the covenant is concerned. Although an injunction might\nbe the most efficient form of relief, it would however deprive the residents of access to the George\nStreet store.\nThe economic efficiency of an injunction, although persuasive, is not dispositive. The right\nrule of law is not necessarily the one that is most efficient. Saint Barnabas Medical Center v. Essex\nCounty, 111 N.J. 67, 88, 543 A.2d 34 (1988) (Pollock, J., concurring); see also R. Coase, The Problem of\nSocial Cost, 3 J. Law & Econ. 1, 19 (1960). In other cases, New Jersey courts have allowed cost\nconsiderations other than efficiency to affect the award of a remedy.\nFor example, in Gilpin, supra, 47 N.J. Super. 26, 135 A.2d 204, the court refused to approve\nan injunction, but upheld an award of damages to the victim of a breach of a covenant. The property\nright at issue was a covenant restricting the building of any structure more than fifteen feet tall\nwithin four feet of one of the parties\xe2\x80\x99 common boundaries. Defendant, a builder, was the successor\nto the land of the original covenantor. Plaintiff succeeded to ownership of the land originally\nbenefitted by the covenant. Defendant and plaintiff were neighboring landowners. Defendant\nbreached the covenant. Remodeling the structure would have cost defendant $11,500. The trial court\nhad found that the breach harmed plaintiff to the extent of $1,000 in damages. Invoking the\n\xe2\x80\x9cdoctrine of relative hardship,\xe2\x80\x9d the Appellate Division held that the differences in these two figures\nwere \xe2\x80\x9cso grossly disproportionate in amount as to justify the denial of the mandatory injunction.\xe2\x80\x9d 47\nN.J. Super. at 35-36, 135 A.2d 204. At the same time, the Appellate Division upheld the $1,000damages award to plaintiff. Id. at 36, 135 A.2d 204. Thus, the court concluded that the appropriate\nremedy for enforcing the covenant was an award of damages, not an injunction.\nInjunctions, moreover, are ordinarily issued in the discretion of the court. Id. at 29, 135 A.2d\n204. Hence, \xe2\x80\x9c[t]he court of equity has the power of devising its remedy and shaping it so as to fit the\nchanging circumstances of every case and the complex relations of all the parties.\xe2\x80\x9d Sears, Roebuck &\nCo. v. Camp, 124 N.J. Eq. 403, 412, 1 A.2d 425 (E. & A. 1938) (quoting Pomeroy, Equity Jurisprudence\n287\n\n\x0c\xc2\xa7 109 (5th ed. 1941)). In the exercise of its discretion, a court may deny injunctive relief when\ndamages provide an available adequate remedy at law. See Board of Educ., Borough of Union Beach v.\nN.J.E.A., 53 N.J. 29, 43, 247 A.2d 867 (1968).\nIn the past, however, an injunction in cases involving real covenants and equitable servitudes\n\xe2\x80\x9cwas granted almost as a matter of course upon a breach of the covenant. The amount of damages,\nand even the fact that the plaintiff has sustained any pecuniary damages, [was] wholly immaterial.\xe2\x80\x9d\nJ.N. Pomeroy, Equity Jurisprudence, \xc2\xa7 1342 (5th ed. 1941). The roots of that tradition are buried deep\nin the English common law and are not suited for modern American commercial practices. In brief,\nthe unswerving preference for injunctive relief over damages is an anachronism.\nAt English common law, as between grantors and grantees, covenants running with the land\nviolated the public policy against encumbrances. See Powell, supra, \xc2\xa7 670 n. 27 (citing Keppell v. Bailey,\n39 Eng.Rep. 1042 (Ch. 1834)). The policy becomes understandable on realizing that England\noriginally did not provide a system for recording encumbrances, such as restrictive covenants. See\nBerger, A Policy Analysis of Promises Respecting the Use of Land, 55 Minn.L.Rev. 167, 186 (1970). Without\na recording system, a subsequent grantee might not receive actual or constructive notice of such a\ncovenant. As the Court points out, \xe2\x80\x9c[a]dequate notice obliterated any express requirement of \xe2\x80\x98touch\nand concern.\xe2\x80\x99\xe2\x80\x9d Ante at 204, 579 A.2d at 292.\nFor centuries, New Jersey has provided a means for recording restrictive covenants. Hence,\nthe policy considerations that counselled against enforcement of restrictive covenants at English\ncommon law do not apply in this state. In the absence of an adequate remedy at law, moreover, the\nEnglish equity courts filled the gap by providing equitable relief, such as an injunction. Tulk, supra, 2\nPhil. 774, 41 Eng.Rep. 1143 (discussed by the majority, ante at 204, 579 A.2d at 292.) In this state,\nunlike in England, covenants between grantor and grantee are readily enforceable. Roehrs v. Lees, 178\nN.J. Super. 399, 429 A.2d 388 (App.Div. 1981) (covenant between neighboring property owners\narising from a grantor-grantee relationship between original covenanting parties enforceable; matter\nremanded to trial court to determine whether damages or injunction was appropriate); Gilpin, supra,\n47 N.J. Super. at 29, 135 A.2d 204. Hence, the need for injunctive relief, as distinguished from\ndamages, is less compelling in New Jersey than at English common law, where damages were not\nalways available. I would rely on the rule that a court should not grant an equitable remedy when\ndamages are adequate. N.J.E.A., supra, 53 N.J. at 43, 247 A.2d 867.\nHere, moreover, the Authority holds a trump card not available to all other property owners\nburdened by restrictive covenants \xe2\x80\x93 the power to condemn. By recourse to that power, the\nAuthority can vitiate the injunction by condemning the covenant and compensating Davidson for its\nlost benefit. That power does not alter the premise that an injunction is generally the most efficient\nform of relief. See Calabresi and Melamed, supra, at 1118; Posner, supra, at 62. It merely emphasizes\nthat the Authority through condemnation can effectively transform injunctive relief into a damages\naward. Arguably, the most efficient result is to enforce the covenant against the Authority and then\nremit it to its power of condemnation. This result would recognize the continuing validity of the\ncovenant, compensate Davidson for its benefit, and permit the needy citizens of New Brunswick to\nenjoy convenient shopping.\nForcing the Authority to institute eminent-domain proceedings conceivably would waste\njudicial resources and impose undue costs on the parties. A more appropriate result is to award\ndamages to Davidson for breach of the covenant. That would be true, I believe, even against a\nsubsequent grantee that does not possess the power to condemn.\nMoney damages would compensate Davidson for the wrong done by the opening of the\nGeorge Street supermarket. Davidson would be \xe2\x80\x9cgiven what plaintiffs are given in many types of\ncases \xe2\x80\x93 relief measured, so far as the court reasonably may do so, in damages.\xe2\x80\x9d Gilpin, supra, 47 N.J.\nSuper. at 34, 135 A.2d 204. The award of money damages, rather than an injunction, might be the\n288\n\n\x0cmore appropriate form of relief for several reasons. First, a damages award is \xe2\x80\x9cparticularly applicable\nto a case, such as this, wherein we are dealing with two commercial properties *.\xe2\x80\x9d Id. at 35, 135\nA.2d 204. Second, the award of damages in a single proceeding would provide more efficient justice\nthan an injunction in the present case, with a condemnation suit to follow. Davidson would be\ncompensated for the loss of the covenant and the needy residents would enjoy more convenient\nshopping. That solution is both efficient and just.\nI can appreciate why New Brunswick residents want a supermarket and why the Authority\nwould come to their aid. Supermarkets may be essential for the salvation of inner cities and their\nresidents. The Authority\xe2\x80\x99s motives, however noble, should not vitiate Davidson\xe2\x80\x99s right to\ncompensation. The fair result, it seems to me, is for the Authority to compensate Davidson in\ndamages for the breach of its otherwise valid and enforceable covenant.\nPROBLEMS\nThere is a group of neighbors who wish to contract to prevent commercial development of\nany of their lands.\nHow might they do this to ensure the agreement runs with their lands?\nWhat is the minimum they need to do in order to create agreements enforceable against\nsuccessors?\nGive an example of a successor who would not be in strict vertical privity with his or her\npredecessor.\nWhat needs to be shown for a successor to sue an original contracting party who develops\ncommercially?\nAnswers\n\n1. How might they do this to ensure the agreement runs with their lands?\nThe answer needs to include something ensuring horizontal privity. Full credit if you say\nthey need to enter a strawman transaction with a lawyer and record the agreement. 1/2 credit if you\njust list the elements for the burden to run with some explanation but without highlighting what\nexactly they need to do to achieve horizontal privity (h.priv., v. priv., writing, intent, notice, touch\nand concern).\n2. What is the minimum they need to do in order to create agreements enforceable against\nsuccessors?\nThey just need to put it in writing and record or otherwise provide for notice. The key here\nis that they don\xe2\x80\x99t need to achieve horizontal privity to create an enforceable equitable servitude\n(injunction suit).\n3. Give an example of a successor who would not be in strict vertical privity with his or her\npredecessor.\nThe tenant of a landlord. Any example where the predecessor retains an interest will work.\n(Life Tenant with a reversion in the grantor rather than a remainder interest in someone else.)\n4. What needs to be shown for a successor to sue an original contracting party who develops\ncommercially?\nOnly that the benefit runs: Writing, intent, touch and concern. The point is that you don\xe2\x80\x99t\nhave to show that the burden runs - i.e., no need for notice. If you mention vertical privity, that\xe2\x80\x99s\nfine, but it\xe2\x80\x99s generally not needed to sue for an injunction.\n289\n\n\x0c290\n\n\x0c6.1.2. Implied Covenants\nSanborn v. McLean,\n206 N.W. 496 (Mich. 1925).\n\nClark, Emmons, Bryant & Klein, of Detroit, for appellants.\nWarren, Cady, Hill & Hamblen, of Detroit, for appellees.\nWiest, J.\nDefendant Christina McLean owns the west 35 feet of lot 86 of Green Lawn subdivision, at\nthe northeast corner of Collingwood avenue and Second boulevard, in the city of Detroit, upon\nwhich there is a dwelling house, occupied by herself and her husband, defendant John A. McLean.\nThe house fronts Collingwood avenue. At the rear of the lot is an alley. Mrs. McLean derived title\nfrom her husband, and, in the course of the opinion, we will speak of both as defendants. Mr. and\nMrs. McLean started to erect a gasoline filling station at the rear end of their lot, and they and their\ncontractor, William S. Weir, were enjoined by decree from doing so and bring the issues before us\nby appeal. Mr. Weir will not be further mentioned in the opinion.\nCollingwood avenue is a high grade residence street between Woodward avenue and\nHamilton boulevard, with single, double, and apartment houses, and plaintiffs, who are owners of\nland adjoining and in the vicinity of defendants\xe2\x80\x99 land, and who trace title, as do defendants, to the\nproprietors of the subdivision, claim that the proposed gasoline station will be a nuisance per se, is\nin violation of the general plan fixed for use of all lots on the street for residence purposes only, as\nevidenced by restrictions upon 53 of the 91 lots fronting on Collingwood avenue, and that\ndefendants\xe2\x80\x99 lot is subject to a reciprocal negative easement barring a use so detrimental to the\nenjoyment and value of its neighbors. Defendants insist that no restrictions appear in their chain of\ntitle and they purchased without notice of any reciprocal negative easement, and deny that a gasoline\nstation is a nuisance per se. We find no occasion to pass upon the question of nuisance, as the case\ncan be decided under the rule of reciprocal negative easement.\nThis subdivision was planned strictly for residence purposes, except lots fronting Woodward\navenue and Hamilton boulevard. The 91 lots on Collingwood avenue were platted in 1891, designed\nfor and each one sold solely for residence purposes, and residences have been erected upon all of\nthe lots. Is defendants\xe2\x80\x99 lot subject to a reciprocal negative easement? If the owner of two or more\nlots, so situated as to bear the relation, sells one with restrictions of benefit to the land retained, the\nservitude becomes mutual, and, during the period of restraint, the owner of the lot or lots retained\ncan do nothing forbidden to the owner of the lot sold. For want of a better descriptive term this is\nstyled a reciprocal negative easement. It runs with the land sold by virtue of express fastening and\nabides with the land retained until loosened by expiration of its period of service or by events\nworking its destruction. It is not personal to owners, but operative upon use of the land by any\nowner having actual or constructive notice thereof. It is an easement passing its benefits and\ncarrying its obligations to all purchasers of land, subject to its affirmative or negative mandates. It\noriginates for mutual benefit and exists with vigor sufficient to work its ends. It must start with a\ncommon owner. Reciprocal negative easements are never retroactive; the very nature of their origin\n291\n\n\x0cforbids. They arise, if at all, out of a benefit accorded land retained, by restrictions upon neighboring\nland sold by a common owner. Such a scheme of restriction must start with a common owner; it\ncannot arise and fasten upon one lot by reason of other lot owners conforming to a general plan. If\na reciprocal negative easement attached to defendants\xe2\x80\x99 lot, it was fastened thereto while in the hands\nof the common owner of it and neighboring lots by way of sale of other lots with restrictions\nbeneficial at that time to it. This leads to inquiry as to what lots, if any, were sold with restrictions by\nthe common owner before the sale of defendants\xe2\x80\x99 lot. While the proofs cover another avenue, we\nneed consider sales only on Collingwood.\nDecember 28, 1892, Robert J. and Joseph R. McLaughlin, who were then evidently owners\nof the lots on Collingwood avenue, deeded lots 37 to 41 and 58 to 62, inclusive, with the following\nrestrictions:\nNo residence shall be erected upon said premises which shall cost less than $2,500, and\nnothing but residences shall be erected upon said premises. Said residences shall front on Helene\n(now Collingwood) avenue and be placed no nearer than 20 feet from the front street line.\nJuly 24, 1893, the McLaughlins conveyed lots 17 to 21 and 78 to 82, both inclusive, and lot\n98 with the same restrictions. Such restrictions were imposed for the benefit of the lands held by the\ngrantors to carry out the scheme of a residential district, and a restrictive negative easement attached\nto the lots retained, and title to lot 86 was then in the McLaughlins. Defendants\xe2\x80\x99 title, through mesne\nconveyances, runs back to a deed by the McLaughlins dated September 7, 1893, without restrictions\nmentioned therein. Subsequent deeds to other lots were executed by the McLaughlins, some with\nrestrictions and some without. Previous to September 7, 1893, a reciprocal negative easement had\nattached to lot 86 by acts of the owners, as before mentioned, and such easement is still attached\nand may now be enforced by plaintiffs, provided defendants, at the time of their purchase, had\nknowledge, actual or constructive, thereof. The plaintiffs run back with their title, as do defendants,\nto a common owner. This common owner, as before stated, by restrictions upon lots sold, had\nburdened all the lots retained with reciprocal restrictions. Defendants\xe2\x80\x99 lot and plaintiff Sanborn\xe2\x80\x99s lot,\nnext thereto, were held by such common owner, burdened with a reciprocal negative easement, and,\nwhen later sold to separate parties, remained burdened therewith, and right to demand observance\nthereof passed to each purchaser with notice of the easement. The restrictions were upon\ndefendants\xe2\x80\x99 lot while it was in the hands of the common owners, and abstract of title to defendants\xe2\x80\x99\nlot showed the common owners, and the record showed deeds of lots in the plat restricted to\nperfect and carry out the general plan and resulting in a reciprocal negative easement upon\ndefendants\xe2\x80\x99 lot and all lots within its scope, and defendants and their predecessors in title were\nbound by constructive notice under our recording acts. The original plan was repeatedly declared in\nsubsequent sales of lots by restrictions in the deeds, and, while some lots sold were not so restricted,\nthe purchasers thereof, in every instance, observed the general plan and purpose of the restrictions\nin building residences. For upward of 30 years the united efforts of all persons interested have\ncarried out the common purpose of making and keeping all the lots strictly for residences, and\ndefendants are the first to depart therefrom.\nWhen Mr. McLean purchased on contract in 1910 or 1911, there was a partly built dwelling\nhouse on lot 86, which he completed and now occupies. He had an abstract of title which he\nexamined and claims he was told by the grantor that the lot was unrestricted. Considering the\ncharacter of use made of all the lots open to a view of Mr. McLean when he purchased, we think, he\nwas put thereby to inquiry, beyond asking his grantor, whether there were restrictions. He had an\nabstract showing the subdivision and that lot 86 had 97 companions. He could not avoid noticing\nthe strictly uniform residence character given the lots by the expensive dwellings thereon, and the\nleast inquiry would have quickly developed the fact that lot 86 was subjected to a reciprocal negative\neasement, and he could finish his house, and, like the others, enjoy the benefits of the easement. We\n292\n\n\x0cdo not say Mr. McLean should have asked his neighbors about restrictions, but we do say that with\nthe notice he had from a view of the premises on the street, clearly indicating the residences were\nbuilt and the lots occupied in strict accordance with a general plan, he was put to inquiry, and, had\nhe inquired, he would have found of record the reason for such general conformation, and the\nbenefits thereof serving the owners of lot 86 and the obligations running with such service and\navailable to adjacent lot owners to prevent a departure from the general plan by an owner of lot 86.\nWhile no case appears to be on all fours with the one at bar, the principles we have stated,\nand the conclusions announced, are supported by Allen v. City of Detroit, 167 Mich. 464, 133 N. W.\n317, 36 L. R. A. (N. S.) 890; McQuade v. Wilcox, 215 Mich. 302, 183 N. W. 771, 16 A. L. R. 997;\nFrench v. White Star Refining Co., 229 Mich. 474, 201 N. W. 444; Silberman v. Uhrlaub, 116 App. Div.\n869, 102 N. Y. S. 299; Boyden v. Roberts, 131 Wis. 659, 111 N. W. 701; Howland v. Andrus, 80 N. J. Eq.\n276, 83 A. 982.\nWe notice the decree in the circuit directed that the work done on the building be torn\ndown. If the portion of the building constructed can be utilized for any purpose within the\nrestrictions, it need not be destroyed.\nWith this modification, the decree in the circuit is affirmed, with costs to plaintiffs.\n\n293\n\n\x0cCitizens for Covenant Compliance v. Anderson,\n12 Cal.4th 345 (1995)\n\nWilson, Sonsini, Goodrich & Rosati and Debra Summers for Plaintiffs and Appellants.\nDaniel E. Lungren, Attorney General, Roderick E. Walston, Chief Assistant Attorney\nGeneral, Jan S. Stevens, Assistant Attorney General, Jamee Jordan Patterson, Deputy Attorney\nGeneral, William M. Pfeiffer, Steven A. Sokol, Sonia M. Younglove, Miller, Starr & Regalia, Harry\nD. Miller, Rutan & Tucker and Anne Nelson Lanphar as Amici Curiae on behalf of Plaintiffs and\nAppellants.\nRoger Bernhardt, Cooley, Godward, Castro, Huddleson & Tatum, Kenneth J. Adelson,\nBenjamin K. Riley and Yvonne Gonzalez Rogers for Defendants and Appellants.\nStephen Cavellini as Amicus Curiae on behalf of Defendants and Appellants.\nArabian, J.\nThe Andersons want to plant and harvest grapes, operate a winery, and keep llamas on their\nproperty in Woodside. Some neighbors object, and claim such activities are prohibited by covenants,\nconditions and restrictions (CC&R\xe2\x80\x99s) that limit the Andersons\xe2\x80\x99 property, and theirs, to residential\nuse. The Andersons counter, thus far successfully, that the CC&R\xe2\x80\x99s are not enforceable because they\nare not mentioned in any deed to their property. The dispute is now before us.\nIts resolution requires us to penetrate a legal thicket entangled by the ancient doctrines of\nconvenants that run with the land and equitable servitudes. The task is not easy. \xe2\x80\x9cThe law of\neasements, real covenants, and equitable servitudes is the most complex and archaic body of\nAmerican property law remaining in the twentieth century.\xe2\x80\x9d (French, Toward a Modern Law of\nServitudes: Reweaving the Ancient Strands (1982) 55 So.Cal.L.Rev. 1261.) Another commentator uses\nstronger language: \xe2\x80\x9cThe law in this area is an unspeakable quagmire. The intrepid soul who ventures\ninto this formidable wilderness never emerges unscarred. Some, the smarter ones, quickly turn back\nto take up something easier like the income taxation of trusts and estates. Others, having lost their\nway, plunge on and after weeks of effort emerge not far from where they began, clearly the worse\nfor wear. On looking back they see the trail they thought they broke obscured with foul smelling\nwaters and noxious weeds. Few willingly take up the challenge again.\xe2\x80\x9d (Rabin, Fundamentals of\nModern Real Property Law (1974) p. 489.)\nIt is, however, necessary to take up the challenge. In vino veritas. Although the relevant\ndoctrines go back centuries, they are more vital than ever today as California becomes increasingly\ncrowded and people live in closer proximity to one another. Planned communities have developed\nto regulate the relationships between neighbors so all may enjoy the reasonable use of their property.\nMutual restrictions on the use of property that are binding upon, and enforceable by, all units in a\ndevelopment are becoming ever more common and desirable. We recently confronted the question\nof what restrictions may reasonably be imposed in a condominium setting. (Nahrstedt v. Lakeside\nVillage Condominium Assn. (1994) 8 Cal.4th 361 [33 Cal. Rptr.2d 63, 878 P.2d 1275].) This case\naddresses an earlier step in the process, considering how a general plan of restrictions is created in\nthe first place.\nThe CC&R\xe2\x80\x99s of this case were recorded before any of the properties they purport to govern\n294\n\n\x0cwere sold, thus giving all buyers constructive notice of their existence. They state they are to bind\nand benefit each parcel of property as part of a planned community. Nevertheless, the Court of\nAppeal held they are not enforceable because they were not also mentioned in a deed or other\ndocument when the property was sold. We disagree, and adopt the following rule: if a declaration\nestablishing a common plan for the ownership of property in a subdivision and containing\nrestrictions upon the use of the property as part of the common plan is recorded before the\nexecution of the contract of sale, describes the property it is to govern, and states that it is to bind all\npurchasers and their successors, subsequent purchasers who have constructive notice of the\nrecorded declaration are deemed to intend and agree to be bound by, and to accept the benefits of,\nthe common plan; the restrictions, therefore, are not unenforceable merely because they are not\nadditionally cited in a deed or other document at the time of the sale.\nWe therefore reverse the judgment of the Court of Appeal.\nI. THE FACTS\nDefendants Jared A. and Anne Anderson (the Andersons) own two adjacent parcels of\nproperty in Woodside that were part of separate subdivisions developed at different times.\nOne parcel was part of Skywood Acres, created in the 1950\xe2\x80\x99s when Joseph and Claire Stadler\nsubdivided land into some 60 residential building lots. On June 5, 1958, an instrument entitled\n\xe2\x80\x9cDeclarations Imposing Covenants Restrictions and Agreements Affecting \xe2\x80\xa6 Skywood Acres,\xe2\x80\x9d\nexecuted by the Stadlers, was recorded in San Mateo County. It states that the Stadlers owned the\nproperty, the map of which had previously been recorded, and expresses their \xe2\x80\x9cdesire to establish a\ngeneral plan for the improvement and development of said property and to subject said property to\nthe following conditions, restrictions, covenants and reservations upon and subject to which all of\nsaid property shall be held, improved and conveyed\xe2\x80\xa6.\xe2\x80\x9d Numerous restrictions follow, the first of\nwhich is that each lot \xe2\x80\x9cshall be used for residential purposes only.\xe2\x80\x9d The instrument provides that\n\xe2\x80\x9cDogs, cats, hares, fowls and fish may be kept as household pets provided they are not kept, bred or\nraised for commercial purposes or in unreasonable number,\xe2\x80\x9d and allows keeping horses on specified\nlots under certain conditions. It also states, \xe2\x80\x9cAll these conditions and restrictions shall run with the\nland and shall be binding upon all parties and all persons claiming under them\xe2\x80\xa6.\xe2\x80\x9d It further\nprovides that, as to the Stadlers and \xe2\x80\x9ctheir grantees and successors in interest of any lot or lots\xe2\x80\x9d in\nthe subdivision, the conditions are to be \xe2\x80\x9ccovenants running with the land\xe2\x80\x9d enforceable by \xe2\x80\x9cthe\nSubdividers, grantees or assigns, or by such owners or successors in interest.\xe2\x80\x9d\nThe portion of Skywood Acres involved here was sold on October 14, 1958, and, after\nintermediate conveyances, was eventually acquired by the Andersons. Neither the original grant deed\nnor any other deed in the chain of title leading to the Andersons refers to the recorded restrictions.\nThe Andersons\xe2\x80\x99 title insurance report, however, identifies the Skywood Acres CC&R\xe2\x80\x99s.1\nThe second parcel was part of the Friars subdivision, comprised of four lots. On January 24,\n1977, the Town of Woodside adopted a resolution approving the parcel map for the subdivision\nupon certain conditions, including that the developer submit to the town attorney for approval \xe2\x80\x9cthe\nconvenants, conditions and restrictions applicable to this land division.\xe2\x80\x9d On May 10, 1977, a\n\xe2\x80\x9cDeclaration Imposing Covenants, Restrictions, Easements and Agreements,\xe2\x80\x9d executed by the\nowner, was recorded.\nThis declaration describes the property in the subdivision and states that the owner desired\nand intended \xe2\x80\x9cto subject [the property] to certain conditions, covenants and charges between them\nand all subsequent purchasers\xe2\x80\xa6.\xe2\x80\x9d It declares that the property \xe2\x80\x9cshall be conveyed subject to the\n295\n\n\x0cconditions, convenants and charges\xe2\x80\x9d set forth, including that the property is to be used solely for\nsingle family residences, and specifically \xe2\x80\x9cexclude[s] every form of business, commercial,\nmanufacturing, or storage enterprises or activity\xe2\x80\xa6.\xe2\x80\x9d Keeping animals other than household pets and\nhorses is prohibited. The restrictions \xe2\x80\x9care declared to constitute mutual equitable convenants and\nservitudes for the protection and benefit of each property in the said subdivision,\xe2\x80\x9d and \xe2\x80\x9care to run\nwith the land.\xe2\x80\x9d Moreover, \xe2\x80\x9cEach grantee of a conveyance or purchaser under a Contract or\nAgreement of Sale by accepting a Deed or a Contract of Sale or Agreement of purchase, accepts the\nsame subject to any of the covenants, restrictions, easements and agreements set forth in this\nDeclaration and agrees to be bound by the same.\xe2\x80\x9d The owner of any of the parcels may enforce the\nrestrictions.\nThe portion of the Friars subdivision involved here was sold two days after the CC&R\xe2\x80\x99s\nwere recorded, and eventually was acquired by the Andersons at a foreclosure sale. The original deed\nrefers to the parcel map, but not to the CC&R\xe2\x80\x99s. No other deed in the Andersons\xe2\x80\x99 chain of title\nrefers to them. The title insurance report for this lot, purchased by the original buyers, identifies the\nFriars CC&R\xe2\x80\x99s.\nThe parties agree that both subdivisions were \xe2\x80\x9cdeveloped from a general plan of uniform\ndevelopment.\xe2\x80\x9d Both sets of CC&R\xe2\x80\x99s contain provisions regarding possible modification and\ntermination of the restrictions. The record does not indicate whether any other deed to property in\neither subdivision mentions the CC&R\xe2\x80\x99s.\nAfter purchasing the two parcels of property, the Andersons entered into a limited\npartnership agreement with a company located in the Island of Guernsey in the United Kingdom to\noperate a winery under the name Chaine d\xe2\x80\x99Or Vineyards. They have obtained permits from the\nTown of Woodside to grow grapes and produce wine on their property, subject to specified\nconditions. In addition, the Andersons have admitted to keeping seven llamas on the property as\npets.\nThe plaintiffs, an unincorporated association named Citizens for Covenant Compliance and\nindividual landowners representing both subdivisions (hereafter, collectively, Citizens), filed this\naction against the Andersons to enforce both the Skywood Acres and the Friars CC&R\xe2\x80\x99s, which,\nthey claim, prohibit the wine business and the keeping of llamas. The superior court found the\nCC&R\xe2\x80\x99s unenforceable, and judgment was eventually entered for the Andersons. Citizens appealed.\nThe Court of Appeal affirmed. For \xe2\x80\x9cseveral reasons,\xe2\x80\x9d it determined that the CC&R\xe2\x80\x99s are not\ncovenants running with the land. It also found they are not enforceable as equitable servitudes\nbecause no deed or other written instrument exchanged between a buyer and a seller refers to the\nCC&R\xe2\x80\x99s. For this reason, the court concluded, no parcel in either subdivision was \xe2\x80\x9cconveyed\npursuant to an express, written, agreement that it was conveyed subject to a general plan of\nrestrictions. Absent that, it is irrelevant that the Andersons may have had actual notice of the\nCC&R\xe2\x80\x99s.\xe2\x80\x9d\nWe granted Citizens\xe2\x80\x99 petition for review.\nII. DISCUSSION\nA. Background\n\n1. Covenants and Equitable Servitudes\n296\n\n\x0cModern subdivisions are often built according to a general plan containing restrictions that\neach owner must abide by for the benefit of all. \xe2\x80\x9cOrdinarily, a general plan of restriction is recorded\nby the subdivider grantor for the purpose of insuring the uniform and orderly development and use\nof the entire tract by all of the original purchasers as well as their successors in interest. The\nrestrictions are imposed upon each parcel within the tract. These subdivision restrictions are used to\nlimit the type of buildings that can be constructed upon the property or the type of activity\npermitted on the property, prohibiting such things as commercial use or development within the\ntract, limiting the height of buildings, imposing setback restrictions, protecting views, or imposing\nsimilar restrictions.\xe2\x80\x9d (Sain v. Silvestre (1978) 78 Cal. App.3d 461, 466 [144 Cal. Rptr. 478], and quoted\nin Fig Garden Park etc. Assn. v. Assemi Corp. (1991) 233 Cal. App.3d 1704, 1707-1708 [285 Cal. Rptr.\n303], fns. omitted.)\nThe CC&R\xe2\x80\x99s of this case contain such restrictions. The Andersons contend, however, that\nthey never took effect because they were not referenced in any deed to their property. Citizens\ncontends they are enforceable as either (1) covenants that run with the land, or (2) equitable\nservitudes, two doctrines of distinct lineage. The dual nature of the argument has substantially\ncomplicated the question. Indeed, the differing history, uncertain mutual interplay, and varying\ntechnical requirements of these doctrines help explain why the law in the area is \xe2\x80\x9can unspeakable\nquagmire.\xe2\x80\x9d (Rabin, Fundamentals of Modern Real Property Law, supra, p. 489.) One author states\nthat the distinction between the doctrines \xe2\x80\x9ccan best be understood as an archaic survivor of the\nformer separation of the courts of law and equity. Each type of court developed its own set of\nrequirements for covenants to run with the land\xe2\x80\xa6. Unfortunately, the modern union of law and\nequity has not yet produced a unified law of covenants.\xe2\x80\x9d (5 Powell on Real Property (1995)\nCovenants as to Use, \xc2\xa7 670[2], p. 60-12, fns. omitted.) A detailed review of the history and elements\nof these doctrines is unnecessary but, given modern confusion and, among legal scholars at least,\ninterest regarding the degree to which the doctrines remain separate, a brief overview is appropriate.\nThe first doctrine to develop was that of real covenants or, as generally stated in California,\ncovenants that run with the land, which dates back at least to Spencer\xe2\x80\x99s Case (1583 Q.B.) 77 Eng.Rep.\n72. (See 5 Powell on Real Property, supra, Convenants as to Use, \xc2\xa7 670[2], p. 60-12.) A covenant is\nsaid to run with the land if it binds not only the person who entered into it, but also later owners\nand assigns who did not personally enter into it. (Civ. Code, \xc2\xa7 1460;2 Scaringe v. J.C.C. Enterprises, Inc.\n(1988) 205 Cal. App.3d 1536, 1543 [253 Cal. Rptr. 344].) In California, only covenants specified by\nstatute run with the land (\xc2\xa7 1461), primarily those described in sections 1462 and 1468. However,\nprior to the amendments of section 1468 in 1968 and 1969, these sections were written and\ninterpreted very narrowly. Under section 1462, a convenant that benefits the property may run with\nthe land, but not one that burdens the property. Section 1468, as originally enacted in 1905, only\napplied to a covenant \xe2\x80\x9cmade by the owner of land with the owner of other land,\xe2\x80\x9d and not to a\ncovenant between a grantor and a grantee. (Marra v. Aetna Construction Co. (1940) 15 Cal.2d 375, 377378 [101 P.2d 490]; see generally, 4 Witkin, Summary of Cal. Law (9th ed. 1987) Real Property, \xc2\xa7\xc2\xa7\n490-491, pp. 667-669.) Because the convenants in this case are between grantor and grantee and\nburden the property as well as benefit it, they would not qualify as covenants that run with the land\nunder these provisions.\nBeginning with the 1848 English decision of Tulk v. Moxhay (1848 Ch.) 41 Eng.Rep. 1143,\ncourts of equity sometimes enforced covenants that, for one reason or another, did not run with the\n297\n\n\x0cland in law, and the separate doctrine of equitable servitudes arose. (See 5 Powell on Real Property,\nsupra, Convenants as to Use, \xc2\xa7 670[2], pp. 60-7 to 60-9.) California adopted this doctrine, and it\naccumulated its own body of rules. (E.g., Werner v. Graham (1919) 181 Cal. 174 [183 P. 945].) Because\nof the statutory limitations on covenants running with the land, at least before section 1468 was\namended, California courts have \xe2\x80\x9c[t]raditionally\xe2\x80\x9d analyzed CC&R\xe2\x80\x99s under the doctrine of equitable\nservitudes. (Scaringe v. J.C.C. Enterprises, Inc., supra, 205 Cal. App.3d at p. 1544; see also Richardson v.\nCallahan (1931) 213 Cal. 683, 686 [3 P.2d 927].)\nIn 1968 and again in 1969, section 1468 was amended to make covenants that run with the\nland analytically closer to equitable servitudes. Today, that statute applies to covenants between a\ngrantor and grantee as well as between separate landowners. (Scaringe v. J.C.C. Enterprises, Inc., supra,\n205 Cal. App.3d at pp. 1543-1544.)3 Covenants governed by the amended statute might run with the\nland even if they formerly would not. (Id. at p. 1544.) The amendments have been held to apply only\nto covenants postdating their enactment. (Oceanside Community Assn. v. Oceanside Land Co. (1983) 147\nCal. App.3d 166, 174, fn. 4 [195 Cal. Rptr. 14]; Taormina Theosophical Community, Inc. v. Silver (1983)\n140 Cal. App.3d 964, 972, fn. 3 [190 Cal. Rptr. 38].) Thus, they would apply to the 1977 Friars\nsubdivision but not to the earlier Skywood Acres; no matter how the current issue is decided, the\nCC&R\xe2\x80\x99s of the latter would remain enforceable, if at all, only as equitable servitudes.\nCommentators have argued that covenants that run with the land and equitable servitudes\nshould be, or possibly have been, merged into a single doctrine. (French, Design Proposal for the New\nRestatement of the Law of Property \xe2\x80\x93 Servitudes (1988) 21 U.C. Davis L.Rev. 1213, 1223 [\xe2\x80\x9cThe conceptual\nidentity between real covenants and equitable servitudes, and the courts\xe2\x80\x99 practical fusion of the two\nhas been recognized for at least a quarter of a century.\xe2\x80\x9d]; Reichman, Toward a Unified Concept of\nServitudes (1982) 55 So.Cal.L.Rev. 1177, 1186, 1230; Newman & Losey, Covenants Running with the\nLand, and Equitable Servitudes; Two Concepts, or One? (1970) 21 Hastings L.J. 1319.) Whether the\namendments to section 1468 have accomplished this fusion in California is beyond the scope of the\nnarrow issue before us. (But see Soman Properties, Inc. v. Rikuo Corp. (1994) 24 Cal. App.4th 471, 484\n[29 Cal. Rptr.2d 427]; Note, Covenants and Equitable Servitudes in California (1978) 29 Hastings L.J. 545,\n587-588.) Neither the previous statutes nor the current statutes answer this question, which involves\nhow a covenant is created. But we see no difference regarding this issue between convenants that\nrun with the land and equitable servitudes; the rule we adopt applies equally to both.\n\xe2\x80\xa6.\nB. Analysis\nTwo factual circumstances, and the interplay between them, are of paramount importance.\nFirst, the CC&R\xe2\x80\x99s were recorded before any of the property was sold, thus giving the Andersons\nnotice of their existence. Second, no written document executed at the time of any of the\nconveyances of the Andersons\xe2\x80\x99 properties refers to the CC&R\xe2\x80\x99s.\nProperly stated, the issue here is not whether the restrictions run with the land, and thus\nbind successors as well as the original grantees, but whether they ever took effect in the first place so as to\nbind even the original grantees. Specifically, the issue is whether a purchaser is bound by previously\nrecorded CC&R\xe2\x80\x99s even though none of the written documents executed at the time of the\nconveyance refer to them. This involves the question whether there is sufficient expression of intent\non the purchaser\xe2\x80\x99s part to enter into the convenants. Although notice is relevant to our resolution of\nthe issue, it is not the issue itself.\n298\n\n\x0c1. California Cases\n\nIn the 1919 decision of Werner v. Graham, supra, 181 Cal. 174 (Werner), a developer subdivided\na tract and recorded a map of the tract. \xe2\x80\x9cThis map showed no building lines or anything else to\nindicate any purpose of restricting in any way the manner in which the different lots might be built\nupon or otherwise improved or the uses to which they might be put.\xe2\x80\x9d (Id. at p. 177.) He then sold\nthe lots. The early deeds contained \xe2\x80\x9crestrictive provisions, which, while differing slightly in some\ninstances, dependent upon the location of the particular lot \xe2\x80\xa6 are yet so uniform and consistent in\ncharacter as to indicate unmistakably that [the developer] had in mind a general and common plan\nwhich he was following.\xe2\x80\x9d (Ibid.) The developer told the purchasers \xe2\x80\x9cthat he was exacting the same\nrestrictive provisions from all purchasers.\xe2\x80\x9d (Id. at p. 179.) He later quitclaimed the property\neventually purchased by the plaintiff. The deed to this property contained no restrictions. The issue\nwas whether the restrictions placed in the deeds to the other property were also binding on the\nplaintiff.\nThe developer in Riley, supra, 17 Cal.3d 500, sold the property in dispute by a deed that\ncontained no restrictions. \xe2\x80\x9c[A]t the time of the conveyance there was no document of record\npurporting to restrict the use of\xe2\x80\x9d the property. (Id. at p. 504.) Nine months after the conveyance, the\ndeveloper recorded a document purporting to impose uniform restrictions on a number of lots,\nincluding the one in dispute. The issue was whether these restrictions applied to the lot sold earlier.\nIn both Werner, supra, 181 Cal. 174, and Riley, supra, 17 Cal.3d 500, we held the property was\nnot bound by the restrictions. It is readily apparent that both are factually distinguishable from this\ncase. In Werner, there was no recorded document imposing uniform restrictions on the entire\nsubdivision, only individual deeds imposing restrictions on specific parcels. In Riley, the restrictions\nwere recorded after the conveyance at issue. Nevertheless, the Andersons cite some of the language\nof these decisions as aiding their position.\nIn Werner, supra, 181 Cal. at pages 181-182, we noted that the restrictions in the earlier deeds\ndid not state that the land was part of a larger tract, that the restrictions were intended to benefit\nother land, or that the benefit was to pass to other land. \xe2\x80\x9cServitudes running with the land in favor\nof one parcel and against another cannot be created in any such uncertain and indefinite fashion. It\nis true, the nature of the restrictions is such that, when considered in connection with the fact that\n[the developer] still retained the greater portion of the tract, it is not improbable that he exacted\nthem for the benefit of the portion so retained. But the grantee\xe2\x80\x99s intent in this respect is necessary, as well as\nthe grantor\xe2\x80\x99s, and the deed, which constitutes the final and exclusive memorial of their joint intent, has\nnot a word to that effect, nor anything whatever which can be seized upon and given construction as\nan expression of such intent. If such was their intent, it has not been expressed.\xe2\x80\x9d (Id. at p. 182, italics added.)\nIt made no difference in Werner that the developer \xe2\x80\x9cin all his deeds exacted similar\nrestrictions and clearly had in mind a uniform plan of restrictions which he intended to impose, and\nactually did impose, upon all the lots in the tract as he sold them.\xe2\x80\x9d (Werner, supra, 181 Cal. at p. 183.)\nWe recognized that if the deeds contain \xe2\x80\x9cappropriate language imposing restrictions on each parcel\nas part of a general plan of restrictions common to all the parcels and designed for their mutual\nbenefit, mutual equitable servitudes are thereby created in favor of each parcel as against all the\nothers.\xe2\x80\x9d (Ibid.) These mutual servitudes \xe2\x80\x9cspring into existence as between the first parcel conveyed\nand the balance of the parcels at the time of the first conveyance.\xe2\x80\x9d (Ibid.) But, we stated, the \xe2\x80\x9ccrux of\n299\n\n\x0cthe present case\xe2\x80\x9d was that \xe2\x80\x9chere there is no language in the instruments between the parties, that is,\nthe deeds, which refers to a common plan of restrictions or which expresses or in any way indicates\nany agreement between grantor and grantee that the lot conveyed is taken subject to any such plan.\xe2\x80\x9d\n(Id. at p. 184.)\nWe went on to explain the significance of these facts. \xe2\x80\x9cThe intent of the common grantor \xe2\x80\x93\nthe original owner \xe2\x80\x93 is clear enough. He had a general plan of restrictions in mind. But it is not his\nintent that governs. It is the joint intent of himself and his grantees, and as between him and each of his\ngrantees the instrument or instruments between them, in this case the deed, constitute the final and\nexclusive memorial of such intent. It is also apparent that each deed must be construed as of the\ntime it is given\xe2\x80\xa6. Nor does it make any difference that \xe2\x80\xa6 [the developer] gave each grantee to\nunderstand, and each grantee did understand, that the restrictions were exacted as part of a general\nscheme. Such understanding was not incorporated in the deeds, and as we have said, the deeds in\nthis case constitute the final and exclusive memorials of the understandings between the parties. Any\nunderstanding not incorporated in them is wholly immaterial in the absence of a reformation.\n[Citations.] This whole discussion may in fact be summed up in the simple statement that if the parties\ndesire to create mutual rights in real property of the character of those claimed here they must say so, and must say it in\nthe only place where it can be given legal effect, namely, in the written instruments exchanged between them which\nconstitute the final expression of their understanding.\xe2\x80\x9d (Werner, supra, 181 Cal. at pp. 184-185, italics added.)\nIn Riley, supra, 17 Cal.3d 500, we relied on Werner, supra, 181 Cal. 174, in finding the later\nrecorded restrictions not enforceable. We stressed the key fact distinguishing that case from this \xe2\x80\x93\nthat the restrictions of Riley were recorded after the conveyance \xe2\x80\x93 and stated that \xe2\x80\x9cquite apart from\nthe rule of Werner v. Graham, it is manifest that acknowledgment and recordation of a declaration of\nrestrictions by the grantor after the conveyance to plaintiffs cannot affect property in which the\ngrantor no longer has any interest.\xe2\x80\x9d (Riley, supra, 17 Cal.3d at p. 507.) We rejected the claim that\nparol evidence may be admitted to show that the parties in fact intended the property to be subject\nto restrictions like those later recorded, finding that the covenants must be in writing to be effective.\n\xe2\x80\x9cEvery material term of an agreement within the statute of frauds must be reduced to writing. No\nessential element of a writing so required can be supplied by parol evidence.\xe2\x80\x9d (Id. at p. 509.) A\ncontrary rule, we said, \xe2\x80\x9d\xe2\x80\x98\xe2\x80\x9cwould make important questions of the title to real estate largely dependent\nupon the uncertain recollection and testimony of interested witnesses. The rule of the Werner case is\nsupported by every consideration of sound public policy which has led to the enactment and\nenforcement of statutes of frauds in every English-speaking commonwealth.\xe2\x80\x9d\xe2\x80\x99\xe2\x80\x9d (Id. at p. 510,\nquoting McBride v. Freeman (1923) 191 Cal. 152, 160 [215 P. 678].) Therefore, there \xe2\x80\x9d\xe2\x80\x98\xe2\x80\x9cshould be\nsome written evidence\xe2\x80\x9d\xe2\x80\x99\xe2\x80\x9d indicating what property was affected by the restrictions. (17 Cal.3d at p.\n510, quoting Wing v. Forest Lawn Cemetery Assn. (1940) 15 Cal.2d 472, 480 [101 P.2d 1099, 130 A.L.R.\n120], italics added in Riley.) \xe2\x80\x9d\xe2\x80\x98\xe2\x80\x9cAs a matter of policy, the understanding of the parties should be\ndefinite and clear, and should not be left to mere conjecture.\xe2\x80\x9d\xe2\x80\x99\xe2\x80\x9d (Ibid.)\nWe also emphasized the importance of recording the restrictions. \xe2\x80\x9d\xe2\x80\x99[T]he recording statutes\noperate to protect the expectations of the grantee and secure to him the full benefit of the exchange\nfor which he bargained. [Citations.] Where, however, mutually enforceable equitable servitudes are\nsought to be created outside the recording statutes, the vindication of the expectations of the\noriginal grantee, and for that matter succeeding grantees, is hostage not only to the good faith of the\ngrantor but, even assuming good faith, to the vagaries of proof by extrinsic evidence of actual notice\non the part of grantees\xe2\x80\xa6. The uncertainty thus introduced into subdivision development would in\nmany cases circumvent any plan for the orderly and harmonious development of such properties\nand result in a crazy-quilt pattern of uses frustrating the bargained-for expectations of lot owners in\nthe tract.\xe2\x80\x99\xe2\x80\x9d (Riley, supra, 17 Cal.3d at pp. 511-512.)\nIn dicta, we also stated that Murry v. Lovell (1955) 132 Cal. App.2d 30 [281 P.2d 316], \xe2\x80\x9ca\n300\n\n\x0cleading authority in the Werner line, makes clear that even if the restrictions here in question had\nbeen recorded prior to the issuance of plaintiffs\xe2\x80\x99 deed, no equitable servitude would have been\ncreated absent the inclusion of such restrictions, by recitation or incorporation, in the deed.\nCompare Martin v. Holm (1925) 197 Cal. 733 [242 P. 718], wherein the deed to defendants contained\nno restrictions but they took with record notice of a prior deed establishing reciprocal servitudes\nbinding upon their grantor.\xe2\x80\x9d (Riley, supra, 17 Cal.3d at p. 507, fn. 4; see also id. at p. 512.)\nIn both Werner, supra, 181 Cal. 174, and Riley, supra, 17 Cal.3d 500, there was no prior\nrecorded document providing a common plan and stating that the restrictions were to apply to every\nparcel. The only documents in existence from which the mutual intent and agreement of the parties\ncould be discerned were the deeds themselves, which were silent. No decision by this court\ninvalidating restrictions involves a written plan, like that here, that was applicable to an entire tract\nand was recorded before conveyancing. However, some intermediate appellate decisions have\nconcluded that for recorded uniform restrictions to take effect, they must at least be referenced in a\ndeed or other instrument at the time of an actual conveyance. (Stell v. Jay Hales Development Co. (1992)\n11 Cal. App.4th 1214, 1229-1230 [15 Cal. Rptr.2d 220]; Scaringe v. J.C.C. Enterprises, Inc., supra, 205\nCal. App.3d at pp. 1545-1547; Trahms v. Starrett (1973) 34 Cal. App.3d 766, 770-772 [110 Cal. Rptr.\n239]; Anderson v. Pacific Avenue Inv. Co. (1962) 201 Cal. App.2d 260, 262-264 [19 Cal. Rptr. 829]; Murry\nv. Lovell, supra, 132 Cal. App.2d 30.)\n\xe2\x80\xa6.\n\n2. The Current Uncertainties\n\nThe Andersons argue that the CC&R\xe2\x80\x99s never took effect because they were not mentioned\nin the deeds to their properties. Under this interpretation, if the developer of a subdivision records a\nuniform plan of restrictions intended to bind and benefit every parcel alike, implementation of the\nplan depends upon the vagaries of the actual deeds, and whether they contain at least a ritualistic\nreference to restrictions of record. When, as may often be the case, some deeds refer to the\nrestrictions, and others do not, the enforceability of the restrictions can hinge upon the sequence of\nthe conveyances, and can vary depending upon what property owner seeks to enforce them and\nagainst which property.\nFor example, if the deed to the first conveyance refers to the restrictions, they might be\neffective at least as between that property and later properties, even if the later deeds do not refer to\nthem. \xe2\x80\x9cFrom the recordation of the first deed which effectively imposes restrictions on the land\nconveyed and that retained by the common grantor, the restrictions are binding upon all subsequent\ngrantees of parcels so affected who take with notice thereof notwithstanding that similar clauses\nhave been omitted from their deeds.\xe2\x80\x9d (Riley, supra, 17 Cal.3d at p. 507; see also Greater Middleton Assn.\nv. Holmes Lumber Co. (1990) 222 Cal. App.3d 980, 990-991 [271 Cal. Rptr. 917].) Moreover, under\nthis view, even if a deed fully and expressly incorporates the CC&R\xe2\x80\x99s, they would not be enforceable\nas to an earlier sale that did not contain such a reference. \xe2\x80\x9cBut a grantee possessed of a dominant\ninterest could not enforce the restrictions as to lots that were deeded without restriction \xe2\x80\xa6 prior to\nthe execution of the grantee\xe2\x80\x99s deed.\xe2\x80\x9d (Trahms v. Starrett, supra, 34 Cal. App.3d at p. 771.) Thus, the\nrights and duties of a later purchaser as against earlier ones would not depend on any document\nexecuted at the time of the later sale, but solely on the language of earlier sales of separate parcels.\n301\n\n\x0cThe results can be byzantine. One commentator has reviewed some of the possibilities: \xe2\x80\x9cIf\nthe subdivider fails to insert the agreement in the first deed but remembers to insert it in the fifth\ndeed, for example, the equitable servitude springs into existence from deed five onwards. The\nrestrictions do not apply to the first four lots because the subdivider no longer has any interest in\nthose lots and cannot place a restriction on them in favor of the rest of the tract. If the subdivider\ninserts the agreement in deeds five and six and then fails again to put them in seven and eight, the\ncourts have held that lot owners five and six can enforce the restrictions against seven and eight, but\nseven and eight cannot enforce them against each other. When the subdivider put the agreement in\nthe deeds to lots five and six, he agreed to burden the rest of the unsold subdivision. When he sold\nlots seven and eight, the burden of his agreement passed as an incident to lots seven and eight in\nfavor of lots five and six. There was no agreement between lot owner seven and the subdivider that\nthe subdivider burden the rest of his tract in favor of lot seven. Thus when the subdivider conveyed\nlot eight, there was no burden to pass incident to the land in favor of lot seven. Lot seven can\nenforce the restrictions against lots five and six, however, because just as the burden of the\nagreement between the subdivider and five and six passed as an incident to lot seven, so should the\nbenefit of that agreement pass. The subdivider had the benefit of enforcing the restrictions against\nfive and six, and that benefit passes to seven.\n\xe2\x80\x9cIf the subdivider resumes placing the agreements in the deeds to lots nine and ten, lot\nowners seven and eight cannot enforce the restrictions against nine and ten, and similarly nine and\nten cannot enforce them against seven and eight. When the subdivider conveyed nine and ten, he no\nlonger had any interest in seven and eight. He could neither impose a restriction on them in favor of\nanyone else nor confer a benefit on them.\xe2\x80\x9d (Note, Covenants and Equitable Servitudes in California, supra,\n29 Hastings L.J. at pp. 569-570, fns. omitted.)4\nAs the author plaintively asks, this analysis \xe2\x80\x9cmay be logical, but is it equitable?\xe2\x80\x9d (Note,\nCovenants and Equitable Servitudes in California, supra, 29 Hastings L.J. at p. 570.) And, to ask an even\nmore pertinent question, is it what anyone intended? Would anyone really intend a subdivision where\nthe order in which property is sold determines what restrictions are enforceable, where some\nlandowners are not bound by restrictions of record and cannot enforce them against anyone, where\nsome owners can enforce them against some property but not others and not against each other,\nand where some landowners are bound by the restrictions as against some owners but not against\nothers who would be powerless to enforce them?\nThis situation dramatically complicates title searches. Instead of simply searching for\nrestrictions of record in order to know exactly what is being purchased, a prospective buyer must\nsearch the chain of title of all previously sold property in the tract. If the deed to the property in\nquestion refers to the restrictions, the search would have to determine which of the earlier deeds, if\nany, contain a similar reference, for the restrictions would be enforceable only against those and later\nparcels, and not against earlier parcels whose deeds did not refer to the restrictions. If the deed does\nnot refer to the restrictions, the buyer would nevertheless have to conduct the same search, for any\nearlier sold property that does refer to them would have a mutual servitude against the later property\nwhether or not the later deed mentioned it.\nMoreover, it is not certain exactly what the law is on this subject. \xe2\x80\x9c\xe2\x80\x98When a declaration of\nrestrictions is recorded which describes multiple lots in a subdivision, it is not clear whether the\nrestrictions are enforceable against each lot in the subdivision merely by reference to the restrictions\nin the first deed to the first lot (the \xe2\x80\x9cfirst deed only\xe2\x80\x9d theory), or whether it is necessary that the\nrestrictions be referred to in the first deed to each of the lots (the \xe2\x80\x9call first deeds\xe2\x80\x9d theory).\xe2\x80\x99\xe2\x80\x9d (Soman\nProperties, Inc. v. Rikuo Corp., supra, 24 Cal. App.4th at p. 485, quoting 7 Miller & Starr, Current Law\nof Cal. Real Estate (2d ed. 1990) Covenants and Restrictions, \xc2\xa7 22.8, pp. 549-550.) It would appear\nthat the \xe2\x80\x9cfirst deed only\xe2\x80\x9d theory is currently ascendant, but the \xe2\x80\x9call first deeds\xe2\x80\x9d theory finds support\n302\n\n\x0cin the cases. (E.g., Wing v. Forest Lawn Cemetery Assn., supra, 15 Cal.2d at pp. 482-483; Terry v. James\n(1977) 72 Cal. App.3d 438, 444 [140 Cal. Rptr. 201].)\nIn short, the current state of the law creates the very \xe2\x80\x9ccrazy-quilt pattern of uses\xe2\x80\x9d that we\nwarned against in Riley, supra, 17 Cal.3d at page 512. Moreover, the quilt might have a shifting\npattern depending upon whether the court follows the \xe2\x80\x9cfirst deed only\xe2\x80\x9d theory or the \xe2\x80\x9call first\ndeeds\xe2\x80\x9d theory.5\n\n3. The Solution\n\nThese uncertainties can be eliminated by adopting the rule stated at the outset. In essence, if\nthe restrictions are recorded before the sale, the later purchaser is deemed to agree to them. The\npurchase of property knowing of the restrictions evinces the buyer\xe2\x80\x99s intent to accept their burdens\nand benefits. Thus, the mutual servitudes are created at the time of the conveyance even if there is\nno additional reference to them in the deed. This rule has many advantages.\nThe first advantage is simplicity itself. One document, recorded for all purchasers to review,\nwould establish the rules for all parcels, not many documents that may or may not be mutually\nconsistent. There would be no bewildering mosaic of enforceability and nonenforceability. \xe2\x80\x9cThe\nrules of law about covenants running with the land are so complex that only a very few specialists\nunderstand them. Sometimes complexity in the law is necessary. In this particular case, it is not. If\nthe cases in this area were solved by reference to the underlying policies instead of by reference to\noutworn precedent, the rules would be reasonably simple to state and the results more consonant\nwith a sound system of private land use control.\xe2\x80\x9d (Berger, A Policy Analysis of Promises Respecting the\nUse of Land (1971) 55 Minn. L.Rev. 167, 234; see also Reichman, Toward a Unified Concept of Servitudes,\nsupra, 55 So.Cal.L.Rev. at pp. 1259-1260.)\nA rule allowing the uniform implementation of a general plan from the outset of the\ndevelopment would be good policy, which no doubt helps explain the modern trend in the cases of\naccepting as sufficient the slightest reference in the deeds to restrictions of record. Although\nservitudes go far back into history, \xe2\x80\x9cPrivate land use arrangements are increasingly common and\nuseful in the modern world.\xe2\x80\x9d (French, Toward a Modern Law of Servitudes: Reweaving the Ancient Strands,\nsupra, 55 So.Cal.L.Rev. at p. 1318.) \xe2\x80\x9cIn modern times, covenants are most often used in situations\nwhere they effectively regulate land uses, such as subdivisions, in the same manner as zoning laws.\nIn these circumstances, running covenants generally enhance alienability, and therefore many\nauthorities feel that they should be encouraged.\xe2\x80\x9d (5 Powell on Real Property, supra, Covenants as to\nUse, \xc2\xa7 673[1], p. 60-46, fn. omitted; see also Newman & Losey, Covenants Running with the Land, and\nEquitable Servitudes; Two Concepts, or One?, supra, 21 Hastings L.J. at p. 1323.) \xe2\x80\x9cNo longer is there any\nreason to believe that the average American buying into a residential development would \xe2\x80\x98protest\nvigorously against being compelled to perform promises he has never made.\xe2\x80\x99 [Fn., citing\n\xe2\x80\x98Restatement of Property, Intro. Note at 3156 (1944).\xe2\x80\x99] Since financial viability of the community\ndepends on continued covenant compliance by all, the average buyer is more likely to protest if\nothers in the development are permitted to escape performance of the covenants made by their\npredecessors.\xe2\x80\x9d (French, Design Proposal for the New Restatement of the Law of Property \xe2\x80\x93 Servitudes, supra, 21\nU.C. Davis L.Rev. at p. 1217.)\nHaving a single set of recorded restrictions that apply to the entire subdivision would also no\n303\n\n\x0cdoubt fulfill the intent, expectations, and wishes of the parties and community as a whole. \xe2\x80\x9cOne of\nthe prime policy components of the law of equitable servitudes and real covenants is that of meeting\nthe reasonable expectations of the parties and of the community.\xe2\x80\x9d (French, Toward a Modern Law of\nServitudes: Reweaving the Ancient Strands, supra, 55 So.Cal.L.Rev. at p. 1282, fn. 113.) A buyer need only\nknow of the single document, not study the current labyrinthine system and try to predict how a\nlater court would apply it to the contemplated purchase. The rule would also better enable the\ncommunity to protect its interests. Here, for example, Woodside\xe2\x80\x99s approval of the Friars subdivision\nwas conditioned on the town attorney\xe2\x80\x99s review of the CC&R\xe2\x80\x99s. Thus the community was able to\nexercise oversight as to the original recorded declaration. But it is unrealistic to expect such\noversight of all subsequent individual deeds. The community should be able to expect that\nrestrictions it requires as a condition of approving the subdivision will take effect, and not run the\nrisk that they will fall victim to careless deed drafting.\nBy requiring recordation before execution of the contract of sale, the rule would also be fair.\nAll buyers could easily know exactly what they were purchasing. (See Riley, supra, 17 Cal.3d at p.\n512.) Title searches would be easier, requiring only a search of restrictions of record, not of all deeds\nto all properties in the subdivision. \xe2\x80\x9cThe danger that subsequent purchasers might not be aware of\nrestrictions in prior deeds, where the developer neglects to incorporate similar restrictions in later\ndeeds, and where the obligation of the title searcher extends only to instruments in the direct chain\nof title, can be easily avoided by insistence that the developer follow a simple procedure. Where a\ntract index is in effect, a plan of the proposed development should be recorded against the entire\ntract, which would give notice to all purchasers by placing the restriction in the direct chain of title\nto each lot in the tract.\xe2\x80\x9d (Newman & Losey, Covenants Running with the Land, and Equitable Servitudes;\nTwo Concepts, or One?, supra, 21 Hastings L.J. at p. 1341, fn. omitted.) \xe2\x80\x9cThe burden should be upon\nthe developer to insert the covenant into the record in a way that it can be easily found. Recording a\ndeclaration of covenants covering the entire area or filing a map which referred to the covenants\nwould be sufficient.\xe2\x80\x9d (Berger, A Policy Analysis of Promises Respecting the Use of Land, supra, 55 Minn.\nL.Rev. at p. 202.) When a developer does follow this simple procedure, it should suffice; future\nbuyers should be deemed to agree to the restrictions.\nThe rule is consistent with the rationale of the prior cases, and would undermine no legal or\npolicy concerns expressed in those cases. The theoretical underpinning of the rule requiring the\nrestrictions to be stated in the deeds is that a developer cannot unilaterally make an agreement. It\ntakes two parties \xe2\x80\x93 in this case the seller and the buyer \xe2\x80\x93 to agree. Merely recording the restrictions\ndoes not create mutual servitudes. Rather, they \xe2\x80\x9cspring into existence\xe2\x80\x9d only upon an actual\nconveyance. (Werner, supra, 181 Cal. at p. 183; see also Rest.3d Property, Servitudes (Tent. Draft No.\n1, Apr. 5, 1989) \xc2\xa7 2.1, com. c., p. 7 [\xe2\x80\x9cRecording a declaration or plat setting out servitudes does not,\nby itself, create servitudes. So long as all the property covered by the declaration is in a single\nownership, no servitude can arise. Only when the developer conveys a parcel subject to the\ndeclaration do the servitudes become effective.\xe2\x80\x9d].) We agree with all this. The servitudes are not\neffective, that is, they do not \xe2\x80\x9cspring into existence,\xe2\x80\x9d until an actual conveyance subject to them is\nmade. The developer could modify or rescind any recorded restrictions before the first sale.\nSome of the prior cases, however, simply assumed that the deeds must expressly refer to the\nrestrictions to evidence the purchaser\xe2\x80\x99s intent and agreement. On the contrary, it is reasonable to\nconclude that property conveyed after the restrictions are recorded is subject to those restrictions\neven without further mention in the deed. \xe2\x80\x9cThe issue in these cases is the intent of the grantors and\ngrantees at the time of the conveyance.\xe2\x80\x9d (Fig Garden Park etc. Assn. v. Assemi Corp., supra, 233 Cal.\nApp.3d at p. 1709.) This intent can be inferred from the recorded uniform plan. It is express on the\npart of the seller, implied on the part of the purchaser. The law may readily conclude that a\npurchaser who has constructive notice, and therefore knowledge, of the restrictions, takes the\n304\n\n\x0cproperty with the understanding that it, as well as all other lots in the tract, is subject to the\nrestrictions, and intends and agrees to accept their burdens and benefits, even if there is no\nadditional documentation evidencing the intent at the time of the conveyance. \xe2\x80\x9cIf future takers\npurchase a piece of property with notice of a restriction made by a predecessor, then, in the absence\nof duress or fraud, they may ordinarily be thought to have bargained for the property with the\nrestriction in mind, and to have shown themselves willing to abide by it.\xe2\x80\x9d (Rose, Servitudes, Security,\nand Assent: Some Comments on Professors French and Reichman (1982) 55 So.Cal.L.Rev. 1403, 1405.)\n\xe2\x80\xa6.\nThe rule is consistent with the rationale that a covenant requires an agreement between\nbuyer and seller, and not a unilateral action by the developer. We merely reject the unexamined\nassumption that the intent of the purchaser, and therefore the agreement itself, must be expressed in\nthe deed rather than be implied from the purchase with knowledge of the recorded restrictions.\nMoreover, as discussed above, the current law is unclear, and at best gives rise to a confusing pattern\nof enforceability and nonenforceability that no one could have intended. Replacing chaos with\ncertainty need not be reserved for the future only. In Willard v. First Church of Christ, Scientist (1972) 7\nCal.3d 473 [102 Cal. Rptr. 739, 498 P.2d 987], we overruled an old common law of property rule\nthat had outlived its usefulness. \xe2\x80\x9cWillard contends that the old rule should nevertheless be applied in\nthis case \xe2\x80\xa6 because grantees and title insurers have relied upon it. He has not, however, presented\nany evidence to support this contention, and it is clear that the facts of this case do not demonstrate\nreliance on the old rule.\xe2\x80\x9d (Id. at pp. 478-479, fn. omitted.)\nThe same is true here. Given current uncertainty in the cases, it would be unreasonable to\nconclude that the Andersons, or others, have bought property believing that restrictions of record\nwere enforceable as to prior purchasers of property in the same subdivision whose deeds referenced\nthe restrictions, no matter how vaguely, but not otherwise. Rather, the opposite is far more likely,\nthat homeowners buy property in the expectation and intent that recorded mutual restrictions apply\nuniformly throughout the subdivision.\nThe rule is not inconsistent with the statutes regarding covenants that run with the land.\nNeither the current statutes nor the predecessor version of section 1468 directly answers the narrow\nquestion here of how a covenant is created. Although the Skywood Acres CC&R\xe2\x80\x99s are not\nenforceable as covenants under section 1462 and former section 1468, this is not because they were\ninadequately created but because they burden the property as well as benefit it (\xc2\xa7 1462), and are\nbetween a grantor and a grantee (\xc2\xa7 1468).\nFor these reasons, we see no reason to deviate from the general rule that our decisions\noperate retrospectively.6\n\n4. Resolution of this Case\n\nThe CC&R\xe2\x80\x99s of this case were recorded before any of the parcels were sold, thus providing\nconstructive notice to subsequent purchasers; they state an intent to establish a general plan for the\nsubdivisions binding on all purchasers and their successors; and they describe the property they are\nto govern. Therefore, applying the rule to this case, the fact that the individual deeds do not\nreference them is not fatal to their enforceability. The superior court erred in finding otherwise, and\nin granting summary judgment for the Andersons\xe2\x80\xa6 . .\n305\n\n\x0cThe Skywood Acres declaration refers to \xe2\x80\x9ccovenants, restrictions and agreements,\xe2\x80\x9d rather\nthan covenants, conditions, and restrictions, or CC&R\xe2\x80\x99s. Nevertheless, for the sake of simplicity and\nclarity, we will refer to both declarations of restrictions of this case as CC&R\xe2\x80\x99s, in accordance with\ncommon usage. (See, e.g., Nahrstedt v. Lakeside Village Condominium Assn., supra, 8 Cal.4th at p. 369.)\n\xe2\x86\xa9\nAll further statutory references are to the Civil Code unless otherwise indicated. \xe2\x86\xa9\nSection 1468 now provides in pertinent part: \xe2\x80\x9cEach covenant, made by an owner of land\nwith the owner of other land or made by a grantor of land with the grantee of land conveyed, or\nmade by the grantee of land conveyed with the grantor thereof, to do or refrain from doing some act\non his own land, which doing or refraining is expressed to be for the benefit of the land of the\ncovenantee, runs with both the land owned by or granted to the covenantor and the land owned by\nor granted to the covenantee and shall \xe2\x80\xa6 benefit or be binding upon each successive owner, during\nhis ownership, of any portion of such land affected thereby and upon each person having any\ninterest therein derived through any owner thereof where all of the following requirements are met:\n\xe2\x80\x9c(a) The land of the covenantor which is to be affected by such covenants, and the land of\ncovenantee to be benefited, are particularly described in the instrument containing such covenants;\n\xe2\x80\x9c(b) Such successive owners of the land are in such instrument expressed to be bound thereby for\nthe benefit of the land owned by, granted by, or granted to the covenantee; \xe2\x80\x9c(c) Each such act\nrelates to the use, repair, maintenance or improvement of, or payment of taxes and assessments on,\nsuch land or some part thereof \xe2\x80\xa6; \xe2\x80\x9c(d) The instrument containing such covenants is recorded in the\noffice of the recorder of each county in which such land or some part thereof is situated.\xe2\x80\x9d \xe2\x86\xa9\nThis hypothetical does not directly apply here, for none of the deeds to the Andersons\xe2\x80\x99\nproperties refers to the CC&R\xe2\x80\x99s. However, these possibilities are inherent in some of the Court of\nAppeal decisions. Similar questions could arise even regarding these subdivisions if some other deed\nin either subdivision does contain a reference, and someone else tries to enforce the CC&R\xe2\x80\x99s\nbecause of this reference. \xe2\x86\xa9\nAmicus curiae California Association of Realtors argues in support of Citizens that, in\npractice, title searches generally do not encompass first deeds of other properties in the tract, and\nthat the deeds are signed only by the seller and delivered to the buyer weeks after close of escrow,\nthus making them doubtful evidence of the actual intent of the parties. These assertions, if correct,\nwould support our holding. However, the record does not demonstrate these facts, and we therefore\ndo not rely on them in reaching our conclusion. \xe2\x86\xa9\nThe dissent criticizes the court in this regard, but would apparently apply its own rule\nretroactively. Exactly what that rule would be is never stated, but presumably it would at least\nprohibit the longstanding practice of recording CC&R\xe2\x80\x99s for a subdivision before the sale of the first\nparcel; and abrogate the \xe2\x80\x9cfirst deed only\xe2\x80\x9d theory whereby, if the first deed refers to the restrictions,\nthey apply against a later deed even if that deed omits the restrictions. (See ante, pp. 360-361, 362.)\nWe also do not suggest that the method used to create the CC&R\xe2\x80\x99s of this case is the only valid way\nto do so. \xe2\x86\xa9\n\n306\n\n\x0c6.2. Changed Conditions\nVernon Township Volunteer Fire Department, Inc. v. Connor,\n855 A.2d 873 (Pa. 2004)\n\nKeith Adam Button, Conneaut Lake, for William E. Connor, Philadelphia, et al.\nDebra Higgins Posego, Harry Faber White, Meadville, for Vernon Township Volunteer Fire\nDepartment, Inc.\nBefore Cappy, C.J., Castille, Nigro, Newman, Saylor, Eakin, Bear, JJ.\nJustice Newman\nIn a document dated May 15, 1946 entitled \xe2\x80\x9cRestrictions\xe2\x80\x9d (Agreement), all of the property\nowners of the Culbertson Subdivision signed a restrictive covenant1 prohibiting the sale of alcoholic\nbeverages on their land.2 The Agreement provides in relevant part that:\n[I]n consideration of the premises and intending to be legally bound hereby, we, the\nundersigned owners of the legal and/or equitable title of certain lots, pieces or parcels of land\nsituate, lying and being in Vernon Township, Crawford County, Pennsylvania \xe2\x80\xa6 do hereby mutually\ncovenant and agree with each other that from and after the date hereof, no vinous, spirituous, malt\nor brewed liquors, or any admixture thereof, shall be sold, or kept for sale, on any of said lots, pieces\nor parcels of land, or on any part thereof, or in any building, or any part thereof, now or hereafter\nerected thereon.\nThis agreement shall be binding upon our respective heirs, executors, administrators,\nsuccessors, assigns, lessees, tenants and the occupiers of any of said lots, pieces or parcels of land,\nand is hereby specifically declared to be a covenant running with the lots, pieces or parcels of land\nheld by the respective signers thereof, or in which we, or any of us, have an interest.\n(Reproduced Record (R.R.) at 365a) (emphasis added). The intent of the original signatories,\nas set forth in the Agreement, is \xe2\x80\x9cto protect each for himself and for the common advantage of all,\nour health, peace, safety and welfare and that of our successors in title\xe2\x80\xa6.\xe2\x80\x9d Id. The Agreement was\nduly recorded in Crawford County Agreement Book 26, page 9, on June 10, 1946.\nOn July 3, 1997, the Fire Department purchased a 3.25-acre parcel of land within the\nCulbertson Subdivision for the purpose of building a new truck room and social hall that would sell\nalcohol to its patrons.3 This newly acquired parcel is located approximately 2,000 feet from the Fire\nDepartment\xe2\x80\x99s existing truck room and social hall in Vernon Township. At the time of purchase, the\nFire Department did not have actual notice of the restrictive covenant banning the sale of alcoholic\nbeverages on the land. However, the Fire Department did have constructive notice of the restrictive\ncovenant from a title search that its attorney conducted.4 Nevertheless, the alcohol restriction was\nnot brought to the attention of the Fire Department until November of 1999, well after it had\nalready commenced building the new social hall.5\nAt the time that the Agreement was executed, the Culbertson Subdivision was bounded on\nthe north by the Viscose Corporation, which operated a large manufacturing plant. The Viscose\n307\n\n\x0cCorporation operated twenty-four hours a day and employed more than 2,500 people. Currently, the\nformer site of the Viscose Corporation is now the Crawford County Industrial Park, which houses a\nvariety of small commercial businesses and offices.6 The remainder of the restricted tract is bounded\nby wooded land to the northwest, the Cussewago Creek to the south and west, and the City of\nMeadville to the east.\nPresently, there are no establishments within the Culbertson Subdivision that possess liquor\nlicenses. The closest alcohol-serving establishment is the Fire Department\xe2\x80\x99s current social hall,\nwhich is located in Vernon Township, approximately one-half mile from the restricted lots. In\naddition, there are two bars located within two miles of the restricted tract. One bar is situated\napproximately one and one-half miles away in Vernon Township, and the other is approximately\ntwo miles away in the City of Meadville.\nUpon learning of the restrictive covenant, the Fire Department stopped construction of the\nnew social hall and sought to have all of the property owners within the restricted tract sign a\nLimited Release of Restrictions.7 The owners of sixty-eight of the seventy-seven parcels within the\nCulbertson Subdivision signed the Limited Release of Restrictions and agreed to waive enforcement\nof the restrictive covenant as to the 3.25-acre parcel purchased by the Fire Department. The owners\nof three parcels neither signed the release nor sought to enforce the restrictive covenant.8 The\nremaining six parcel owners, now Appellants in this matter, refused to sign the Limited Release of\nRestrictions. As a result, the Fire Department brought the instant action at law seeking to quiet title\nto its parcel. In particular, the Fire Department sought to have the restrictive covenant prohibiting\nthe sale of alcoholic beverages invalidated because changed conditions in the immediate\nneighborhood effectively rendered the restriction obsolete.\nOn August 29, 2001, following a bench trial, which included a tour of the Culbertson\nSubdivision and surrounding neighborhood, the trial court granted Judgment in favor of Appellants.\nThe trial court determined that the restrictive covenant prohibiting the sale of alcoholic beverages\nwas valid and enforceable. [On appeal], the Superior Court concluded that the restrictive covenant,\ndating back to 1946, was a nullity and, accordingly, reversed the Judgment entered by the trial court\nin favor of Appellants\xe2\x80\xa6 . .\n\xe2\x80\xa6.\nIn reviewing the ruling of the trial court in an action to quiet title, an appellate court\xe2\x80\x99s review\nis limited to determining whether the findings of fact are supported by competent evidence, whether\nan error of law has been committed, and whether there has been a manifest abuse of discretion.\nSimilarly, in a declaratory judgment action, an appellate court is limited to determining whether the\ntrial court committed a clear abuse of discretion or an error of law. An appellate court may not\nsubstitute its judgment for that of the trial court if the determination of the trial court is supported\nby competent evidence. Id.\nAs a general matter, restrictive covenants on the use of land interfere with an owner\xe2\x80\x99s free\nuse and enjoyment of real property and, therefore, are not favored by the law.9 Mishkin v. Temple Beth\nEl of Lancaster, 429 Pa. 73, 239 A.2d 800, 803 (1968). Because land use restrictions are not favored in\nthe law, they are to be strictly construed, and \xe2\x80\x9cnothing will be deemed a violation of such a\nrestriction that is not in plain disregard of its express words\xe2\x80\xa6.\xe2\x80\x9d Jones, 120 A.2d at 537. Although the\nlaw may disfavor restrictions on an owner\xe2\x80\x99s free use and enjoyment of real property, restrictive\ncovenants are legally enforceable. See Schulman v. Serrill, 432 Pa. 206, 246 A.2d 643, 647 (1968); Todd\nv. Sablosky, 339 Pa. 504, 15 A.2d 677, 679 (1940).\nA landowner may limit his or her private use and enjoyment of real property by contract or\nagreement. Lustig v. Facciolo, 410 Pa. 107, 188 A.2d 741, 743 (1963). It is a fundamental rule of\ncontract interpretation that the intention of the parties at the time of contract governs and that such\nintent must be ascertained from the entire instrument. Heidt v. Aughenbaugh Coal Co., 406 Pa. 188, 176\n308\n\n\x0cA.2d 400, 401 (1962). This same principle of contract law is equally applicable to the interpretation\nof restrictive covenants. McCandless v. Burn, 377 Pa. 18, 104 A.2d 123, 126 (1954).\nIn order to ascertain the intentions of the parties, restrictive covenants must be construed in\nlight of: (1) their language; (2) the nature of their subject matter; (3) the apparent object or purpose\nof the parties; and (4) the circumstances or conditions surrounding their execution. Snyder v.\nPlankenhorn, 398 Pa. 540, 159 A.2d 209, 210 (1960); Baederwood, Inc. v. Moyer, 370 Pa. 35, 87 A.2d 246,\n248 (1952). Typically, we will enforce a restriction if a party\xe2\x80\x99s actions are in clear defiance of the\nprovisions imposed by the covenant. Ratkovich v. Randell Homes, Inc., 403 Pa. 63, 169 A.2d 65, 68\n(1961); Siciliano v. Misler, 399 Pa. 406, 160 A.2d 422, 424 (1960). Moreover, we will enforce a\nrestrictive covenant where it is established that the restriction is still of substantial value to the\nowners of the restricted tract. Schulman, 246 A.2d at 647.\nAs an initial matter, we note that a property owner has the duty to become aware of\nrecorded restrictions in the chain of title and will be bound to such restrictions even absent actual\nnotice. See Finley v. Glenn, 303 Pa. 131, 154 A. 299, 301 (1931) (noting \xe2\x80\x9cgrantee is chargeable with\nnotice of everything affecting his title which could be discovered by an examination of the records\nor other [documentary evidence] of title of his grantor\xe2\x80\x9d). Instantly, it is undisputed that at the time\nof purchase, the Fire Department had notice of the restrictive covenant. The covenant was duly\nrecorded in Crawford County Agreement Book 26, page 9, on June 10, 1946, and easily accessible\nvia title search. The Fire Department clearly had constructive notice of the restrictive covenant;\ntherefore, it cannot now avoid the consequences of such restriction because of its own lack of due\ndiligence. This being the case, the restriction is enforceable unless the Fire Department can establish\nthat the restrictive covenant has been discharged.\nIn order to discharge the covenant, the burden of proof is on the Fire Department to show\nthat the original purpose of the restriction has been materially altered or destroyed by changed\nconditions, and that a substantial benefit no longer extends to Appellants by enforcement of the\nrestriction. Daniels v. Notor, 389 Pa. 510, 133 A.2d 520, 523 (1957); Henry v. Eves, 306 Pa. 250, 159 A.\n857, 859 (1932). As a general rule, a restrictive covenant may be discharged if there has been\nacquiescence in its breach by others, or an abandonment of the restriction. Kajowski v. Null, 405 Pa.\n589, 177 A.2d 101, 106 (1962). In addition, changes in the character of a neighborhood may result in\nthe discharge of a restrictive covenant. Deitch v. Bier, 460 Pa. 394, 333 A.2d 784, 785 (1975). Where\nchanged or altered conditions in a neighborhood render the strict adherence to the terms of a\nrestrictive covenant useless to the dominant lots, we will refrain from enforcing such restrictions.\nDaniels, 133 A.2d at 523; Henry, 159 A. at 859. This is based on the general rule that \xe2\x80\x9cland shall not\nbe burdened with permanent or long-continued restrictions which have ceased to be of any\nadvantage\xe2\x80\xa6.\xe2\x80\x9d Daniels, 133 A.2d at 524-25; Katzman v. Anderson, 359 Pa. 280, 59 A.2d 85, 87 (1948).\nIn considering changed conditions in a neighborhood, the word \xe2\x80\x9cneighborhood\xe2\x80\x9d is a relative term,\nand only the immediate, and not the remote, neighborhood should be measured. Daniels, 133 A.2d at\n523.\nWhen deciding whether the character of the immediate neighborhood has changed to\nwarrant non-enforcement of a restriction, a court must consider adjoining tracts, as well as the\nrestricted tract. See Deitch, 333 A.2d at 785. In Deitch, this Court determined that the trial court erred\nby failing to consider and assess changes on a tract of land adjacent to the restricted tract. Id. The\nCourt remanded the matter so that the trial court could consider the changes to an adjoining tract of\nland and evaluate their effect on the enforceability of the restrictive covenant. Id. In reaching this\ndecision, we recognized that while changes in the immediate neighborhood do not automatically\ninvalidate a restrictive covenant, such changes are material and relevant in determining whether a\nrestrictive covenant should be enforced. Id.\nIn the matter sub judice, the Superior Court held \xe2\x80\x9cthat the trial court erred when it only\n309\n\n\x0cconsidered the restricted tract as [Appellants\xe2\x80\x99] immediate neighborhood.\xe2\x80\x9d Superior Court\nMemorandum Opinion, December 23, 2002, at 8. However, in reaching its decision, the trial court\nspecifically evaluated the significance of other liquor-serving establishments located outside of the\nrestricted tract. Unlike Deitch, the trial court considered and assessed changes on the land adjacent to\nthe Culbertson Subdivision, and, therefore, did not limit its analysis to the restricted lots.\nSpecifically, the trial court noted:\nPlaintiff presented evidence that two bars were now located within the neighborhood. One\nis to the East on Lincoln Avenue, at least a mile away, in the city of Meadville, and the other is the\ncurrent Fire Department social hall, about a half a mile away, across the Creek and up a wooded hill.\nNeither is in the immediate neighborhood of the restricted lots. Accordingly, there is no change in\nthe neighborhood making the restriction obsolete.\nTrial Court Opinion, August 29, 2001, at 6. In holding otherwise, the Superior Court\neffectively substituted its own judgment for that of the trial court.10\nAs such, the relevant inquiry concerning changes to the immediate neighborhood is whether\nsuch changes alter or eliminate the benefit that the restriction was intended to achieve. In\ndetermining whether changed circumstances rendered enforcement of the present alcohol restriction\nuseless, we find guidance in Benner v. Tacony Athletic Association, 328 Pa. 577, 196 A. 390 (1938). In\nBenner, property owners sought to enjoin several liquor-serving establishments from selling alcohol\nin violation of a restrictive covenant contained in their deeds. Id. at 391. Initially, the Court noted\nthat where all of the deeds in the tract contained a restrictive covenant barring the sale of liquor,\nsuch a restriction was enforceable. Id. at 392. The alcohol-serving establishments, however,\nchallenged the restrictive covenant, arguing that neighborhood conditions had changed to the extent\nthat the restriction should not be enforced. Id. Nonetheless, the Court explained that \xe2\x80\x9cwhile it is true\nthat some of the tract has become commercial or industrial in character, the larger part remains\nalmost exclusively residential.\xe2\x80\x9d Id. The Court noted that \xe2\x80\x9cthe fact that commercial establishments\nhave crept in here and there does not impair the utility of the restriction against the sale of beer or\nliquor; that restriction, to the residents of the neighborhood, has a desirability and an object\nunaffected by the encroachments of business.\xe2\x80\x9d11 Id. In upholding the enforceability of the restrictive\ncovenant, the Court stated that \xe2\x80\x9c[i]t is only when violations are permitted to such an extent as to\nindicate that the entire restrictive plan has been abandoned that objection to further violations is\nbarred.\xe2\x80\x9d Id. at 393.\nContrary to the argument of the Fire Department and the holding of the Superior Court, the\nexistence of three other liquor-serving establishments located outside of the Culbertson Subdivision\ndoes not warrant a finding of changed circumstances to invalidate the restrictive covenant.12 Similar\nto Benner, the changes in the immediate neighborhood did not affect the benefit conferred upon\nAppellants by the alcohol restriction. These changes, which involved the introduction of\nestablishments serving alcohol in the immediate neighborhood, but outside of the restricted tract,\ndid not impair the utility of the covenant to the residents of the Culbertson Subdivision. Moreover,\nchanges in the commercial nature of the immediate neighborhood, namely, the closing of the nearby\nViscose Corporation, did nothing to impair the significance of the alcohol restriction. As Benner\nrecognized, changed conditions outside of the restricted tract do not necessarily impair the value of\nan alcohol restriction to the residents of the restricted tract. The stated purpose of the restrictive\ncovenant was to protect the \xe2\x80\x9chealth, peace, safety and welfare\xe2\x80\x9d of the occupants of the land by\npreventing the sale of alcoholic beverages within the tract.13 The original signatories clearly intended\nto protect themselves and their heirs from the vices of alcohol consumption by restricting the sale of\nalcohol within the Culbertson Subdivision. As the trial court noted, \xe2\x80\x9c[i]f people are not drinking at\nestablishments in the neighborhood, they are not exhibiting objectionable behavior which\naccompanies overdrinking, like public drunkenness and driving under the influence.\xe2\x80\x9d Trial Court\n310\n\n\x0cOpinion, 8/29/01, at 7. Thus, Appellants will continue to benefit from the restriction as long as\nalcohol is not sold within the restricted tract.14\nIn determining that the restrictive covenant no longer had substantial value to Appellants,\nthe Superior Court found it significant that a majority of the property owners within the restricted\ntract agreed to release the alcohol restriction. Moreover, the Superior Court noted that Appellants\ntestified that they did not rely upon the restrictive covenant when purchasing their property.\nHowever, the restriction clearly benefits Appellants by hindering the nuisances that inherently result\nfrom the sale and consumption of alcoholic beverages. Furthermore, the factual record reflects that\nalcoholic beverages have never been sold within the restricted tract since the covenant was signed in\n1946. As in Benner, the trial court had competent evidence before it to conclude that the entire\nrestrictive plan had not been abandoned and that the alcohol restriction still had significant value to\nAppellants. Accordingly, the Superior Court erred by substituting its factual determinations for those\nof the trial court.\nBecause the alleged changed conditions in the immediate neighborhood did not affect the\nbenefits conferred by the restrictive covenant, the Superior Court erred by refusing to enforce the\nalcohol restriction. The presence of several other liquor-serving establishments in the immediate\nneighborhood, but outside the restricted tract, did not render the restrictive covenant a nullity. The\ntrial court properly concluded that Appellants would \xe2\x80\x9crealize substantial benefit from the\nenforcement of this restriction\xe2\x80\x9d and that the \xe2\x80\x9crestriction has not been rendered obsolete by changes\nin the neighborhood.\xe2\x80\x9d Trial Court Opinion, August 29, 2001, at 8. The findings of the trial court\nwere supported by competent evidence of record, and, accordingly, the Superior Court erred in\ndetermining otherwise.\n\xe2\x80\xa6.\nIn accordance with the foregoing discussion, we reverse the Order of the Superior Court\nreversing the Judgment entered by the trial court. On direct appeal, the Superior Court found it\nunnecessary to consider the Fire Department\xe2\x80\x99s third issue concerning the applicability of the\nprinciples of estoppel, laches, and waiver to this matter. The Fire Department properly raised and\npreserved this issue on direct appeal. However, the Superior Court declined to address this issue\nbecause it reversed based upon the Fire Department\xe2\x80\x99s first two claims of error. Having concluded\nthat the Superior Court erred in its disposition of the Fire Department\xe2\x80\x99s first two issues, we remand\nthe matter to the Superior Court with instructions for it to consider the Fire Department\xe2\x80\x99s single,\nunaddressed issue concerning the applicability of the equitable principles of estoppel, laches, and\nwaiver to the instant matter.\nJustice Castille, Dissenting.\nI agree with the Superior Court that the character of the neighborhood surrounding\nappellees\xe2\x80\x99 tracts has been altered to the extent that the restrictive covenant has been rendered a\nnullity and would, therefore, affirm its judgment. Accordingly, I respectfully dissent.\nAs the Majority notes, it has long been the law in Pennsylvania that a restrictive covenant\ncan be discharged where the original purpose of the covenant is materially altered or destroyed by\nchanged conditions and there is no longer a substantial benefit to be derived from the restriction.\nDaniels v. Notor, 389 Pa. 510, 133 A.2d 520 (1957); Henry v. Eves, 306 Pa. 250, 159 A. 857 (1932).\nWhen determining whether conditions have changed to such an extent as to invalidate the\nrestriction, courts must look to the immediate neighborhood, which includes adjoining tracts of\nland. Id. See also Deitch v. Bier, 460 Pa. 394, 333 A.2d 784 (1975).\n311\n\n\x0cThe Majority, like the trial court, focuses on the fact that there are presently no\nestablishments with liquor licenses within the specific confines of the Culbertson Subdivision and\ndismisses the presence in the immediately adjoining neighborhood of two bars and the Fire\nDepartment\xe2\x80\x99s existing social hall, which is located a mere 2,000 feet from the parcel on which the\nFire Department seeks to build its new truck room and social hall. The Majority concedes that these\nthree alcohol-serving establishments are located within the immediate neighborhood of the\nCulbertson Subdivision, \xe2\x80\x9cbut outside of the restricted tract,\xe2\x80\x9d then concludes that these three\nestablishments do not impair the utility of the restriction to the owners of the restricted properties.\nOp. at 882. In one breath, the Majority states that it must consider not only the restricted tract but\nalso the surrounding neighborhood and notes that three other alcohol-serving establishments exist\nin the immediate neighborhood. Then, in the next breath, the Majority essentially determines that\nthe presence of those other establishments is irrelevant to its inquiry because the only relevant area\nis the Culbertson Subdivision itself.\nThe Superior Court, on the other hand, set forth the same legal principles and applied them\nin a more straightforward fashion. That court found that the trial court record did not support a\nfinding that the Culbertson Subdivision owners experienced none of the effects of alcohol sales,\ngiven that the record established the presence of three alcohol-serving establishments located within\ntwo miles of the subdivision. Thus, the Superior Court held that the immediate neighborhood had\nchanged with the introduction of the three establishments, and that the trial court erred in restricting\nconsideration of the immediate neighborhood to the restricted tracts. This finding, in my view,\nestablishes the first prong of the test for discharging a restrictive covenant, i.e., that the original\npurpose is materially altered by changed conditions.\nMoving to the second prong, the Superior Court held that the restriction no longer\npossessed significant value to the subdivision owners based upon the fact that 68 of the 77 owners\nagreed to execute a release of the covenant, that three additional owners chose not to defend\nthemselves in this action, and that all of the appellees who refused to sign the release testified and\nadmitted that they had not relied upon the covenant when purchasing their properties. I would find\nthat the Superior Court properly concluded that this record evidence establishes that the covenant\nlacks significant value to the owners of the restricted tracts.\nBecause restrictive covenants interfere with property owners\xe2\x80\x99 free use and enjoyment of their\nproperty, such covenants are not favored by courts. Mishkin v. Temple Beth El of Lancaster, 429 Pa. 73,\n239 A.2d 800 (1968). Thus, in an appropriate case, our courts will invalidate restrictive covenants\nthat have outlived their usefulness, which is what I believe the record demonstrates has occurred in\nthis case. I agree with the Superior Court that the existence of three alcohol-serving establishments\nin close proximity to the Culbertson Subdivision constitutes a material alteration or change of the\noriginal purpose of the restrictive covenant. That 71 of the 77 purportedly affected owners find no\nvalue to the covenant and the other six did not rely upon the covenant in purchasing their properties\nis a clear signal that the covenant lacks significant value to the subdivision owners at this time.\nAnachronisms need not persist for their own sake. Accordingly, I would affirm the Superior Court\xe2\x80\x99s\ndecision discharging the restrictive covenant in this case.\nJustice Saylor, Dissenting.\nI agree with the majority\xe2\x80\x99s assessment, in footnote [ten] of its opinion, that the Superior\nCourt, having discerned an error in the trial court\xe2\x80\x99s approach to delineating the boundaries of the\nimmediate neighborhood for purposes of determining the obsolescence of the covenant at issue,15\n312\n\n\x0cshould have remanded to the common pleas court. In my view, aside from the requirement that\nadjoining tracts must be considered, evaluation of what constitutes the relevant immediate (as\nopposed to remote) neighborhood is a uniquely factual determination that is interdependent with\nthe assessment of impact and the continued viability of restrictions in light of changed\ncircumstances.16 It appearing, at least to me, that the majority and dissenting opinions here can be\nread as also embodying fact finding from the appellate vantage, I believe that the remand approach\nis best.\nA restrictive covenant is defined as \xe2\x80\x9c[a] private agreement, [usually] in a deed or lease, that\nrestricts the use or occupancy of real property, [especially] by specifying lot sizes, building lines,\narchitectural styles, and the uses to which the property may be put.\xe2\x80\x9d Black\xe2\x80\x99s Law Dictionary 371 (7th\ned.1999). \xe2\x86\xa9\nThe caption of the Agreement granted that the Restrictions passed from Helen L. Reitze, et\nal., as grantor, to Mrs. Mary Campfield, as grantee. \xe2\x86\xa9\nThe social hall is not open to the general public and limits the sale of alcohol to only club\nmembers. According to the Fire Department, the social hall is the \xe2\x80\x9ceconomic engine\xe2\x80\x9d that funds the\noperations of the Fire Department. The Fire Department insists that it is not self-sustaining without\nthe critical funds it raises through the sale of alcohol and small games of chance at the social hall. \xe2\x86\xa9\nAppellants also had constructive notice of the planned social hall by way of public notice of\na variance hearing and posting on the property regarding the Fire Department\xe2\x80\x99s liquor license\ntransfer. \xe2\x86\xa9\nBy the time that the Fire Department halted construction of the new social hall, it had\nalready invested approximately $790,000.00 in the project. \xe2\x86\xa9\nNone of the businesses or offices currently in the industrial park operate twenty-four hours\na day; the majority operates only during daylight hours. \xe2\x86\xa9\nThe Limited Release of Restrictions, dated February 21, 2000, provides in relevant part:\n[T]he following owners of certain lots or parcels of land hereinafter mentioned in Vernon\nTownship, Crawford County, Pennsylvania and for the mutual considerations contained hereafter\nand for the sum of $1.00 \xe2\x80\xa6 do hereby release, abandon and extinguish any and all restrictions\ncontained in [the Agreement] insofar as said restrictions relate to property known as lots 1, 33, 34,\nand A of the Culbertson Subdivision, which lots are collectively owned by the Vernon Township\nFire Department by deed dated July 3, 1997\xe2\x80\xa6. (R.R. at 31a). \xe2\x86\xa9\nThe owners of these three parcels chose not to defend the action to quiet title. Accordingly,\nthe trial court found these parcels subject to a default judgment, rendering the restrictive covenant\nabandoned and extinguished. \xe2\x86\xa9\nRestrictive covenants are divided into two general categories: (1) building restrictions; and\n(2) use restrictions. Jones v. Park Lane for Convalescents, Inc., 384 Pa. 268, 120 A.2d 535, 538 (1956).\nBuilding restrictions \xe2\x80\x9care concerned with the physical aspect or external appearance of the\nbuildings\xe2\x80\xa6.\xe2\x80\x9d Id. Meanwhile, use restrictions involve \xe2\x80\x9cthe purposes for which the buildings are used,\nthe nature of their occupancy, and the operations conducted therein\xe2\x80\xa6.\xe2\x80\x9d Id. \xe2\x86\xa9\nAs we have emphasized, changed conditions within an immediate neighborhood, as a\nmatter of law, do not invalidate a restrictive covenant. Here, we have concluded that the trial court\nproperly considered changed conditions to the immediate neighborhood in validating the alcohol\nrestriction. If the Superior Court presumed that the trial court erred in failing to consider changed\nconditions beyond the restricted tract, but within the immediate neighborhood, it should have\nrefrained from outright reversing the Judgment of the trial court. When faced with similar factual\ncircumstances in Deitch, we ordered a remand so that the trial court could properly assess changed\nconditions outside of the restricted tract, but within the immediate neighborhood. 333 A.2d at 785.\n313\n\n\x0cTherefore, pursuant to Deitch, the proper course of action for the Superior Court would have been\nto remand the matter so that the trial court could consider the alleged changed conditions beyond\nthe restricted tract. \xe2\x86\xa9\nThe commercial establishments that moved into the neighborhood included a\nslaughterhouse, a steam laundry, a carpenter shop, and a livery stable. Benner, 196 A. at 393. \xe2\x86\xa9\nIn its Opinion and Order, the trial court acknowledged evidence of two liquor-serving\nestablishments within one mile of the restricted tract. See Trial Court Opinion, August 29, 2001, at 6.\nHowever, in its Memorandum Opinion, the Superior Court recognized four liquor-serving\nestablishments within two miles of the restricted tract. See Superior Court Memorandum Opinion,\nDecember 23, 2002, at 7-8. Nonetheless, the parties argue, and the record reveals, that three liquorserving establishments are located within two miles of the restricted tract: including the current Fire\nDepartment social hall and two bars. \xe2\x86\xa9\nAt trial, the Fire Department argued that the purpose of the restrictive covenant was to\nprevent employees at the nearby Viscose Corporation from consuming alcohol within the restricted\ntract. Nevertheless, such an argument is mere conjecture, considering the alcohol restriction is\ndevoid of any language indicating an intent to protect the residents of the Culbertson Subdivision\nfrom problems associated with the Viscose Corporation. \xe2\x86\xa9\nAs the trial court explained, the covenant is limited to prohibiting the sale of alcohol within\nthe restricted tract. The restriction does not prohibit the serving of alcohol and will not directly\neliminate other problems identified by Appellants, such as noise, increased traffic flow, or the glare\nof headlights shining into households. \xe2\x86\xa9\nHere, the common pleas court expressly defined the boundaries of the immediate area as\naccording to the \xe2\x80\x9cCussewago Creek and a wooded hill to the south, the wooded Water Company\nland to the Northwest, the industrial park to the Northeast, and the City of Meadville to the East,\xe2\x80\x9d\nwhich are the boundaries of the subdivision subject to the restrictions. See Majority Opinion, at 876\n(indicating that, in addition to the northeast boundary with the industrial park, \xe2\x80\x9c[t]he remainder of\nthe restricted tract is bounded by wooded land to the northwest, the Cussewago Creek to the south\nand west, and the City of Meadville to the east\xe2\x80\x9d). As the majority notes, this Court in Deitch v. Bier,\n460 Pa. 394, 333 A.2d 784 (1975), required at least an express consideration of adjoining tracts in the\nassessment of the impact of changes to an immediate neighborhood. See id. at 396-97, 333 A.2d at\n785. \xe2\x86\xa9\nAlthough I agree with Mr. Justice Castille that the prevailing sympathy in the neighborhood\nis with the volunteer fire department, the relevant legal analysis, designed to balance the important\nand vested property interests involved against the policy of affording relief against obsolete\nrestrictions, focuses on value to any beneficiary owner. See Phillips v. Donaldson, 269 Pa. 244, 247, 112\nA. 236, 238 (1920) (\xe2\x80\x9cNor, under such covenant, is it necessary that the community or the majority of\nthe lot owners whose rights under the covenant are affected should complain \xe2\x80\xa6 [;] \xe2\x80\xa6 we should\nnot hesitate to enforce its provisions where one of the dominant owners seeks such enforcement in\nan unchanged locality.\xe2\x80\x9d). \xe2\x86\xa9\n\n314\n\n\x0c6.3. Regulation\n6.3.1. Restraints on Alienation\nNorthwest Real Estate Co. v. Serio,\n144 A. 245 (Md. 1929).\n\nWm. M. Maloy and J. A. D. Penniman, both of Baltimore (Maloy, Brady & Yost and\nHeimiller & Penniman, all of Baltimore, on the brief), for plaintiffs.\nWalter C. Mylander, of Baltimore (Nathan Patz, of Baltimore, on the brief), for defendants.\nUrner, J.\nA deed in fee simple for a lot of ground contained, in addition to various building and use\nrestrictions, a provision that the land should not be subsequently sold or rented, prior to a\ndesignated date, without the consent of the grantor. The decisive question in this case is whether the\nrestraint thus sought to be imposed upon the alienation of the property is void as being repugnant to\nthe granted estate.\nThe covenant to be considered is in the habendum clause of a deed dated August 19, 1927,\nfrom the Northwest Real Estate Company to Carl M. Einbrod and wife, conveying a building lot in\nAshburton, a suburb of Baltimore city, and is in the following form: \xe2\x80\x9c7. And for the purpose of\nmaintaining the property hereby conveyed and the surrounding property as a desirable high class\nresidential section for themselves their successors, heirs, executors, administrators and assigns that\nuntil January 1, 1932, no owner of the land hereby conveyed shall have the right to sell or rent the\nsame without the written consent of the grantor herein which shall have the right to pass upon the\ncharacter desirability and other qualifications of the proposed purchaser or occupant of the property\nuntil January 1, 1932, and the said grantor further agrees that all deeds or leases hereinafter made by\nit of the remaining unimproved lots on the plat of Ashburton Section 6 heretofore referred to shall\ncontain the same covenant as to the sale or renting of such property.\xe2\x80\x9d\nOn March 27, 1928, the grantees contracted in writing to sell the lot to Charles Serio and\nwife, and, upon payment of the purchase price, to convey the property to them, \xe2\x80\x9cby a good and\nmerchantable title,\xe2\x80\x9d\xe2\x80\x9csubject however to the residential restrictions prevailing in Ashburton.\xe2\x80\x9dThe\nNorthwest Real Estate Company declined to give its consent to the sale and transfer for which the\ncontract provided. The purchaser then brought this suit against the vendors and the company to\ncompel the specific performance of the agreement without the consent of the company, on the\ntheory that the quoted covenant is void, or with the judicially enforced consent of the company, if\nthe covenant should be held to be valid, the averment being made in the bill of complaint that the\ncompany\xe2\x80\x99s refusal to consent was arbitrary and unreasonable. The vendors in their answer stated\ntheir willingness to perform the contract of sale, but asserted that a compliance with its terms was\nnot contingent upon the consent of the Northwest Real Estate Company, since the contract\nprovided that the property was to be conveyed subject to the existing \xe2\x80\x9cresidential restrictions.\xe2\x80\x9d That\nposition was not tenable, because the right of the vendors to make the sale was involved in the\n315\n\n\x0crestriction which is the occasion of this suit. In its answer the company admitted and explained its\nrefusal to consent to a sale or transfer of the property to the plaintiffs, and defended the covenant in\ncontroversy as a valid and reasonable provision. A demurrer to the bill was embodied in the\ncompany\xe2\x80\x99s answer, and it in turn was challenged by a demurrer which the plaintiffs filed. After a\nhearing on the questions thus raised, the demurrer to the bill was overruled, and the demurrer to the\nanswer was sustained, with leave to file an amended answer within five days. The company did not\navail itself of that privilege, but appealed from the order overruling its demurrer to the bill of\ncomplaint. No appeal bond being filed, the case was brought to a final hearing, which resulted in a\ndecree declaring the disputed covenant to be void, and directing a specific performance of the\ncontract of sale, upon payment of the purchase money, by a conveyance of the property subject to\nall of the prescribed restrictions except the one declared to be inoperative. From the decree, a\nfurther appeal was entered by the Northwest Real Estate Company. The purchaser also appealed\nupon the theory that such action might be a proper precaution, in view of the pendency of the\ncompany\xe2\x80\x99s appeal from the decision on the demurrer.\nThe objections, urged on demurrer, that the bill is multifarious, and that there was a\nmisjoinder of parties, are not sustainable. It was an essential purpose of the specific performance suit\nto remove the obstacle to the plaintiff\xe2\x80\x99s purchase presented by the assertion of a right on the part of\nthe original grantor to prevent subsequent sales and conveyances, by refusal of consent, during the\nspecified period. The fact that relief was sought by the alternative means of the invalidation or the\njudicial control of the covenanted right did not render the bill multifarious, and the grantor\ncorporation was properly joined as a defendant in a suit by which its interests were thus affected.\nThe final decree of the circuit court is in accordance with the policy of the law in this state\nwith respect to provisions in restraint of alienation. In Clark v. Clark, 99 Md. 356, 58 A. 24, where\nthis court had under construction a will which, after a devise of an absolute estate to the seven\nchildren of the testator, provided that the property should not be sold within ten years for partition\npurposes without their unanimous consent, it was said in the opinion: \xe2\x80\x9cThis provision of the will if\neffective would practically amount to a restraint for ten years of all alienation by any child of its\nshare of the estate. We have no difficulty in arriving at the conclusion that this attempted imposition\nof restrictions upon the method of alienation and enjoyment of the absolute estate given to the\ntestatrix\xe2\x80\x99 children was contrary to the policy of the law and therefore inoperative and void. The\nauthorities agree that conditions or limitations in restraint of alienation or essential enjoyment of an\nestate in fee cannot be validly annexed to the deed or devise by which the estate is created, because\nthey are repugnant to the inherent nature and qualities of the estate granted and tend to public\ninconvenience. 4 Kent\xe2\x80\x99s Com., 143-4; Vin. Ab., p. 103; Gray\xe2\x80\x99s Restraints upon Alienation, par. 47 to\n54; Stansbury v. Hubner, 73 Md. 231 [20 A. 904, 11 L. R. A. 204, 25 Am. St. Rep. 584]; Warner v. Rice,\n66 Md. 440, [8 A. 84]; Downes v. Long, 79 Md. 390 [29 A. 827]; Blackshere v. Samuel Ready School, 94 Md.\n777 [51 A. 1056]; Mandelbaum v. McDonnell, 29 Mich. 78 [18 Am. Rep. 61]; Potter v. Couch, 141 U. S.\n296 [11 S. Ct. 1005, 35 L. Ed. 721].\xe2\x80\x9d The principle of that decision has been applied in later\nMaryland cases (Brown v. Hobbs, 132 Md. 559, 104 A. 283; Gischell v. Ballman, 131 Md. 260, 101 A.\n698), and it is controlling in the present litigation.\nThe restriction imposed by the deed of the Northwest Real Estate Company upon sales by\nits grantees and their successors was clearly repugnant to the feesimple title which the deed\nconveyed. Its object was to deprive the grantees, until 1932, of the unrestrained power of alienation\nincident to the absolute ownership which the granting clause created. In Clark v. Clark, supra, the\nattempted restraint was for a period of ten years, and consisted of a requirement for consent by six\nother devisees, while here it is for a shorter period, and the consent of a single but corporate grantor\nis the condition of a transfer. But in each instance the intended interference with the normal\nalienability of the feesimple estate devised or granted is equally apparent. As stated in Tiffany on the\n316\n\n\x0cLaw of Real Property (2d Ed.) p. 2311: \xe2\x80\x9cThe fact that a restriction upon the right to alienate a vested\nestate in fee simple is to endure for a limited time only does not, by the weight of authority, render\nthe restriction valid.\xe2\x80\x9dIn addition to the cases cited by the author in support of that statement are a\nnumber collected in a note to Latimer v. Waddell, 119 N. C. 370, 26 S. E. 122, as reported in 3 L. R.\nA. (N. S.) 668.\nIn Murray v. Green, 64 Cal. 367, 28 P. 120, it was said: \xe2\x80\x9cIt is difficult to conceive of a\ncondition more clearly repugnant to the interest created by a grant of an estate in fee simple than the\ncondition that the grantee shall not alien the same without the consent of the grantor. With such a\ncondition, if valid, annexed to the grant, it \xe2\x80\x98would be neither a fee simple nor any other estate known\nto the law.\xe2\x80\x99 \xe2\x80\x9d\nIn practical effect the reservation in the deed before us would give the grantor company\nunqualified control for a term of years over the disposition of the property by sale or lease. The\nrecital that the purpose of the restriction is to maintain \xe2\x80\x9ca desirable high class residential section,\xe2\x80\x9d\nand to enable the grantor \xe2\x80\x9cto pass upon the character desirability and other qualifications of the\nproposed purchaser or occupant,\xe2\x80\x9d was evidently designed to explain rather than to limit the\nreservation of the power to forbid a transfer of the property by the grantees to any purchaser or\nlessee who failed to conform, in the opinion of the grantor\xe2\x80\x99s officers, to those indefinite standards.\nThe existence of such a discretionary control would be plainly incompatible with the freedom of\nalienation, which is one of the characteristic incidents of a feesimple title.\nIn Jones v. Northwest Real Estate Co., 149 Md. 271, 131 A. 446, the court considered a\nrestriction, which is included also in the deed, from the same grantor, involved in this case, that no\nbuilding should be erected on the property without the grantor\xe2\x80\x99s approval in writing, which could\nrightfully be refused if the proposed structure did not reasonably conform to the general plan of\ndevelopment in the area of which the granted lot formed a part, and it was held that such\nrestrictions did not \xe2\x80\x9cinterfere with the fee of the land to such an extent as to render them void.\xe2\x80\x9d\nIt has been argued that the real object of the clause now under consideration is simply to\nregulate the use and occupancy of the property described in the deed. But the provision does not\nthus qualify its effect. It is a prohibition of any sale of the property prior to 1932, without the\ngrantor\xe2\x80\x99s consent, and such a restraint on its alienation cannot be reconciled with the right of\ndisposition inherent in the feesimple estate which has been granted.\nCertain motions to dismiss the various appeals will be overruled, as they suggest no\nsufficient reason why the substantial question in the case should not be determined by this court\nupon the record now presented.\nOrder and decree affirmed, with costs to the appellees in the first and third appeals.\nBond, C. J. (dissenting).\nThe restraint upon alienation included in the deed to Eidenbrood and wife seems clearly\nenough to be one intended merely to give the developer of a suburban area of land power to control\nthe character of the development for a time long enough to secure a return of his capital outlay, and\nto give early purchasers of lots and buildings some security in their own outlay. In those objects\nthere is nothing against the public interest. We can hardly hold that the modern method of\ndeveloping city or suburban areas as single large enterprises is detrimental to the public. On the\ncontrary, it seems to be often the only method by which such areas can be conveniently and\neconomically opened, so that houses may be provided upon convenient terms, with all the\nneighborhood necessities of streets, sewers, and the like ready at the outset. The venture of capital\nfor this purpose appears to be distinctly a public benefit rather than a detriment, one which it is to\nthe public advantage to encourage and promote rather than to hinder. But we know that there are\n317\n\n\x0creal, substantial dangers to be feared in such ventures, and that, under the modern conditions of\nrapid city growth and rapid shifts of city populations, one of the most important risks is probably\nthat which comes from the chance of invasion into the new neighborhood of an element of the\npopulation which the people to whom the developer must look for the return of his outlay will\nregard as out of harmony with them. However fanciful may be the aversions which give rise to it,\nand however deplorable they may be, to the developer they and their consequences must be as real\nas destructive physical forces. And, if it is to the public interest that this method of development be\nencouraged rather than hindered, then practically there must be a public gain in removal or\ndiminution of this deterring danger. And the temporary restraint on alienation which the parties here\ninvolved have adopted to that end must, I think, be viewed as in point of fact reasonable, and from\nthe standpoint of the public interest actually desirable. And, if this is true, then I venture to think\nthere is no substantial reason why the law should interfere with it denying the parties the right to\nagree as they have agreed, or denying their agreement full validity.\nThe general prohibition of restraints on alienation by vendees has been based on three\ngrounds. One has been that of a supposed contradiction between a grant of complete ownership\nand any qualification of it. That objection, as has been pointed out (3 Tiffany, Real Property, s 592),\nis a product of judicial fiat, and one of logicians rather than of practical men. A second, and a more\nsubstantial, ground, is that the vendor in a conveyance embodying the restriction, having parted with\nhis ownership, is now without interest in the restriction, and there are no rights protected by it. 3\nTiffany, Real Property, s 392. But that may or may not be true in a particular case, and, however true\nit may be in a transaction concerning simply one piece of property, such as the law has had to\nconsider almost always in the past, it is very commonly not true in modern conveyances of real\nproperty. And it is not true in the present instance. The third, and, according to the weight of\nauthority, the only considerable, ground for the law\xe2\x80\x99s interference, is that of public policy, or the\npublic disadvantage in having property withdrawn from commerce and its improvement and\ndevelopment checked. 3 Tiffany, Real Property, s 392. Gray, Restraints on Alienation, s 21. But\nthose detrimental consequences do not exist here. And, if they do not exist, why should the law be\ntaking a stand to resist them, even when by doing so it denies to parties a right to make an\nagreement which may in fact redound to the public advantage? Public policy, or a policy of the\ncourts looking to the public interest, is a stand with relation to conditions as they exist, and arises\nfrom those conditions, or it is without purpose or justification.\nPerhaps it is somewhat unusual in the administration of the law with respect to restraints on\nalienation of real estate to deal with the general prohibition as only an effort to accomplish certain\npurposes, and to test a particular restriction by those purposes, but it seems nevertheless right to do\nso. If I am not mistaken, this court has so dealt with a similar restraint in a bequest of personal\nproperty; and the rule we are considering is one and the same when applied to conveyances of\ncomplete ownership in either personal or real property. Brantly, Personal Property, s 122. In\nWilliams v. Ash, 1 How. 1, 11 L. Ed. 25, in an opinion by Chief Justice Taney, the Supreme Court of\nthe United States upheld a restriction upon a legatee of slaves: \xe2\x80\x9cThat he shall not carry them out of\nthe State of Maryland, or sell them to any one; in either of which events, I will and desire the said\nnegroes shall be free for life.\xe2\x80\x9dIn the opinion, this was distinguished as a conditional limitation of\nfreedom rather than a restraint upon alienation, but it has usually been regarded as no more nor less\nthan a restraint. Gray, Restraints on Alienation, s 28; Potter v. Couch, 141 U. S. 296, 316, 317, 11 S. Ct.\n1005, 35 L. Ed. 721.In Steuart v. Williams, 3 Md. 425, 429, a similar question was presented to this\ncourt, and Williams v. Ash was taken as having established the validity of such a clause. And I\nbelieve that, if a plain restriction on a legatee\xe2\x80\x99s sale of slaves could come before the court to-day, we\nshould agree that the lack of any public interest opposed to it, or rather the desirability of it, would\nsave it from the bar of the general prohibition.\n318\n\n\x0cWe have seen the absolute common-law prohibition against restraints upon the exercise of a\ntrade adapted to conditions of modern life by measuring particular restraints by the present public\ninterest. 8 Holdsworth, History of English Law, 56-62; 31 Harvard Law Review, 193; Guerand v.\nDandelet, 32 Md. 561, 566, 3 Am. Rep. 164.The old prohibition of restraints on alienation has itself\nbeen adapted to later conditions in part. 3 Holdsworth, 85, 86. Many modern courts have held valid\nrestraints on alienation of real property limited as to time, or as to specified classes of vendees.\nRoberts v. Boston, 5 Cush. (Mass.) 198; West Chester & P. Ry. Co. v. Miles, 55 Pa. 209, 93 Am. Dec. 744;\nPlessy v. Ferguson, 163 U. S. 537, 16 S. Ct. 1138, 41 L. Ed. 256.Authorities collected in 38 A. L. R.\n1185, note. In Maryland, restrictions upon a vendee\xe2\x80\x99s use of property have been upheld, repugnant\nas these might be, logically, to the grant of an otherwise absolute title. Peabody Heights Co. v. Willson,\n82 Md. 186, 32 A. 386, 1077, 36 L. R. A. 393.It is true that the allowance of such restrictions is\ndistinguished on the ground that they are embodied only in incidental agreements, and are not\nqualifications on the estates granted, but, assuming that such a distinction is a substantial one, it\nremains true that the freedom and power of the vendees in dealing with their property are qualified\nby them, and they have not been found to conflict with considerations of public policy, and so have\nnot been interfered with.\nThe view I venture to urge, then, is that the general prohibition of restraints on alienation\nshould be considered as having some relation to the facts to be dealt with, not that the law should be\nchanged, but that there should be a recognition of change in the conditions with which the law has\nhad to deal, and a discriminating pursuit among modern conditions of the one object always sought\nby the law\xe2\x80\x93the protection of the public interest. And this is not to advocate the abandonment of a\ngeneral rule, leaving the policy of the courts to be adjusted to each conveyance independently; there\nmay be need of some fixed general standard for what has been termed predictability in the law, and\nthat would necessitate ignoring some possible differences in cases. Tide Water Canal Co. v. Archer, 9\nGill & J. 479, 528.But it has seemed to me that, whatever that general standard might be, the\nrestraint adopted in the conveyance now being considered, limited as it is in time, and having a\npurpose and an effect in which no public disadvantage can in fact be found, need not and should\nnot be included within the general prohibition to forestall a public disadvantage.\n\n319\n\n\x0cLamar Advertising v. Larry and Vickie Nicholls, L.L.C.,\n213 P.3d 641 (Wyo. 2009)\n\nRepresenting Appellant: Timothy M. Stubson and Orintha E. Karns of Brown, Drew &\nMassey, LLP, Casper, Wyoming. Argument by Ms. Karns.\nRepresenting Appellee: Frank R. Chapman of Chapman Valdez, Casper, Wyoming.\nKite, Justice.\n\xe2\x80\xa6 . The underlying facts of this case are essentially undisputed. Effective March 1, 1990,\nFrontier Outdoor Advertising (Frontier) entered into a lease with Cyril Rahonce allowing Frontier to\nmaintain a billboard on Mr. Rahonce\xe2\x80\x99s property in Rock Springs, Wyoming. The lease provided that\nthe initial term would be fifteen years, with a provision for automatic renewal if neither party gave\nnotice of its intent to terminate thirty days prior to the end of term. In exchange for allowing\nFrontier to use his property, Mr. Rahonce was to receive an annual payment of $400. The lease\nprovided it was subject to assignment and its terms would apply to the parties\xe2\x80\x99 successors. The lease\nwas not recorded.\nOver the years, ownership of the property changed several times. In 1993, Mr. Rahonce\nconveyed the property to High Country Landscaping, and Frontier paid the annual lease payment to\nthe new owner. In 1997, Larry and Vickie Nicholls purchased the property from High Country\nLandscaping. The disputed property was subsequently transferred to the plaintiff limited liability\ncompany, Larry and Vickie Nicholls, LLC. Plains Tire and Battery (Plains Tire) was located adjacent\nto the disputed property, and Mr. and Mrs. Nicholls owned the company that was the majority\nshareholder of Plains Tire. Plains Tire used the property for parking.\nThe lessee also changed after the lease was executed. In 1998, Lamar purchased Frontier and\nacquired its interest in the lease at issue here. During the time that Nicholls owned the property,\nLamar tendered the annual lease payments to Plains Tire and the payments were accepted until 2006.\nOn July 26, 2005, Nicholls notified Lamar that the lease had expired and would not be\nrenewed. Lamar claimed the lease had renewed automatically because Nicholls did not give notice of\nits intent to terminate thirty days prior to the end of the first term. Nicholls filed a complaint in the\ndistrict court, seeking a declaratory judgment that Lamar\xe2\x80\x99s lease was not valid and requesting an\norder quieting title to the disputed property to Nicholls\xe2\x80\xa6 . . The district court \xe2\x80\xa6 granted summary\njudgment to Nicholls on the basis that the lease was void as an unreasonable restraint on alienation.\nLamar appealed to this Court.\n\nDISCUSSION\n\nThe district court determined that our decision in Hartnett v. Jones, 629 P.2d 1357 (Wyo.1981)\n320\n\n\x0cgoverned in this case. In Hartnett, three parties owned a tract of land and they agreed that each party\nwould have the right to purchase the interests of the others if they decided to sell. This right was\ndescribed as a \xe2\x80\x9cpreemptive right,\xe2\x80\x9d but it also could be termed a right of first refusal. Hartnett sued\nJones and Whitlock because his preemptive right was not honored when Whitlock sold his interest\nto Jones. Id. at 1359-60. Jones and Whitlock defended on a number of bases, including arguing that\nthe preemptive right was an unreasonable restraint on alienation. We applied a reasonableness\nstandard to determine whether the preemptive right was an invalid restraint on alienation. The\nfactors we considered were: \xe2\x80\x9c(1) the purpose for which the restraint is imposed; (2) the duration of\nthe restraint; and (3) the method of determining the price.\xe2\x80\x9d We held the restraint was reasonable and\ndid not violate the rule against unreasonable restraints on alienation. Id. at 1363.\nThe district court applied the \xe2\x80\x9creasonableness\xe2\x80\x9d test from Hartnett and determined the lease at\nissue in this case was an unreasonable restraint on alienation. It ruled:\nIn the current case, the circumstances surrounding the lease reveal an unreasonable restraint\non alienation. Because the lease automatically renewed in 2005, due to [Nicholls\xe2\x80\x99] failure to terminate\nthe lease at the end of the term, [Nicholls\xe2\x80\x99] only means of circumventing the lease would be to\nimprove the property by \xe2\x80\x9cerecting thereon a permanent industrial[,] commercial or residential\nbuilding as evidenced by a building permit.\xe2\x80\x9d According to the Parties\xe2\x80\x99 arguments heard by this Court\non April 23, 2008 on motions for summary judgment, a Rock Springs City ordinance prevents\n[Nicholls] from ever obtaining a building permit while [Lamar\xe2\x80\x99s] billboard is erected on the property.\nThough the \xe2\x80\x9cpurpose for which the restraint is imposed\xe2\x80\x9d may be to protect [Lamar\xe2\x80\x99s] leasehold\ninterest, the consequence of the restraint inhibits the marketability of the property. The \xe2\x80\x9cduration of\nthe restraint\xe2\x80\x9d may be only fifteen years under the terms of the lease, but the inability to improve the\nproperty due to the presence of [Lamar\xe2\x80\x99s] sign is indefinite. Finally, the \xe2\x80\x9cmethod of determining\nprice\xe2\x80\x9d is fixed by the lease at $400.00 per year. The fixed price leaves little incentive for [Lamar] to\naccommodate improvements to the property.\nIn the current case, the benefits of the purpose behind the restraint are few, but the extent\nthat alienability would be hindered is great. This Court finds that the handicap upon the\nmarketability of the property represents an unreasonable restraint on alienation. Consequently, the\nlease is void.\n(citations omitted).\nLamar claims that, although the reasonableness test was appropriate in Hartnett because the\npreemptive right was a direct restraint on alienation, that test should not have been applied to the\nlease at issue here because it is only an indirect restraint on alienation. According to Lamar, the\nRestatement of Property directs that servitudes that impose indirect restraints on alienation should\nnot be tested for reasonableness but, instead, should be found invalid only if they lack a rational\njustification. Lamar maintains that the record clearly establishes a rational justification for the lease.\nRestatement (First) of Property \xc2\xa7 404 (1944) defines a direct restraint on alienation as:\n(1) A restraint on alienation, as that phrase as used in this Restatement, is an attempt by an\notherwise effective conveyance or contract to cause a later conveyance\n(a) to be void; or\n(b) to impose contractual liability on the one who makes the later conveyance when such\nliability results from a breach of an agreement not to convey; or\n(c) to terminate or subject to termination all or part of the property interest conveyed.\nSee also, Smith v. Osguthorpe, 58 P.3d 854, 860 (Utah Ct.App.2002). Phrased another way, a\n\xe2\x80\x9cdirect restraint on alienation is a provision in a deed, will, contract, or other instrument which, by\nits express terms, or by implication of fact, purports to prohibit or penalize the exercise of the\npower of alienation.\xe2\x80\x9d Spanish Oaks, Inc. v. Hy-Vee, Inc., 265 Neb. 133, 655 N.W.2d 390, 399 (2003).\nDirect restraints on alienation include such things as \xe2\x80\x9cprohibitions on transfer without the consent\n321\n\n\x0cof another, prohibitions on transfer to particular persons, requirements of transfer to particular\npersons, options to purchase land, and rights of first refusal.\xe2\x80\x9d Restatement (Third) of Property:\nServitudes \xc2\xa7 3.4 cmt. b (2000).\nRestatement (Third) of Property: Servitudes \xc2\xa7 3.4 states that the test for determining\nwhether a direct restraint on alienation imposed by a servitude is enforceable is the \xe2\x80\x9creasonableness\xe2\x80\x9d\ntest:\nA servitude that imposes a direct restraint on alienation of the burdened estate is invalid if\nthe restraint is unreasonable. Reasonableness is determined by weighing the utility of the restraint\nagainst the injurious consequences of enforcing the restraint.\nUnlike a direct restraint, an indirect restraint does not place express limitations on the\nowner\xe2\x80\x99s right to convey the property. An indirect restraint on alienation \xe2\x80\x9c\xe2\x80\x98arises when an attempt is\nmade to accomplish some purpose other than the restraint of alienability, but with the incidental\nresult that the instrument, if valid, would restrain practical alienability.\xe2\x80\x99\xe2\x80\x9d Smith, 58 P.3d at 860,\nquoting Redd v. Western Savings & Loan Co., 646 P.2d 761, 764 (Utah 1982). See also, Spanish Oaks, 655\nN.W.2d at 399. Restatement (Third) of Property: Servitudes \xc2\xa7 3.5 (2000) pertains to indirect\nrestraints on alienation created by servitudes:\n(1) An otherwise valid servitude is valid even if it indirectly restrains alienation by limiting\nthe use that can be made of property, by reducing the amount realizable by the owner on sale or\nother transfer of the property, or by otherwise reducing the value of the property.\n(2) A servitude that lacks a rational justification is invalid.\n\xe2\x80\x9cSection 3.5 drops the requirement that an indirect restraint be reasonable, requiring only a\nrational justification for the restraint.\xe2\x80\x9d Smith, 58 P.3d at 861,citing Restatement (Third) of Property:\nServitudes \xc2\xa7 3.5 cmt. a. Comment a of Restatement \xc2\xa7 3.5 explains the logic underlying the \xe2\x80\x9crational\njustification\xe2\x80\x9d requirement:\nMany servitudes indirectly affect the alienability of property by limiting the numbers of\npotential buyers or by reducing the amount the owner might otherwise realize on a sale of the\nproperty. If the servitude \xe2\x80\xa6 is not otherwise invalid \xe2\x80\xa6, the fact that the servitude results in some\ndiminution in return to the owner, or some reduction in the potential market for the property, is not\nsufficient justification for refusing to give effect to the intent of the parties to create the servitude\xe2\x80\xa6.\nThe parties are usually in a better position than judges to decide the economic trade-offs that will\nenable a transaction to go forward and enhance their overall value\xe2\x80\xa6.\nUnlike direct restraints on alienation, which directly interfere with the process of conveying\nland, and have long been understood and constrained by the common law, indirect restraints may\nhave no overall negative effects on the wealth of a society overall or more narrowly, on the value of\nits land resources. On the contrary, they may result in an overall increase in wealth. Therefore, this\nsection adopts the position that a servitude is not invalid simply because it reduces the value of a\nparticular piece of land or reduces the amount the owner will realize on sale of the land. Unlike\ndirect restraints, where courts can and should weigh the harm that will be caused by limiting\nalienation of a particular piece of property against the good that will be accomplished by the\nrestriction, courts should not attempt to weigh the harm caused by an indirect restraint against the\noverall value of the transaction in which the servitude played a part. There are too many potential\nvariables, and private decision making is more likely than judicial decision making to increase overall\nwealth and well-being.\nThe purpose of this section is to reject the rule that a servitude must be reasonable. If the\nservitude is not otherwise invalid because it is illegal, unconstitutional, or against public policy, it\nneed not be reasonable. The only requirement is that there be a rational justification for creating it as\na servitude. The fact that the servitude limits the market for property by limiting its use or reducing\nits value \xe2\x80\xa6 is irrelevant in determining its validity, so long as there is some rational justification for\n322\n\n\x0ccreation of the servitude. The fact that there may be a rational justification for the obligation is not\nsufficient; there must be a rational justification for imposing the obligation as a servitude that runs\nwith the land. If there is no rational justification for the servitude, it should not be enforced because\nthere is no real trade-off for the resulting decrease in the value of the land, and the legal system\nshould not be used to enforce irrational arrangements against unwilling participants.\nNicholls argues that we adopted the reasonableness standard for both direct and indirect\nrestraints in Hartnett. We disagree. The preemptive right at issue in Hartnett was clearly a direct\nrestraint on alienation. Section 3.4 cmt. b. We did not consider in that case whether the\nreasonableness test applied to indirect restraints. Although some jurisdictions apply a reasonableness\ntest to both direct and indirect restraints, see, e.g., Redd, 646 P.2d at 764; Peavey v. Reynolds, 946 So.2d\n1125 (Fla.Ct.App.2006), we are not convinced that is the correct approach. As explained in\ncomments a and b to \xc2\xa7 3.5, the economic principles that make direct restraints on alienation suspect\ndo not apply in the context of indirect restraints imposed by servitudes, especially in the commercial\ncontext. Instead, parties should be free to decide upon their own contractual terms and it is not the\nrole of the courts to second guess their decision making, so long as there is a rational justification for\nthe servitude.\nLamar\xe2\x80\x99s lease specifically recognized the possibility that title to the property could be\ntransferred during the lease term by requiring that notice of the change of ownership be given to the\nlessee and the new owner be informed of the lease. Moreover, as our recitation of the facts makes\nclear, ownership of the property transferred several times during the lease term. The lease clearly did\nnot amount to a direct restraint on alienation, and Nicholls concedes as much.\nLamar\xe2\x80\x99s lease was simply a servitude that had the potential effect of restraining alienation by\nlimiting the value or use of the property. As such, it amounted to an indirect restraint on alienation.\nThe rational justification test set out in \xc2\xa7 3.5 for indirect restraints, rather than the reasonableness\ntest, should have been applied to determine whether the lease was invalid. In reviewing a summary\njudgment, we apply the same analysis as the district court, and, in the interest of judicial economy,\nwe will apply the \xe2\x80\x9crational justification\xe2\x80\x9d test to determine whether Lamar\xe2\x80\x99s lease is an improper\nrestraint on alienation. See generally, Wells Fargo Bank Wyoming, N.A. v. Hodder, 2006 WY 128, \xc2\xb6 32,\n144 P.3d 401, 412 (Wyo.2006) (applying the correct legal analysis to the facts in the record following\na bench trial).\nThe lease at issue here was commercial in nature. Comment b to \xc2\xa7 3.5 states that\n\xe2\x80\x9c[s]ervitudes created in commercial transactions seldom lack rational justification.\xe2\x80\x9d Lamar\xe2\x80\x99s general\nmanager, Dave Butterfield, had worked for Frontier before it was acquired by Lamar and had\npersonal knowledge of the companies\xe2\x80\x99 leasing practices and the lease with Mr. Rahonce. Mr.\nButterfield explained the rationale for such an approach in leasing billboard sites, including the\nfifteen year term and the automatic renewal, in his summary judgment affidavit. He averred:\n4. Lamar typically enters into leases with landowners that call for a fifteen or twenty year\ntime period. Because it usually takes years to re-coup the costs of the initial infrastructure, rental\npayments, and sign up-keep, Lamar has found only leases of these time periods allow Lamar to\nremain profitable given the relatively small margins of profit.\n5. The leases Lamar executes typically require the Lessor to provide at least a thirty (30) day\nand no more than a ninety (90) day notice period prior to automatic roll-over as it takes a significant\namount of time to find new locations, execute new leases with the land owners and rent the space.\nAs recognized by Mr. Butterfield, the lease could be cancelled without penalty if the lessor\ngave notice thirty days prior to the end of the lease term that it did not wish to renew the lease.\nNicholls presented no evidence refuting Mr. Butterfield\xe2\x80\x99s statements, and those statements provide\nvalid business reasons for the lease terms. As a matter of law, Mr. Butterfield\xe2\x80\x99s explanation\nestablishes a rational justification for the servitude\xe2\x80\xa6 . .\n323\n\n\x0c324\n\n\x0cAquarian Foundations, Inc. v. Sholom House, Inc.,\n448 So. 2d 1166 (Fla. Dist. Ct. App. 1984).\n\nGerald E. Rosser, Miami, for appellant.\nGus Efthimiou, Jr., Miami, for appellee.\nBefore Hendry, Nesbitt, and Daniel S. Pearson, JJ.\nDaniel S. Pearson, Judge.\nAll is not peaceful at the Sholom House Condominium. In disregard of a provision of the\ndeclaration of condominium requiring the written consent of the condominium association\xe2\x80\x99s board\nof directors to any sale, lease, assignment or transfer of a unit owner\xe2\x80\x99s interest, Bertha Albares, a\nmember of the board of directors, sold her condominium unit to the Aquarian Foundation, Inc.\nwithout obtaining such consent. Eschewing its right to ratify the sale, the association, expressly\nempowered by the declaration to \xe2\x80\x9carbitrarily, capriciously, or unreasonably\xe2\x80\x9d withhold its consent,\nsued to set aside the conveyance, to dispossess Aquarian, and to recover damages under a clause in\nthe declaration which provides that:\nIn the event of a violation by the condominium [sic] by the unit owner of any of the\ncovenants, restrictions and limitations, contained in this declaration, then in that event the fee simple\ntitle to the condominium parcel shall immediately revert to the association, subject to the association\npaying to said former unit owner, the fair appraised value thereof, at the time of reversion, to be\ndetermined as herein provided.\nThe trial court, after a non-jury trial, found that Albares had violated the declaration of\ncondominium, thus triggering the reverter clause. Accordingly, it entered a judgment for the\nassociation, declaring the conveyance to Aquarian null and void, ejecting Aquarian, and retaining\njurisdiction to award damages, attorneys\xe2\x80\x99 fees and costs after a determination of the fair appraised\nvalue of the property. Aquarian appeals. We reverse.\nThe issue presented by this appeal is whether the power vested in the association to\narbitrarily, capriciously, or unreasonably withhold its consent to transfer1 constitutes an\nunreasonable restraint on alienation, notwithstanding the above-quoted reverter clause which\nmandates that the association compensate the unit owner in the event, in this case, of a transfer of\nthe unit in violation of the consent requirement.\nIt is well settled that increased controls and limitations upon the rights of unit owners to\ntransfer their property are necessary concomitants of condominium living.2 See Hidden Harbour\nEstates, Inc. v. Norman, 309 So.2d 180 (Fla. 4th DCA 1975); Holiday Out in America at St. Lucie, Inc. v.\nBowes, 285 So.2d 63 (Fla. 4th DCA 1973); Chianese v. Culley, 397 F.Supp. 1344 (S.D.Fla.1975).\n[I]nherent in the condominium concept is the principle that to promote the health,\nhappiness, and peace of mind of the majority of the unit owners since they are living in such close\nproximity and using facilities in common, each unit owner must give up a certain degree of freedom\nof choice which he might otherwise enjoy in separate, privately owned property. Condominium unit\nowners comprise a little democratic sub society of necessity more restrictive as it pertains to use of\ncondominium property than may be existent outside the condominium organization.\nHidden Harbour Estates, Inc. v. Norman, 309 So.2d at 181-82.\nAccordingly, restrictions on a unit owner\xe2\x80\x99s right to transfer his property are recognized as a\nvalid means of insuring the association\xe2\x80\x99s ability to control the composition of the condominium as a\n325\n\n\x0cwhole. See, e.g., Lyons v. King, 397 So.2d 964 (Fla. 4th DCA 1981); Coquina Club, Inc. v. Mantz, 342\nSo.2d 112 (Fla. 2d DCA 1977); Seagate Condominium Association, Inc. v. Duffy, 330 So.2d 484 (Fla. 4th\nDCA 1976); Kroop v. Caravelle Condominium, Inc., 323 So.2d 307 (Fla. 3d DCA 1975); Holiday Out in\nAmerica at St. Lucie, Inc. v. Bowes, 285 So.2d 63; Chianese v. Culley, 397 F.Supp. 1344. See also White Egret\nCondominium, Inc. v. Franklin, 379 So.2d 346 (Fla.1980). Indeed, it has been said of a restriction\ncontained in a declaration of condominium that it \xe2\x80\x9cmay have a certain degree of unreasonableness\nto it, and yet withstand attack in the courts. If it were otherwise, a unit owner could not rely on the\nrestrictions found in the declaration of condominium, since such restrictions would be in a potential\ncondition of continuous flux.\xe2\x80\x9d3 Hidden Harbour Estates, Inc. v. Basso, 393 So.2d 637, 640 (Fla. 4th\nDCA 1981). Thus, strict enforcement of the restrictions of an association\xe2\x80\x99s private constitution, that\nis, its declaration of condominium, protects the members\xe2\x80\x99 reliance interests in a document which\nthey have knowingly accepted, and accomplishes the desirable goal of \xe2\x80\x9callowing the establishment\nof, and subsequently protecting the integrity of, diverse types of private residential communities,\n[thus providing] genuine choice among a range of stable living arrangements.\xe2\x80\x9d Ellickson, Cities and\nHomeowners Associations, 130 U.Pa.L.Rev. 1519, 1527 (1982).\nHowever, despite the law\xe2\x80\x99s recognition of the particular desirability of restrictions on the\nright to transfer in the context of condominium living, such restrictions will be invalidated when\nfound to violate some external public policy or constitutional right of the individual. Hidden Harbour\nEstates, Inc. v. Basso, 393 So.2d at 639-40. See Pepe v. Whispering Sands Condominium Association, Inc., 351\nSo.2d 755 (Fla. 2d DCA 1977). Merely because a declaration of condominium is in the nature of a\nprivate compact and a restriction contained therein is not subject to the same reasonableness\nrequirement as a restriction contained in a public regulation, see White Egret Condominium, Inc. v.\nFranklin, 379 So.2d 346, 350 (Fla.1980), where the restriction constitutes a restraint on alienation,\ncondominium associations are not immune from the requirement that the restraint be reasonable.\nThus, while a condominium association\xe2\x80\x99s board of directors has considerable latitude in withholding\nits consent to a unit owner\xe2\x80\x99s transfer, the resulting restraint on alienation must be reasonable. In this\nmanner the balance between the right of the association to maintain its homogeneity and the right of\nthe individual to alienate his property is struck.\nThe basic premise of the public policy rule against unreasonable restraints on alienation, see\n7 Thompson On Real Property, s 3161 (1962); 31 C.J.S. Estates 8(b)(2) (1964), is that free\nalienability of property fosters economic growth and commercial development. Davis v. Geyer, 151\nFla. 362, 9 So.2d 727 (1942); Seagate Condominium Association, Inc. v. Duffy, 330 So.2d 484. Because\n\xe2\x80\x9c[t]he validity or invalidity of a restraint depends upon its long-term effect on the improvement and\nmarketability of the property,\xe2\x80\x9d Iglehart v. Phillips, 383 So.2d 610, 614 (Fla.1980), where the restraint,\nfor whatever duration, does not impede the improvement of the property or its marketability, it is\nnot illegal. Id. at 615. Accordingly, where a restraint on alienation, no matter how absolute and\nencompassing, is conditioned upon the restrainer\xe2\x80\x99s obligation to purchase the property at the then\nfair market value, the restraint is valid. Id. at 614-15, and cases collected.\nThe declaration of condominium in the present case permits the association to reject\nperpetually any unit owner\xe2\x80\x99s prospective purchaser for any or no reason. Such a provision, so\nobviously an absolute restraint on alienation, can be saved from invalidity only if the association has\na corresponding obligation to purchase or procure a purchaser for the property from the unit owner\nat its fair market value. Otherwise stated, if, as here, the association is empowered to act arbitrarily,\ncapriciously, and unreasonably in rejecting a unit owner\xe2\x80\x99s prospective purchaser, it must in turn be\naccountable to the unit owner by offering payment or a substitute market for the property. When\nthis accountability exists, even an absolute and perpetual restraint on the unit owner\xe2\x80\x99s ability to\nselect a purchaser is lawful. See Chianese v. Culley, 397 F.Supp. 1344 (notwithstanding association\xe2\x80\x99s\nright to approve any transfer except one to an existing unit owner, requirement that within sixty days\n326\n\n\x0cassociation provide another purchaser or approve original purchaser creates a preemptive right in\nassociation and saves declaration of condominium from being an unlawful restraint on alienation).4\nThe declaration of condominium involved in the instant case contains no language requiring\nthe association to provide another purchaser, purchase the property from the unit owner, or, failing\neither of these, approve the proposed transfer. What it does contain is the reverter clause, which the\nassociation contends is the functional equivalent of a preemptive right and, as such, makes the\nrestraint on alienation lawful.\nIn our view, the problem with the association\xe2\x80\x99s position is that the reverter clause imposes\nno obligation upon the association to compensate the unit owner within a reasonable time after the\nassociation withholds its consent to transfer, and the clause is not therefore the functional equivalent\nof a preemptive right. Cf. Chianese v. Culley, 397 F.Supp. 1344. Instead, the clause and the\nassociation\xe2\x80\x99s obligation do not come into effect until a violation of the restriction on an unapproved\ntransfer occurs:\nIn the event of a violation by the condominium [sic] by the unit owner of any of the\ncovenants, restrictions and limitations, contained in this declaration, then in that event the fee simple\ntitle to the condominium parcel shall immediately revert to the association, subject to the association\npaying to said former unit owner, the fair appraised value thereof, at the time of reversion, to be\ndetermined as herein provided.\nThe association\xe2\x80\x99s accountability to the unit owner is illusory. There is no reasonable\nlikelihood that a potential purchaser, apprised by the condominium documents that the consent of\nthe association is required and that a purchase without consent vitiates the sale, would be willing to\nacquire the property without the association\xe2\x80\x99s consent.5 Without a sale, there is no violation of the\nreverter clause. Without a violation of the reverter clause, the association has no obligation to pay\nthe unit owner.\nEffectively, then, the power of the association to arbitrarily, capriciously, and unreasonably\nwithhold its consent to transfer prevents the activation of the reverter clause and eliminates the\naccountability of the association to the unit owner. Therefore, we conclude that the power of the\nassociation to arbitrarily, capriciously, and unreasonably withhold its consent to transfer is not saved\nby the reverter clause from being declared an invalid and unenforceable restraint on alienation.\nAccordingly, the judgment of the trial court is\nReversed.\nThe appellant does not challenge the clause itself as not serving the arguably legitimate\npurpose of screening out undesirable prospective transferees, as lacking in clarity, or as permitting\narbitrary, capricious, or unreasonable action by the directors in contravention of the purpose to be\nserved. The appellant\xe2\x80\x99s point on appeal is that the invalidity of the clause lies not in its potential for\nunfair application, but rather in the fact that it is an unreasonable restraint on alienation. \xe2\x86\xa9\nThe principle that the use of condominium property can be burdened with restrictions has\nreceived legislative sanction. Sees 718.104(5), Fla.Stat. (Supp.1982) (providing that a declaration of\ncondominium \xe2\x80\x9cmay include covenants and restrictions concerning the use, occupancy, and transfer\nof the units permitted by law with reference to real property.\xe2\x80\x9d). \xe2\x86\xa9\nOn the other hand, post-formative actions of the association, such as rules promulgated by\nthe board of directors, are subject to a test of reasonableness: that is, the board\xe2\x80\x99s actions must be\nreasonably related to the promotion of the health, happiness and peace of mind of the unit owners.\nHidden Harbour Estates, Inc. v. Basso, 393 So.2d 637, 640 (Fla. 4th DCA 1981). It has been noted that\ncases applying this same reasonableness test to a restriction contained in the declaration of\ncondominium, see, e.g., Seagate Condominium Ass\xe2\x80\x99n, Inc. v. Duffy, 330 So.2d 484 (Fla. 4th DCA 1976),\noverlook the fact that a restriction appearing in a declaration of condominium owes its \xe2\x80\x9cvery strong\n327\n\n\x0cpresumption of validity \xe2\x80\xa6 [to] the fact that each individual unit owner purchases his unit knowing\nof and accepting the restrictions to be imposed.\xe2\x80\x9d Hidden Harbour Estates, Inc. v. Basso, 393 So.2d at\n639. \xe2\x86\xa9\nSimilar provisions in Lyons v. King, 397 So.2d 964, and Coquina Club, Inc. v. Mantz, 342 So.2d\n112, presumably would have been held to be lawful restraints on alienation had the question been\nreached. However, in each of these cases, it was held that the rejection of the prospective purchaser\nwas based on a reasonable and narrow restriction on transfer, enabling the unit owner to alienate the\nproperty to others who were not within the restriction. Thus, the preemptive right of the association\nwas not triggered. \xe2\x86\xa9\nWe acknowledge, of course, that in this case a sale to Aquarian Foundation actually\noccurred. This does not, however, affect our view that such a sale would not ordinarily be expected\nto occur between parties dealing at arm\xe2\x80\x99s length. The record does not reflect the relationship\nbetween Albares and Aquarian that may have been responsible for Aquarian acquiring the property.\nWe can conceive of situations where parties could collude to effect a sale so as to create a violation\nand trigger the reverter clause. But the fact that this sale occurred hardly is evidence that other sales\ncan be reasonably expected to occur. \xe2\x86\xa9\n\n328\n\n\x0c6.3.2. Racist Conditions\nCharlotte Park and Recreational Commission v. Barringer,\n88 S.E.2d 114 (1955).\n\nT. H. Wyche, Charlotte, and Spottswood W. Robinson, III, Richmond, Va., for Charles W.\nLeeper, I. P. Farrar, Sadler S. Gladden, Robert H. Greene, James Heath, Henry M. Isley, Russell\nMcLaughlin, Anthony M. Walker, Harold Walker, Edward J. Weddington, James J. Weddington,\nWillie Lee Weddington, L. A. Warner, G. M. Wilkins, Roy S. Wynn, and Rudolph M. Wyche,\nDefendants-Appellants.\nCochran, McCleneghan & Miller and F. A. McCleneghan and Lelia M. Alexander, Charlotte,\nfor Osmond L. Barringer, Defendant-Appellee.\nJohn D. Shaw, Charlotte, for Charlotte Park and Recreation Commission, Plaintiff-Appellee.\nParker, Justice.\nThe decision of the Trial Judge that he had jurisdiction of the property and the parties, and\nwas empowered to enter judgment under the Declaratory Judgments Act is correct.G.S. s 1-253 et\nseq., Lide v. Mears, 231 N.C. 111, 56 S.E.2d 404.\nThere are no exceptions to the Judge\xe2\x80\x99s findings of fact.\nWe shall discuss first the Barringer Deed, which by reference, as well as all the other deeds\nmentioned in the statement of facts, is incorporated in the findings of fact, and made a part thereof.\nThe first question presented is: Does the Barringer Deed create a fee determinable on special\nlimitations, as decided by the Trial Judge?\nThis Court said in Hall v. Turner, 110 N.C. 292, 14 S.E. 791:\nWhenever a fee is so qualified as to be made to determine, or liable to be defeated, upon the\nhappening of some contingent event or act, the fee is said to be base, qualified or determinable.\xe2\x80\x9d\nAn estate in fee simple determinable, sometimes referred to as a base or a qualified fee, is\ncreated by any limitation which, in an otherwise effective conveyance of land, creates an estate in fee\nsimple and provides that the estate shall automatically expire upon the occurrence of a stated\nevent\xe2\x80\xa6. No set formula is necessary for the creation of the limitation, any words expressive of the\ngrantor\xe2\x80\x99s intent that the estate shall terminate on the occurrence of the event being sufficient\xe2\x80\xa6. So,\nwhen land is granted for certain purposes, as for a schoolhouse, a church, a public building, or the\nlike, and it is evidently the grantor\xe2\x80\x99s intention that it shall be used for such purposes only, and that,\non the cessation of such use, the estate shall end, without any re-entry by the grantor, an estate of\nthe kind now under consideration is created. It is necessary, it has been said, that the event named as\nterminating the estate be such that it may by possibility never happen at all, since it is an essential\ncharacteristic of a fee that it may possibly endure forever.\nTiffany: Law of Real Property, 3rd Ed., Sec. 220.\nIn Connecticut Junior Republic Association v. Litchfield, 119 Conn. 106, 174 A. 304, 307, 95 A.L.R.\n56, the real estate was devised by Mary t. Buell to the George Junior Republic Association of New\nYork with a precatory provision that it be used as a home for children. The New York association\nby deed conveyed this land to plaintiff, \xe2\x80\x9c\xe2\x80\x98its successors and assigns, in trust, as long as it may obey\n329\n\n\x0cthe purposes expressed in \xe2\x80\xa6 the will \xe2\x80\xa6 and as long as the (grantee) shall continue its existence for\nthe uses and purposes as outlined in the preamble of the constitution of the National Association of\nJunior Republics, but if at any time it shall fail to so use said property for said purposes \xe2\x80\xa6 then the\nproperty hereby conveyed shall revert to this grantor, or its successors.\xe2\x80\x99\xe2\x80\x9d The Supreme Court of\nConnecticut said: \xe2\x80\x9cThe effect of the deed was to vest in the plaintiff a determinable fee. Here, as in\nFirst Universalist Society [of North Adams] v. Boland, 155 Mass. 171, 174, 29 N.E. 524, 15 L.R.A. 231, the\nterms of the deed \xe2\x80\x98do not grant an absolute fee, nor an estate or condition, but an estate which is to\ncontinue till the happening of a certain event, and then to cease. That event may happen at any time,\nor it may never happen. Because the estate may last forever, it is a fee. Because it may end on the\nhappening of the event it is what is usually called a determinable or qualified fee.\xe2\x80\x9d See, also, City\nNational Bank v. Bridgeport, 109 Conn. 529, 540, 147 A. 181; Battistone v. Banulski, 110 Conn. 267, 147\nA. 820.\xe2\x80\x99\nIn First Universalist Society of North Adams v. Boland, 155 Mass. 171, 29 N.E. 524, 15 L.R.A.\n231, \xe2\x80\x9cthe grant of the plaintiff was to have and to hold, etc., \xe2\x80\x98so long as said real estate shall by said\nsociety or its assigns be devoted to the uses, interests, and support of those doctrines of the\nChristian religion\xe2\x80\x99 as specified; \xe2\x80\x98and when said real estate shall by said society or its assigns be\ndiverted from the uses, interests, and support aforesaid to any other interests, uses, or purposes than\nas aforesaid, then the title of said society or its assigns in the same shall forever cease, and be forever\nvested in the following named persons, etc.\xe2\x80\x99\xe2\x80\x9d The Supreme Court of Connecticut in Connecticut\nJunior Republic Association v. Litchfield, supra, has quoted the language of this case holding that the grant\ncreates \xe2\x80\x9ca determinable or qualified fee.\xe2\x80\x9d Immediately after the quoted words, the Massachusetts\nCourt used this language: \xe2\x80\x9cThe grant was not upon a condition subsequent, and no re-entry would\nbe necessary; but by the terms of the grant the estate was to continue so long as the real estate\nshould be devoted to the specified uses, and when it should no longer be so devoted then the estate\nwould cease and determine by its own limitation.\xe2\x80\x9d\nIn Brown v. Independent Baptist Church of Woburn, 325 Mass. 645, 91 N.E.2d 922, 923, the will of\nSarah Converse devised land \xe2\x80\x9cto the Independent Baptist Church of Woburn, to be holden and\nenjoyed by them so long as they shall maintain and promulgate their present religious belief and faith\nand shall continue a Church; and if the said Church shall be dissolved, or if its religious sentiments\nshall be changed or abandoned, then my will is that this real estate shall go to my legatees hereinafter\nnamed.\xe2\x80\x9d The Court said: \xe2\x80\x9cThe parties apparently are in agreement, and the single justice ruled, that\nthe estate of the church in the land was a determinable fee. We concur. (Citing authorities.) The\nestate was a fee, since it might last forever, but it was not an absolute fee, since it might (and did)\n\xe2\x80\x98automatically expire upon the occurrence of a stated event.\xe2\x80\x99\xe2\x80\x9d\nIn Smith v. School Dist. No. 6 of Jefferson County, Mo., 250 S.W.2d 795, the deed contained this\nprovision: \xe2\x80\x9cThe said land being hereby conveyed to said school district for the sole and express use\nand purpose of and for a schoolhouse site and it is hereby expressly understood that whenever said\nland shall cease to be used and occupied as a site for a schoolhouse and for public school purposes\nthat then this conveyance shall be deemed and considered as forfeited and the said land shall revert\nto said party of the first part, his heirs and assigns.\xe2\x80\x9d The Court held that the estate conveyed was a\nfee simple determinable.\nIn Collette v. Town of Charlotte, 114 Vt. 357, 45 A.2d 203, 204, the deed provided that the land\n\xe2\x80\x9cwas \xe2\x80\x98to be used by said Town for school purposes, but when said Town fails to use it for said\nschool purposes it shall revert to said Scofield (the grantor), his heirs and assigns, but the Town shall\nhave the right to remove all buildings located thereon. The Town shall not have the right to use the\npremises for other than school purposes.\xe2\x80\x99\xe2\x80\x9d The Supreme Court of Vermont in a well-reasoned\nopinion supported by ample citation of authority said: \xe2\x80\x9cIt was held in Fall Creek School Twp. v.\nShuman, 55 Ind.App. 232, 236, 103 N.E. 677, 678, that a conveyance of land \xe2\x80\x98to be used for school\n330\n\n\x0cpurposes\xe2\x80\x99 without further qualification, created a condition subsequent. The same words were used\nin Scofield\xe2\x80\x99s deed to the Town of Charlotte, but they were followed by the provision that \xe2\x80\x98when said\nTown fails to use it for said school purposes it shall revert to said Scofield, his heirs or assigns,\xe2\x80\x99\nclearly indicating the intent of the parties to create a determinable fee, which was, we think, the\neffect of the deed. North v. Graham, 235 Ill. 178, 85 N.E. 267, 18 L.R.A., N.S., 624, 626, 126\nAm.St.Rep. 189.\xe2\x80\x9d\nIn Mountain City Missionary Baptist Church v. Wagner, 193 Tenn. 625, 249 S.W.2d 875, 876, the\ndeed is an ordinary deed conveying certain real estate. After the habendum clause there appears the\nfollowing language: \xe2\x80\x9cBut it is distinctly understood that if said property shall cease to be used by the\nsaid Missionary Baptist Church (for any reasonable period of time) as a place of worship, that said\nproperty shall revert back to the said M. M. Wagner and his heirs free from any encumbrances\nwhatsoever and this conveyance become null and void.\xe2\x80\x9d The grantor was M. M. Wagner. The Court\nsaid: \xe2\x80\x9cWhen we thus read the deed, as a whole, we find that the unmistakable and clear intention of\nthe grantor was to give this property to the church so long as it was used for church purposes and\nthen when not so used the property was to revert to the grantor or his heirs. the estate thus created\nin this deed is a determinable fee.\xe2\x80\x9d\nIn Magness v. Kerr, 121 Or. 373, 254 P. 1012, 1013, 51 A.L.R. 1466, the deed contained the\nfollowing provision, to-wit: \xe2\x80\x9cProvided and this deed is made upon this condition, that should said\npremises at any time cease to be used for cooperative purposes, they shall, upon the refunding of the\npurchase price and reasonable and equitable arrangement as to the disposition of the improvements,\nrevert to said grantors.\xe2\x80\x9d The Court held that this was a grant upon express limitation, and the estate\nwill cease upon breach of the condition without any act of the grantor.\nFor other cases of a determinable fee created under substantially similar language see: Coffelt\nv. Decatur School District No. 17, 212 Ark. 743, 208 S.W.2d 1; Regular Predestinarian Baptist Church of\nPleasant Grove v. Parker, 373 Ill. 607, 27 N.E.2d 522, 137 A.L.R. 635; Board of Education for Jefferson\nCounty v. Littrell, 173 Ky. 78, 190 S.W. 465; Pennsylvania Horticultural Society v. Craig, 240 Pa. 137, 87 A.\n678.\nWe have held in Ange v. Ange, 235 N.C. 506, 71 S.E.2d 19, that the words \xe2\x80\x9cfor church\npurposes only\xe2\x80\x9d appearing at the conclusion of the habendum clause, where there is no language in\nthe deed providing for a reversion or forfeiture in event the land ceases to be used as church\nproperty, does not limit the estate granted. To the same effect: Shaw University v. Durham Life Ins. Co.,\n230 N.C. 526, 53 S.E.2d 656.\nIn Abel v. Girard Trust Co., 365 Pa. 34, 73 A.2d 682, 684, there was in the habendum clause of\nthe deed a provision for exclusive use as a public park for the use and benefit of the inhabitants of\nthe Borough of Bangor. The Supreme Court of Pennsylvania said: \xe2\x80\x9cAn examination of the deed\ndiscloses that there is no express provision for a reversion or forfeiture. the mere expression of\npurpose will not debase a fee.\xe2\x80\x9d To the same effect see: Miller v. Village of Brookville, 152 Ohio St. 217,\n89 N.E.2d 85, 15 A.L.R.2d 967; Ashuelot Nat. Bank v. Keene, 74 N.H. 148, 65 A. 826, 9 L.R.A.,N.S.,\n758.\nIn North Carolina we recognize the validity of a base, qualified or determinable fee. Hall v.\nTurner, supra; Williams v. Blizzard, 176 N.C. 146, 96 S.E. 957; Turpin v. Jarrett, 226 N.C. 135, 37 S.E.2d\n124.See also: 19 N.C.L.R. pp. 334-344: in this article a helpful form is suggested to create a fee\ndeterminable upon special limitation.\nWhen limitations are relied on to debase a fee they must be created by deed, will, or by some\ninstrument in writing in express terms. Abel v. Girard Trust Co., supra;19 Am.Jur., Estates, Section 32.\nIn the Barringer Deed in the granting clause the land is conveyed to plaintiff \xe2\x80\x9cupon the\nterms and conditions, and for the uses and purposes, as hereinafter fully set forth.\xe2\x80\x9d The habendum\nclause reads, \xe2\x80\x98to have and to hold the aforesaid tract or parcel of land \xe2\x80\xa6 upon the following terms\n331\n\n\x0cand conditions, and for the following uses and purposes, and none other, to-wit\xe2\x80\xa6. The lands\nhereby conveyed, together with the other tracts of land above referred to (the Shore, Wilson and\nCity of Charlotte lands) \xe2\x80\x9cas forming Revolution Park, shall be held, used and maintained by the\nparty of the second part\xe2\x80\x9d (the plaintiff here), \xe2\x80\x9d\xe2\x80\xa6as an integral part of a park, playground and\nrecreational area, to be known as Revolution Park and to be composed of the land hereby conveyed\nand of the other tracts of land referred to above, said park and/or recreational area to be kept and\nmaintained for the use of, and to be used and enjoyed by persons of the white race only.\xe2\x80\x9d The other\nterms and conditions as to the use and maintenance, etc., of the land conveyed are omitted as not\nmaterial. The pertinent part of the reverter provision of the deed reads: \xe2\x80\x9cIn the event that the said\nlands comprising the said Revolution Park area as aforesaid, being all of the lands hereinbefore\nreferred to \xe2\x80\xa6 and/or in the event that the said lands and all of them shall not be kept, used and\nmaintained for park, playground and/or recreational purposes, for use by the white race only \xe2\x80\xa6\nthen, and in either one or more of said events, the lands hereby conveyed shall revert in fee simple\nto the said Osmond L. Barringer, his heirs and assigns,\xe2\x80\x9d provided, however, that before said lands\nshall revert to Barringer, and as a condition precedent to the reversion, Barringer, his heirs or\nassigns, shall pay unto plaintiff or its successors $3,500.\nBarringer by clear and express words in his deed limited in the granting clause and in the\nhabcndum clause the estate granted, and in express language provided for a reverter of the estate\ngranted by him, to him or his heirs, in the event of a breach of the expressed limitations. It seems\nplain that his intention, as expressed in his deed, was that plaintiff should have the land as long as it\nwas not used in breach of the limitations of the grant, and, if such limitations, or any of them, were\nbroken, the estate should automatically revert to the grantor by virtue of the limitations of the deed.\nIn our opinion, Barringer conveyed to plaintiff a fee determinable upon special limitations.\nIt is a distinct characteristic of a fee determinable upon limitation that the estate\nautomatically reverts at once on the occurrence of the event by which it is limited, by virtue of the\nlimitation in the written instrument creating such fee, and the entire fee automatically ceases and\ndetermines by its own limitations. Collette v. Town of Charlotte, supra; First Universalist Society v. Boland,\nsupra; Brown v. Independent Baptist Church of Woburn, supra; Copenhaver v. Pendleton, 155 Va. 463, 155 S.E.\n802, 77 A.L.R. 324; Tiffany: Law of Real Property, 3rd Ed., Section 217. No action on the part of\nthe creator of the estate is required, in such event, to terminate the estate. 19 Am.Jur., Estates,\nSection 29.\nAccording to the deed of gift \xe2\x80\x9cOsmond L. Barringer, his heirs and assigns\xe2\x80\x9d have a possibility\nof reverter in the determinable fee he conveyed to plaintiff. It has been held that such possibility of\nreverter is not void for remoteness, and does not violate the rule against perpetuities. 19 Am.Jur.,\nEstates, Section 31; Tiffany: Law of Real Property, 3rd Ed., Section 314.\nThe land was Barringer\xe2\x80\x99s, and no rights of creditors being involved, and the gift not being\ninduced by fraud or undue influence, he had the right to give it away if he chose, and to convey to\nplaintiff by deed a fee determinable upon valid limitations, and by such limitations provide that his\nbounty shall be enjoyed only by those whom he intended to enjoy it. 24 Am.Jur., Gifts, p. 731;\nDevlin: The Law of Real Property and Deeds, 3rd Ed., Section 838; 38 C.J.S., Gifts, s 36, p. 816. In\nGrossman v. Greenstein, 161 Md. 71, 155 A. 190, 191, the Court said: \xe2\x80\x9cA donor may limit a gift to a\nparticular purpose, and render it so conditioned and dependent upon an expected state of facts that,\nfailing that state of facts, the gift should fail with it.\xe2\x80\x9d The 15th headnote in Brahmey v. Rollins, 87\nN.H. 290, 179 A. 186, 187, 119 A.L.R. 8, reads: \xe2\x80\x9cRight to alienate is an inherent element of\nownership of property which donor may withhold in gift of property.\xe2\x80\x9d We know of no law that\nprohibits a white man from conveying a fee determinable upon the limitation that it shall not be\nused by members of any race except his own, nor of any law that prohibits a negro from conveying a\nfee determinable upon the limitation that it shall not be used by members of any race, except his\n332\n\n\x0cown.\nIf negroes use the Bonnie Brae Golf Course, the determinable fee conveyed to plaintiff by\nBarringer, and his wife, automatically will cease and terminate by its own limitation expressed in the\ndeed, and the estate granted automatically will revert to Barringer, by virtue of the limitation in the\ndeed, provided he complies with the condition precedent by paying to plaintiff $3,500, as provided\nin the deed. The operation of this reversion provision is not by any judicial enforcement by the State\nCourts of North Carolina, and Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161, has no\napplication. We do not see how any rights of appellants under the 14th Amendment to the U. S.\nConstitution, Section 1, or any rights secured to them by Title 42 U.S.C.A. ss 1981, 1983, are\nviolated.\nIf negroes use Bonnie Brae Golf Course, to hold that the fee does not revert back to\nBarringer by virtue of the limitation in the deed would be to deprive him of his property without\nadequate compensation and due process in violation of the rights guaranteed to him by the 5th\nAmendment to the U. S. Constitution and by Art. 1, Sec. 17 of the N. C. Constitution, and to\nrewrite his deed by judicial fiat.\nThe appellants\xe2\x80\x99 assignment of error No. 1 to the conclusion of law of the court that the\nBarringer deed vested a valid determinable fee in plaintiff with the possibility of a reverter, and\nassignments of error No. 3 and No. 4 to the conclusion of the court that in the event any of the\nlimitations in the Barringer deed are violated, title to the land will immediately revert to Barringer\nand that the use of Bonnie Brae Golf Course by negroes will cause a reverter of the Barringer deed,\nare overruled.\nThe case of Bernard v. Bowen, 214 N.C. 121, 198 S.E. 584, is distinguishable. For instance,\nthere is no limitation of the estate conveyed in the granting clause.\nNow as to the Abbott Realty Company deed. This deed conveyed as a gift certain lands to\nplaintiff upon the same terms and conditions, and for the same uses and purposes, and for the white\nrace only, as set forth in the Barringer deed. This deed contains a reverter provision, if there is a\nviolation of certain limitations of the estate conveyed, but the reverter provision does not provide\nthat, if the lands of Revolution Park are used by members of a nonwhite race, the lands conveyed by\nAbbott Realty Company to plaintiff shall revert to the grantor. In our opinion, the estate conveyed\nby Abbott Realty Company to plaintiff is a fee determinable upon certain expressed limitations set\nforth in the deed, with a possibility of reverter to Abbott Realty Company if the limitations\nexpressed in the deed are violated and the reverter provision states that such violations will cause a\nreverter. That was the conclusion of law of the Trial Judge, and the appellants\xe2\x80\x99 assignment of error\nNo. 2 thereto is overruled. However, the reverter provision does not require a reverter to Abbott\nRealty Company, if the lands of Revolution Park are used by negroes. Therefore, if negroes use\nBonnie Brae Golf Course, title to the lands conveyed by Abbott Realty Company to plaintiff will not\nrevert to the grantor. See: Tucker v. Smith, 199 N.C. 502, 154 S.E. 826.\nThe Trial Judge concluded as a matter of law that if any of the reverter provisions in the\nAbbott Realty Company deed were violated, title would revert to Abbott Realty Company, and that\nif negroes use Bonnie Brae Golf Course, title to the land granted by Abbott Realty Company will\nrevert to it. The appellants\xe2\x80\x99 assignments of error Nos. 5 and 6 are to this conclusion of law. These\nassignments of error are sustained to this part of the conclusion, that if negroes use Bonnie Brae\nGolf Course, title to the land will revert to Abbott Realty Company: and as to the other part of the\nconclusion the assignments of error are overruled.\nThe appellants\xe2\x80\x99 assignment of error No. 7 is to this conclusion of law of the Trial Judge, that\nthe deed from the city of Charlotte to plaintiff created a valid determiable fee with the possibility of\na reverter, and that as the city of Charlotte has only one municipal golf course, the use of Bonnie\nBrae Golf Course by negroes will not cause a reversion of title to the property conveyed by the city\n333\n\n\x0cof Charlotte to plaintiff, for that said reversionary clause in said deed is, under such circumstances\nvoid as being in violation of the 14th Amendment to the U. S. Constitution.\nFrom this conclusion of law the city of Charlotte and the plaintiff did not appeal. We do not\nsee in what way appellants have been aggrieved by this conclusion of law, and their assignment of\nerror thereto is overruled.\nThe appellants also include as part of their assignments of error Nos. 3, 4, 5 and 6 these\nconclusions of law of the Trial Judge numbered 7 and 8. No. 7, that the plaintiff is the owner in fee\nsimple, free of any conditions, reservations or reverter provisions of the property which was\nconveyed to it by W. T. Shore and T. C. Wilson. The city of Charlotte has not appealed from this\nconclusion of law, and we are unable to see how appellants have been harmed, so their assignments\nof error thereto are overruled. No. 8, that Revolution Park, in which is located Bonnie Brae Golf\nCourse, was created as an integral area of land, comprising the various contiguous tracts conveyed to\nplaintiff by Barringer, Abbott Realty Company, city of Charlotte, Shore and Wilson, and to permit\nnegroes to use for golf any part of said and will cause the reverter provisions in the Barringer and\nAbbott Realty Company deeds immediately to become effective, and result in title of the plaintiff\nterminating, and the property reverting to Barringer and Abbott Realty Company. As to this\nconclusion of law the assignments of error are sustained as to that part which states that, if negroes\nuse Bonnie Brae Golf Course, the reverter provision in the Abbott Realty Company deed will\nbecome effective and title will revert to Abbott Realty Company: as to the other parts the\nassignments of error are overruled.\nJudgment will be entered below in accordance with this opinion.\nModified and affirmed.\n\n334\n\n\x0cCapitol Federal Savings and Loan Association v. Smith,\n316 P.2d 252 (Colo. 1957).\n\nKnauss, Justice.\nFor convenience we shall refer to the parties to this writ of error as they appeared in the trial\ncourt, where defendants in error were plaintiffs and plaintiffs in error were defendants.\nTwo claims were stated in plaintiff\xe2\x80\x99s amended complaint, one for a decree quieting title to\nreal property, a second to obtain a declaratory judgment. Plaintiffs alleged that they were the owners\nof and in possession of certain lots in Block 6 Ashley\xe2\x80\x99s Addition to Denver and that on May 9, 1942\ncertain owners of lots in said Block, including plaintiffs\xe2\x80\x99 predecessors in title, entered into an\nagreement among themselves that the lots owned by them should not be sold or leased to colored\npersons and providing for forfeiture of any lots or parts of lots sold or leased in violation of the\nagreement to such of the then owners of other lots in said block who might place notice of their\nclaims of record. Plaintiffs further alleged that they were colored persons of negro extraction and\nthat any interest, or claim of any interest of defendants, under said agreement was without\nfoundation or right and in violation of the Constitution of the United States and that said agreement\nwas a cloud on plaintiffs\xe2\x80\x99 title which should be removed. Plaintiffs prayed for a complete\nadjudication of the rights of all parties to the action. Defendants placed of record in the office of the\nClerk and Recorder of the City and County of Denver a Notice of Claim asserting that they were\nowners of lots in said Block 6 embraced in the agreement above mentioned and asserted title to the\nproperty which is the subject matter of the complaint by virtue of said agreement. By their answer\nand counterclaim defendants alleged that they were the owners and entitled to the possession of the\nreal estate described in the complaint by virtue of the forfeiture provisions in the above mentioned\nagreement, and prayed for a complete adjudication of the rights of all parties and a decree quieting\ntheir title to the property in question.\nAll facts were stipulated and trial was to the court.\nThe trial court entered a decree and Declaratory Judgment pursuant to Rules 105 and 57,\nR.C.P.Colo. The court found that the plaintiffs were the owners in fee simple of the property\ndescribed in the complaint and quieted their title thereto free and clear of any right of enforcement\nor attempted enforcement of the restrictive covenant or the Notice of Claim filed by defendants.\nThe court further adjudged and decreed that the restrictive covenant \xe2\x80\x9cmay not be enforced by this\ncourt as a matter of law, as to enforce same by this court would be a violation of the equal\nprotection clause of the Fourteenth Amendment of the United States Constitution, and the\nenforceability of same is hereby removed as a cloud upon the title of plaintiffs\xe2\x80\xa6.\xe2\x80\x9d From the\njudgment and decree so entered the defendants bring the case here on writ of error.\nThe covenant or agreement under consideration was dated May 9, 1942 and the several\nsignatories to the contract agreed for themselves, their heirs and assigns \xe2\x80\x9cnot to sell or lease the said\nabove described lots and parcels of land owned by them respectively \xe2\x80\xa6 to any colored person or\npersons, and covenant and agree not to permit any colored person or persons to occupy said\npremises during the period from this date to January 1, 1990.\xe2\x80\x9d It further provided that if any of said\nproperty \xe2\x80\x98shall be conveyed or leased in violation of this agreement\xe2\x80\x99 the right, title or interest of the\nowner so violating the agreement \xe2\x80\x9cshall be forfeited to and rest in such of the then owners of all of\nsaid lots and parcels of land not included in such conveyance or lease who may assert title thereto by\nfiling for record notice of their claim\xe2\x80\xa6.\xe2\x80\x9d\nThe agreement also provided for an action to recover damages against any person or persons\n335\n\n\x0cwho violated the restriction, \xe2\x80\x9cor such owners may jointly or severally enforce or have their rights\nhereunder enforced by an action for specific performance, abatement, ejectment, or by injunction or\nany other proper judicial proceedings, which right shall be in addition to any and all right to the\ninterest so conveyed or leased in violation of this agreement.\xe2\x80\x99\xe2\x80\x9d\nIt is contended by counsel for defendants that the Supreme Court of the United States in\nShelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161, McGhee v. Sipes, 334 U.S. 1, 68 S.Ct. 836, 92\nL.Ed. 1161 and Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586, did not have before it\nan agreement \xe2\x80\x9cfor automatic forfeiture, nor did any of them create a future interest in the land.\xe2\x80\x9d\nCounsel assert that they have no quarrel with these decisions stating that the Supreme Court \xe2\x80\x9chas\nbeen concerned solely with the question of judicial enforcement of restrictive covenants by\ninjunction or by damages.\xe2\x80\x9d\nCovenants such as the one here considered whether denominated \xe2\x80\x9cexecutory interests\xe2\x80\x9d or\n\xe2\x80\x9cfuture interests\xe2\x80\x9d, as urged by counsel for defendants, cannot change the character of what was here\nattempted.\nCounsel for defendants contend that the agreement in question entered into by the\npredecessors in interest of plaintiffs and defendants did not create a \xe2\x80\x9cprivate antiracial restrictive\ncovenant.\xe2\x80\x9d Instead they claim that it created a future interest in the land known as an executory\ninterest. They assert \xe2\x80\x9cSuch interest vested automatically in the defendants upon the happening of the\nevents specified in the original instrument of grant, and the validity of the vesting did not in any way\ndepend upon judicial action by the courts. The trial court\xe2\x80\x99s failure and refusal to recognize the vested\ninterest of the defendants, and its ruling that the defendants have no title or interest in or to the\nproperty, deprived the defendants of their property without just compensation and without due\nprocess of law.\xe2\x80\x9d We cannot agree.\nIn the amended complaint numerous persons, firms and corporations were named as\ndefendants, but in designating the record to be filed in this court only the amended complaint, the\nanswer and counterclaim of the defendants Whitney J. Armelin, Carmelita Armelin and Capitol\nFederal Savings and Loan Association, together with plaintiff\xe2\x80\x99s reply thereto, the stipulation of facts\ntogether with the judgment and decree of the trial court, are specified. The record was amended on\nmotion of Midland Federal Savings and Loan Association to include its answer in which the\nallegations of the amended complaint were admitted and said association prayed that plaintiffs be\nawarded the relief demanded in their amended complaint. We are not advised as to pleadings filed\nby the other defendants, including Robert E. Lee, Public Trustee and the City and County of\nDenver, who with the Midland Federal Savings and Loan Association are named as defendants in\nerror in the instant case.\nWe are unable to rid ourselves of a strong impression that this writ of error is being\nprosecuted in the interest of title examiners, rather than in that of the property owners in Block 6\nAshley\xe2\x80\x99s addition to Denver. In the brief of counsel for plaintiffs in error we find this significant\nlanguage: \xe2\x80\x9cTitle examiners are in constant apprehension as to whether a title may be passed where\nthese restrictive covenants prevail, and we feel that we should call upon this Honorable Body as to\nthe doubts of this decision.\xe2\x80\x9d\nNo matter by what arose terms the covenant under consideration may be classified by staute\ncounsel, it is still a recial restriction in violation of the Fourteenth Amendment to the Federal\nConstitution. That this is so has been definitely settled by the decisions of the Supreme Court of the\nUnited States. High sounding phrases or outmoded common law terms cannot alter the effect of the\nagreement embraced in the instant case. While the hands may seem to be the hands of Esau to a\nblind Isaac, the voice is by astute counsel, it is still a racial restriction judicial approval or blessing to\na contract such as is here involved.\nIn Shelley v. Kraemer, supra [334 U.S. 1, 68 S.Ct. 845], the Supreme Court of the United States\n336\n\n\x0csaid:\nWe hold that in granting judicial enforcement of the restrictive agreements in these cases, the\nStates have denied petitioners the equal protection of the laws and that, therefore, the action of the\nstate courts cannot stand. We have noted that freedom from discrimination by the States in the\nenjoyment of property rights was among the basic objectives sought to be effectuated by the framers\nof the Fourteenth Amendment. That such discrimination has occurred in these cases is clear.\nBecause of the rece or color of these petitioners they have been denied rights of ownership or\noccupancy enjoyed as a matter of course by other citizens of different race or color. The Fourteenth\nAmendment declares \xe2\x80\x9cthat all persons, whether colored, or white, shall stand equal before the laws\nof the States, and, in regard to the colored race, for whose protection the amendment was primarily\ndesigned, that no discrimination shall be made against them by law because of their color.\xe2\x80\x9d\n(Emphasis supplied.)\nBecause the language of the United States Supreme Court suggested that private racially\nrestrictive covenants were not invalid per se, it was believed for some time that an action for\ndamages might lie against one who violated such a covenant. A number of state courts adopted this\nposition, and awarded damages against, those who, contrary to their agreements, had made sales of\nproperty to negroes or other persons within the excluded classes. This problem came to the\nattention of the Supreme Court of the United States in Barrows v. Jackson, 346 U.S. 249, 253-254, 258,\n259, 73 S.Ct. 1031, 97 L.Ed. 1586, where it was held that although such a grantor\xe2\x80\x99s constitutional\nrights were not violated, nevertheless the commodious protection of the Fourteenth Amendment\nextended to her and she could not be made to respond in damages for treating her restrictive\ncovenant as a nullity.\nBecause the United States Supreme Court has extracted any teeth which such a covenant was\nsupposed to have, no rights, duties or obligations can be based thereon.\nThe judgment is affirmed.\nFrantz, J., not participating.\n\n337\n\n\x0cShelley v. Kraemer,\n334 U.S. 1 (1948)\n\nCERTIORARI TO THE SUPREME COURT OF MISSOURI.1\nGeorge L. Vaughn and Herman Willer argued the cause and filed a brief for petitioners in\nNo. 72. Earl Susman was also of counsel.\nThurgood Marshall and Loren Miller argued the cause for petitioners in No. 87. With them\non the brief were Willis M. Graves, Francis Dent, William H. Hastie, Charles H. Houston, George\nM. Johnson, William R. Ming, Jr., James Nabrit, Jr., Marian Wynn Perry, Spottswood W. Robinson,\nIII, Andrew Weinberger and Ruth Weyand.\nBy special leave of Court. Solicitor General Perlman argued the cause for the United States,\nas amicus curiae, supporting petitioners. With him on the brief was Attorney General Clark.\nGerald L. Seegers argued the cause for respondents in No. 72. With him on the brief was\nWalter H. Pollmann. Benjamin F. York was also of counsel.\nHenry Gilligan and James A. Crooks argued the cause and filed a brief for respondents in\nNo. 87. Lloyd T. Chockley was also of counsel.\nBriefs of amici curiae supporting petitioners were filed by Perry W. Howard for the Civil\nLiberties Department, Grand Lodge of Elks, I.B.P.O.E.W.; Isaac Pacht, Irving Hill and Clore\nWarne; Robert McC. Marsh and Eugene Blanc, Jr. for the Protestant Council of New York City;\nHerbert S. Thatcher and Robert A. Wilson for the American Federation of Labor; Julius L.\nGoldstein for the Non-Sectarian Anti-Nazi League to Champion Human Rights, Inc.; Melville J.\nFrance for the General Council of Congregational Christian Churches et al.; Robert W. Kenny, O.\nJohn Rogge and Mozart G. Ratner for the National Lawyers Guild; Lee Pressman, Eugene Cotton,\nFrank Donner, John J. Abt, Leon M. Despres, M.H. Goldstein, Isadore Katz, David Rein, Samuel L.\nRothbard, Harry Sacher, William Standard and Lindsay P. Walden for the Congress of Industrial\nOrganizations et al.; Phineas Indritz, Irving R.M. Panzer and Richard A. Solomon for the American\nVeterans Committee; William Maslow, Shad Polier, Joseph B. Robison, Byron S. Miller and William\nStrong for the American Jewish Congress; Joseph M. Proskauer and Jacob Grumet for the American\nJewish Committee et al.; William Strong for the American Indian Citizens League of California, Inc.;\nFrancis M. Dent, Walter M. Nelson, Eugene H. Buder, Victor B. Harris, Luther Ely Smith and\nHarold I. Kahen for the American Civil Liberties Union; Earl B. Dickerson, Richard E. Westbrooks\nand Loring B. Moore for the National Bar Association; Alger Hiss, Joseph M. Proskauer and Victor\nElting for the American Association for the United Nations; and Edward C. Park and Frank B.\nFrederick for the American Unitarian Association.\nBriefs of amici curiae supporting respondents were filed by Roger J. Whiteford and John J.\nWilson for the National Association of Real Estate Boards; Ray C. Eberhard and Elisabeth\nEberhard Zeigler for the Arlington Heights Property Owners Association et al.; and Thomas F.\nCadwalader and Carlyle Barton for the Mount Royal Protective Association, Inc.\nMr. Chief Justice Vinson delivered the opinion of the Court.\n\n338\n\n\x0cThese cases present for our consideration questions relating to the validity of court\nenforcement of private agreements, generally described as restrictive covenants, which have as their\npurpose the exclusion of persons of designated race or color from the ownership or occupancy of\nreal property. Basic constitutional issues of obvious importance have been raised.\nThe first of these cases comes to this Court on certiorari to the Supreme Court of Missouri.\nOn February 16, 1911, thirty out of a total of thirty-nine owners of property fronting both sides of\nLabadie Avenue between Taylor Avenue and Cora Avenue in the city of St. Louis, signed an\nagreement, which was subsequently recorded, providing in part:\n\xe2\x80\x9d\xe2\x80\xa6 the said property is hereby restricted to the use and occupancy for the term of Fifty (50)\nyears from this date, so that it shall be a condition all the time and whether recited and referred to as\n[sic] not in subsequent conveyances and shall attach to the land as a condition precedent to the sale\nof the same, that hereafter no part of said property or any portion thereof shall be, for said term of\nFifty-years, occupied by any person not of the Caucasian race, it being intended hereby to restrict\nthe use of said property for said period of time against the occupancy as owners or tenants of any\nportion of said property for resident or other purpose by people of the Negro or Mongolian Race.\xe2\x80\x9d\nThe entire district described in the agreement included fifty-seven parcels of land. The thirty\nowners who signed the agreement held title to forty-seven parcels, including the particular parcel\ninvolved in this case. At the time the agreement was signed, five of the parcels in the district were\nowned by Negroes. One of those had been occupied by Negro families since 1882, nearly thirty\nyears before the restrictive agreement was executed. The trial court found that owners of seven out\nof nine homes on the south side of Labadie Avenue, within the restricted district and \xe2\x80\x9cin the\nimmediate vicinity\xe2\x80\x9d of the premises in question, had failed to sign the restrictive agreement in 1911.\nAt the time this action was brought, four of the premises were occupied by Negroes, and had been\nso occupied for periods ranging from twenty-three to sixty-three years. A fifth parcel had been\noccupied by Negroes until a year before this suit was instituted.\nOn August 11, 1945, pursuant to a contract of sale, petitioners Shelley, who are Negroes, for\nvaluable consideration received from one Fitzgerald a warranty deed to the parcel in question.2 The\ntrial court found that petitioners had no actual knowledge of the restrictive agreement at the time of\nthe purchase.\nOn October 9, 1945, respondents, as owners of other property subject to the terms of the\nrestrictive covenant, brought suit in the Circuit Court of the city of St. Louis praying that petitioners\nShelley be restrained from taking possession of the property and that judgment be entered divesting\ntitle out of petitioners Shelley and revesting title in the immediate grantor or in such other person as\nthe court should direct. The trial court denied the requested relief on the ground that the restrictive\nagreement, upon which respondents based their action, had never become final and complete\nbecause it was the intention of the parties to that agreement that it was not to become effective until\nsigned by all property owners in the district, and signatures of all the owners had never been\nobtained.\nThe Supreme Court of Missouri sitting en banc reversed and directed the trial court to grant\nthe relief for which respondents had prayed. That court held the agreement effective and concluded\nthat enforcement of its provisions violated no rights guaranteed to petitioners by the Federal\nConstitution.3 At the time the court rendered its decision, petitioners were occupying the property in\nquestion.\nThe second of the cases under consideration comes to this Court from the Supreme Court\nof Michigan. The circumstances presented do not differ materially from the Missouri case. In June,\n1934, one Ferguson and his wife, who then owned the property located in the city of Detroit which\nis involved in this case, executed a contract providing in part:\n\xe2\x80\x9cThis property shall not be used or occupied by any person or persons except those of the\n339\n\n\x0cCaucasian race.\n\xe2\x80\x9cIt is further agreed that this restriction shall not be effective unless at least eighty percent of\nthe property fronting on both sides of the street in the block where our land is located is subjected\nto this or a similar restriction.\xe2\x80\x9d\nThe agreement provided that the restrictions were to remain in effect until January 1, 1960.\nThe contract was subsequently recorded; and similar agreements were executed with respect to\neighty percent of the lots in the block in which the property in question is situated.\nBy deed dated November 30, 1944. petitioners, who were found by the trial court to be\nNegroes, acquired title to the property and thereupon entered into its occupancy. On January 30,\n1945, respondents, as owners of property subject to the terms of the restrictive agreement, brought\nsuit against petitioners in the Circuit Court of Wayne County. After a hearing, the court entered a\ndecree directing petitioners to move from the property within ninety days. Petitioners were further\nenjoined and restrained from using or occupying the premises in the future. On appeal, the Supreme\nCourt of Michigan affirmed, deciding adversely to petitioners\xe2\x80\x99 contentions that they had been denied\nrights protected by the Fourteenth Amendment.4\nPetitioners have placed primary reliance on their contentions, first raised in the state courts\nthat judicial enforcement of the restrictive agreements in these cases has violated rights guaranteed\nto petitioners by the Fourteenth Amendment of the Federal Constitution and Acts of Congress\npassed pursuant to that Amendment.5 Specifically, petitioners urge that they have been denied the\nequal protection of the laws, deprived of property without due process of law, and have been denied\nprivileges and immunities of citizens of the United States. We pass to a consideration of those\nissues.\nI.\nWhether the equal protection clause of the Fourteenth Amendment inhibits judicial\nenforcement by state courts of restrictive covenants based on race or color is a question which this\nCourt has not heretofore been called upon to consider. Only two cases have been decided by this\nCourt which in any way have involved the enforcement of such agreements. The first of these was\nthe case of Corrigan v. Buckley, 271 U.S. 323 (1926). There, suit was brought in the courts of the\nDistrict of Columbia to enjoin a threatened violation of certain restrictive covenants relating to lands\nsituated in the city of Washington. Relief was granted, and the case was brought here on appeal. It is\napparent that that case, which had originated in the federal courts and involved the enforcement of\ncovenants on land located in the District of Columbia, could present no issues under the Fourteenth\nAmendment; for that Amendment by its terms applies only to the States. Nor was the question of\nthe validity of court enforcement of the restrictive covenants under the Fifth Amendment properly\nbefore the Court, as the opinion of this Court specifically recognizes.6 The only constitutional issue\nwhich the appellants had raised in the lower courts, and hence the only constitutional issue before\nthis Court on appeal, was the validity of the covenant agreements as such. This Court concluded that\nsince the inhibitions of the constitutional provisions invoked apply only to governmental action, as\ncontrasted to action of private individuals, there was no showing that the covenants, which were\nsimply agreements between private property owners, were invalid. Accordingly, the appeal was\ndismissed for want of a substantial question. Nothing in the opinion of this Court, therefore, may\nproperly be regarded as an adjudication on the merits of the constitutional issues presented by these\ncases, which raise the question of the validity, not of the private agreements as such, but of the\njudicial enforcement of those agreements.\n340\n\n\x0cThe second of the cases involving racial restrictive covenants was Hansberry v. Lee, 311 U.S.\n32 (1940). In that case, petitioners, white property owners, were enjoined by the state courts from\nviolating the terms of a restrictive agreement. The state Supreme Court had held petitioners bound\nby an earlier judicial determination, in litigation in which petitioners were not parties, upholding the\nvalidity of the restrictive agreement, although, in fact, the agreement had not been signed by the\nnumber of owners necessary to make it effective under state law. This Court reversed the judgment\nof the state Supreme Court upon the ground that petitioners had been denied due process of law in\nbeing held estopped to challenge the validity of the agreement on the theory, accepted by the state\ncourt, that the earlier litigation, in which petitioners did not participate, was in the nature of a class\nsuit. In arriving at its result, this Court did not reach the issues presented by the cases now under\nconsideration.\nIt is well, at the outset, to scrutinize the terms of the restrictive agreements involved in these\ncases. In the Missouri case, the covenant declares that no part of the affected property shall be\n\xe2\x80\x9coccupied by any person not of the Caucasian race, it being intended hereby to restrict the use of\nsaid property \xe2\x80\xa6 against the occupancy as owners or tenants of any portion of said property for\nresident or other purpose by people of the Negro or Mongolian Race.\xe2\x80\x9d Not only does the restriction\nseek to proscribe use and occupancy of the affected properties by members of the excluded class,\nbut as construed by the Missouri courts, the agreement requires that title of any person who uses his\nproperty in violation of the restriction shall be divested. The restriction of the covenant in the\nMichigan case seeks to bar occupancy by persons of the excluded class. It provides that \xe2\x80\x9cThis\nproperty shall not be used or occupied by any person or persons except those of the Caucasian\nrace.\xe2\x80\x9d\nIt should be observed that these covenants do not seek to proscribe any particular use of the\naffected properties. Use of the properties for residential occupancy, as such, is not forbidden. The\nrestrictions of these agreements, rather, are directed toward a designated class of persons and seek to\ndetermine who may and who may not own or make use of the properties for residential purposes.\nThe excluded class is defined wholly in terms of race or color; \xe2\x80\x9csimply that and nothing more.\xe2\x80\x9d7\nIt cannot be doubted that among the civil rights intended to be protected from\ndiscriminatory state action by the Fourteenth Amendment are the rights to acquire, enjoy, own and\ndispose of property. Equality in the enjoyment of property rights was regarded by the framers of\nthat Amendment as an essential pre-condition to the realization of other basic civil rights and\nliberties which the Amendment was intended to guarantee.8 Thus, \xc2\xa7 1978 of the Revised Statutes,\nderived from \xc2\xa7 1 of the Civil Rights Act of 1866 which was enacted by Congress while the\nFourteenth Amendment was also under consideration,9 provides:\n\xe2\x80\x9cAll citizens of the United States shall have the same right, in every State and Territory, as is\nenjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal\nproperty.\xe2\x80\x9d10\nThis Court has given specific recognition to the same principle. Buchanan v. Warley, 245 U.S.\n60 (1917).\nIt is likewise clear that restrictions on the right of occupancy of the sort sought to be created\nby the private agreements in these cases could not be squared with the requirements of the\nFourteenth Amendment if imposed by state statute or local ordinance. We do not understand\nrespondents to urge the contrary. In the case of Buchanan v. Warley, supra, a unanimous Court\ndeclared unconstitutional the provisions of a city ordinance which denied to colored persons the\nright to occupy houses in blocks in which the greater number of houses were occupied by white\npersons, and imposed similar restrictions on white persons with respect to blocks in which the\ngreater number of houses were occupied by colored persons. During the course of the opinion in\nthat case, this Court stated: \xe2\x80\x9cThe Fourteenth Amendment and these statutes enacted in furtherance\n341\n\n\x0cof its purpose operate to qualify and entitle a colored man to acquire property without state\nlegislation discriminating against him solely because of color.\xe2\x80\x9d11\nIn Harmon v. Tyler, 273 U.S. 668 (1927), a unanimous court, on the authority of Buchanan v.\nWarley, supra, declared invalid an ordinance which forbade any Negro to establish a home on any\nproperty in a white community or any white person to establish a home in a Negro community,\n\xe2\x80\x9cexcept on the written consent of a majority of the persons of the opposite race inhabiting such\ncommunity or portion of the City to be affected.\xe2\x80\x9d\nThe precise question before this Court in both the Buchanan and Harmon cases involved the\nrights of white sellers to dispose of their properties free from restrictions as to potential purchasers\nbased on considerations of race or color. But that such legislation is also offensive to the rights of\nthose desiring to acquire and occupy property and barred on grounds of race or color is clear, not\nonly from the language of the opinion in Buchanan v. Warley, supra, but from this Court\xe2\x80\x99s disposition\nof the case of Richmond v. Deans, 281 U.S. 704 (1930). There, a Negro, barred from the occupancy of\ncertain property by the terms of an ordinance similar to that in the Buchanan case, sought injunctive\nrelief in the federal courts to enjoin the enforcement of the ordinance on the grounds that its\nprovisions violated the terms of the Fourteenth Amendment. Such relief was granted, and this Court\naffirmed, finding the citation of Buchanan v. Warley, supra, and Harmon v. Tyler, supra, sufficient to\nsupport its judgment.12\nBut the present cases, unlike those just discussed, do not involve action by state legislatures\nor city councils. Here the particular patterns of discrimination and the areas in which the restrictions\nare to operate, are determined, in the first instance, by the terms of agreements among private\nindividuals. Participation of the State consists in the enforcement of the restrictions so-defined. The\ncrucial issue with which we are here confronted is whether this distinction removes these cases from\nthe operation of the prohibitory provisions of the Fourteenth Amendment.\nSince the decision of this Court in the Civil Rights Cases, 109 U.S. 3 (1883), the principle has\nbecome firmly embedded in our constitutional law that the action inhibited by the first section of\nthe Fourteenth Amendment is only such action as may fairly be said to be that of the States. That\nAmendment erects no shield against merely private conduct, however discriminatory or wrongful.13\nWe conclude, therefore, that the restrictive agreements standing alone cannot be regarded as\nviolative of any rights guaranteed to petitioners by the Fourteenth Amendment. So long as the\npurposes of those agreements are effectuated by voluntary adherence to their terms, it would appear\nclear that there has been no action by the State and the provisions of the Amendment have not been\nviolated. Cf. Corrigan v. Buckley, supra.\nBut here there was more. These are cases in which the purposes of the agreements were\nsecured only by judicial enforcement by state courts of the restrictive terms of the agreements. The\nrespondents urge that judicial enforcement of private agreements does not amount to state action;\nor, in any event, the participation of the State is so attenuated in character as not to amount to state\naction within the meaning of the Fourteenth Amendment. Finally, it is suggested, even if the States\nin these cases may be deemed to have acted in the constitutional sense, their action did not deprive\npetitioners of rights guaranteed by the Fourteenth Amendment. We move to a consideration of\nthese matters.\nII.\nThat the action of state courts and judicial officers in their official capacities is to be\nregarded as action of the State within the meaning of the Fourteenth Amendment, is a proposition\n342\n\n\x0cwhich has long been established by decisions of this Court. That principle was given expression in\nthe earliest cases involving the construction of the terms of the Fourteenth Amendment. Thus, in\nVirginia v. Rives, 100 U.S. 313, 318 (1880), this Court stated: \xe2\x80\x9cIt is doubtless true that a State may act\nthrough different agencies, \xe2\x80\x94 either by its legislative, its executive, or its judicial authorities; and the\nprohibitions of the amendment extend to all action of the State denying equal protection of the laws,\nwhether it be action by one of these agencies or by another.\xe2\x80\x9d In Ex parte Virginia, 100 U.S. 339, 347\n(1880), the Court observed: \xe2\x80\x9cA State acts by its legislative, its executive, or its judicial authorities. It\ncan act in no other way.\xe2\x80\x9d In the Civil Rights Cases, 109 U.S. 3, 11, 17 (1883), this Court pointed out\nthat the Amendment makes void \xe2\x80\x9cState action of every kind\xe2\x80\x9d which is inconsistent with the\nguaranties therein contained, and extends to manifestations of \xe2\x80\x9cState authority in the shape of laws,\ncustoms, or judicial or executive proceedings.\xe2\x80\x9d Language to like effect is employed no less than\neighteen times during the course of that opinion.14\nSimilar expressions, giving specific recognition to the fact that judicial action is to be\nregarded as action of the State for the purposes of the Fourteenth Amendment, are to be found in\nnumerous cases which have been more recently decided. In Twining v. New Jersey, 211 U.S. 78, 90-91\n(1908), the Court said: \xe2\x80\x9cThe judicial act of the highest court of the State, in authoritatively\nconstruing and enforcing its laws, is the act of the State.\xe2\x80\x9d In Brinkerhoff-Faris Trust & Savings Co. v.\nHill, 281 U.S. 673, 680 (1930), the Court, through Mr. Justice Brandeis, stated: \xe2\x80\x9cThe federal guaranty\nof due process extends to state action through its judicial as well as through its legislative, executive\nor administrative branch of government.\xe2\x80\x9d Further examples of such declarations in the opinions of\nthis Court are not lacking.15\nOne of the earliest applications of the prohibitions contained in the Fourteenth Amendment\nto action of state judicial officials occurred in cases in which Negroes had been excluded from jury\nservice in criminal prosecutions by reason of their race or color. These cases demonstrate, also, the\nearly recognition by this Court that state action in violation of the Amendment\xe2\x80\x99s provisions is\nequally repugnant to the constitutional commands whether directed by state statute or taken by a\njudicial official in the absence of statute. Thus, in Strauder v. West Virginia, 100 U.S. 303 (1880), this\nCourt declared invalid a state statute restricting jury service to white persons as amounting to a\ndenial of the equal protection of the laws to the colored defendant in that case. In the same volume\nof the reports, the Court in Ex parte Virginia, supra, held that a similar discrimination imposed by the\naction of a state judge denied rights protected by the Amendment, despite the fact that the language\nof the state statute relating to jury service contained no such restrictions.\nThe action of state courts in imposing penalties or depriving parties of other substantive\nrights without providing adequate notice and opportunity to defend, has, of course, long been\nregarded as a denial of the due process of law guaranteed by the Fourteenth Amendment. BrinkerhoffFaris Trust & Savings Co. v. Hill, supra. Cf. Pennoyer v. Neff, 95 U.S. 714 (1878).16\nIn numerous cases, this Court has reversed criminal convictions in state courts for failure of\nthose courts to provide the essential ingredients of a fair hearing. Thus it has been held that\nconvictions obtained in state courts under the domination of a mob are void. Moore v. Dempsey, 261\nU.S. 86 (1923). And see Frank v. Mangum, 237 U.S. 309 (1915). Convictions obtained by coerced\nconfessions,17 by the use of perjured testimony known by the prosecution to be such,18 or without\nthe effective assistance of counsel,19 have also been held to be exertions of state authority in conflict\nwith the fundamental rights protected by the Fourteenth Amendment.\nBut the examples of state judicial action which have been held by this Court to violate the\nAmendment\xe2\x80\x99s commands are not restricted to situations in which the judicial proceedings were\nfound in some manner to be procedurally unfair. It has been recognized that the action of state\ncourts in enforcing a substantive common-law rule formulated by those courts, may result in the\ndenial of rights guaranteed by the Fourteenth Amendment, even though the judicial proceedings in\n343\n\n\x0csuch cases may have been in complete accord with the most rigorous conceptions of procedural due\nprocess.20 Thus, in American Federation of Labor v. Swing, 312 U.S. 321 (1941), enforcement by state\ncourts of the common-law policy of the State, which resulted in the restraining of peaceful picketing,\nwas held to be state action of the sort prohibited by the Amendment\xe2\x80\x99s guaranties of freedom of\ndiscussion.21 In Cantwell v. Connecticut, 310 U.S. 296 (1940), a conviction in a state court of the\ncommon-law crime of breach of the peace was, under the circumstances of the case, found to be a\nviolation of the Amendment\xe2\x80\x99s commands relating to freedom of religion. In Bridges v. California, 314\nU.S. 252 (1941), enforcement of the state\xe2\x80\x99s common-law rule relating to contempts by publication\nwas held to be state action inconsistent with the prohibitions of the Fourteenth Amendment.22 And\ncf. Chicago, Burlington and Quincy R. Co.v. Chicago, 166 U.S. 226 (1897).\nThe short of the matter is that from the time of the adoption of the Fourteenth Amendment\nuntil the present, it has been the consistent ruling of this Court that the action of the States to which\nthe Amendment has reference includes action of state courts and state judicial officials. Although, in\nconstruing the terms of the Fourteenth Amendment, differences have from time to time been\nexpressed as to whether particular types of state action may be said to offend the Amendment\xe2\x80\x99s\nprohibitory provisions, it has never been suggested that state court action is immunized from the\noperation of those provisions simply because the act is that of the judicial branch of the state\ngovernment.\nIII.\nAgainst this background of judicial construction, extending over a period of some threequarters of a century, we are called upon to consider whether enforcement by state courts of the\nrestrictive agreements in these cases may be deemed to be the acts of those States; and, if so,\nwhether that action has denied these petitioners the equal protection of the laws which the\nAmendment was intended to insure.\nWe have no doubt that there has been state action in these cases in the full and complete\nsense of the phrase. The undisputed facts disclose that petitioners were willing purchasers of\nproperties upon which they desired to establish homes. The owners of the properties were willing\nsellers; and contracts of sale were accordingly consummated. It is clear that but for the active\nintervention of the state courts, supported by the full panoply of state power, petitioners would have\nbeen free to occupy the properties in question without restraint.\nThese are not cases, as has been suggested, in which the States have merely abstained from\naction, leaving private individuals free to impose such discriminations as they see fit. Rather, these\nare cases in which the States have made available to such individuals the full coercive power of\ngovernment to deny to petitioners, on the grounds of race or color, the enjoyment of property rights\nin premises which petitioners are willing and financially able to acquire and which the grantors are\nwilling to sell. The difference between judicial enforcement and nonenforcement of the restrictive\ncovenants is the difference to petitioners between being denied rights of property available to other\nmembers of the community and being accorded full enjoyment of those rights on an equal footing.\nThe enforcement of the restrictive agreements by the state courts in these cases was directed\npursuant to the common-law policy of the States as formulated by those courts in earlier decisions.23\nIn the Missouri case, enforcement of the covenant was directed in the first instance by the highest\ncourt of the State after the trial court had determined the agreement to be invalid for want of the\nrequisite number of signatures. In the Michigan case, the order of enforcement by the trial court was\naffirmed by the highest state court.24 The judicial action in each case bears the clear and\n344\n\n\x0cunmistakable imprimatur of the State. We have noted that previous decisions of this Court have\nestablished the proposition that judicial action is not immunized from the operation of the\nFourteenth Amendment simply because it is taken pursuant to the state\xe2\x80\x99s common-law policy.25 Nor\nis the Amendment ineffective simply because the particular pattern of discrimination, which the\nState has enforced, was defined initially by the terms of a private agreement. State action, as that\nphrase is understood for the purposes of the Fourteenth Amendment, refers to exertions of state\npower in all forms. And when the effect of that action is to deny rights subject to the protection of\nthe Fourteenth Amendment, it is the obligation of this Court to enforce the constitutional\ncommands.\nWe hold that in granting judicial enforcement of the restrictive agreements in these cases, the\nStates have denied petitioners the equal protection of the laws and that, therefore, the action of the\nstate courts cannot stand. We have noted that freedom from discrimination by the States in the\nenjoyment of property rights was among the basic objectives sought to be effectuated by the framers\nof the Fourteenth Amendment. That such discrimination has occurred in these cases is clear.\nBecause of the race or color of these petitioners they have been denied rights of ownership or\noccupancy enjoyed as a matter of course by other citizens of different race or color.26 The\nFourteenth Amendment declares \xe2\x80\x9cthat all persons, whether colored or white, shall stand equal\nbefore the laws of the States, and, in regard to the colored race, for whose protection the\namendment was primarily designed, that no discrimination shall be made against them by law\nbecause of their color.\xe2\x80\x9d27 Strauder v. West Virginia, supra at 307. Only recently this Court had occasion\nto declare that a state law which denied equal enjoyment of property rights to a designated class of\ncitizens of specified race and ancestry, was not a legitimate exercise of the state\xe2\x80\x99s police power but\nviolated the guaranty of the equal protection of the laws. Oyama v. California, 332 U.S. 633 (1948).\nNor may the discriminations imposed by the state courts in these cases be justified as proper\nexertions of state police power.28 Cf. Buchanan v. Warley, supra.\nRespondents urge, however, that since the state courts stand ready to enforce restrictive\ncovenants excluding white persons from the ownership or occupancy of property covered by such\nagreements, enforcement of covenants excluding colored persons may not be deemed a denial of\nequal protection of the laws to the colored persons who are thereby affected.29 This contention does\nnot bear scrutiny. The parties have directed our attention to no case in which a court, state or\nfederal, has been called upon to enforce a covenant excluding members of the white majority from\nownership or occupancy of real property on grounds of race or color. But there are more\nfundamental considerations. The rights created by the first section of the Fourteenth Amendment\nare, by its terms, guaranteed to the individual. The rights established are personal rights.30 It is,\ntherefore, no answer to these petitioners to say that the courts may also be induced to deny white\npersons rights of ownership and occupancy on grounds of race or color. Equal protection of the\nlaws is not achieved through indiscriminate imposition of inequalities.\nNor do we find merit in the suggestion that property owners who are parties to these\nagreements are denied equal protection of the laws if denied access to the courts to enforce the\nterms of restrictive covenants and to assert property rights which the state courts have held to be\ncreated by such agreements. The Constitution confers upon no individual the right to demand action\nby the State which results in the denial of equal protection of the laws to other individuals. And it\nwould appear beyond question that the power of the State to create and enforce property interests\nmust be exercised within the boundaries defined by the Fourteenth Amendment. Cf. Marsh v.\nAlabama, 326 U.S. 501 (1946).\nThe problem of defining the scope of the restrictions which the Federal Constitution\nimposes upon exertions of power by the States has given rise to many of the most persistent and\nfundamental issues which this Court has been called upon to consider. That problem was foremost\n345\n\n\x0cin the minds of the framers of the Constitution, and, since that early day, has arisen in a multitude of\nforms. The task of determining whether the action of a State offends constitutional provisions is one\nwhich may not be undertaken lightly. Where, however, it is clear that the action of the State violates\nthe terms of the fundamental charter, it is the obligation of this Court so to declare.\nThe historical context in which the Fourteenth Amendment became a part of the\nConstitution should not be forgotten. Whatever else the framers sought to achieve, it is clear that\nthe matter of primary concern was the establishment of equality in the enjoyment of basic civil and\npolitical rights and the preservation of those rights from discriminatory action on the part of the\nStates based on considerations of race or color. Seventy-five years ago this Court announced that the\nprovisions of the Amendment are to be construed with this fundamental purpose in mind.31 Upon\nfull consideration, we have concluded that in these cases the States have acted to deny petitioners\nthe equal protection of the laws guaranteed by the Fourteenth Amendment. Having so decided, we\nfind it unnecessary to consider whether petitioners have also been deprived of property without due\nprocess of law or denied privileges and immunities of citizens of the United States.\nFor the reasons stated, the judgment of the Supreme Court of Missouri and the judgment of\nthe Supreme Court of Michigan must be reversed.\nReversed.\nMr. Justice Reed, Mr. Justice Jackson and Mr. Justice Rutledge took no part in the\nconsideration or decision of these cases.\nTogether with No. 87, McGhee et ux. v. Sipes et al., on certiorari to the Supreme Court of\nMichigan. \xe2\x86\xa9\nThe trial court found that title to the property which petitioners Shelley sought to purchase\nwas held by one Bishop, a real estate dealer, who placed the property in the name of Josephine\nFitzgerald. Bishop, who acted as agent for petitioners in the purchase, concealed the fact of his\nownership. \xe2\x86\xa9\nKraemer v. Shelley, 355 Mo. 814, 198 S.W.2d 679 (1946). \xe2\x86\xa9\nSipes v. McGhee, 316 Mich. 614, 25 N.W.2d 638 (1947). \xe2\x86\xa9\nThe first section of the Fourteenth Amendment provides: \xe2\x80\x9cAll persons born or naturalized\nin the United States, and subject to the jurisdiction thereof, are citizens of the United States and of\nthe State wherein they reside. No State shall make or enforce any law which shall abridge the\nprivileges or immunities of citizens of the United States; nor shall any State deprive any person of\nlife, liberty, or property, without due process of law; nor deny to any person within its jurisdiction\nthe equal protection of the laws.\xe2\x80\x9d \xe2\x86\xa9\nCorrigan v. Buckley, 271 U.S. 323, 330-331 (1926). \xe2\x86\xa9\nBuchanan v. Warley, 245 U.S. 60, 73 (1917). \xe2\x86\xa9\nSlaughter-House Cases, 16 Wall. 36, 70, 81 (1873). See Flack, The Adoption of the Fourteenth\nAmendment. \xe2\x86\xa9\nIn Oyama v. California, 332 U.S. 633, 640 (1948) the section of the Civil Rights Act herein\nconsidered is described as the federal statute, \xe2\x80\x9cenacted before the Fourteenth Amendment but\nvindicated by it.\xe2\x80\x9d The Civil Rights Act of 1866 was reenacted in \xc2\xa7 18 of the Act of May 31, 1870,\nsubsequent to the adoption of the Fourteenth Amendment. 16 Stat. 144. \xe2\x86\xa9\n14 Stat. 27, 8 U.S.C. \xc2\xa7 42. \xe2\x86\xa9\nBuchanan v. Warley, 245 U.S. 60, 79 (1917). \xe2\x86\xa9\nCourts of Georgia, Maryland, North Carolina, Oklahoma, Texas, and Virginia have also\ndeclared similar statutes invalid as being in contravention of the Fourteenth Amendment. Glover v.\nAtlanta, 148 Ga. 285, 96 S.E. 562 (1918); Jackson v. State, 132 Md. 311, 103 A. 910 (1918); Clinard v.\nWinston-Salem, 217 N.C. 119, 6 S.E.2d 867 (1940); Allen v. Oklahoma City, 175 Okla. 421, 52 P.2d\n346\n\n\x0c1054 (1936); Liberty Annex Corp. v. Dallas, 289 S.W. 1067 (Tex. Civ. App. 1927); Irvine v. Clifton Forge,\n124 Va. 781, 97 S.E. 310 (1918). \xe2\x86\xa9\nAnd see United States v. Harris, 106 U.S. 629 (1883); United States v. Cruikshank, 92 U.S. 542\n(1876). \xe2\x86\xa9\nAmong the phrases appearing in the opinion are the following: \xe2\x80\x9cthe operation of State laws,\nand the action of State officers executive or judicial\xe2\x80\x9d; \xe2\x80\x9cState laws and State proceedings\xe2\x80\x9d; \xe2\x80\x9cState law\n\xe2\x80\xa6 or some State action through its officers or agents\xe2\x80\x9d; \xe2\x80\x9cState laws and acts done under State\nauthority\xe2\x80\x9d; \xe2\x80\x9cState laws, or State action of some kind\xe2\x80\x9d; \xe2\x80\x9csuch laws as the States may adopt or\nenforce\xe2\x80\x9d; \xe2\x80\x9csuch acts and proceedings as the States may commit or take\xe2\x80\x9d; \xe2\x80\x9cState legislation or\naction\xe2\x80\x9d; \xe2\x80\x9cState law or State authority.\xe2\x80\x9d \xe2\x86\xa9\nNeal v. Delaware, 103 U.S. 370, 397 (1881); Scott v. McNeal, 154 U.S. 34, 45 (1894); Chicago,\nBurlington and Quincy R. Co. v. Chicago, 166 U.S. 226, 233-235 (1897); Hovey v. Elliott, 167 U.S. 409,\n417-418 (1897); Carter v. Texas, 177 U.S. 442, 447 (1900); Martin v. Texas, 200 U.S. 316, 319 (1906);\nRaymond v. Chicago Union Traction Co., 207 U.S. 20, 35-36 (1907); Home Telephone and Telegraph Co. v. Los\nAngeles, 227 U.S. 278, 286-287 (1913); Prudential Insurance Co. v. Cheek, 259 U.S. 530, 548 (1922);\nAmerican Railway Express Co. v. Kentucky, 273 U.S. 269, 274 (1927); Mooney v. Holohan, 294 U.S. 103,\n112-113 (1935); Hansberry v. Lee, 311 U.S. 32, 41 (1940). \xe2\x86\xa9\nAnd see Standard Oil Co. v. Missouri, 224 U.S. 270, 281-282 (1912); Hansberry v. Lee, 311 U.S.\n32 (1940). \xe2\x86\xa9\nBrown v. Mississippi, 297 U.S. 278 (1936); Chambers v. Florida, 309 U.S. 227 (1940); Ashcraft v.\nTennessee, 322 U.S. 143 (1944); Lee v. Mississippi, 332 U.S. 742 (1948). \xe2\x86\xa9\nSee Mooney v. Holohan, 294 U.S. 103 (1935); Pyle v. Kansas, 317 U.S. 213 (1942). \xe2\x86\xa9\nPowell v. Alabama, 287 U.S. 45 (1932); Williams v. Kaiser, 323 U.S. 471 (1945); Tomkins v.\nMissouri, 323 U.S. 485 (1945); De Meerleer v. Michigan, 329 U.S. 663 (1947). \xe2\x86\xa9\nIn applying the rule of Erie R. Co. v. Tompkins, 304 U.S. 64 (1938), it is clear that the\ncommon-law rules enunciated by state courts in judicial opinions are to be regarded as a part of the\nlaw of the State. \xe2\x86\xa9\nAnd see Bakery Drivers Local v. Wohl, 315 U.S. 769 (1942); Cafeteria Employees Union v. Angelos,\n320 U.S. 293 (1943). \xe2\x86\xa9\nAnd see Pennekamp v. Florida, 328 U.S. 331 (1946); Craig v. Harney, 331 U.S. 367 (1947). \xe2\x86\xa9\nSee Swain v. Maxwell, 355 Mo. 448, 196 S.W.2d 780 (1946); Koehler v. Rowland, 275 Mo. 573,\n205 S.W. 217 (1918). See also Parmalee v. Morris, 218 Mich. 625, 188 N.W. 330 (1922). Cf. Porter v.\nBarrett, 233 Mich. 373, 206 N.W. 532 (1925). \xe2\x86\xa9\nCf. Home Telephone and Telegraph Co. v. Los Angeles, 227 U.S. 278 (1913); Raymond v. Chicago\nUnion Traction Co., 207 U.S. 20 (1907). \xe2\x86\xa9\nBridges v. California, 314 U.S. 252 (1941); American Federation of Labor v. Swing, 312 U.S. 321\n(1941). \xe2\x86\xa9\nSee Yick Wo v. Hopkins, 118 U.S. 356 (1886); Strauder v. West Virginia, 100 U.S. 303 (1880);\nTruax v. Raich, 239 U.S. 33 (1915). \xe2\x86\xa9\nRestrictive agreements of the sort involved in these cases have been used to exclude other\nthan Negroes from the ownership or occupancy of real property. We are informed that such\nagreements have been directed against Indians, Jews, Chinese, Japanese, Mexicans, Hawaiians,\nPuerto Ricans, and Filipinos, among others. \xe2\x86\xa9\nSee Bridges v. California, 314 U.S. 252, 261 (1941); Cantwell v. Connecticut, 310 U.S. 296, 307308 (1940). \xe2\x86\xa9\nIt should be observed that the restrictions relating to residential occupancy contained in\n347\n\n\x0cordinances involved in the Buchanan, Harmon and Deans cases, cited supra, and declared by this Court\nto be inconsistent with the requirements of the Fourteenth Amendment, applied equally to white\npersons and Negroes. \xe2\x86\xa9\nMcCabe v. Atchison, Topeka & Santa Fe R. Co., 235 U.S. 151, 161-162 (1914); Missouri ex rel.\nGaines v. Canada, 305 U.S. 337 (1938); Oyama v. California, 332 U.S. 633 (1948). \xe2\x86\xa9\nSlaughter-House Cases, 16 Wall. 36, 81 (1873); Strauder v. West Virginia, 100 U.S. 303 (1880).\nSee Flack, The Adoption of the Fourteenth Amendment. \xe2\x86\xa9\n\n348\n\n\x0c6.4. Review Problems\nREVIEW PROBLEMS\n\nShort Answer\nArgue that the implied warranty of habitability found in Javins should not be extended to\ncover commercial leases. (Consider why it was created in Javins.)\nName all of the interests created in the following three grants. Add argument and\nexplanation if needed. (1) \xe2\x80\x9cO to A but if A dies while married to a man other than her husband Stan,\nthen to B.\xe2\x80\x9d (2) \xe2\x80\x9cO to A for life, then to B unless B dies before A.\xe2\x80\x9d (3) \xe2\x80\x9cO to A to cultivate the rich\nand fertile farmland of Blackacre. All my other property and interests not otherwise granted are\nhereby granted to B.\xe2\x80\x9d\nIf Sanborn v. McLean were controlling, would Riley v. Bear Creek Planning Committee necessarily\ncome out differently? Explain.\nSuppose that the present configuration of Blackacre has sentimental value to the\nremainderman (R). The life tenant (L), however, wants to remake Blackacre in a way that will\nincrease the fair market value of both the life tenancy and the remainder. Make two different\narguments that a court should not intervene to stop L. What would the Melms court do?\nThe dad in the Bayliss case argued on remand that he should be responsible only for tuition\ncharged by in-state schools, not private colleges. Dad is wealthy enough to afford private college\ntuition. Make the argument for the dad, but recognizing and responding to the strongest arguments\nagainst him in light of the Bayliss decision.\nA developer, A, sells half of a parcel of land to another developer, B, which land B intends\nto prepare for operation of a pharmacy. In the deed of sale, which is duly recorded, A promises that\nhe and his successors will not operate a pharmacy on the half of the parcel A retains. B leases to\nPharmor, which opens a pharmacy. A sells to C, which then leases to MaxPharm, which opens a\npharmacy. Pharmor sues MaxPharm. Analyze under the common law rules for the running of\ncovenants.\nEssay\nAnna and Bobby met and fell in love in medical school. Sadly their story does not end well.\nA few years into their medical program, they had each become dissatisfied with their training\nand with the prospects of being physicians. They decided together, over dinner one evening, to\nchange everything. They moved to the great, open country in southwestern Wyotana. Both horse\nenthusiasts, Anna and Bobby had each dreamed of a life of horse riding and exploring in this last\ngreat bit of the wild west.\nBobby was an excellent horse rider, having won various championships in college. The plan\nwas to acquire enough property to operate a stable and run riding lessons for locals and tourists.\nBobby still had some savings left, and they used these funds to acquire two parcels of land. Parcel A\nwould be the homesite and featured lands suitable for trail riding. Parcel B would be the site of the\nstables, the jumping arena, and other trails.\nAlthough the parcels are not that far apart by road, it would be a little unpleasant to ride a\n349\n\n\x0chorse on the highway from one to the other. Luckily, their neighbor Carl, delighted at seeing a\nyoung couple move into the area with the intention of starting a family and not intensively\ndeveloping the wild country, was happy to help. \xe2\x80\x9cFeel free to come across my land,\xe2\x80\x9d he said. \xe2\x80\x9cIt\xe2\x80\x99s\nless than 1/4 mile and there\xe2\x80\x99s already a trail most of the way. I don\xe2\x80\x99t mind.\xe2\x80\x9d It was perfect, and\nAnna and Bobby proceeded to build the house and stables on their own over the course of the year.\nThings soured several years later. Though their business was going well, and they had been\nblessed with two heathy children, Bobby fell in love with someone else. Anna found out. People got\nupset. Bobby moved out. But he continued to operate the business, using the stables and leading\ntrail rides from Parcel B onto Parcel A. When he spoke to Bobby about the situation, Carl learned\nfor the first time that Anna and Bobby had never been married. Furious, he told Bobby that he was\na very religious man, that he felt betrayed, and that he would no longer allow use of the trail. Around\nthis same time, and also furious, Anna blocked the trail on Parcel A.\nAnna comes to you, a local lawyer, to inquire about suing Bobby and settling their affairs. All\nthe property is in Bobby\xe2\x80\x99s name. The kids are with her, and she wants to keep her home. Give her\nyour best analysis of the entire situation.\nSome quick points of settled Wyotana law (These may or may not be relevant, and other law,\nnot settled and not listed here, may be relevant.): Wyotana is a separate property state. Wyotana has\nabolished the tenancy by the entirety. Wyotana has a statute ordering equitable division on\ndissolution of marriage. That statute contains a number of factors judges should use, including\nsupport for minor children, but also includes a provision giving the judge the power\n\xe2\x80\x9cnotwithstanding the foregoing to make a division of all property in a manner consistent with\nfairness and equity under all the circumstances.\xe2\x80\x9d\nAnswers to short answer questions\n\n1. Argue that the implied warranty of habitability found in Javins should not be extended to\ncover commercial leases. (Consider why it was created in Javins.)\nThis involved examining the justifications for the rule in Javins and showing they don\xe2\x80\x99t apply\nin commercial lease cases. Consumer protection cases (UCC and new home sale warranties)\ninapplicable in commercial cases. Nature of housing market is different (reliance on landlord and the\ncapacity, opportunity, and relative innocence of residential tenant). Commercial leases secure\nproperty for particular commercial purposes, not a standard bundle of housing services. Bargaining\npower is more equal.\n2. Name all of the interests created in the following three grants. Add argument and\nexplanation if needed.\n(1) \xe2\x80\x9cO to A but if A dies while married to a man other than her husband Stan, then to B.\xe2\x80\x9d\nA has a fee simple subject to executory interest. B has an executory interest.\n(2) \xe2\x80\x9cO to A for life, then to B unless B dies before A.\xe2\x80\x9d\nA has a life estate. B has a contingent remainder. O has a reversion.\n(3) \xe2\x80\x9cO to A to cultivate the rich and fertile farmland of Blackacre. All my other property and\ninterests not otherwise granted are hereby granted to B.\xe2\x80\x9d\nA has a fee simple absolute. (You should note the presumption against conditions. Here, the\nlanguage is precatory, as there is no clear expression of an intent to create a future interest. Just hope\nand purpose language, as in Wood.)\n3. If Sanborn v. McLean were controlling, would Riley v. Bear Creek Planning Committee\nnecessarily come out differently? Explain.\n350\n\n\x0cNot necessarily. There are two parts to Sanborn: finding an implied agreement by the\ndeveloper to impose the same conditions on his retained land as he imposed on those to whom he\nsold. This placed a burden on land he later sold to others. The second involved whether there was\nnotice sufficient for this implied obligation to run with the land. The implied obligation arises when\na developer imposes conditions on a buyer, when there\xe2\x80\x99s a common scheme with substantially\nuniform obligations on the lots sold \xe2\x80\x93 thus making it reasonable for the buyer to expect the\ndeveloper to adhere to the restrictions on his or her unsold parcels.\nRiley does not involve those kinds of facts. Though he bought from a developer that\nintended to create a housing development with such uniform restrictions, the restrictions were not\nin place on any other properties at the time of Riley\xe2\x80\x99s purchase.\n4. Suppose that the present configuration of Blackacre has sentimental value to the\nremainderman (R). The life tenant (L), however, wants to remake Blackacre in a way that will\nincrease the fair market value of both the life tenancy and the remainder. Make two different\narguments that a court should not intervene to stop L. What would the Melms court do?\nA variety of answers would be acceptable here. One can argue that the court should allow a\nchange that is objectively efficient, especially given that remainderman\xe2\x80\x99s sentimental attachment is\nhard to verify and easy to use as an excuse to extract. Another argument is that R\xe2\x80\x99s super-market\nvaluation ought to lead R to buy the property. That would test whether the gains in fmv outweigh\nthe sentimental harms.\nIt is not enough simply to cite Melms. The facts here do not indicate a fundamental change in\nthe area that wipes out the value of the life tenancy, as in Melms. It is not enough that a change\nincreases the value of the property. For ameliorative waste to be sanctioned, under the strict reading\nof Melms, we need a wipe-out.\n5. The dad in the Bayliss case argued on remand that he should be responsible only for\ntuition charged by in-state schools, not private colleges. Dad is wealthy enough to afford private\ncollege tuition. Make the argument for the dad, but recognizing and responding to the strongest\narguments against him in light of the Bayliss decision.\nYou need to respond to two arguments: (1) that Dad would have paid for private college if\nthe divorce hadn\xe2\x80\x99t happened (and thus awarding the child an expectation interest means awarding\nprivate college tuition) and (2) that private college tuition is a necessary. It\xe2\x80\x99s not enough to say that\npeople don\xe2\x80\x99t need to go to expensive schools. You need to look at the definition of a necessary,\nwhich is relative to what children from the same walks of life, etc., typically enjoy. Pointing out that\nlots of rich kids go to public colleges would be responsive. As to the first point, we\xe2\x80\x99d argue that\nthere\xe2\x80\x99s no reason not to trust Dad, that Dad\xe2\x80\x99s preference for public school is reasonable (and\ntherefore trustworthy), etc.\n6. A developer, A, sells half of a parcel of land to another developer, B, which land B intends\nto prepare for operation of a pharmacy. In the deed of sale, which is duly recorded, A promises that\nhe and his successors will not operate a pharmacy on the half of the parcel A retains. B leases to\nPharmor, which opens a pharmacy. A sells to C, which then leases to MaxPharm, which opens a\npharmacy. Pharmor sues MaxPharm. Analyze under the common law rules for the running of\ncovenants.\nYou just need to run through all the elements on the burden side and run through all the\nelements on the benefit side. Touch and concern will be a little tricky, and you need to analyze under\nthe physical, location-specific, and 3rd RS standard. (No need for lots and lots of time here; a quick\nargument would do.) Vertical privity is also problematic, at least strict vertical privity, on account of\nthe leases.\n\n351\n\n\x0c7. Sovereigns and Individuals\nWe have so far considered how property is first acquired, how it is defined to accomplish\nvarious purposes, and how it is transferred and shared. In the final portion of this course, we will\ndelve more deeply into a group of essential questions posed to any legal system. These questions\nconcern the appropriate role of the public (the collective or the sovereign) and the freedoms of\nindividuals.\nProperty owners typically appeal to rights-based arguments to be free of collective control.\nThe public, on the other hand, points to conflicts between private conduct and important public\npolicies (conflicts that may owe to market failures or to a disconnect between private and public\nnorms). Any society will have to chart a course between the poles of anarchy and stifling statism.\nWe begin by reading a famous U.S. Supreme Court case establishing the right of the United\nStates, and its legislature in particular, to define property relations to meet its current needs,\nunencumbered by pre-existing natural rights. This case will help us see the difference between\nsovereignty, which is roughly the right to make rules, and property ownership, which is a bundle of\nrights defined and protected by a sovereign.\nHaving obtained a better understanding of sovereignty, we will examine private institutions\nthat exercise attributes of sovereignty. Covenants, like constitutions in the public realm, empower\nprivate legislatures and executives to make law and govern private communities. To what extent\nshould homeowners\xe2\x80\x99 associations and other private groups have free reign? How should they be\nregulated by the public?\nProperty owners are themselves a kind of sovereign: kings of their abodes. Their right to\nexclude others from their realms has been called the most important stick in the bundle of rights\nthat attend property ownership. Exclusion, though, can be used to carry out private purposes that\nare inimical to deeply held public policies. For example, racial discrimination by private businesses\ncan create a de facto caste system. We will study approaches to regulating private entities\xe2\x80\x99 right to\nexclude in order to achieve policies of social inclusion and desegregation. To what private entities\nshould \xe2\x80\x9cinclusion mandates\xe2\x80\x9d apply? Which groups or persons need the backing of public law to gain\ninclusion? What if it costs money to include? Here again, we will confront a version of the\npublic/private problem, another aspect of the tension between laudable collective goals and\nindividual freedom.\nWe close the course with a traditional and deeply interesting property law topic: takings.\nUnder what circumstances can we, as the government, take for ourselves the property of a private\nindividual? This area of law grapples directly with the conflict between public goals and private\nprerogatives. We will study two topics: (1) when should government be barred from taking property\neven if it pays compensation, and (2) when does a government regulation go so far in limiting\nproperty rights that it should be considered a taking of property for which compensation is due.\nThis politically charged area of law exposes the inherent difficulty of accomplishing public purposes\nin a nation of individuals with radically diverse private views and projects.\n\n352\n\n\x0c7.1. Sovereignty\nJohnson v. M\xe2\x80\x99Intosh,\n21 U.S. 543 (1823)\n\nMarch 10, 1823\nERROR to the District Court of Illinois. This was an action of ejectment for lands in the\nState and District of Illinois, claimed by the plaintiffs under a purchase and conveyance from the\nPiankeshaw Indians, and by the defendant, under a grant from the United States. It came up on a\ncase stated, upon which there was a judgment below for the defendant. The case stated set out the\nfollowing facts:\n[The recitation of the facts in this case is lengthy. Though some will be lost in the summary,\nwhat follows is the gist of the dispute. Before 1609 various Native American tribes uses and\noccupied the disputed lands. In 1609 the lands were among those included in a massive grant by\nJames I to the Virginia colonial company. This company was dissolved in 1624 and the lands\nreverted to the crown. In 1756, the French and Indian War commenced over the lands west of the\nAppalachians, including these lands. In 1763, the war ended and the King issued a proclamation\nreserving the lands west of the Appalachians for the Indians and forbidding British subjects from\npurchasing these lands. In 1773, despite the proclamation, the Illinois Indians sold the disputed\nlands to William Murray (and others, all British subjects) for $24,000. In 1775 another group of\nIndians sold lands to Louis Viviat (and others, again all British subjects). In 1783, the lands were\nceded by Virginia to the United States. And in 1818, the United States issued a patent for the lands\nto William M\xe2\x80\x99Intosh. The dispute is between those whose claim to the lands derive from the\ntransactions with the Indians and those whose claim derives from the United States.]\nJudgment being given for the defendant on the case stated, the plaintiffs brought this writ of\nerror.\nFeb. 17th., 18th, and 19th.\nThe cause was argued by Mr. Harper and Mr. Webster for the plaintiffs, and by Mr. Winder and\nMr. Murray for the defendants. But as the arguments are so fully stated in the opinion of the Court, it\nis deemed unnecessary to give any thing more than the following summary.\nOn the part of the plaintiffs, it was contended, 1. That upon the facts stated in the case, the\nPiankeshaw Indians were the owners of the lands in dispute, at the time of executing the deed of\nOctober 10th, 1775, and had power to sell. But as the United States had purchased the same lands\nof the same Indians, both parties claim from the same source. It would seem, therefore, to be\nunnecessary, and merely speculative, to discuss the question respecting the sort of title or ownership,\nwhich may be thought to belong to savage tribes, in the lands on which they live. Probably,\nhowever, their title by occupancy is to be respected, as much as that of an individual, obtained by\n353\n\n\x0cthe same right, in a civilized state. The circumstance, that the members of the society held in\ncommon, did not affect the strength of their title by occupancy.1 In the memorial, or manifesto, of\nthe British government, in 1755, a right of soil in the Indians is admitted. It is also admitted in the\ntreaties of Utrecht and Aix la Chapelle. The same opinion has been expressed by this Court,2 and by\nthe Supreme Court of New-York.3 In short, all, or nearly all, the lands in the United States, is holden\nunder purchases from the Indian nations; and the only question in this case must be, whether it be\ncompetent to individuals to make such purchases, or whether that be the exclusive prerogative of\ngovernment.\n2. That the British king\xe2\x80\x99s proclamation of October 7th, 1763, could not affect this right of\nthe Indians to sell; because they were not British subjects, nor in any manner bound by the authority\nof the British government, legislative or executive. And, because, even admitting them to be British\nsubjects, absolutely, or sub modo, they were still proprietors of the soil, and could not be devested of\ntheir rights of property, or any of its incidents, by a mere act of the executive government, such as\nthis proclamation.\n3. That the proclamation of 1763 could not restrain the purchasers under these deeds from\npurchasing; because the lands lay within the limits of the colony of Virginia, of which, or of some\nother British colony, the purchasers, all being British subjects, were inhabitants. And because the\nking had not, within the limits of that colonial government, or any other, any power of prerogative\nlegislation; which is confined to countries newly conquered, and remaining in the military possession\nof the monarch, as supreme chief of the military forces of the nation. The present claim has long\nbeen known to the government of the United States, and is mentioned in the Collection of Land\nLaws, published under public authority. The compiler of those laws supposes this title void, by\nvirtue of the proclamation of 1763. But we have the positive authority of a solemn determination of\nthe Court of King\xe2\x80\x99s Bench, on this very proclamation, in the celebrated Grenada case, for asserting\nthat it could have no such effect.4 This country being a new conquest, and a military possession, the\ncrown might exercise legislative powers, until a local legislature was established. But the\nestablishment of a government establishes a system of laws, and excludes the power of legislating by\nproclamation. The proclamation could not have the force of law within the chartered limits of\nVirginia. A proclamation, that no person should purchase land in England or Canada, would be\nclearly void.\n4. That the act of Assembly of Virginia, passed in May, 1779,5 cannot affect the right of the\nplaintiffs, and others claiming under these deeds; because, on general principles, and by the\nconstitution of Virginia, the legislature was not competent to take away private, vested rights, or\nappropriate private property to public use, under the circumstances of this case. And because the act\nis not contained in the revisal of 1794, and must, therefore, be considered as repealed; and the repeal\nreinstates all rights that might have been affected by the act, although the territory, in which the\nlands in question lie, was ceded to the United States before the repeal. The act of 1779 was passed\nafter the sales were made, and it cannot affect titles previously obtained. At the time of the\npurchases there was no law of Virginia rendering such purchases void. If, therefore, the purchases\nwere not affected by the proclamation of 1763, nor by the act of 1779, the question of their validity\ncomes to the general inquiry, whether individuals, in Virginia, at the time of this purchase, could\nlegally obtain Indian titles. In New-England, titles have certainly been obtained in this mode. But\nwhatever may be said on the more general question, and in reference to other colonies or States, the\nfact being, that in Virginia there was no statute existing at the time against such purchases, mere\ngeneral considerations would not apply. It may be true, that in almost all the colonies, individual\npurchases from the Indians were illegal; but they were rendered so by express provisions of the local\nlaw. In Virginia, also, it may be true, that such purchases have generally been prohibited; but at the\ntime the purchases now in question were made, there was no prohibitory law in existence. The old\n354\n\n\x0ccolonial laws on the subject had all been repealed. The act of 1779 was a private act, so far as respects\nthis case. It is the same as if it had enacted, that these particular deeds were void. Such acts bind only\nthose who are parties to them, who submit their case to the Legislature.\nOn the part of the defendants, it was insisted, that the uniform understanding and practice\nof European nations, and the settled law, as laid down by the tribunals of civilized states, denied the\nright of the Indians to be considered as independent communities, having a permanent property in\nthe soil, capable of alienation to private individuals. They remain in a state of nature, and have never\nbeen admitted into the general society of nations.6 All the treaties and negotiations between the\ncivilized powers of Europe and of this continent, from the treaty of Utrecht, in 1713, to that of\nGhent, in 1814, have uniformly disregarded their supposed right to the territory included within the\njurisdictional limits of those powers.7 Not only has the practice of all civilized nations been in\nconformity with this doctrine, but the whole theory of their titles to lands in America, rests upon the\nhypothesis, that the Indians had no right of soil as sovereign, independent states. Discovery is the\nfoundation of title, in European nations, and this overlooks all proprietary rights in the natives.8 The\nsovereignty and eminent domain thus acquired, necessarily precludes the idea of any other\nsovereignty existing within the same limits. The subjects of the discovering nation must necessarily\nbe bound by the declared sense of their own government, as to the extent of this sovereignty, and\nthe domain acquired with it. Even if it should be admitted that the Indians were originally an\nindependent people, they have ceased to be so. A nation that has passed under the dominion of\nanother, is no longer a sovereign state.9 The same treaties and negotiations, before referred to, show\ntheir dependent condition. Or, if it be admitted that they are now independent and foreign states,\nthe title of the plaintiffs would still be invalid: as grantees from the Indians, they must take according\nto their laws of property, and as Indian subjects. The law of every dominion affects all persons and\nproperty situate within it;10 and the Indians never had any idea of individual property in lands. It\ncannot be said that the lands conveyed were disjoined from their dominion; because the grantees\ncould not take the sovereignty and eminent domain to themselves.\nSuch, then, being the nature of the Indian title to lands, the extent of their right of alienation\nmust depend upon the laws of the dominion under which they live. They are subject to the\nsovereignty of the United States. The subjection proceeds from their residence within our territory\nand jurisdiction. It is unnecessary to show, that they are not citizens in the ordinary sense of that\nterm, since they are destitute of the most essential rights which belong to that character. They are of\nthat class who are said by jurists not to be citizens, but perpetual inhabitants with diminutive rights.11\nThe statutes of Virginia, and of all the other colonies, and of the United States, treat them as an\ninferior race of people, without the privileges of citizens, and under the perpetual protection and\npupilage of the government. The act of Virginia of 1662, forbade purchases from the Indians, and it\ndoes not appear that it was ever repealed. The act of 1779 is rather to be regarded as a declaratory\nact, founded upon what had always been regarded as the settled law. These statutes seem to define\nsufficiently the nature of the Indian title to lands; a mere right of usufruct and habitation, without\npower of alienation. By the law of nature, they had not acquired a fixed property capable of being\ntransferred. The measure of property acquired by occupancy is determined, according to the law of\nnature, by the extent of men\xe2\x80\x99s wants, and their capacity of using it to supply them.12 It is a violation\nof the rights of others to exclude them from the use of what we do not want, and they have an\noccasion for. Upon this principle the North American Indians could have acquired no proprietary\ninterest in the vast tracts of territory which they wandered over; and their right to the lands on which\nthey hunted, could not be considered as superior to that which is acquired to the sea by fishing in it.\nThe use in the one case, as well as the other, is not exclusive.13 According to every theory of\nproperty, the Indians had no individual rights to land; nor had they any collectively, or in their\nnational capacity; for the lands occupied by each tribe were not used by them in such a manner as to\n355\n\n\x0cprevent their being appropriated by a people of cultivators. All the proprietary rights of civilized\nnations on this continent are founded on this principle. The right derived from discovery and\nconquest, can rest on no other basis; and all existing titles depend on the fundamental title of the\ncrown by discovery. The title of the crown (as representing the nation) passed to the colonists by\ncharters, which were absolute grants of the soil; and it was a first principle in colonial law, that all\ntitles must be derived from the crown. It is true that, in some cases, purchases were made by the\ncolonies from the Indians; but this was merely a measure of policy to prevent hostilities; and William\nPenn\xe2\x80\x99s purchase, which was the most remarkable transaction of this kind, was not deemed to add to\nthe strength of his title.14 In most of the colonies, the doctrine was received, that all titles ot land\nmust be derived exclusively from the crown, upon the principle that the settlers carried with them,\nnot only all the rights, but all the duties of Englishmen; and particularly the laws of property, so far\nas they are suitable to their new condition.15 In New-England alone, some lands have been held\nunder Indian deeds. But this was an anomaly arising from peculiar local and political causes.16\nAs to the effect of the proclamation of 1763: if the Indians are to be regarded as\nindependent sovereign states, then, by the treaty of peace, they became subject to the prerogative\nlegislation of the crown, as a conquered people, in a territory acquired, jure belli, and ceded at the\npeace.17 If, on the contrary, this country be regarded as a royal colony, then the crown had a direct\npower of legislation; or at least the power of prescribing the limits within which grants of land and\nsettlements should be made within the colony. The same practice always prevailed under the\nproprietary governments, and has been followed by the government of the United States.\nMarch 10th.\nMr. Chief Justice Marshall delivered the opinion of the Court.\nThe plaintiffs in this cause claim the land, in their declaration mentioned, under two grants,\npurporting to be made, the first in 1773, and the last in 1775, by the chiefs of certain Indian tribes,\nconstituting the Illinois and the Piankeshaw nations; and the question is, whether this title can be\nrecognised in the Courts of the United States?\nThe facts, as stated in the case agreed, show the authority of the chiefs who executed this\nconveyance, so far as it could be given by their own people; and likewise show, that the particular\ntribes for whom these chiefs acted were in rightful possession of the land they sold. The inquiry,\ntherefore, is, in a great measure, confined to the power of Indians to give, and of private individuals\nto receive, a title which can be sustained in the Courts of this country.\nAs the right of society, to prescribe those rules by which property may be acquired and\npreserved is not, and cannot be drawn into question; as the title to lands, especially, is and must be\nadmitted to depend entirely on the law of the nation in which they lie; it will be necessary, in\npursuing this inquiry, to examine, not singly those principles of abstract justice, which the Creator of\nall things has impressed on the mind of his creature man, and which are admitted to regulate, in a\ngreat degree, the rights of civilized nations, whose perfect independence is acknowledged; but those\nprinciples also which our own government has adopted in the particular case, and given us as the\nrule for our decision.\nOn the discovery of this immense continent, the great nations of Europe were eager to\nappropriate to themselves so much of it as they could respectively acquire. Its vast extent offered an\nample field to the ambition and enterprise of all; and the character and religion of its inhabitants\nafforded an apology for considering them as a people over whom the superior genius of Europe\nmight claim an ascendency. The potentates of the old world found no difficulty in convincing\nthemselves that they made ample compensation to the inhabitants of the new, by bestowing on\nthem civilization and Christianity, in exchange for unlimited independence. But, as they were all in\n356\n\n\x0cpursuit of nearly the same object, it was necessary, in order to avoid conflicting settlements, and\nconsequent war with each other, to establish a principle, which all should acknowledge as the law by\nwhich the right of acquisition, which they all asserted, should be regulated as between themselves.\nThis principle was, that discovery gave title to the government by whose subjects, or by whose\nauthority, it was made, against all other European governments, which title might be consummated\nby possession.\nThe exclusion of all other Europeans, necessarily gave to the nation making the discovery\nthe sole right of acquiring the soil from the natives, and establishing settlements upon it. It was a\nright with which no Europeans could interfere. It was a right which all asserted for themselves, and\nto the assertion of which, by others, all assented.\nThose relations which were to exist between the discoverer and the natives, were to be\nregulated by themselves. The rights thus acquired being exclusive, no other power could interpose\nbetween them.\nIn the establishment of these relations, the rights of the original inhabitants were, in no\ninstance, entirely disregarded; but were necessarily, to a considerable extent, impaired. They were\nadmitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession\nof it, and to use it according to their own discretion; but their rights to complete sovereignty, as\nindependent nations, were necessarily diminished, and their power to dispose of the soil at their own\nwill, to whomsoever they pleased, was denied by the original fundamental principle, that discovery\ngave exclusive title to those who made it.\nWhile the different nations of Europe respected the right of the natives, as occupants, they\nasserted the ultimate dominion to be in themselves; and claimed and exercised, as a consequence of\nthis ultimate dominion, a power to grant the soil, while yet in possession of the natives. These grants\nhave been understood by all, to convey a title to the grantees, subject only to the Indian right of\noccupancy.\nThe history of America, from its discovery to the present day, proves, we think, the universal\nrecognition of these principles.\n[Marshall discusses the numerous European claims that have been based on discovery and\npatents issued on the basis of discovery.]\nThus has our whole country been granted by the crown while in the occupation of the\nIndians. These grants purport to convey the soil as well as the right of dominion to the grantees. In\nthose governments which were denominated royal, where the right to the soil was not vested in\nindividuals, but remained in the crown, or was vested in the colonial government, the king claimed\nand exercised the right of granting lands, and of dismembering the government at his will. The\ngrants made out of the two original colonies, after the resumption of their charters by the crown, are\nexamples of this. The governments of New-England, New-York, New-Jersey, Pennsylvania,\nMaryland, and a part of Carolina, were thus created. In all of them, the soil, at the time the grants\nwere made, was occupied by the Indians. Yet almost every title within those governments is\ndependent on these grants. In some instances, the soil was conveyed by the crown unaccompanied\nby the powers of government, as in the case of the northern neck of Virginia. It has never been\nobjected to this, or to any other similar grant, that the title as well as possession was in the Indians\nwhen it was made, and that it passed nothing on that account.\nThese various patents cannot be considered as nullities; nor can they be limited to a mere\ngrant of the powers of government. A charter intended to convey political power only, would never\ncontain words expressly granting the land, the soil, and the waters. Some of them purport to convey\nthe soil alone; and in those cases in which the powers of government, as well as the soil, are\nconveyed to individuals, the crown has always acknowledged itself to be bound by the grant.\nThough the power to dismember regal governments was asserted and exercised, the power to\n357\n\n\x0cdismember proprietary governments was not claimed; and, in some instances, even after the powers\nof government were revested in the crown, the title of the proprietors to the soil was respected.\n\xe2\x80\xa6.\nThus, all the nations of Europe, who have acquired territory on this continent, have asserted\nin themselves, and have recognised in others, the exclusive right of the discoverer to appropriate the\nlands occupied by the Indians. Have the American States rejected or adopted this principle?\nBy the treaty which concluded the war of our revolution, Great Britain relinquished all claim,\nnot only to the government, but to the \xe2\x80\x98propriety and territorial rights of the United States,\xe2\x80\x99 whose\nboundaries were fixed in the second article. By this treaty, the powers of government, and the right\nto soil, which had previously been in Great Britain, passed definitively to these States. We had\nbefore taken possession of them, by declaring independence; but neither the declaration of\nindependence, nor the treaty confirming it, could give us more than that which we before possessed,\nor to which Great Britain was before entitled. It has never been doubted, that either the United\nStates, or the several States, had a clear title to all the lands within the boundary lines described in\nthe treaty, subject only to the Indian right of occupancy, and that the exclusive power to extinguish\nthat right, was vested in that government which might constitutionally exercise it.\nVirginia, particularly, within whose chartered limits the land in controversy lay, passed an act,\nin the year 1779, declaring her \xe2\x80\x98exclusive right of pre-emption from the Indians, of all the lands\nwithin the limits of her own chartered territory, and that no person or persons whatsoever, have, or\never had, a right to purchase any lands within the same, from any Indian nation, except only persons\nduly authorized to make such purchase; formerly for the use and benefit of the colony, and lately for\nthe Commonwealth.\xe2\x80\x99The act then proceeds to annul all deeds made by Indians to individuals, for the\nprivate use of the purchasers.\nWithout ascribing to this act the power of annulling vested rights, or admitting it to\ncountervail the testimony furnished by the marginal note opposite to the title of the law, forbidding\npurchases from the Indians, in the revisals of the Virginia statutes, stating that law to be repealed, it\nmay safely be considered as an unequivocal affirmance, on the part of Virginia, of the broad\nprinciple which had always been maintained, that the exclusive right to purchase from the Indians\nresided in the government.\nIn pursuance of the same idea, Virginia proceeded, at the same session, to open her land\noffice, for the sale of that country which now constitutes Kentucky, a country, every acre of which\nwas then claimed and possessed by Indians, who maintained their title with as much persevering\ncourage as was ever manifested by any people.\nThe States, having within their chartered limits different portions of territory covered by\nIndians, ceded that territory, generally, to the United States, on conditions expressed in their deeds\nof cession, which demonstrate the opinion, that they ceded the soil as well as jurisdiction, and that in\ndoing so, they granted a productive fund to the government of the Union. The lands in controversy\nlay within the chartered limits of Virginia, and were ceded with the whole country northwest of the\nriver Ohio. This grant contained reservations and stipulations, which could only be made by the\nowners of the soil; and concluded with a stipulation, that \xe2\x80\x98all the lands in the ceded territory, not\nreserved, should be considered as a common fund, for the use and benefit of such of the United\nStates as have become, or shall become, members of the confederation,\xe2\x80\x99 &c. \xe2\x80\x98according to their\nusual respective proportions in the general charge and expenditure, and shall be faithfully and bona\nfide disposed of for that purpose, and for no other use or purpose whatsoever.\xe2\x80\x99\nThe ceded territory was occupied by numerous and warlike tribes of Indians; but the\nexclusive right of the United States to extinguish their title, and to grant the soil, has never, we\nbelieve, been doubted.\nAfter these States became independent, a controversy subsisted between them and Spain\n358\n\n\x0crespecting boundary. By the treaty of 1795, this controversy was adjusted, and Spain ceded to the\nUnited States the territory in question. This territory, though claimed by both nations, was chiefly in\nthe actual occupation of Indians.\nThe magnificent purchase of Louisiana, was the purchase from France of a country almost\nentirely occupied by numerous tribes of Indians, who are in fact independent. Yet, any attempt of\nothers to intrude into that country, would be considered as an aggression which would justify war.\nOur late acquisitions from Spain are of the same character; and the negotiations which\npreceded those acquisitions, recognise and elucidate the principle which has been received as the\nfoundation of all European title in America.\nThe United States, then, have unequivocally acceded to that great and broad rule by which\nits civilized inhabitants now hold this country. They hold, and assert in themselves, the title by which\nit was acquired. They maintain, as all others have maintained, that discovery gave an exclusive right\nto extinguish the Indian title of occupancy, either by purchase or by conquest; and gave also a right\nto such a degree of sovereignty, as the circumstances of the people would allow them to exercise.\nThe power now possessed by the government of the United States to grant lands, resided,\nwhile we were colonies, in the crown, or its grantees. The validity of the titles given by either has\nnever been questioned in our Courts. It has been exercised uniformly over territory in possession of\nthe Indians. The existence of this power must negative the existence of any right which may conflict\nwith, and control it. An absolute title to lands cannot exist, at the same time, in different persons, or\nin different governments. An absolute, must be an exclusive title, or at least a title which excludes all\nothers not compatible with it. All our institutions recognise the absolute title of the crown, subject\nonly to the Indian right of occupancy, and recognise the absolute title of the erown to extinguish\nthat right. This is incompatible with an absolute and complete title in the Indians.\nWe will not enter into the controversy, whether agriculturists, merchants, and manufacturers,\nhave a right, on abstract principles, to expel hunters from the territory they possess, or to contract\ntheir limits. Conquest gives a title which the Courts of the conqueror cannot deny, whatever the\nprivate and speculative opinions of individuals may be, respecting the original justice of the claim\nwhich has been successfully asserted. The British government, which was then our government, and\nwhose rights have passed to the United States, asserted title to all the lands occupied by Indians,\nwithin the chartered limits of the British colonies. It asserted also a limited sovereignty over them,\nand the exclusive right of extinguishing the title which occupancy gave to them. These claims have\nbeen maintained and established as far west as the river Mississippi, by the sword. The title to a vast\nportion of the lands we now hold, originates in them. It is not for the Courts of this country to\nquestion the validity of this title, or to sustain one which is incompatible with it.\nAlthough we do not mean to engage in the defence of those principles which Europeans\nhave applied to Indian title, they may, we think, find some excuse, if not justification, in the\ncharacter and habits of the people whose rights have been wrested from them.\nThe title by conquest is acquired and maintained by force. The conqueror prescribes its\nlimits. Humanity, however, acting on public opinion, has established, as a general rule, that the\nconquered shall not be wantonly oppressed, and that their condition shall remain as eligible as is\ncompatible with the objects of the conquest. Most usually, they are incorporated with the victorious\nnation, and become subjects or citizens of the government with which they are connected. The new\nand old members of the society mingle with each other; the distinction between them is grandually\nlost, and they make one people. Where this incorporation is practicable, humanity demands, and a\nwise policy requires, that the rights of the conquered to property should remain unimpaired; that the\nnew subjects should be governed as equitably as the old, and that confidence in their security should\ngradually banish the painful sense of being separated from their ancient connexions, and united by\nforce to strangers.\n359\n\n\x0cWhen the conquest is complete, and the conquered inhabitants can be blended with the\nconquerors, or safely governed as a distinct people, public opinion, which not even the conqueror\ncan disregard, imposes these restraints upon him; and he cannot neglect them without injury to his\nfame, and hazard to his power.\nBut the tribes of Indians inhabiting this country were fierce savages, whose occupation was\nwar, and whose subsistence was drawn chiefly from the forest. To leave them in possession of their\ncountry, was to leave the country a wilderness; to govern them as a distinct people, was impossible,\nbecause they were as brave and as high spirited as they were fierce, and were ready to repel by arms\nevery attempt on their independence.\nWhat was the inevitable consequence of this state of things? The Europeans were under the\nnecessity either of abandoning the country, and relinquishing their pompous claims to it, or of\nenforcing those claims by the sword, and by the adoption of principles adapted to the condition of a\npeople with whom it was impossible to mix, and who could not be governed as a distinct society, or\nof remaining in their neighbourhood, and exposing themselves and their families to the perpetual\nhazard of being massacred.\nFrequent and bloody wars, in which the whites were not always the aggressors, unavoidably\nensued. European policy, numbers, and skill, prevailed. As the white population advanced, that of\nthe Indians necessarily receded. The country in the immediate neighbourhood of agriculturists\nbecame unfit for them. The game fled into thicker and more unbroken forests, and the Indians\nfollowed. The soil, to which the crown originally claimed title, being no longer occupied by its\nancient inhabitants, was parcelled out according to the will of the sovereign power, and taken\npossession of by persons who claimed immediately from the crown, or mediately, through its\ngrantees or deputies.\nThat law which regulates, and ought to regulate in general, the relations between the\nconqueror and conquered, was incapable of application to a people under such circumstances. The\nresort to some new and different rule, better adapted to the actual state of things, was unavoidable.\nEvery rule which can be suggested will be found to be attended with great difficulty.\nHowever extravagant the pretension of converting the discovery of an inhabited country\ninto conquest may appear; if the principle has been asserted in the first instance, and afterwards\nsustained; if a country has been acquired and held under it; if the property of the great mass of the\ncommunity originates in it, it becomes the law of the land, and cannot be questioned. So, too, with\nrespect to the concomitant principle, that the Indian inhabitants are to be considered merely as\noccupants, to be protected, indeed, while in peace, in the possession of their lands, but to be deemed\nincapable of transferring the absolute title to others. However this restriction may be opposed to\nantural right, and to the usages of civilized nations, yet, if it be indispensable to that system under\nwhich the country has been settled, and be adapted to the actual condition of the two people, it may,\nperhaps, be supported by reason, and certainly cannot be rejected by Courts of justice.\nThis question is not entirely new in this Court. The case of Fletcher v. Peck, grew out of a sale\nmade by the State of Georgia of a large tract of country within the limits of that State, the grant of\nwhich was afterwards resumed. The action was brought by a sub-purchaser, on the contract of sale,\nand one of the covenants in the deed was, that the State of Georgia was, at the time of sale, seised in\nfee of the premises. The real question presented by the issue was, whether the seisin in fee was in\nthe State of Georgia, or in the United States. After stating, that this controversy between the several\nStates and the United States, had been compromised, the Court thought in necessary to notice the\nIndian title, which, although entitled to the respect of all Courts until it should be legitimately\nextinguished, was declared not to be such as to be absolutely repugnant to a seisin in fee on the part\nof the State.\nThis opinion conforms precisely to the principle which has been supposed to be recognised\n360\n\n\x0cby all European governments, from the first settlement of America. The absolute ultimate title has\nbeen considered as acquired by discovery, subject only to the Indian title of occupancy, which title\nthe discoverers possessed the exclusive right of acquiring. Such a right is no more incompatible with\na seisin in fee, than a lease for years, and might as effectually bar an ejectment.\nAnother view has been taken of this question, which deserves to be considered. The title of\nthe crown, whatever it might be, could be acquired only by a coveyance from the crown. If an\nindividual might extinguish the Indian title for his own benefit, or, in other words, might purchase it,\nstill he could acquire only that title. Admitting their power to change their laws or usages, so far as to\nallow an individual to separate a portion of their lands from the common stock, and hold it in\nseveralty, still it is a part of their territory, and is held under them, by a title dependent on their laws.\nThe grant derives its efficacy from their will; and, if they choose to resume it, and make a different\ndisposition of the land, the Courts of the United States cannot interpose for the protection of the\ntitle. The person who purchases lands from the Indians, within their territory, incorporates himself\nwith them, so far as respects the property purchased; holds their title under their protection, and\nsubject to their laws. If they annul the grant, we know of no tribunal which can revise and set aside\nthe proceeding. We know of no principle which can distinguish this case from a grant made to a\nnative Indian, authorizing him to hold a particular tract of land in severalty.\nAs such a grant could not separate the Indian from his nation, nor give a title which our\nCourts could distinguish from the title of his tribe, as it might still be conquered from, or ceded by\nhis tribe, we can perceive no legal principle which will authorize a Court to say, that different\nconsequences are attached to this purchase, because it was made by a stranger. By the treaties\nconcluded between the United States and the Indian nations, whose title the plaintiffs claim, the\ncountry comprehending the lands in controversy has been ceded to the United States, without any\nreservation of their title. These nations had been at war with the United States, and had an\nunquestionable right to annul any grant they had made to American citizens. Their cession of the\ncountry, without a reservation of this land, affords a fair presumption, that they considered it as of\nno validity. They ceded to the United States this very property, after having used it in common with\nother lands, as their own, from the date of their deeds to the time of cession; and the attempt now\nmade, is to set up their title against that of the United States.\n\xe2\x80\xa6.\nAfter bestowing on this subject a degree of attention which was more required by the\nmagnitude of the interest in litigation, and the able and elaborate arguments of the bar, than by its\nintrinsic difficulty, the Court is decidedly of opinion, that the plaintiffs do not exhibit a title which\ncan be sustained in the Courts of the United States; and that there is no error in the judgment which\nwas rendered against them in the District Court of Illinois.\nJudgment affirmed, with costs.\nGrotius, de J. B. ac P. l. 2. c. 2. s. 4. l. 2. c. 24. s. 9. Puffen. l. 4. c. 5. s. 1. 3. \xe2\x86\xa9\nFletcher v. Peck, 6 Cranch\xe2\x80\x99s Rep. 646. \xe2\x86\xa9\nJackson v. Wood, 7 Johns. Rep. 296. \xe2\x86\xa9\nCampbell v. Hall, 1 Cowp. Rep. 204. \xe2\x86\xa9\nThis statute is as follows: \xe2\x80\x98An act for declaring and asserting the rights of this\nCommonwealth, concerning purchasing lands from Indian natives. To remove and prevent all doubt\nconcerning purchases of lands from the Indian natives, Be it declared by the General Assembly, that\nthis Commonwealth hath the exclusive right of pre-emption from the Indians, of all the lands within\nthe limits of its own chartered territory, as described by the act and constitution of government, in\nthe year 1776. That no person or persons whatsoever, have, or ever had, a right to purchase any\nlands within the same, from any Indian nation, except only persons duly authorized to make such\n361\n\n\x0cpurchases on the public account, formerly for the use and benefit of the colony, and lately of the\nCommonwealth, and that such exclusive right or pre-emption, will and ought to be maintained by\nthis Commonwealth, to the utmost of its power.\n\xe2\x80\x98And be it further declared and enacted, That every purchase of lands heretofore made, by, or on\nbehalf of, the crown of England or Great Britain, from any Indian nation or nations, within the\nbefore mentioned limits, doth and ought to enure for ever, to and for the use and benefit of this\nCommonwealth, and to or for no other use or purpose whatsoever; and that all sales and deeds\nwhich have been, or shall be made by any Indian or Indians, or by any Indian nation or nations, for\nlands within the said limits, to or for the separate use of any person or persons whatsoever shall be,\nand the same are, hereby declared utterly void and of no effect.\xe2\x80\x99 \xe2\x86\xa9\nPenn v. Lord Baltimore, 1 Ves. 445. 2 Rutherforth\xe2\x80\x99s Inst. 29. Locke, Government, b. 2. c. 7. s. 8789. c. 12. s. 143. c. 9. s. 123-130. Jefferson\xe2\x80\x99s Notes, 126. Colden\xe2\x80\x99s Hist. Five Nations, 2-16. Smith\xe2\x80\x99s Hist.\nNew-York, 35-41. Montesquieu, Esprit des Loix, l. 18. c. 11, 12, 13. Smith\xe2\x80\x99s Wealth of Nations, b. 5. c. 1. \xe2\x86\xa9\n5 Annual Reg. 56. 233. 7 Niles\xe2\x80\x99 Reg. 229. \xe2\x86\xa9\nMarten\xe2\x80\x99s Law of Nations, 67. 69. Vattel, Droit des Gens. l. 2. c. 7. s. 83. l. 1. c. 18. s. 204, 205. \xe2\x86\xa9\nVattle, 1. 1. c. 1. s. 11. \xe2\x86\xa9\nCowp. Rep. 204. \xe2\x86\xa9\nVattel, l. 1. c. 19. s. 213. \xe2\x86\xa9\nGrotius, l. 2. c. 11. Barbeyr. Puffend. l. 4. c. 4. s. 2. 4. 2 Bl. Comm. 2. Puffend. l. 4. c. 6. s. 3. Locke\non Government, b. 2. c. 5. s. 26.34-40. \xe2\x86\xa9\nLocke, c. 5. s. 36-48. Grotius, l. 2. c. 11. s. 2. Montesquieu, tom. 2. p. 63. Chalmers\xe2\x80\x99 Polit. Annals,\n5. 6 Cranch\xe2\x80\x99s Rep. 87. \xe2\x86\xa9\nPenn v. Lord Baltimore, 1 Ves. 444. Chalmers\xe2\x80\x99 Polit. Annals, 644. Sullivan\xe2\x80\x99s Land Tit. c. 2.\nSmith\xe2\x80\x99s Hist. N. Y. 145. 184. \xe2\x86\xa9\n1 Bl. Comm. 107. 2 P. Wms. 75. 1 Salk. 411. 616. \xe2\x86\xa9\nSulliv. Land Tit. 45. \xe2\x86\xa9\nCowp. 204. 7 Co. Rep. 17 b. 2 Meriv. Rep. 143. \xe2\x86\xa9\nPROBLEMS\nState the sources of title for each of the two sides in the litigation.\nWhich side relies on a Lockean argument and what is that argument?\nWhat kind of interest does \xe2\x80\x9cdiscovery\xe2\x80\x9d establish, according to Marshall?\n\n362\n\n\x0c7.2. Private Government\nO\'Buck v. Cottonwood Village Condominium Association, Inc.,\n750 P.2d 813 (1988)\n\nDonald D. Hopwood and David Gorman, Kay, Saville, Coffey, Hopwood & Schmid,\nAnchorage, for appellants.\nWilliam L. McNall and David Rankine, Law Offices of William L. McNall, Anchorage, for\nappellee.\nBefore Rabinowitz, C.J. and Burke, Matthews, Compton and Moore, JJ.\nRabinowitz, Chief Justice.\nIn this case the owners of a condominium unit brought suit against the condominium\nassociation challenging a rule banning the mounting of television antennae anywhere on the\nbuildings. After a non-jury trial, the superior court entered judgment in favor of the association.\nWe hold the rule banning antennae valid and thus affirm.\nI.\nJohn and Janie O\xe2\x80\x99Buck, plaintiffs and appellants in this case, purchased a unit in the\nCottonwood Village Condominiums in June 1981. At that time, the unit was pre-wired for a central\ntelevision antenna and for Visions, an antenna-based cable system. It is impossible to watch\ntelevision in the unit without an outdoor antenna or cable because of bad reception. The availability\nof an antenna was an important consideration for the O\xe2\x80\x99Bucks in deciding to purchase their unit\nbecause they have four televisions and frequently watch different programs.\nIn 1984, the Board of Directors of the Cottonwood Village Association (\xe2\x80\x9cthe Board\xe2\x80\x9d or \xe2\x80\x9cthe\nAssociation\xe2\x80\x9d) had to address a serious problem of roof leakage in the condominiums. Among the\nseveral causes of leakage were badly mounted antennae and foot traffic on the roof related to the\nantennae. The Association paid $155,000 to have the roofs repaired. In order to do the work, the\ncontractors removed all the antennae from the roofs. Before any of the antennae were reinstalled,\nthe Board adopted a rule prohibiting the mounting of television antennae anywhere on the buildings.\nThe purposes of this rule were to protect the roof and to enhance the marketability of the\ncondominium units. The Board further decided to make the MultiVisions cable system available as\nan alternative to antennae. The Board rejected other alternatives such as a satellite dish or antennae\nmounted on the sides of the buildings. The Board offered to pay the fifteen dollar hookup fee to\nMultiVisions and to pay for the depreciated value of the old antennae. The O\xe2\x80\x99Bucks were paid\n$284.20 for their antenna, which had been damaged when contractors removed it from the roof.\nThe O\xe2\x80\x99Bucks now have one television hooked up to MultiVisions. Their other sets have no\n363\n\n\x0creception, and it would cost ten dollars per month per set to hook them up.\nThe O\xe2\x80\x99Bucks subsequently filed a complaint against the Association seeking damages and an\ninjunction against enforcement of the rule. After a non-jury trial the superior court ruled against the\nO\xe2\x80\x99Bucks on all issues, denying them any relief\xe2\x80\xa6 . .\nIn this appeal, the O\xe2\x80\x99Bucks argue that the Board had no authority under the Declaration and\nBylaws of the Condominium Association to adopt the antennae rule, that the rule was unreasonable,\nthat the procedure by which the Board passed the rule was flawed, that the O\xe2\x80\x99Bucks have an\neasement for their antenna, and that it was an abuse of discretion for the trial court to award the\nAssociation such a high percentage of its attorney\xe2\x80\x99s fees.\nII.\nA. Was the Board Authorized to Pass the Rule?\nThe O\xe2\x80\x99Bucks challenge the Board\xe2\x80\x99s authority to adopt the rule. We conclude that the Board\nhad authority to enact a rule banning television antennae from buildings under either of two\nprovisions in the Declaration of Condominium, the \xe2\x80\x9cconstitution\xe2\x80\x9d of the Association. See AS\n34.07.010-.070.\nFirst, article IX, section 4 of the Declaration authorizes the Board to adopt rules and\nregulations governing the use of the common areas, which include the roofs and walls of the\nbuildings. That section provides:\nRules and Regulations. Rules and regulations may be adopted by the Board of Directors\nconcerning and governing the use of the general and limited common areas providing such rules and\nregulations shall be furnished to owners prior to the time they become effective and that such rules\nand regulations shall be uniform and nondiscriminatory.\nSecond, article XIX, section 1(d) of the Declaration authorizes the Board to require unit\nowners to take action to preserve a uniform exterior appearance to the buildings. That section\nprovides:\nIn order to preserve a uniform exterior appearance to the building, the Board may require\nthe painting of the building, decks and balconies, and prescribe the type and color of paint, and may\nprohibit, require, or regulate any modification or decoration of the building, decks and balconies\nundertaken or proposed by any owner. This power of the Board extends to screens, doors, awnings,\nrails or other visible portions of each condominium unit and condominium building. The Board may also require\nuse of a uniform color of draperies or drapery lining for all units.\n(Emphasis supplied.) The superior court relied on this provision in reaching its decision.\nGiven these two provisions, the Board had authority to ban antennae either on roofprotection grounds (under article IX, section 4) or on aesthetic grounds (under either section), both\nof which were given as reasons for the antennae rule.1\nThe O\xe2\x80\x99Bucks argue that other provisions of the Declaration and Bylaws imply a right to own\nantennae that is superior to the Board\xe2\x80\x99s authority to ban them. Therefore, they argue that any\nantennae rule could be passed only after amendments to the Declaration and Bylaws, which would\nrequire approval by 60% of the unit owners.2\nThe O\xe2\x80\x99Bucks infer the right to mount television antennae on the buildings from article V,\nsection 5 of the Declaration, which protects the ownership of private property in common areas:\nCertain items which might ordinarily be considered common areas, such as, but not limited\n364\n\n\x0cto, screen doors, window boxes, awnings, storm windows, planter boxes, antennae, and the like, may,\npursuant to decision of the owner and specifications in the Bylaws or administrative rules, be\ndesignated as private or individual items to be furnished and maintained at individual expense, in\ngood order, according to standards and requirements set by the Board by rule, regulation or Bylaw.\n(Emphasis supplied.) They also cite article VIII, section 1(g) of the Bylaws, which provides:\nNo Unit Owner or occupant shall, without the written approval of the Board of Directors,\ninstall any wiring for electrical or telephone installations, television antenna [sic], machines or airconditioning units, or other equipment or appurtenances whatsoever on the exterior of the Project\nor protruding through the walls, windows or roof thereof.\n(Emphasis supplied.) The O\xe2\x80\x99Bucks also cite several provisions of the Declaration and Bylaws\nwhich explicitly prohibit or authorize the prohibition of other things, such as pets, modification of\nbuildings, and posting of bills. They reason that since there is no explicit authorization to prohibit\nantennae, and since the Declaration and Bylaws contemplate the existence of antennae, a right to\nhave an antenna is reasonably inferred and cannot be taken away without amending the Declaration\nor Bylaws. They rely on Beachwood Villas Condominium v. Poor, 448 So.2d 1143, 1145 (Fla. App. 1984),\nwhich held: \xe2\x80\x9cprovided that a board-enacted rule does not contravene either an express provision of\nthe declaration or a right reasonably inferable therefrom, it will be found valid, within the scope of the\nboard\xe2\x80\x99s authority.\xe2\x80\x9d (Emphasis supplied.)\nWe do not find the O\xe2\x80\x99Bucks\xe2\x80\x99 arguments persuasive. The mere mention of the word\n\xe2\x80\x9cantennae\xe2\x80\x9d in article V, section 5 of the Declaration does not allow an owner reasonably to infer a\nright that is superior to the Board\xe2\x80\x99s authority to ban them. First, that section explicitly makes the\nitems listed, including antennae, subject to rules and regulations of the Board. Second, article V\nmerely defines what constitutes common areas, and the purpose of section 5 is to clarify that the\nprivately-owned items listed do not necessarily pass into common ownership merely because of their\npresence in common areas. An owner may not seize upon such a clarification to claim an irrevocable\nright to maintain any of the items listed in a common area.\nThe absence of any provision explicitly authorizing the Board to ban antennae is not fatal to\nthe Board\xe2\x80\x99s right to do so. As noted in Beachwood Villas, \xe2\x80\x9c[i]t would be impossible to list all restrictive\nuses in a declaration of condominium.\xe2\x80\x9d 448 So.2d at 1145. Thus, in that case the court upheld\nboard-enacted rules regulating unit rentals and the occupancy of units by guests during the owner\xe2\x80\x99s\nabsence. The court refused to find a reasonably inferable right and upheld the rules even in the\nabsence of an express provision authorizing them. Id.\nThe O\xe2\x80\x99Bucks also rely on Chateau Village North Condominium Association v. Jordan, 643 P.2d 791\n(Colo. App. 1982). The board in that case began a policy of denying all new applications for pets.\nCottonwood\xe2\x80\x99s Bylaw article VIII, section 1(g), supra, is similar to the bylaw provisions at issue in\nChateau Village: \xe2\x80\x9cNo cats, dogs, or other animal \xe2\x80\xa6 shall be kept, maintained, or harbored in the\ndevelopment unless the same in each instance is expressly permitted in writing by the Managing\nAgent\xe2\x80\xa6 .\xe2\x80\x9d 643 P.2d at 791. Both provisions explicitly prohibit the matter in question without\nwritten permission. The court in Chateau Village found in this bylaw provision a right to apply for\npermission to keep animals and a \xe2\x80\x9cduty\xe2\x80\x9d on the part of the association \xe2\x80\x9cto consider [the owner\xe2\x80\x99s]\napplication and apply its discretion in a reasonable and good faith manner.\xe2\x80\x9d Id. at 792. Because the\nassociation had adopted a policy of prohibiting all pets without ruling on the merits of individual\napplications, the court ordered that the complaint of the association against the owner be dismissed.\nId. at 792-93.\nThe O\xe2\x80\x99Bucks argue that under Chateau Village, Bylaw article VIII, section 1(g), requires the\nAssociation to deliberate on the merits of all applications to install antennae, and prohibits the\nAssociation from adopting a blanket rule against them. This interpretation fails to recognize\nimportant differences between the two cases. The board in Chateau Village was merely applying \xe2\x80\x9cits\n365\n\n\x0cown policy,\xe2\x80\x9d 643 P.2d at 793, which it had implemented without any authority. See id. at 792. In\ncontrast, the Board in the instant case acted under the authority of numerous provisions authorizing\nrules and regulations governing the use of the common areas. These provisions give the Board\nbroad discretion to adopt rules and regulations to preserve a uniform exterior appearance to the\nbuilding, as well as to preserve the structural integrity of the buildings in general and the roofs in\nparticular. These grants of authority are adequate to uphold a blanket rule.\nFor these reasons, we hold that the Declaration and Bylaws granted the Board the authority\nto enact the subject rule banning television antennae on buildings.3\nB. Was the Rule Reasonable?\nBoth parties agree that a condominium association rule will not withstand judicial scrutiny if\nit is not reasonable. This standard of review is supported by case law and legal commentary. See, e.g.,\nJohnson v. Hobson, 505 A.2d 1313, 1317 (D.C. App. 1986); Hidden Harbour Estates, Inc. v. Norman, 309\nSo.2d 180, 182 (Fla.App. 1975); Note, Judicial Review of Condominium Rulemaking, 94 Harv.L.Rev. 647,\n658 (1981) [hereinafter Harvard Note].4\nThe superior court found that roofmounted television antennae were one of a number of\ncauses of leaking roofs. This finding has ample support in the record. The architect engaged by the\nAssociation to make recommendations as to what to do about the problem testified that television\nantennae caused problems on each of the twenty-two roofs in the condominium project.5 Other\nproblems causing the leaking were age of the condominiums, their poor design, and problems of\npoor workmanship which went into the construction of the condominium buildings. He also\ntestified that it was important to limit foot traffic on the roofs, as many owners were apparently\ncausing damage to the roofs when walking there to adjust their antennae. The repairs to the roof\ncost the Association $155,000. These facts clearly justified the Board\xe2\x80\x99s action to limit or prohibit\ntelevision antennae and foot traffic on the roofs.\nIf the roof problems were the only justification for the rule, the O\xe2\x80\x99Bucks would have a\nstronger argument that the rule was unreasonable. This is because they hired an architect who\ndesigned a method of installing antennae on the sides of the buildings rather than the roofs. This\nmethod would involve only brief work on the roof to connect the coaxial cable, and the rest of the\nwork could be done from a ladder or hydraulically operated bucket. The availability of this relatively\ninexpensive alternative would cast some doubt on the reasonableness of a blanket prohibition on\nantennae if the only purpose of the rule was to protect the roofs.\nHowever, it is clear that other legitimate considerations also motivated the antenna ban. As\ndiscussed above, the Declaration specifically authorized the prohibition of modifications or\ndecorations to preserve a uniform exterior appearance to the buildings. Numerous witnesses\ntestified that the Board was influenced by the unsightliness of the antennae. It was estimated that\neach of the 104 units in the twenty two buildings had an antenna protruding from the roof.\nWitnesses testified that the Board felt that the elimination of the forest of antennae combined with\nthe availability of a state-of-the-art cable system would enhance the marketability of the units. This\nevidence is adequate to support the superior court\xe2\x80\x99s conclusion that aesthetics and improved\nmarketability were grounds for the antenna ban.\nIt is clear that the O\xe2\x80\x99Bucks do not agree that the antenna ban improved the exterior\nappearance of the buildings. They describe this goal as \xe2\x80\x9c[nothing] more than a sop to personal\nprejudice or unarticulated personal values.\xe2\x80\x9d However, this is a facet of the freedom they sacrificed\nwhen they bought into a condominium association.\n366\n\n\x0cAs one court put it:\n[I]nherent in the condominium concept is the principle that to promote the health,\nhappiness, and peace of mind of the majority of unit owners since they are living in such close\nproximity and using facilities in common, each unit owner must give up a certain degree of freedom\nof choice which he might otherwise enjoy in separate, privately owned property. Condominium unit\nowners comprise a little democratic sub-society of necessity more restrictive as it pertains to use of\ncondominium property than may be existent outside the condominium organization.\nHidden Harbour Estates, 309 So.2d at 181-82, quoted in Johnson, 505 A.2d at 1317. We agree that\ncondominium owners consciously sacrifice some freedom of choice in their decision to live in this\ntype of housing. Unit owners may not rely on the courts to strike down reasonable rules on the\ngrounds of differences in aesthetic tastes.\nIn evaluating the reasonableness of a condominium association rule, it is necessary to\nbalance the importance of the rule\xe2\x80\x99s objective against the importance of the interest infringed upon.\nIn a case where a rule seriously curtails an important civil liberty \xe2\x80\x93 such as, for example, freedom of\nexpression \xe2\x80\x93 we will look with suspicion on the rule and require a compelling justification. The\nantenna ban in the instant case curtails no significant interests. The only loss suffered is that the\nO\xe2\x80\x99Bucks and the other owners must now pay a small monthly fee to receive television, and even this\ncost is offset to a degree by the savings from the lack of need to install and maintain an antenna. In\nsome cases, we might consider a financial burden to be an important interest. However, the fee in\nthis case is small in view of the wherewithal of the members of the Association.6 For this reason, we\nfind that the interests of the Association in improving the exterior appearance of the buildings and\nenhancing the marketability of the units more than adequately justify the small financial burden\nplaced on the owners.\n\xe2\x80\xa6.\nAFFIRMED.\nThe Declaration and Bylaws charge the Board with the responsibility of passing such rules,\nwithin its discretion, in the best interests of the unit owners. This conclusion is reinforced by two\nother provisions which grant the Board authority over design and structural matters. Article IX,\nsection 5 of the Declaration provides: No Unauthorized Additions, Alterations or Decorations. No\nadditions, alterations or decorations to any common area, including those exterior common areas\ndesignated as limited common areas, shall be commenced, erected or maintained without the prior\nwritten approval of the Board of Directors as to the conformity and harmony of external design and\nlocation with existing structures in the project. Article VIII, section 1(h) of the Bylaws provides:\nNothing shall be allowed, done or kept in any Unit or common areas of the Project which would\noverload or impair the floors, walls or roofs thereof, or cause any increase in the ordinary premium\nrates or the cancellation or invalidation of any insurance thereon maintained by or for the\nAssociation, nor shall any noxious or offensive activity or nuisance be made or suffered thereon. \xe2\x86\xa9\nA 60% vote of the unit owners is required to amend the Declaration or Bylaws by article\nXIII, section 3 of the Declaration and by AS 34.07.020(13). \xe2\x86\xa9\nThe O\xe2\x80\x99Bucks, the Association, and the superior court each rely to some extent on Carroll v.\nEl Dorado Estates Division Number Two Ass\xe2\x80\x99n, 680 P.2d 1158 (Alaska 1984), to support their positions.\nIn that case, we summarily rejected an argument that the declaration granted a right to pet\nownership which could not be revoked by the bylaws. We noted that the provision in the declaration\n\xe2\x80\x9cwas specifically made conditional and subject to change.\xe2\x80\x9d Id. at 1162 n. 7. The Declaration in the\ninstant case neither specifically grants nor specifically makes conditional a right to outdoor television\nantennae. Thus, Carroll has little if any bearing on this case. To the extent it applies, it shows that the\nO\xe2\x80\x99Bucks have no vested property interest in maintaining their antenna, because any right to do so is\n367\n\n\x0csubject to limitation or prohibition by the general regulatory provisions of the Declaration and\nBylaws. The O\xe2\x80\x99Bucks also rely on Winston Towers 200 Ass\xe2\x80\x99n v. Saverio, 360 So.2d 470 (Fla.App. 1978).\nThat case involved an attempted retroactive application of a rule banning pets and is plainly\ninapplicable to the instant case. The O\xe2\x80\x99Bucks also argue that the decision to adopt the rule was\nprocedurally flawed. However, they do not cite any provisions of the Declaration or Bylaws, any\nstatutes, or any common law rules that were violated. Instead, they rely on one case study from a\nbook on condominium associations to argue that the process should have been more participatory.\nSee D. Wolfe, Condominium and Homeowner Associations that Work \xe2\x80\x93 On Paper and In Action 81-84 (1978).\nIn the absence of appropriate factual basis and legal authority to support their position, we reject\nthis contention. \xe2\x86\xa9\nThe Association urges an analogy to the business judgment rule of corporation law, which\nwould require the court only to find that the Board\xe2\x80\x99s rule was a \xe2\x80\x9cgood faith exercise of business\njudgment.\xe2\x80\x9d Harvard Note, supra, at 664. This approach appears to be favored by what little\ncommentary exists. See id. at 663-67. The O\xe2\x80\x99Bucks resist this analogy, a position which is also\nsupported by good authority. See Johnson, 505 A.2d at 1317 n. 7. However, it appears that there is\nlittle if any difference whether one uses the business judgment analogy in applying the\nreasonableness standard. See Harvard Note, supra, at 658-59, 667. The difference is certainly not\nmaterial in this case, because the rule at issue measures up to any standard of reasonableness. \xe2\x86\xa9\nThe O\xe2\x80\x99Bucks mischaracterize the testimony of the architect in their brief, where they write,\n\xe2\x80\x9cGregg Strom, the architect who inspected the roofs on the Board\xe2\x80\x99s behalf, testified that of\napproximately 100 antennae present on the roofs, only one of two [sic] might have caused\nproblems.\xe2\x80\x9d It is clear from the testimony cited that Mr. Strom testified only that he had described\nwith photographs on the witness stand only one or two antennae that were causing problems. He clarified\nthis point even further on the following page of testimony, where he explained that these few\nphotos were merely for illustrative purposes to show the Board the types of problems they faced,\nand not to indicate that these were the only antennae causing problems. \xe2\x86\xa9\nThe units were advertised at a cost of $97,000 in 1981. \xe2\x86\xa9\n\n368\n\n\x0cVilla de las Palmas Homeowners Association v. Terifaj,\n33 Cal.4th 73 (2004)\n\nLaw Office of Russell P. Nowell and Russell P. Nowell, Brea, for Defendant and Appellant.\nJeff Thom, Los Angeles, for California Council of the Blind as Amicus Curiae on behalf of\nDefendant and Appellant.\nFiore, Racobs & Powers, Peter E. Racobs, Riverside, and Margaret G. Wangler, Palm\nDesert, for Plaintiff and Respondent.\nMoreno, J.\n\xe2\x80\xa6.\nI. FACTS AND PROCEDURAL HISTORY\nVilla De Las Palmas is a relatively small condominium development consisting of 24 units\nlocated in a single L-shaped building. There are 12 units each on the top and bottom levels, and all\nunits have either a small patio or a deck, with common walls separating them. The walls, described\nas \xe2\x80\x9cpony walls,\xe2\x80\x9d initially extend from the unit at full height, and then slope down. Many owners,\nincluding defendant Paula Terifaj, do not make Villa De Las Palmas, which is located in Palm\nSprings, their primary residence, but visit only periodically or seasonally.\nThe individual condominium units were conveyed to the original grantees in 1962 by\nrecorded grant deeds that contained the development\xe2\x80\x99s covenants, conditions, and restrictions, also\ncommonly known as CC & R\xe2\x80\x99s. Pursuant to the 1962 deed (Declaration), all grantees were required\nto execute a management agreement and \xe2\x80\x9ccovenant and agree to observe, perform and abide by any\nand all lawful by-laws, rules, regulations and conditions with respect to the use and occupancy of\nsaid premises which may from time to time be adopted or prescribed by the Board of Governors\nconstituted in said Management Agreement.\xe2\x80\x9d Failure to abide by any covenant or restriction in the\nDeclaration could result in forfeiture, and \xe2\x80\x9cany owner or occupant of any apartment upon said\npremises may bring legal action for injunction and/or damages against said defaulting owner\xe2\x80\xa6 .\xe2\x80\x9d\nThe Declaration further provided that \xe2\x80\x9c[t]he benefits and obligations of this deed shall inure to and\nbe binding upon the heirs \xe2\x80\xa6 and assigns of the respective parties hereto.\xe2\x80\x9d\nPursuant to the authority granted in the Declaration, the Villa De Las Palmas Homeowners\nAssociation (the Association) adopted a rule prohibiting pets. The unrecorded rule provided: \xe2\x80\x9cPets\nof any kind are forbidden to be kept in the apartment building or on the grounds at any time.\xe2\x80\x9d While\nthe exact date of the adoption of the no-pet rule is unknown, it is undisputed that it was in existence\nwhen Terifaj purchased her unit. Terifaj, a veterinarian who purchased her unit in 1995, did not\nreceive a written copy of the rule prohibiting pets, but she admitted at trial that she was aware of the\nno-pet rule when she purchased her unit.\nDespite the prohibition on pets, from the time Terifaj purchased her unit until 1998, she\nvisited her unit with her dog Lucy. When Lucy died in 1998, Terifaj acquired another dog, a female\n369\n\n\x0cboxer, and brought her to the property. Terifaj attempted to have the Association amend the no-pet\nrule at the Association\xe2\x80\x99s 1996 and 2000 general meetings, but was unsuccessful.\nThe Association repeatedly warned Terifaj that she was violating the rule prohibiting pets on\nthe property and fined her accordingly. Terifaj, however, was undeterred and continued to bring her\ndog to the development. In response, in August 1999, the Association filed a complaint for\ninjunctive and declaratory relief and nuisance, along with a motion for preliminary injunction, to\ncompel Terifaj to abide by the no-pet rule. The trial court denied the motion for preliminary\ninjunction in October 1999, ruling that it was not convinced the Association would prevail on the\nmerits and that irreparable injury was not evident. The court ordered the case to nonbinding\narbitration with a March 8, 2000, completion date.\nIn the interim between the denial of the preliminary injunction and the completion of\narbitration, the members of the Association voted to amend the Declaration. In January 2000, the\nAssociation adopted and recorded the Amended and Restated Declaration of Covenants, Conditions\nand Restrictions (Amended Declaration), which added a no-pet restriction, providing: \xe2\x80\x9cNo pets or\nanimals of any kind, including without limitation, dogs, cats, birds, livestock, reptiles or poultry, may\nbe kept or permitted in any Apartment or anywhere on the Property.\xe2\x80\x9d The Amended Declaration\nfurther provides that violations of the covenants and restrictions contained in the Amended\nDeclaration are nuisances, and that such violations may be enjoined.\nBased on the recorded Amended Declaration, the Association filed an amended complaint\nalleging the same causes of action and seeking the same relief as the original complaint. Following a\nbench trial, the trial court ruled in favor of the Association on all causes of action. It found the\ncovenants and restrictions in the Amended Declaration to be enforceable equitable servitudes,\ngranted a permanent injunction against any further violation of the no-pet restriction, and found the\nviolation to be a nuisance. The court awarded the Association $15,000 in attorney fees.\nThe Court of Appeal affirmed. It concluded that section 1354 \xe2\x80\x9c[o]n its face \xe2\x80\xa6 applies to any\ndeclaration, regardless of when it is adopted and recorded.\xe2\x80\x9d Because the no-pet restriction was in the\nrecorded Amended Declaration, it therefore constituted an equitable servitude under section 1354,\nsubdivision (a). Relying on Nahrstedt, which the Court of Appeal found governed review of the pet\nrestriction, the court held the restriction was not unreasonable.\nWe granted Terifaj\xe2\x80\x99s petition for review.\nII. DISCUSSION\nAs a condominium project, Villa De Las Palmas is a common interest development subject\nto the provisions of the Davis-Stirling Common Interest Development Act (the Davis-Stirling Act\nor the Act). (\xc2\xa7 1350 et seq.) The Davis-Stirling Act, enacted in 1985 (Stats.1985, ch. 874, \xc2\xa7 14, pp.\n2774-2786), consolidated the statutory law governing condominiums and other common interest\ndevelopments. Under the Act, a common interest development is created \xe2\x80\x9cwhenever a separate\ninterest coupled with an interest in the common area or membership in [an] association is, or has\nbeen, conveyed\xe2\x80\x9d and a declaration, a condominium plan, if one exists, and a final or parcel map are\nrecorded.1 (\xc2\xa7 1352.) Common interest developments are required to be managed by a homeowners\nassociation (\xc2\xa7 1363, subd. (a)), defined as \xe2\x80\x9ca nonprofit corporation or unincorporated association\ncreated for the purpose of managing a common interest development\xe2\x80\x9d (\xc2\xa7 1351, subd. (a)), which\nhomeowners are generally mandated to join (Nahrstedt, supra, 8 Cal.4th at p. 373, 33 Cal.Rptr.2d 63,\n878 P.2d 1275).\nThe Act contains a fairly extensive definitions section, defining as relevant here \xe2\x80\x9cgoverning\n370\n\n\x0cdocuments\xe2\x80\x9d and \xe2\x80\x9cdeclaration.\xe2\x80\x9d The declaration is defined as \xe2\x80\x9cthe document, however denominated,\nwhich contains the information required by section 1353.\xe2\x80\x9d (\xc2\xa7 1351, subd. (h).) Section 1353 requires\nthat declarations recorded on or after January 1, 1986, contain certain information, including the\ndevelopment\xe2\x80\x99s covenants and restrictions. The governing documents encompass a broader category\nof documents, including \xe2\x80\x9cthe declaration and any other documents, such as bylaws, operating rules\nof the association, articles of incorporation, or articles of association, which govern the operation of\nthe common interest development or association.\xe2\x80\x9d (\xc2\xa7 1351, subd. (j).)\nThe declaration is often referred to as the development\xe2\x80\x99s constitution (see Rest.3d Property,\nServitudes, \xc2\xa7 6.10, com. a, p. 196; 1 Hanna & Van Atta, Cal. Common Interest Developments: Law\nand Practice (2003) \xc2\xa7 22:2, p. 1325) and \xe2\x80\x9cestablish[es] a system of governance.\xe2\x80\x9d (Villa Milano\nHomeowners Association v. Il Davorge (2000) 84 Cal.App.4th 819, 827, 102 Cal.Rptr.2d 1.) Importantly, it\ncontains the development\xe2\x80\x99s covenants and restrictions, which are \xe2\x80\x9cenforceable equitable servitudes,\nunless unreasonable.\xe2\x80\x9d (\xc2\xa7 1354, subd. (a).) Several provisions of the Act allow for the amendment of\nthe declaration. Of particular relevance here is section 1355, subdivision (b) (hereafter section\n1355(b)), which provides in relevant part: \xe2\x80\x9cExcept to the extent that a declaration provides by its\nexpress terms that it is not amendable, in whole or in part, a declaration which fails to include\nprovisions permitting its amendment at all times during its existence may be amended at any time.\xe2\x80\x9d2\nTerifaj\xe2\x80\x99s argument is somewhat ambiguous with respect to enforcement of restrictions\ncontained in amended declarations. She appears to argue that such restrictions are entirely\nunenforceable in any manner, but also maintains that such restrictions are not enforceable pursuant\nto section 1354, subdivision (a), because they do not meet the requirements of equitable servitudes.\nSince her argument is vague, we address both contentions.\nBecause we are construing provisions in the Davis-Stirling Act, we briefly recite the rules of\nstatutory construction that will guide our decision. Our primary task in construing a statute is to\nascertain the intent of the Legislature. (Peracchi v. Superior Court (2003) 30 Cal.4th 1245, 1253, 135\nCal.Rptr.2d 639, 70 P.3d 1054.) We make this determination by looking to the words used in the\nstatute and giving them their plain meaning. (Smith v. Rae-Venter Law Group (2002) 29 Cal.4th 345,\n358, 127 Cal.Rptr.2d 516, 58 P.3d 367.) \xe2\x80\x9d\xe2\x80\x98\xe2\x80\x9cIf there is no ambiguity in the language of the statute,\n\xe2\x80\x98then the Legislature is presumed to have meant what it said.\xe2\x80\x99\xe2\x80\x9d\xe2\x80\x99\xe2\x80\x9d (Ibid.)\nA.\nWe must first decide whether a use restriction contained in an amended declaration is\nenforceable against a homeowner who acquired his or her separate interest before the challenged\namendment was adopted and recorded. As noted above, under the Davis-Stirling Act, a common\ninterest development may amend its declaration pursuant to the provisions of the declaration itself\nor under the provisions of the Act. When a declaration is silent on whether it may be amended,\nsection 1355(b) provides that it may be amended at any time. For the following reasons, we\nconclude that use restrictions added to a declaration by amendment bind not only subsequent\npurchasers, but current homeowners as well.\nThis conclusion follows from the plain language of section 1355(b), which provides in part:\n\xe2\x80\x9cFor purposes of this subdivision, an amendment is only effective after (1) the proposed amendment\nhas been distributed to all of the owners of separate interests in the common interest development\nby first-class mail postage prepaid or personal delivery not less than 15 days and not more than 60\ndays prior to any approval being solicited; (2) the approval of owners representing more than 50\npercent \xe2\x80\xa6 of the separate interests in the common interest development has been given, and that\n371\n\n\x0cfact has been certified in a writing, executed and acknowledged by an officer of the association; and\n(3) the amendment has been recorded in each county in which a portion of the common interest\ndevelopment is located.\xe2\x80\x9d (Italics added.) Additionally, a copy of the recorded amendment must\nimmediately be mailed or delivered to all homeowners.3 In short, the statute provides that an\namendment is effective after notice of the proposed amendment is given to the homeowners, a\nmajority of the homeowners approve the amendment, and the amendment is recorded. (1 Hanna &\nVan Atta, Cal Common Interest Developments: Law and Practice, supra, \xc2\xa7 22:119, p. 1439; 9 Miller\n& Starr, Cal. Real Estate (3d ed.2001) \xc2\xa7 25:133, pp. 302-303.)\nPlainly read, any amendment duly adopted under this subdivision is effective against all\nhomeowners, irrespective of when the owner acquired title to the separate interest or whether the\nhomeowner voted for the amendment. (See, e.g., 1 Hanna & Van Atta, Cal Common Interest\nDevelopments: Law and Practice, supra, \xc2\xa7 22:119, p. 1439; 9 Miller & Starr, Cal. Real Estate, supra, \xc2\xa7\n25:133, p. 308.) Terifaj\xe2\x80\x99s argument that subsequently enacted amendments are not binding on\ncurrent homeowners runs counter to section 1355(b)\xe2\x80\x99s express language that an amendment is\neffective upon the satisfaction of the requirements enumerated in that provision. Neither section\n1355(b) nor any other provision in the Davis-Stirling Act exempts from compliance with\namendments to the declaration homeowners who purchased their individual units prior to the\namendment.\nThat is not surprising. To allow a declaration to be amended but limit its applicability to\nsubsequent purchasers would make little sense. A requirement for upholding covenants and\nrestrictions in common interest developments is that they be uniformly applied and burden or\nbenefit all interests evenly. (See, e.g., Nahrstedt, supra, 8 Cal.4th at p. 368, 33 Cal.Rptr.2d 63, 878 P.2d\n1275 [restrictions must be \xe2\x80\x9cuniformly enforced\xe2\x80\x9d]; Rest.3d Property, Servitudes, \xc2\xa7 6.10, com. f, p.\n200.) This requirement would be severely undermined if only one segment of the condominium\ndevelopment were bound by the restriction. It would also, in effect, delay the benefit of the\nrestriction or the amelioration of the harm addressed by the restriction until every current\nhomeowner opposed to the restriction sold his or her interest. This would undermine the stability of\nthe community, rather than promote stability as covenants and restrictions are intended to do.\nTerifaj\xe2\x80\x99s position would also, essentially, render meaningless the simple majority vote\nrequired for amendments to take effect under section 1355(b). Instead, unanimous consent would\nbe needed, which would often be unattainable. The language of section 1355(b), however, makes\nclear that a simple majority is all that is required before an amendment becomes effective. One\nreason for this is because amendment provisions are designed to \xe2\x80\x9cprevent[] a small number of\nholdouts from blocking changes regarded by the majority to be necessary to adapt to changing\ncircumstances and thereby permit the community to retain its vitality over time.\xe2\x80\x9d (Rest.3d Property,\nServitudes, \xc2\xa7 6.10, com. a, p. 196.)\nSubjecting owners to use restrictions in amended declarations promotes stability within\ncommon interest developments. As we observed in Nahrstedt, \xe2\x80\x9c[u]se restrictions are an inherent part\nof any common interest development and are crucial to the stable, planned environment of any\nshared ownership arrangement.\xe2\x80\x9d (Nahrstedt, supra, 8 Cal.4th at p. 372, 33 Cal.Rptr.2d 63, 878 P.2d\n1275.) Such restrictions may \xe2\x80\x9cpreclude alteration of building exteriors, limit the number of persons\nthat can occupy each unit, and place limitations on \xe2\x80\x93 or prohibit altogether \xe2\x80\x93 the keeping of pets.\n[Citations.]\xe2\x80\x9d (Id. at p. 373, 33 Cal.Rptr.2d 63, 878 P.2d 1275.) We explained that a homeowners\nassociation, \xe2\x80\x9cthrough an elected board of directors, is empowered \xe2\x80\xa6 to enact new rules governing\nthe use and occupancy of property within the [development].\xe2\x80\x9d (Ibid.) We further observed that\n\xe2\x80\x9canyone who buys a unit in a common interest development with knowledge of its owners\nassociation\xe2\x80\x99s discretionary power accepts \xe2\x80\x98the risk that the power may be used in a way that benefits\nthe commonality but harms the individual.\xe2\x80\x99\xe2\x80\x9d (Id., at p. 374, 33 Cal.Rptr.2d 63, 878 P.2d 1275,\n372\n\n\x0cquoting Natelson, Consent, Coercion, and \xe2\x80\x9cReasonableness\xe2\x80\x9d in Private Law: The Special Case of the Property\nOwners Association (1990) 51 Ohio State L.J. 41, 67.) A prospective homeowner who purchases\nproperty in a common interest development should be aware that new rules and regulations may be\nadopted by the homeowners association either through the board\xe2\x80\x99s rulemaking power or through\nthe association\xe2\x80\x99s amendment powers. (See, e.g., Randolph, Changing the Rules: Should Courts Limit the\nPower of Common Interest Communities to Alter Unit Owners\xe2\x80\x99 Privileges in the Face of Vested Expectations?\n(1998) 38 Santa Clara L.Rev. 1081, 1126 [\xe2\x80\x9cThere is no basis to argue that purchasers of units within\ncommon interest communities have an expectation that there will be no changes at all.\xe2\x80\x9d].)\nFinally, section 1355(b)\xe2\x80\x99s legislative history supports the conclusion that all homeowners are\nbound by amendments adopted and recorded subsequent to purchase. (Jarrow Formulas, Inc. v.\nLaMarche (2003) 31 Cal.4th 728, 736, 3 Cal.Rptr.3d 636, 74 P.3d 737 [court \xe2\x80\x9cmay observe that\navailable legislative history buttresses a plain language construction\xe2\x80\x9d].) Subdivision (b) of section\n1355 was not part of the bill enacting the Davis-Stirling Act, but was added three years later in 1988.\n(Stats.1988, ch. 1409, \xc2\xa7 1, p. 4776 [Assem. Bill No. 4426].)4 An enrolled bill report from the\nDepartment of Real Estate states that \xe2\x80\x9c[m]embers of a homeowners\xe2\x80\x99 association \xe2\x80\xa6 should not\nforever be saddled with provisions they desire to change.\xe2\x80\x9d (Cal. Dept. of Real Estate, Enrolled Bill\nRep. on Assem. Bill No. 4426 (1987-1988 Reg. Sess.) Aug. 29, 1988, p. 1.) Significantly, the report\nrecommended approval of Assembly Bill No. 4426, despite acknowledging that current homeowners\nmay have relied on the restrictions in place at the time they made their purchase, stating: \xe2\x80\x9cThe failure\nto include a provision for amendment may indicate an intentional omission. Additionally, some\nchanges may provide for inconsistent uses which were not previously permissible. Many owners may\nhave acquired their interest in the subdivision because of such a restriction limiting use. To permit\nan amendment would affect their reasonable expectations.\xe2\x80\x9d (Enrolled Bill Rep. on Assem. Bill No.\n4426, supra, p. 2.) The Legislature was thus aware that amendments could affect settled or reasonable\nexpectations of some homeowners, but it did not limit the language of section 1355(b) to exempt\nthose homeowners from subdivision (b)\xe2\x80\x99s operation. Tellingly, nothing in the text of section 1355(b)\nindicates the Legislature intended only subsequent purchasers or homeowners who voted for an\namendment to be bound by a use restriction so enacted.\nSection 1355(b)\xe2\x80\x99s express language and the limited legislative history compel the conclusion\nthat all homeowners are bound by amendments made to a declaration pursuant to that section.\nAccordingly, we conclude that all homeowners are subject to use restrictions contained in amended\ndeclarations irrespective of when the amendment was passed.\nB.\nTo enforce the no-pet restriction in the Amended Declaration, the Association sought\ninjunctive relief under section 1354, subdivision (a) (hereafter section 1354(a)), which provides in\nrelevant part: \xe2\x80\x9cThe covenants and restrictions in the declaration shall be enforceable equitable\nservitudes, unless unreasonable.\xe2\x80\x9d5 Terifaj contends that even if subsequently enacted use restrictions\npromulgated pursuant to section 1355(b) and recorded after a homeowner has purchased property\nin the development are binding on those homeowners, equitable relief under section 1354(a) is\nnonetheless unavailable to the homeowners association to enforce such restrictions.\nEquitable relief, maintains Terifaj, may not be granted under section 1354(a) in this case\nbecause that section requires that a use restriction constitute an equitable servitude in order to be\nenforceable through injunctive relief.6 She cites our decision in Citizens for Covenant Compliance v.\nAnderson (1995) 12 Cal.4th 345, 47 Cal.Rptr.2d 898, 906 P.2d 1314 for the applicable California law\n373\n\n\x0con equitable servitudes, which she contends is incorporated in section 1354(a). She maintains the\nno-pet restriction in this case did not meet the requirements of equitable servitudes, in part, because\nit was not contained in a document recorded prior to her purchase of a unit in the development, and\nshe did not have notice of the restriction when she purchased the property.\nThe Association counters that section 1354(a) applies to all restrictions and covenants in the\ndevelopment\xe2\x80\x99s recorded declaration, original or amended, and relies primarily on the Court of\nAppeal\xe2\x80\x99s conclusion that section 1354(a) facially applies to any declaration. The Association\ncontends, and the Court of Appeal concluded, that use restrictions in amended declarations are\nequitable servitudes because section 1354(a) makes no distinction between restrictions contained in\nthe original declaration and those added to the declaration through amendment. We agree with the\nAssociation that section 1354(a) facially applies to all covenants and restrictions in the declaration,\nirrespective of when such covenants and restrictions were incorporated into the declaration.\nThe text of section 1354(a) belies Terifaj\xe2\x80\x99s contention that covenants and restrictions must\nmeet the common law requirements of equitable servitudes before they may be enforced against a\ncurrent homeowner. That section does not provide that covenants and restrictions are enforceable\nonly if they meet the common law requirements of equitable servitudes, but clearly provides that\ncovenants and restrictions in the declaration \xe2\x80\x9dshall be enforceable equitable servitudes, unless\nunreasonable\xe2\x80\x9d and shall bind all owners. (\xc2\xa7 1354(a), italics added.) This language could mean one of\ntwo things, both of which undermine Terifaj\xe2\x80\x99s contention. Such restrictions are deemed to be\nequitable servitudes notwithstanding their failure to meet the technical requirements of equitable\nservitudes; that is, the Legislature has made such restrictions enforceable equitable servitudes by\nvirtue of their inclusion in the declaration. Or, such restrictions may simply be enforceable in the same\nmanner as equitable servitudes, with equitable remedies available to the Association, including\ninjunctive relief. Either reading precludes the conclusion that the Legislature intended to incorporate\nthe technical requirements of equitable servitudes into the statute. This interpretation appears\ncompelled by the observation that accepting Terifaj\xe2\x80\x99s position would, in effect, nullify the\namendment provisions in the Davis-Stirling Act because homeowners could argue, as does Terifaj\nhere, that they did not have notice of the particular use restriction enacted pursuant to those\nprovisions. A homeowners association, thus, would be unable to seek injunctive relief to compel a\ncomplaining homeowner to comply with duly promulgated restrictions pursuant to section 1355(b).\nWe do not think the Legislature intended such an anomalous result.\nWe therefore agree with the Court of Appeal that section 1354(a) governs enforcement of an\namendment to a declaration because that section does not distinguish between an original and an\namended declaration. The Legislature, by using expansive language in section 1354(a), intended all\ncovenants and restrictions in the declaration to be enforceable against all homeowners under that\nprovision. Only if the covenant or restriction in question is unreasonable will it be unenforceable\nunder section 1354(a).\nAccordingly, we conclude that section 1354(a) applies to enforcement actions relating not\nonly to the covenants and restrictions in the original declaration, but also covenants and restrictions\nin any declaration.7 We are left then with the issue whether the deferential Nahrstedt standard of\npresumptive reasonableness applies to use restrictions adopted and recorded after a challenging\nhomeowner has purchased his or her individual interest.\nC.\nWe interpreted section 1354(a) in Nahrstedt, supra, 8 Cal.4th 361, 33 Cal.Rptr.2d 63, 878 P.2d\n374\n\n\x0c1275, and held, pursuant to principles distilled from various authorities and the text of section\n1354(a), that covenants and restrictions in recorded declarations of common interest developments\nare presumptively reasonable (Nahrstedt, supra, at p. 380, 33 Cal.Rptr.2d 63, 878 P.2d 1275), and are\nenforceable \xe2\x80\x9cunless they are wholly arbitrary, violate a fundamental public policy, or impose a\nburden on the use of affected land that far outweighs any benefit\xe2\x80\x9d (id. at p. 382, 33 Cal.Rptr.2d 63,\n878 P.2d 1275).\nIn articulating the judicial standard of review to be applied to such restrictions, we relied on\nthe language of section 1354(a) and noted that the prior version of section 1354(a) provided that\ncovenants and restrictions in recorded declarations \xe2\x80\x9c\xe2\x80\x98shall be enforceable equitable servitudes where\nreasonable\xe2\x80\x99\xe2\x80\x9d (Nahrstedt, supra, 8 Cal.4th at p. 380, 33 Cal.Rptr.2d 63, 878 P.2d 1275; former \xc2\xa7 1355\n[Stats.1963, ch. 860, \xc2\xa7 3, p. 2092]), and that the Legislature\xe2\x80\x99s use of the double negative \xe2\x80\x9cunless\nunreasonable\xe2\x80\x9d in the current version of the statute \xe2\x80\x9ccloaked use restrictions contained in a\ncondominium development\xe2\x80\x99s recorded declaration with a presumption of reasonableness by shifting\nthe burden of proving otherwise to the party challenging the use restriction.\xe2\x80\x9d (Nahrstedt, supra, 8\nCal.4th at p. 380, 33 Cal.Rptr.2d 63, 878 P.2d 1275.)\nThe Association contends Nahrstedt\xe2\x80\x99s deferential standard applies to subsequently adopted\nand recorded use restrictions incorporated into a development\xe2\x80\x99s declaration. Terifaj disagrees,\nemphasizing that our conclusion in Nahrstedt was based on the fact that the use restriction in that\ncase was contained in a declaration recorded prior to the homeowner\xe2\x80\x99s purchase, and relies on our\nreasoning that \xe2\x80\x9cgiving deference to use restrictions contained in a condominium project\xe2\x80\x99s originating\ndocuments protects the general expectations of condominium owners \xe2\x80\x98that restrictions in place at\nthe time they purchase their units will be enforceable.\xe2\x80\x99 (Note, Judicial Review of Condominium\nRulemaking [(1981)] 94 Harv. L.Rev. 647, 653; Ellickson, Cities and Homeowners\xe2\x80\x99 Associations (1982) 130\nU.Pa. L.Rev. 1519, 1526-1527 [stating that association members \xe2\x80\x98unanimously consent to the\nprovisions in the association\xe2\x80\x99s original documents\xe2\x80\x99 and courts therefore should not scrutinize such\ndocuments for \xe2\x80\x98reasonableness\xe2\x80\x99].)\xe2\x80\x9d (Nahrstedt, supra, 8 Cal.4th at p. 377, 33 Cal.Rptr.2d 63, 878 P.2d\n1275.)\nIn Nahrstedt, supra, 8 Cal.4th 361, 33 Cal.Rptr.2d 63, 878 P.2d 1275, the homeowner, who\nhad three indoor cats, sought to prevent the condominium homeowners association from enforcing\na no-pet restriction against her because, she contended, her cats did not make noise and were not a\nnuisance (id. at p. 367, 33 Cal.Rptr.2d 63, 878 P.2d 1275), and she had been unaware of the\nrestriction when she purchased her unit (id. at p. 369, 33 Cal.Rptr.2d 63, 878 P.2d 1275). Applying\nthe deferential standard, we held the no-pet restriction was enforceable because the homeowner\nfailed to meet the burden placed on her, as the party challenging the restriction, to show that the\nrestriction was \xe2\x80\x9cunreasonable.\xe2\x80\x9d (Id. at p. 389, 33 Cal.Rptr.2d 63, 878 P.2d 1275.)\nUnlike in this case, Nahrstedt involved a pet restriction contained in a development\xe2\x80\x99s\noriginating declaration that was recorded prior to the challenging homeowner\xe2\x80\x99s purchase, a fact we\nemphasized throughout our discussion. Because of that factual difference, much of reasoning in that\ndecision is not necessarily relevant to the resolution of this case. However, Nahrstedt does contain\nreasoning that arguably supports the conclusion that subsequently enacted and recorded use\nrestrictions should receive greater judicial scrutiny. We observed in Nahrstedt that other jurisdictions,\n\xe2\x80\x9clacking \xe2\x80\xa6 legislative guidance,\xe2\x80\x9d applied some form of reasonableness analysis to use restrictions in\ncommon interest developments. Significantly, we noted that some courts applied \xe2\x80\x9cthe\n\xe2\x80\x98reasonableness\xe2\x80\x99 standard only to those restrictions adopted by majority vote of the homeowners or\nenacted under the rulemaking power of an association\xe2\x80\x99s governing board, and would not apply this\ntest to restrictions included in a planned development project\xe2\x80\x99s recorded declaration or master\ndeed.\xe2\x80\x9d (Nahrstedt, supra, 8 Cal.4th at p. 376, 33 Cal.Rptr.2d 63, 878 P.2d 1275.)\nWe discussed, in particular, Hidden Harbour Estates v. Basso (Fla.Dist.Ct.App.1981) 393 So.2d\n375\n\n\x0c637 (Basso), in which a Florida appellate court delineated two categories of restrictions \xe2\x80\x93 those found\nin the development\xe2\x80\x99s declaration and those later promulgated by an association\xe2\x80\x99s board of directors.\nRestrictions found in the development\xe2\x80\x99s declaration are \xe2\x80\x9cclothed with a very strong presumption of\nvalidity which arises from the fact that each individual unit owner purchases his unit knowing of and\naccepting the restrictions to be imposed,\xe2\x80\x9d while restrictions in the second category are subjected to a\nreasonableness analysis. (Id. at pp. 639-640; Nahrstedt, supra, at pp. 376-377, 33 Cal.Rptr.2d 63, 878\nP.2d 1275.) Basso imposed a reasonableness analysis to rules promulgated by a board of directors or\ndecisions by the board denying a certain use when the decision falls within the board\xe2\x80\x99s authority,\nexplaining the reason for the more stringent standard is \xe2\x80\x9cto somewhat fetter the discretion of the\nboard of directors.\xe2\x80\x9d (Basso, supra, at p. 640.) While the Basso court spoke of restrictions in the\ndeclaration, without distinguishing the original declaration from restrictions subsequently adopted\nthrough amendment, the reference to \xe2\x80\x9ceach individual unit owner\xe2\x80\x9d purchasing with knowledge \xe2\x80\x9cof\nand accepting the restrictions to be imposed\xe2\x80\x9d (id. at p. 639), makes clear that the court was referring\nto the founding declaration or one in existence at the time of purchase.\nWe also discussed Noble v. Murphy (1993) 34 Mass.App.Ct. 452, 612 N.E.2d 266. In that case,\nthe original recorded bylaws of a condominium development incorporated the development\xe2\x80\x99s rules\nand regulations, which included a no-pet rule. (Id. at p. 270.) In the course of upholding the pet\nrestriction, which had been added to the recorded bylaws prior to the challenging homeowner\xe2\x80\x99s\npurchase of a unit, the court stated that \xe2\x80\x9c[a] condominium use restriction appearing in originating\ndocuments which predate the purchase of individual units may be subject to even more liberal\nreview than if promulgated after units have been individually acquired.\xe2\x80\x9d (Ibid.; Nahrstedt, supra, 8\nCal.4th at p. 377, 33 Cal.Rptr.2d 63, 878 P.2d 1275.)\nBased on this discussion and because we explained that our interpretation of section 1354(a)\nwas consistent with \xe2\x80\x9cjudicial decisions in other jurisdictions that have applied a presumption of\nvalidity to the recorded land use restrictions of a common interest development\xe2\x80\x9d (Nahrstedt, supra, 8\nCal.4th at p. 382, 33 Cal.Rptr.2d 63, 878 P.2d 1275, citing Noble and Basso), we have acknowledged\nthat \xe2\x80\x9csome of our reasoning arguably suggested a distinction between originating [covenants and\nrestrictions] and subsequently promulgated use restrictions.\xe2\x80\x9d (Lamden v. La Jolla Shores Clubdominium\nHomeowners Association (1999) 21 Cal.4th 249, 264, 87 Cal.Rptr.2d 237, 980 P.2d 940.) Our discussion\nof Basso and Noble suggests that we would not necessarily apply the same deferential standard to\nsubsequently enacted use restrictions. For the reasons that follow, however, we conclude that\nsubsequently promulgated and recorded use restrictions are entitled to the same judicial deference\naccorded covenants and restrictions in original declarations; that is, they are presumptively valid, and\nthe burden of proving otherwise rests upon the challenging homeowner.\nAlthough we discussed and seemingly approved of the distinction drawn in Basso between\nrestrictions in the original declaration and those subsequently adopted, we did not hold or state in\nNahrstedt that we were adopting such an approach. Instead we prefaced our discussion of Basso and\nNoble with the caveat that those decisions were from \xe2\x80\x9cstates lacking \xe2\x80\xa6 legislative guidance.\xe2\x80\x9d\n(Nahrstedt, supra, 8 Cal.4th at p. 376, 33 Cal.Rptr.2d 63, 878 P.2d 1275.) We, however, have been\nprovided guidance by our Legislature through the Davis-Stirling Act, and as the Court of Appeal\nobserved, the statutory language is \xe2\x80\x9ccontrolling.\xe2\x80\x9d Section 1354(a) unambiguously refers to the\n\xe2\x80\x9cdeclaration\xe2\x80\x9d and provides that the covenants and restrictions in the declaration are equitable\nservitudes that are enforceable unless unreasonable. It further provides that the covenants and\nrestrictions shall bind all owners of separate interests. (\xc2\xa7 1354(a).) We have previously construed the\nphrase \xe2\x80\x9cunless unreasonable\xe2\x80\x9d in section 1354(a) to mean that restrictions in a declaration are\nenforceable unless they are arbitrary, violate public policy, or impose a burden on the land that\noutweighs any benefits. (Nahrstedt, supra, 8 Cal.4th at p. 389, 33 Cal.Rptr.2d 63, 878 P.2d 1275.) This\ninterpretation was governed by the Legislature\xe2\x80\x99s use of the double negative \xe2\x80\x9cunless unreasonable\xe2\x80\x9d in\n376\n\n\x0cplace of the previous phrase \xe2\x80\x9cwhere reasonable.\xe2\x80\x9d (Id. at p. 380, 33 Cal.Rptr.2d 63, 878 P.2d 1275.)\nWhile our interpretation was consistent with Basso, Basso was not the primary basis for our\nholding \xe2\x80\x93 the statutory language was. As we concluded, \xe2\x80\x9c[i]n section 1354, the Legislature has\nspecifically addressed the subject of the enforcement of use restrictions that, like the one in this case\nprohibiting the keeping of certain animals, are recorded in the declaration of a condominium or\nother common interest development. The Legislature has mandated judicial enforcement of those\nrestrictions unless they are shown to be unreasonable when applied to the development as a whole.\xe2\x80\x9d\n(Nahrstedt, supra, 8 Cal.4th at pp. 388-389, 33 Cal.Rptr.2d 63, 878 P.2d 1275, italics added.)\nNor did Nahrstedt imply that we would apply a more stringent standard, such as objective\nreasonableness, to restrictions in recorded amended declarations, as opposed to unrecorded use\nrestrictions promulgated by a board of directors of a homeowners association or other unrecorded\nrules and regulations. (E.g., Lamden v. La Jolla Shores Clubdominium Homeowners Association, supra, 21\nCal.4th at p. 264, 87 Cal.Rptr.2d 237, 980 P.2d 940; Rancho Santa Fe Association v. Dolan-King (2004)\n115 Cal.App.4th 28, 38 & fn. 2, 8 Cal.Rptr.3d 614.)\nMoreover, there is no language in section 1355(b) that indicates a different standard for\nenforcing its provisions should, or may, apply. (California Fed. Savings & Loan Assn. v. City of Los\nAngeles (1995) 11 Cal.4th 342, 349, 45 Cal.Rptr.2d 279, 902 P.2d 297 [\xe2\x80\x9cIt is our task to construe, not\nto amend, the statute.\xe2\x80\x9d].) Once the declaration is amended and recorded, section 1354(a) governs its\nenforcement, and hence, amendments are enforceable unless unreasonable. Had the Legislature\nintended a different standard to apply to subsequently adopted and recorded use restrictions than\napplies to restrictions in the original declaration, it would have so provided.\n\xe2\x80\xa6.\nD.\nApplying the deferential Nahrstedt standard of review to the Amended Declaration in this\ncase, we hold, as we did in Nahrstedt, that the recorded restriction prohibiting pets is not\nunreasonable as a matter of law.8 Terifaj, however, contends that a subsequent amendment to the\nDavis-Stirling Act, providing in relevant part that \xe2\x80\x9cno governing documents shall prohibit the owner\nof a separate interest \xe2\x80\xa6 from keeping at least one pet\xe2\x80\x9d (\xc2\xa7 1360.5, added by Stats.2000, ch. 551, \xc2\xa7 2\n[Assem. Bill No. 860]), calls into question Nahrstedt\xe2\x80\x99s ultimate holding that the no-pet restriction in\nthat case was not unreasonable. Section 1360.5, however, does not aid Terifaj. As the Court of\nAppeal observed, subdivision (e) of section 1360.5 clearly provides that its provisions \xe2\x80\x9cshall only\napply to governing documents entered into, amended, or otherwise modified on or after [January 1,\n2001].\xe2\x80\x9d The Declaration in this case was amended and recorded in January 2000, a year prior to\nsection 1360.5\xe2\x80\x99s operative date. To allow section 1360.5 to undermine Nahrstedt\xe2\x80\x99s holding in this case\nwould essentially render section 1360.5\xe2\x80\x99s operative date meaningless. Any homeowner could\nchallenge a recorded no-pet restriction on the basis of section 1360.5 without regard to its effective\ndate.\nMoreover, the fact that the Legislature has passed section 1360.5 does not undermine our\nconclusion in Nahrstedt that a restriction prohibiting pets may be reasonable. By enacting section\n1360.5, the Legislature did not declare that prohibiting pets is unreasonable, but merely\ndemonstrated a legislative preference for allowing homeowners in common interest developments to\nkeep at least one pet. As we observed in Nahrstedt, prohibiting pets is \xe2\x80\x9crationally related to health,\nsanitation and noise concerns legitimately held by residents\xe2\x80\x9d of common interest developments.\n(Nahrstedt, supra, 8 Cal.4th at p. 386, 33 Cal.Rptr.2d 63, 878 P.2d 1275.) While Nahrstedt involved a\n377\n\n\x0c\xe2\x80\x9chigh-density\xe2\x80\x9d project, the concerns expressed in that case apply equally to the present case, which\ninvolves a smaller development. Therefore, nothing in section 1360.5 undermines Nahrstedt\xe2\x80\x99s holding\nthat a no-pet restriction may be reasonable given the characteristics of common interest\ndevelopments such as condominium projects.\n\xe2\x80\xa6.\nAlthough Villa De Las Palmas was created prior to the enactment of the Davis-Stirling Act,\nthe Act applies to common interest developments in existence prior to its enactment. (\xc2\xa7 1352;\nNahrstedt, supra, 8 Cal.4th at p. 378, fn. 8, 33 Cal.Rptr.2d 63, 878 P.2d 1275.) \xe2\x86\xa9\nIn addition to section 1355(b), the Davis-Stirling Act provides several methods for\namending the declaration. Section 1355, subdivision (a), provides that a declaration may be amended\npursuant to its own amendment provisions or pursuant to other provisions of the Act; section 1356\nallows a homeowners association to petition the court for approval of an amendment if the\ndeclaration provides for a larger majority than the association is able to muster, provided at least 50\npercent of the owners vote in favor of the proposed amendment; section 1355.5 provides for the\ndeletion of certain developer-oriented provisions; section 1357 provides for the extension of a\ntermination date set forth in a declaration. \xe2\x86\xa9\nSection 1355(b) provides in full: \xe2\x80\x9cExcept to the extent that a declaration provides by its\nexpress terms that it is not amendable, in whole or in part, a declaration which fails to include\nprovisions permitting its amendment at all times during its existence may be amended at any time.\nFor purposes of this subdivision, an amendment is only effective after (1) the proposed amendment\nhas been distributed to all of the owners of separate interests in the common interest development\nby first-class mail postage prepaid or personal delivery not less than 15 days and not more than 60\ndays prior to any approval being solicited; (2) the approval of owners representing more than 50\npercent, or any higher percentage required by the declaration for the approval of an amendment to\nthe declaration, of the separate interests in the common interest development has been given, and\nthat fact has been certified in a writing, executed and acknowledged by an officer of the association;\nand (3) the amendment has been recorded in each county in which a portion of the common interest\ndevelopment is located. A copy of any amendment adopted pursuant to this subdivision shall be\ndistributed by first-class mail postage prepaid or personal delivery to all of the owners of separate\ninterest immediately upon its recordation.\xe2\x80\x9d \xe2\x86\xa9\nSection 1355(b) initially contained a sunset provision with a termination date of January 1,\n1990. In 1993, the Legislature amended the subdivision by deleting the sunset provision. (\xc2\xa7 1355(b),\nas amended by Stats.1993, ch. 21, \xc2\xa7 1, pp. 134-135.) Section 1355(b), therefore, was inoperative\nbetween January 1, 1990 and January 1, 1994. \xe2\x86\xa9\nIn full, section 1354(a), provides: \xe2\x80\x9cThe covenants and restrictions in the declaration shall be\nenforceable equitable servitudes, unless unreasonable, and shall inure to the benefit of and bind all\nowners of separate interests in the development. Unless the declaration states otherwise, these\nservitudes may be enforced by any owner of a separate interest or by the association, or by both.\xe2\x80\x9d \xe2\x86\xa9\nSection 1354(a) is found in article 2 of the Davis-Stirling Act, which is entitled\n\xe2\x80\x9cEnforcement.\xe2\x80\x9d \xe2\x86\xa9\nBecause the Association amended the Declaration pursuant to section 1355(b) and filed an\namended complaint based on the newly enacted and recorded no-pet restriction, we need not decide\nin this case whether the Association would have been entitled to equitable relief based on Terifaj\xe2\x80\x99s\nviolation of the unrecorded no-pet rule passed pursuant to the 1962 Declaration. \xe2\x86\xa9\nWe do not quarrel with Terifaj about the benefits of pet ownership, but that is not the issue\nin this case. The primary issue in this case is whether subsequently enacted and recorded use\nrestrictions may be enforced against a current homeowner. \xe2\x86\xa9\n378\n\n\x0c379\n\n\x0cNewman v. Grandview at Emerald Hills, Inc.,\n861 So. 2d 494 (Fl. Dist. Ct. App. 2003).\n\nUsher Bryn, Aventura, for appellants.\nGeoffrey B. Marks of Billbrough & Marks, P.A., Coral Gables, for appellee.\nWarner, J.\nWe deny the motion for rehearing, withdraw our previously issued opinion, and substitute\nthe following in its place.\nThe issue presented in this case is whether a condominium association rule banning the\nholding of religious services in the auditorium of the condominium constitutes a violation of section\n718.123, Florida Statutes (2002), which precludes condominium rules from unreasonably restricting\na unit owner\xe2\x80\x99s right to peaceably assemble. We hold that the rule does not violate the statute and\naffirm.\nAppellee Grandview is a condominium association with 442 members, appellants being two\nof the members. Appellants reside at Grandview condominium during the winter months. The\ncommon elements of the condominium include an auditorium that members can reserve for social\ngatherings and meetings. Grandview enacted a rule governing the use of the auditorium in 1982,\nwhich provided that the auditorium could be used for meetings or functions of groups, including\nreligious groups, when at least eighty percent of the members were residents of Grandview\ncondominium. Generally, the only reservations made for the auditorium on Saturdays were by\nindividual members for birthday or anniversary celebrations.\nIn January 2001, several unit owners reserved the auditorium between 8:30 and noon on\nSaturday mornings. While they indicated they were reserving it for a party, they actually conducted\nreligious services. Approximately forty condominium members gathered for the services.\nUpon discovering that religious services were being conducted on Saturdays in the\nauditorium, several other members complained to the Board of Directors (\xe2\x80\x9cBoard\xe2\x80\x9d). The Board met\nin February to discuss restrictions on the use of the auditorium and common elements for religious\nservices and activities. The meeting became very confrontational between those members\nsupporting the use of the auditorium for religious services and those opposing such use. Based upon\nthe controversial nature of the issue, the Board\xe2\x80\x99s desire not to have a common element tied up for\nthe exclusive use of a minority of the members on a regular basis, and to avoid conflicts between\ndifferent religious groups competing for the space, the Board first submitted the issue to a vote of\nthe owners. Seventy percent of the owners voted in favor of prohibiting the holding of religious\nservices in the auditorium. The Board then voted unanimously to amend the rule governing the use\nof the auditorium. The new rule provided that \xe2\x80\x9c[n]o religious services or activities of any kind are\nallowed in the auditorium or any other common elements.\xe2\x80\x9d\nAppellants filed suit against Grandview seeking injunctive and declaratory relief to determine\nwhether the rule violated their constitutional rights or was in violation of section 718.123, and\nwhether the rule was arbitrarily and capriciously enacted by the Board. Grandview answered,\ndenying that the rule was arbitrary or violated appellants\xe2\x80\x99 statutory or constitutional rights.\nAppellants moved for a temporary injunction alleging that Grandview was not only preventing the\nowners from holding religious services, it was also prohibiting the use of the auditorium for holiday\nparties, including Christmas and Chanukah, based upon its prohibition against using the common\n380\n\n\x0celements \xe2\x80\x9cfor religious activities of any kind.\xe2\x80\x9d The court granted the motion as to the use of the\nauditorium for religious activities of any kind but denied it as it applied to the holding of religious\nservices. Based upon the temporary injunction as to religious activities, Grandview amended its rule\nto limit the prohibition to the holding of religious services in the auditorium.\nAt a hearing on appellants\xe2\x80\x99 motion for a permanent injunction against the rule, the appellants\nrelied primarily on section 718.123, which prohibits condominium associations from unreasonably\nrestricting the unit owners\xe2\x80\x99 rights to peaceable assembly. They argued that religious services fell into\nthe category of a \xe2\x80\x9cpeaceable assembly,\xe2\x80\x9d and a categorical ban on the holding of religious services\nwas per se unreasonable. Grandview maintained that it had the right to restrict the use of its\ncommon elements. Because the right of peaceable assembly did not mandate a right to conduct\nreligious services, it had the right to poll its members and restrict the use based upon the majority\xe2\x80\x99s\ndesires. As such, Grandview maintained the exercise of this right was reasonable.\nIn its final order denying the injunction, the court determined that because no state action\nwas involved, the unit owners\xe2\x80\x99 constitutional rights of freedom of speech and religion were not\nimplicated by Grandview\xe2\x80\x99s rule. The court determined that the rule did not violate section 718.123,\nas the condominium association had the authority to enact this reasonable restriction on the use of\nthe auditorium. Appellants challenge that ruling.\nChapter 718, Florida\xe2\x80\x99s \xe2\x80\x9cCondominium Act,\xe2\x80\x9d recognizes the condominium form of property\nownership and \xe2\x80\x9cestablishes a detailed scheme for the creation, sale, and operation of\ncondominiums.\xe2\x80\x9d Woodside Vill. Condo. Ass\xe2\x80\x99n v. Jahren, 806 So.2d 452, 455 (Fla.2002). Thus,\ncondominiums are strictly creatures of statute. See id. The declaration of condominium, which is the\ncondominium\xe2\x80\x99s \xe2\x80\x9cconstitution,\xe2\x80\x9d creates the condominium and \xe2\x80\x9cstrictly governs the relationships\namong the condominium units owners and the condominium association.\xe2\x80\x9d Id. at 456. Under the\ndeclaration, the Board of the condominium association has broad authority to enact rules for the\nbenefit of the community. See id.\nIn Hidden Harbour Estates, Inc. v. Norman, 309 So.2d 180, 181-82 (Fla. 4th DCA 1975), this\ncourt explained the unique character of condominium living which, for the good of the majority,\nrestricts rights residents would otherwise have were they living in a private separate residence:\nIt appears to us that inherent in the condominium concept is the principle that to promote\nthe health, happiness, and peace of mind of the majority of the unit owners since they are living in\nsuch close proximity and using facilities in common, each unit owner must give up a certain degree\nof freedom of choice which he might otherwise enjoy in separate, privately owned property.\nCondominium unit owners comprise a little democratic sub society of necessity more restrictive as it\npertains to use of condominium property than may be existent outside the condominium\norganization.\nSection 718.123(1) recognizes the right of the condominium association to regulate the use\nof the common elements of the condominium:\nAll common elements, common areas, and recreational facilities serving any condominium\nshall be available to unit owners in the condominium or condominiums served thereby and their\ninvited guests for the use intended for such common elements, common areas, and recreational\nfacilities, subject to the provisions of s. 718.106(4). The entity or entities responsible for the\noperation of the common elements, common areas, and recreational facilities may adopt reasonable\nrules and regulations pertaining to the use of such common elements, common areas, and\nrecreational facilities. No entity or entities shall unreasonably restrict any unit owner\xe2\x80\x99s right to\npeaceably assemble or right to invite public officers or candidates for public office to appear and\nspeak in common elements, common areas, and recreational facilities.\n(Emphasis added).\nThe statutory test for rules regarding the operation of the common elements of the\n381\n\n\x0ccondominium is reasonableness. The trial court found the rule preventing use of the auditorium for\nreligious services was reasonable in light of the Board\xe2\x80\x99s concern for a serious potential for conflict of\nuse which could arise among competing religious groups. Having polled the members and\ndetermined that a majority of the members approved the ban, the Board\xe2\x80\x99s rule assured that the\nauditorium was \xe2\x80\x9cavailable to unit owners in the condominium or condominiums served thereby and\ntheir invited guests for the use intended\xe2\x80\x9d in accordance with the statute. s 718.123(1).\nThe appellants\xe2\x80\x99 main argument both at trial and on appeal suggests that because the statute\nmandates that the Board may not \xe2\x80\x9cunreasonably restrict any unit owner\xe2\x80\x99s right to peaceably\nassemble,\xe2\x80\x9ds 718.123(1), a categorical prohibition of all religious services exceeds the Board\xe2\x80\x99s powers,\nas the right to meet in religious worship would constitute the right to peaceably assemble. However,\nthe right to peaceably assemble has traditionally been interpreted to apply to the right of the citizens\nto meet to discuss public or governmental affairs. See United States v. Cruikshank, 92 U.S. 542, 551-52,\n23 L.Ed. 588 (1875). Assuming for purposes of this argument that the right to gather for religious\nworship is a form of peaceable assembly, the rule in question bans this particular form of assembly,\nbut not all right to assemble. Certainly, a categorical ban on the right of members to use the\nauditorium for any gathering would be contrary to statute. However, the statute itself permits the\nreasonable regulation of that right. Prohibiting those types of assembly which will have a particularly\ndivisive effect on the condominium community is a reasonable restriction. See Hidden Harbour, 309\nSo.2d at 181-82. The Board found that permitting the holding of regular worship services and the\ncompetition among various religious groups for use of the auditorium would pose such conflict.\nWhere the condominium association\xe2\x80\x99s regulations regarding common elements are reasonable and\nnot violative of specific statutory limitations, the regulations should be upheld. See Juno By the Sea N.\nCondo. Ass\xe2\x80\x99n v. Manfredonia, 397 So.2d 297, 302 (Fla. 4th DCA 1980). The trial court found the\nrestriction reasonable under the facts. No abuse of discretion has been shown.\nThe judgment of the trial court is affirmed.\nStone and Stevenson, JJ., concur.\nPaula A. Franzese, Privatization and Its Discontents: Common Interest Communities and the\nRise of Government for \xe2\x80\x9cThe Nice\xe2\x80\x9d, Urban Lawyer, Summer, 2005:\nAbstract: This article explores the phenomenon of privatization, or the shift from\ngovernment provision of services to provision by the private sector, in the context of privatized\nneighborhoods. The proliferation of gated and walled communities, together with the significant rise\nof homeowners associations, contribute to patterns of homogeneity, conformity and exclusion that\ncan yield dangerous consequences. Cultures of litigiousness, fear of the \xe2\x80\x9cother,\xe2\x80\x9d civic alienation and\nresident dissatisfaction are among the by-products of these common interest communities\xe2\x80\x99 zealous\npursuit of \xe2\x80\x9cthe nice\xe2\x80\x9d place to live.\nDownload at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=871289.\nJulian Emerson, Housing complex owners vote to ban smoking, Leader Telegram (Eau Claire,\nWisconsin, July 19, 2009)\nIt\xe2\x80\x99s not just indoor public places in Eau Claire where lighting up is prohibited. Now residents\nof a south side, owner-occupied housing complex will have to snuff out smoking in their homes, the\nmost recent sign of public anti-smoking sentiment.\nMembers of the Fairfax Parkside Homeowners Association on Wednesday voted to outlaw\n382\n\n\x0csmoking inside residences that are part of the 34-unit development. The ban also prohibits smoking\nin shared spaces, such as porches and garages, but does allow it in yards and on patios.\nOf the 19 association members who voted on the issue, 15 favored the anti-smoking\nregulation proposed by association President Dave Hanvelt, while four argued that residents should\nbe allowed to smoke in their homes.\n\xe2\x80\x9cThis doesn\xe2\x80\x99t restrict a smoker from living here,\xe2\x80\x9d Hanvelt said of the smoking prohibition.\n\xe2\x80\x9cIt just means that there are restrictions on where they can smoke.\xe2\x80\x9d\nFairfax Parkside is believed to be the first Eau Claire development in which homeowners\naren\xe2\x80\x99t allowed to light up indoors.\n\xe2\x80\x9dI\xe2\x80\x99m not aware of any other instances where that is the case,\xe2\x80\x9d said Julie Marlette, coordinator\nof the Tobacco Free Partnership of Eau Claire County.\nThe adoption of the indoor anti-smoking rule likely won\xe2\x80\x99t impact many Fairfax Parkside\nhomeowners, as Hanvelt said he doesn\xe2\x80\x99t know of any smokers in the development. But it does\nrestrict future homeowners there from smoking, and visitors also won\xe2\x80\x99t be allowed to smoke inside.\n\xe2\x80\x9cYou don\xe2\x80\x99t want to have to worry about your nonsmoking neighbor moving out and a\nsmoker moving in,\xe2\x80\x9d he said.\nHanvelt proposed the regulation earlier this year because homeowners in the development\nown twin homes, or each side of a duplex-style home. Because of their close proximity, smoke from\none unit could flow into the one next door.\n\xe2\x80\x9cIf we all lived in separate units, this wouldn\xe2\x80\x99t have been necessary,\xe2\x80\x9d Hanvelt said, noting\nhomeowners association members made sure to allow outdoor smoking so as to not be too\nrestrictive.\nThe Fairfax Parkside regulation marks an extension of nonsmoking rules from public places\nto private residences. Last year the Eau Claire City Council approved a controversial ban on\nsmoking in indoor public places, including taverns.\nThe issue prompted heated response from people on both sides of the issue, and opponents\nwere concerned that the ban could open the door to prohibitions on smoking in people\xe2\x80\x99s homes.\nWord of the smoking restriction enacted at Fairfax Parkside has some people fuming.\n\xe2\x80\x9cWe worried that this might happen, and now it appears that it has,\xe2\x80\x9d said Sally Jo Birtzer, a\nnonsmoker who is president of the Eau Claire City-County Tavern League and general manager of\nWagner\xe2\x80\x99s Lanes. \xe2\x80\x9cAs long as tobacco is a legal product, people should be allowed to smoke it in\ntheir own homes.\xe2\x80\x9d\nWhile preventing smoking in privately owned homes is unusual, prohibiting the practice in\nrental residences isn\xe2\x80\x99t unheard of in Eau Claire and elsewhere. Some landlords don\xe2\x80\x99t allow renters to\nsmoke indoors in an effort to keep those living quarters cleaner and to reduce the chances of a\nhouse fire.\nStomping out smoking in multifamily rental units is a growing trend in other parts of the\nU.S., Marlette said.\n\xe2\x80\x9cI think people are recognizing the exposure that is occurring to secondhand smoke in\nmultiunit housing,\xe2\x80\x9d she said. \xe2\x80\x9cIt is definitely a bona fide health issue, and I think we\xe2\x80\x99re going to see\nmore requests for those units to go smoke free.\xe2\x80\x9d\nDave FitzGerald, one of the Fairfax Parkside developers who also lives there, initially\nquestioned whether the nonsmoking measure would hinder future sales in an already tough housing\nmarket. But FitzGerald, a nonsmoker, said the anti-smoking rule could attract buyers too, especially\ngiven that nearly four of every five people don\xe2\x80\x99t smoke.\n\xe2\x80\x9cCould we lose a sale to somebody who is a smoker? Certainly,\xe2\x80\x9d FitzGerald said. \xe2\x80\x9cBut I\nthink there is a better chance of having somebody be willing to live here because there isn\xe2\x80\x99t any\nsmoking.\xe2\x80\x9d\n383\n\n\x0cHanvelt knows firsthand the frustrations of living next to a smoker in a shared-space\nresidence. He previously spent thousands of dollars at a former residence retrofitting his unit to\nprevent cigarette smoke from a next-door neighbor from making its way to his home, but the effort\nproved unsuccessful, he said.\nNow he looks forward to living in a smoke-free environment.\n\xe2\x80\x9cWe adopted this for our own safety and health,\xe2\x80\x9d Hanvelt said. \xe2\x80\x9cThis is a very nice place to\nlive, and we want to keep it that way.\xe2\x80\x9d\n\n384\n\n\x0cPaula A. Franzese, Privatization and Its Discontents: Common Interest Communities and the\nRise of Government for \xe2\x80\x9cThe Nice\xe2\x80\x9d, Urban Lawyer, Summer, 2005:\n\nAbstract: This article explores the phenomenon of privatization, or the shift from\ngovernment provision of services to provision by the private sector, in the context of privatized\nneighborhoods. The proliferation of gated and walled communities, together with the significant rise\nof homeowners associations, contribute to patterns of homogeneity, conformity and exclusion that\ncan yield dangerous consequences. Cultures of litigiousness, fear of the \xe2\x80\x9cother,\xe2\x80\x9d civic alienation and\nresident dissatisfaction are among the by-products of these common interest communities\xe2\x80\x99 zealous\npursuit of \xe2\x80\x9cthe nice\xe2\x80\x9d place to live.\nDownload at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=871289.\nJulian Emerson, Housing complex owners vote to ban smoking, Leader Telegram (Eau Claire,\nWisconsin, July 19, 2009)\nIt\xe2\x80\x99s not just indoor public places in Eau Claire where lighting up is prohibited. Now residents\nof a south side, owner-occupied housing complex will have to snuff out smoking in their homes, the\nmost recent sign of public anti-smoking sentiment.\nMembers of the Fairfax Parkside Homeowners Association on Wednesday voted to outlaw\nsmoking inside residences that are part of the 34-unit development. The ban also prohibits smoking\nin shared spaces, such as porches and garages, but does allow it in yards and on patios.\nOf the 19 association members who voted on the issue, 15 favored the anti-smoking\nregulation proposed by association President Dave Hanvelt, while four argued that residents should\nbe allowed to smoke in their homes.\n\xe2\x80\x9cThis doesn\xe2\x80\x99t restrict a smoker from living here,\xe2\x80\x9d Hanvelt said of the smoking prohibition.\n\xe2\x80\x9cIt just means that there are restrictions on where they can smoke.\xe2\x80\x9d\nFairfax Parkside is believed to be the first Eau Claire development in which homeowners\naren\xe2\x80\x99t allowed to light up indoors.\n\xe2\x80\x9dI\xe2\x80\x99m not aware of any other instances where that is the case,\xe2\x80\x9d said Julie Marlette, coordinator\nof the Tobacco Free Partnership of Eau Claire County.\nThe adoption of the indoor anti-smoking rule likely won\xe2\x80\x99t impact many Fairfax Parkside\nhomeowners, as Hanvelt said he doesn\xe2\x80\x99t know of any smokers in the development. But it does\nrestrict future homeowners there from smoking, and visitors also won\xe2\x80\x99t be allowed to smoke inside.\n\xe2\x80\x9cYou don\xe2\x80\x99t want to have to worry about your nonsmoking neighbor moving out and a\nsmoker moving in,\xe2\x80\x9d he said.\nHanvelt proposed the regulation earlier this year because homeowners in the development\nown twin homes, or each side of a duplex-style home. Because of their close proximity, smoke from\none unit could flow into the one next door.\n\xe2\x80\x9cIf we all lived in separate units, this wouldn\xe2\x80\x99t have been necessary,\xe2\x80\x9d Hanvelt said, noting\nhomeowners association members made sure to allow outdoor smoking so as to not be too\nrestrictive.\nThe Fairfax Parkside regulation marks an extension of nonsmoking rules from public places\nto private residences. Last year the Eau Claire City Council approved a controversial ban on\nsmoking in indoor public places, including taverns.\nThe issue prompted heated response from people on both sides of the issue, and opponents\nwere concerned that the ban could open the door to prohibitions on smoking in people\xe2\x80\x99s homes.\nWord of the smoking restriction enacted at Fairfax Parkside has some people fuming.\n385\n\n\x0c\xe2\x80\x9cWe worried that this might happen, and now it appears that it has,\xe2\x80\x9d said Sally Jo Birtzer, a\nnonsmoker who is president of the Eau Claire City-County Tavern League and general manager of\nWagner\xe2\x80\x99s Lanes. \xe2\x80\x9cAs long as tobacco is a legal product, people should be allowed to smoke it in\ntheir own homes.\xe2\x80\x9d\nWhile preventing smoking in privately owned homes is unusual, prohibiting the practice in\nrental residences isn\xe2\x80\x99t unheard of in Eau Claire and elsewhere. Some landlords don\xe2\x80\x99t allow renters to\nsmoke indoors in an effort to keep those living quarters cleaner and to reduce the chances of a\nhouse fire.\nStomping out smoking in multifamily rental units is a growing trend in other parts of the\nU.S., Marlette said.\n\xe2\x80\x9cI think people are recognizing the exposure that is occurring to secondhand smoke in\nmultiunit housing,\xe2\x80\x9d she said. \xe2\x80\x9cIt is definitely a bona fide health issue, and I think we\xe2\x80\x99re going to see\nmore requests for those units to go smoke free.\xe2\x80\x9d\nDave FitzGerald, one of the Fairfax Parkside developers who also lives there, initially\nquestioned whether the nonsmoking measure would hinder future sales in an already tough housing\nmarket. But FitzGerald, a nonsmoker, said the anti-smoking rule could attract buyers too, especially\ngiven that nearly four of every five people don\xe2\x80\x99t smoke.\n\xe2\x80\x9cCould we lose a sale to somebody who is a smoker? Certainly,\xe2\x80\x9d FitzGerald said. \xe2\x80\x9cBut I\nthink there is a better chance of having somebody be willing to live here because there isn\xe2\x80\x99t any\nsmoking.\xe2\x80\x9d\nHanvelt knows firsthand the frustrations of living next to a smoker in a shared-space\nresidence. He previously spent thousands of dollars at a former residence retrofitting his unit to\nprevent cigarette smoke from a next-door neighbor from making its way to his home, but the effort\nproved unsuccessful, he said.\nNow he looks forward to living in a smoke-free environment.\n\xe2\x80\x9cWe adopted this for our own safety and health,\xe2\x80\x9d Hanvelt said. \xe2\x80\x9cThis is a very nice place to\nlive, and we want to keep it that way.\xe2\x80\x9d\nFrom Eduardo M. Pe\xc3\xb1alver, Property as Entrance , 91 Va. L. Rev. 1889, 1967 (2005).\nB. Common-Interest Communities\nA related question, one that has been frequently debated among property scholars, is the\ndegree to which private groups should be allowed to use the property system to govern themselves\naccording to their own values and priorities. Several scholars have argued that courts should\ndetermine the level of deference to afford the community\'s own private ordering by asking how\nvoluntarily the members acted in subjecting themselves to a particular set of community rules or\nhow easy it is for them to exit from the community\'s jurisdiction. This view is fully consistent with\nthe notion of property as exit.\nIn another context, however, Abner Greene has proposed a different axis for determining\nthe degree to which society should defer to a group\'s private ordering. He argues that communities\nthat have physically separated themselves from the broader society should be entitled to greater\ndiscretion in regulating their internal affairs. The greater the degree of separation achieved by a\ncommunity, Greene argues, the more entitled it is to structure its own affairs. Property as entrance\nsupports Greene\'s focus on the degree to which the community has chosen to physically separate\nitself from mainstream society as a particularly salient factor in determining its entitlement to live\naccording to its own rules.\n386\n\n\x0cIn an article on the law of common-interest communities, Clayton Gillette expresses\npuzzlement that progressive scholars like Greene appear to be more sympathetic to claims of\nautonomy made by radical religious separatists than they are to similar claims made by mainstream\nresidential associations and other common-interest communities:\n[B]oth liberals and communitarians seem to be tolerant of highly distinct subcultures. For\nthe liberal who values individual choice, as for the communitarian who purports not to select among\nvisions of the good, it seems odd to afford substantial protection to communities furthest from the\nmajority culture while affording little protection to those only marginally different from the majority.\nThere seems something anomalous about arguing for protection of groups such as orthodox Jews or\nthe Amish when their cultures conflict with majoritarian norms while opposing similar license for\nthose who seek residence in artificially pastoral settings free from technologies that they deem\nunsightly or who live in such fear of crime that they literally wall themselves off from the outside\nworld.\nGillette goes on to suggest that the deference to separatist groups might stem from a\nconcern with discrimination against insular communities.\nViewing property as entrance helps to solve Gillette\'s puzzle without resort to explanations\nbased on concerns about discrimination. Separatist groups should be given more power to structure\ntheir own affairs because, as a result of their isolation from broader societal norms, they are far\nbetter positioned than individuals or most mainstream common-interest communities to take\nadvantage of property\'s autonomy-enhancing functions. Moreover, separatist intentional\ncommunities provide a useful service in substantially broadening the range of lifestyles available to\nmembers of the mainstream. Finally, separatist groups have far more to lose than the individual\nfrom the intrusion of outside values.\nA group that has gone to the trouble to separate itself from society to live according to its\nown system of beliefs has an exceptionally strong commitment to that worldview. As Laurence\nVeysey puts it, "[t]he hallmark of \'strong\' belief is the attempt to put one\'s ideas into daily practice."\nAccordingly, in the typical case, applying outside rules to such a group will harm that group\nsubstantially more than will applying those rules to an individual who merely expresses a strong\ndesire to be governed by his own set of beliefs without having taken the trouble to join (or found) a\ncommunity that lives according to those beliefs.\nIn contrast to separatist intentional communities, which are united by an all-encompassing\nset of commitments, the typical homeowners\' association is an agglomeration of individual property\nowners who have come together (or, more commonly, whom a developer has brought together) for\nthe principal purpose of protecting the property values of each of the individual community\nmembers. Their overriding concern with the preservation of property\'s market values leads one\ncommon-interest community to look and act very much like another. Moreover, common-interestcommunity rules typically avoid taking a position on contentious political or social questions not\ndirectly related to the preservation of property values. Most common-interest communities are\ntherefore not mechanisms for escaping from mainstream culture; they are mainstream culture.\nIndeed, in many parts of the country, virtually all new housing is constructed in the commoninterest-community form.\nMost common-interest communities make no effort to separate their residents in any\nmeaningful sense from the values of the broader society. That is, residents of common-interest\ncommunities typically earn their living outside of their residential community, watch television, go to\nmovies, and otherwise immerse themselves in mainstream culture. In contrast, the residents of\nseparatist intentional communities typically make every effort to separate themselves from the\nmainstream. They rarely work outside of their communities, and they often shun the instruments of\nmass culture. Quebec\'s Hasidic Jewish community, for example, forbids its members to listen to the\n387\n\n\x0cradio, watch television, listen to records or cassettes, go to the cinema, or read unapproved\nmagazines, newspapers, or books. And ten percent of the men work in jobs outside of the\ncommunity. The Amish make similar efforts to protect themselves from exposure to outside\ninfluence. As Kraybill puts it:\nSeparation from the world is a cardinal tenet of Amish faith. . . . The struggle to be a\nseparate people is translated into many areas of life--dress, transportation, marriage to outsiders, the\nuse of mass media, membership in public organizations, and public office holding, to name a few.\nBecause common-interest communities and their residents are typically so firmly embedded\nin the mainstream, granting them autonomy generates fewer of the liberty-securing benefits that\naccrue from allowing separatist dissenting groups to govern themselves. Residents\' frequent\ninteraction with non-residents means that they will be subject to the conformity-inducing social\nnorms operative in the larger community. In addition, common-interest communities do less than\nradical separatists to enhance normative diversity.\nFinally, imposing mainstream norms on most common-interest communities would be\nunlikely to harm the community to the degree that would result from applying those norms to true\nopt-out communities. Because common-interest-community residents are for the most part\ncommitted to the same sorts of values that operate outside of the particular residential enclave,\nreviewing common-interest-community rules for "reasonableness" in light of those values is unlikely\nto trample on deeply held beliefs of the common-interest-community residents. The intrusiveness of\nsuch reasonableness review of common-interest-community rulemaking would be further mitigated\nand the goals of fostering normative diversity enhanced if, as is sometimes the case, courts\nunderstand "reasonableness" in light of the particular community\'s own stated goals.\n(footnotes omitted)\n\nPROBLEMS\n\nWill prohibitions in a declaration that are unreasonable always be struck down?\nWhat is the rationale for your answer?\nHow about rules promulgated by a HOA pursuant to a declaration?\nWhat\xe2\x80\x99s the rationale for that?\n\n388\n\n\x0c7.3. Public Accommodations\n7.3.1. Common Law\nUston v. Resorts Intern. Hotel, Inc.,\n89 N.J. 163 (1982)\n\nPashman, J.\nSince January 30, 1979, appellant Resorts International Hotel, Inc. (Resorts) has excluded\nrespondent, Kenneth Uston, from the blackjack tables in its casino because Uston\xe2\x80\x99s strategy\nincreases his chances of winning money. Uston concedes that his strategy of card counting can tilt\nthe odds in his favor under the current blackjack rules promulgated by the Casino Control\nCommission (Commission). However, Uston contends that Resorts has no common law or\nstatutory right to exclude him because of his strategy for playing blackjack.\nWe hold that the Casino Control Act, N.J.S.A. 5:12-1 to -152 gives the Commission\nexclusive authority to set the rules of licensed casino games, which includes the methods for playing\nthose games. The Casino Control Act therefore precludes Resorts from excluding Uston for card\ncounting. Because the Commission has not exercised its exclusive authority to determine whether\ncard counters should be excluded, we do not decide whether such an exclusion would be lawful.\nI\nKenneth Uston is a renowned teacher and practitioner of a complex strategy for playing\nblackjack known as card counting.1 Card counters keep track of the playing cards as they are dealt\nand adjust their betting patterns when the odds are in their favor. When used over a period of time,\nthis method allegedly ensures a profitable encounter with the casino.\nUston first played blackjack at Resorts\xe2\x80\x99 casino in November 1978. Resorts took no steps to\nbar Uston at that time, apparently because the Commission\xe2\x80\x99s blackjack rules then in operation\nminimized the advantages of card counting.\nOn January 5, 1979, however, a new Commission rule took effect that dramatically improved\nthe card counter\xe2\x80\x99s odds. N.J.A.C. 19:47-2.5. The new rule, which remains in effect, restricted the\nreshuffling of the deck in ways that benefitted card counters. Resorts concedes that the Commission\ncould promulgate blackjack rules that virtually eliminate the advantage of card counting. However,\nsuch rules would slow the game, diminishing the casino\xe2\x80\x99s \xe2\x80\x9ctake\xe2\x80\x9d and consequently its profits from\nblackjack gaming.\nBy letter dated January 30, 1979, attorneys for Resorts wrote to Commission Chairman\nLordi, asking the Commission\xe2\x80\x99s position on the legality of summarily removing card counters from\nits blackjack tables. That same day, Commissioner Lordi responded in writing that no statute or\n389\n\n\x0cregulation barred Resorts from excluding professional card counters from its casino. Before the day\nhad ended, Resorts terminated Uston\xe2\x80\x99s career at its blackjack tables, on the basis that in its opinion\nhe was a professional card counter. Resorts subsequently formulated standards for identification of\ncard counters and adopted a general policy to exclude such players.2\nThe Commission upheld Resorts\xe2\x80\x99 decision to exclude Uston. Relying on Garifine v. Monmouth\nPark Jockey Club, 29 N.J. 47 (1959), the Commission held that Resorts enjoys a common law right to\nexclude anyone it chooses, as long as the exclusion does not violate state and federal civil rights laws.\nThe Appellate Division reversed, 179 N.J. Super. 223 (1981). Although we interpret the Casino\nControl Act, N.J.S.A. 5:12-1 to -152 somewhat differently than did the Appellate Division, we affirm\nthat court\xe2\x80\x99s holding that the Casino Control Act precludes Resorts from excluding Uston. The\nCommission alone has the authority to exclude patrons based upon their strategies for playing\nlicensed casino games. Any common law right Resorts may have had to exclude Uston for these\nreasons is abrogated by the act. We therefore need not decide the precise extent of Resorts\xe2\x80\x99\ncommon law right to exclude patrons for reasons not covered by the act. Nonetheless, we feel\nconstrained to refute any implication arising from the Commission\xe2\x80\x99s opinion that absent\nsupervening statutes, the owners of places open to the public enjoy an absolute right to exclude\npatrons without good cause. We hold that the common law right to exclude is substantially limited\nby a competing common law right of reasonable access to public places.\nII\nThis Court has recognized that \xe2\x80\x9c[t]he statutory and administrative controls over casino\noperations established by the [Casino Control] Act are extraordinarily pervasive and intensive.\xe2\x80\x9d\nKnight v. Margate, 86 N.J. 374, 380-81 (1981). The almost 200 separate statutory provisions \xe2\x80\x9ccover\nvirtually every facet of casino gambling and its potential impact upon the public.\xe2\x80\x9d Id. at 381. See\nBally Mfg. Corp. v. N. J. Casino Control Comm\xe2\x80\x99n, 85 N.J. 325 (1981) (upholding Commission regulation\nbarring a licensed casino from acquiring more than 50% of its slot machines from any one\nmanufacturer). These provisions include a preemption clause, stating that the act prevails over \xe2\x80\x9cany\nother provision of law\xe2\x80\x9d in conflict or inconsistent with its provisions. N.J.S.A. 5:12-133(b).\nMoreover, the act declares as public policy of this State \xe2\x80\x9cthat the institution of licensed casino\nestablishments in New Jersey be strictly regulated and controlled.\xe2\x80\x9d N.J.S.A. 5:12-1(13).\nAt the heart of the Casino Control Act are its provisions for the regulation of licensed casino\ngames. N.J.S.A. 5:12-100 provides:\n\xe2\x80\xa6 e. All gaming shall be conducted according to rules promulgated by the commission. All\nwagers and pay-offs of winning wagers at table games shall be made according to rules promulgated\nby the commission, which shall establish such minimum wagers and other limitations as may be\nnecessary to assure the vitality of casino operations and fair odds to and maximum participation by\ncasino patrons; \xe2\x80\xa6.\nThis provision on games and gaming equipment reinforces the general statutory provisions\ncodified at N.J.S.A. 5:12-70. Those provisions provide in part:\nThe Commission shall, without limitation on the powers conferred in the preceding section,\ninclude within its regulations the following specific provisions in accordance with the provisions of\nthe act;\n\xe2\x80\xa6.\nf. Defining and limiting the areas of operation, the rules of authorized games, odds, and\ndevices permitted, and the method of operation of such games and devices; \xe2\x80\xa6.\n390\n\n\x0cPursuant to these statutes, the Commission has promulgated exhaustive rules on the playing\nof blackjack. N.J.A.C. 19:47-2.1 to -2.13. These rules cover every conceivable aspect of the game,\nfrom determining how the cards are to be shuffled and cut, N.J.A.C. 19:47-2.5, to providing that\ncertain cards shall not be dealt \xe2\x80\x9cuntil the dealer has first announced \xe2\x80\x98Dealer\xe2\x80\x99s Card\xe2\x80\x99 which shall be\nstated by the dealer in a tone of voice calculated to be heard by each person at the table.\xe2\x80\x9d N.J.A.C.\n19:47-2.6(g). It is no exaggeration to state that the Commission\xe2\x80\x99s regulation of blackjack is more\nextensive than the entire administrative regulation of many industries.\nThese exhaustive statutes and regulations make clear that the Commission\xe2\x80\x99s control over the\nrules and conduct of licensed casino games is intended to be comprehensive. The ability of casino\noperators to determine how the games will be played would undermine this control and subvert the\nimportant policy of ensuring the \xe2\x80\x9ccredibility and integrity of the regulatory process and of casino\noperations.\xe2\x80\x9d N.J.S.A. 5:12-1(b). The Commission has promulgated the blackjack rules that give\nUston a comparative advantage, and it has sole authority to change those rules. There is no\nindication that Uston has violated any Commission rule on the playing of blackjack. N.J.A.C. 19:472.1 to -2.13. Put simply, Uston\xe2\x80\x99s gaming is \xe2\x80\x9cconducted according to rules promulgated by the\nCommission.\xe2\x80\x9d N.J.S.A. 5:12-100(e). Resorts has no right to exclude Uston on grounds that he\nsuccessfully plays the game under existing rules.3\nThe Attorney General interpreted s 71 to be a tightly circumscribed intrusion on common\nlaw rights. We need not determine whether s 71, standing alone, would give the Commission the\nauthority to exclude card counters. Cf. Uston v. Hilton Hotels Corp., 448 F.Supp. 116 (D.Nev.1978)\n(interpreting Nevada statute virtually identical to s 71 as having no bearing on whether card-counters\ncan be excluded from casinos).\nIII\nResorts claimed that it could exclude Uston because it had a common law right to exclude\nanyone at all for any reason. While we hold that the Casino Control Act precludes Resorts from\nexcluding Uston for the reasons stated, it is important for us to address the asserted common law\nright for two reasons. First, Resorts\xe2\x80\x99 contentions and the Commission\xe2\x80\x99s position concerning the\ncommon law right are incorrect. Second, the act has not completely divested Resorts of its common\nlaw right to exclude.\nThe right of an amusement place owner to exclude unwanted patrons and the patron\xe2\x80\x99s\ncompeting right of reasonable access both have deep roots in the common law. See Arterburn, The\nOrigin and First Test of Public Callings, 75 U. Pa. L. Rev. 411 (1927); Wyman, The Law of Public Callings as\na Solution of the Trust Problem, 17 Harv. L. Rev. 156 (1904). In this century, however, courts have\ndisregarded the right of reasonable access in the common law of some jurisdictions at the time the\nCivil War Amendments and Civil Rights Act of 1866 were passed.\nAs Justice Goldberg noted in his concurrence in Bell v. Maryland, 378 U.S. 226 (1964):\nUnderlying the congressional discussions and at the heart of the Fourteenth Amendment\xe2\x80\x99s\nguarantee of equal protection, was the assumption that the State by statute or by \xe2\x80\x9cthe good old\ncommon law\xe2\x80\x9d was obligated to guarantee all citizens access to places of public accommodation.\n378 U.S. at 296, Goldberg, J., joined by Warren, C. J. and Douglas, J., concurring. See, e.g.,\nFerguson v. Gies, 82 Mich. 358 (1890) (after passage of the Fourteenth Amendment, both the civil\nrights statutes and the common law provided grounds for a non-white plaintiff to recover damages\n391\n\n\x0cfrom a restaurant owner\xe2\x80\x99s refusal to serve him, because the common law as it existed before passage\nof the civil rights laws \xe2\x80\x9cgave to the white man a remedy against any unjust discrimination to the\ncitizen in all public places\xe2\x80\x9d); Donnell v. State, 48 Miss. 661 (1873) (state\xe2\x80\x99s common law includes a right\nof reasonable access to all public places).\nThe current majority American rule has for many years disregarded the right of reasonable\naccess,4 granting to proprietors of amusement places an absolute right arbitrarily to eject or exclude\nany person consistent with state and federal civil rights laws. See Annot., Propriety of exclusion of persons\nfrom horseracing tracks for reasons other than color or race, 90 A.L.R.3d 1361 (1979); Turner & Kennedy,\nExclusion, Ejection and Segregation of Theater Patrons, 32 Iowa L. Rev. 625 (1947). See also Garifine v.\nMonmouth Park Jockey Club, 29 N.J. at 50, 148 A.2d 1.\nAt one time, an absolute right of exclusion prevailed in this state, though more for reasons\nof deference to the noted English precedent of Wood v. Leadbitter, 153 Eng.Rep. 351, (Ex.1845), than\nfor reasons of policy. In Shubert v. Nixon Amusement Co., 83 N.J.L. 101 (Sup. Ct. 1912), the former\nSupreme Court dismissed a suit for damages resulting from plaintiff\xe2\x80\x99s ejection from defendants\xe2\x80\x99\ntheater. Noting that plaintiff made no allegation of exclusion on the basis of race, color or previous\ncondition of servitude, the Court concluded:\nIn view of the substantially uniform approval of, and reliance on, the decision in Wood v.\nLeadbitter in our state adjudications, it must fairly be considered to be adopted as part of our\njurisprudence, and whatever views may be entertained as to the natural justice or injustice of ejecting\na theater patron without reason after he has paid for his ticket and taken his seat, we feel constrained\nto follow that decision as the settled law.\n83 N.J.L. at 106, 83 A. 369.\nIt hardly bears mention that our common law has evolved in the intervening 70 years. In\nfact, Leadbitter itself was disapproved three years after the Shubert decision by Hurst v. Picture Theatres\nLimited, (1915) 1 K.B. 1 (1914). Of far greater importance, the decisions of this Court have\nrecognized that \xe2\x80\x9cthe more private property is devoted to public use, the more it must accommodate\nthe rights which inhere in individual members of the general public who use that property.\xe2\x80\x9d State v.\nSchmid, 84 N.J. 535, 562 (1980).\nState v. Schmid involved the constitutional right to distribute literature on a private university\ncampus. The Court\xe2\x80\x99s approach in that case balanced individual rights against property rights. It is\ntherefore analogous to a description of the common law right of exclusion. Balancing the\nuniversity\xe2\x80\x99s interest in controlling its property against plaintiff\xe2\x80\x99s interest in access to that property to\nexpress his views, the Court clearly refused to protect unreasonable exclusions. Justice Handler\nnoted that\nRegulations \xe2\x80\xa6 devoid of reasonable standards designed to protect both the legitimate\ninterests of the University as an institution of higher education and the individual exercise of\nexpressional freedom cannot constitutionally be invoked to prohibit the otherwise noninjurious and\nreasonable exercise of [First Amendment] freedoms.\nId. at 567, 423 A.2d 615.\nIn State v. Shack, 58 N.J. 297 (1971), the Court held that although an employer of migrant\nfarm workers \xe2\x80\x9cmay reasonably require\xe2\x80\x9d those visiting his employees to identify themselves, \xe2\x80\x9cthe\nemployer may not deny the worker his privacy or interfere with his opportunity to live with dignity\nand to enjoy associations customary among our citizens.\xe2\x80\x9d Id. at 308. The Court reversed the trespass\nconvictions of an attorney and a social services worker who had entered the property to assist\nfarmworkers there.\nSchmid recognizes implicitly that when property owners open their premises to the general\npublic in the pursuit of their own property interests, they have no right to exclude people\nunreasonably. On the contrary, they have a duty not to act in an arbitrary or discriminatory manner\n392\n\n\x0ctoward persons who come on their premises. That duty applies not only to common carriers,\nMessenger v. Pennsylvania Railroad Co., 37 N.J.L. 531 (E. & A. 1874), innkeepers, see Garifine, supra,\nowners of gasoline service stations, Streeter v. Brogan, 113 N.J. Super. 486 (Ch. Div. 1971), or to\nprivate hospitals, Doe v. Bridgeton Hospital Ass\xe2\x80\x99n, Inc., 71 N.J. 478 (1976), but to all property owners\nwho open their premises to the public. Property owners have no legitimate interest in unreasonably\nexcluding particular members of the public when they open their premises for public use.\nNo party in this appeal questions the right of property owners to exclude from their\npremises those whose actions \xe2\x80\x9cdisrupt the regular and essential operations of the [premises],\xe2\x80\x9d State v.\nSchmid, 84 N.J. at 566 (quoting Princeton University Regulations on solicitation), or threaten the\nsecurity of the premises and its occupants, see State v. Shack, 58 N.J. at 308. In some circumstances,\nproprietors have a duty to remove disorderly or otherwise dangerous persons from the premises. See\nHolly v. Meyers Hotel and Tavern, Inc., 9 N.J. 493, 495. These common law principles enable the casino\nto bar from its entire facility, for instance, the disorderly, the intoxicated, and the repetitive petty\noffender.\nWhether a decision to exclude is reasonable must be determined from the facts of each case.5\nRespondent Uston does not threaten the security of any casino occupant. Nor has he disrupted the\nfunctioning of any casino operations. Absent a valid contrary rule by the Commission, Uston\npossesses the usual right of reasonable access to Resorts International\xe2\x80\x99s blackjack tables.\nIV\nAlthough the Commission alone has authority to exclude persons based upon their methods\nof playing licensed casino games, that authority has constitutional and statutory limits. We expressly\ndecline to decide whether the Casino Control Act empowers the Commission to exclude card\ncounters.\nIf the Commission decides to consider promulgating a rule banning card counters, it should\nreview the statutory mandates regarding both the public policy of this State and the rules of licensed\ngames. The Casino Control Act commands the Commission to regulate gambling with such\n\xe2\x80\x9climitations as may be necessary to assure the vitality of casino operations and fair odds to and maximum\nparticipation by casino patrons,\xe2\x80\x9d N.J.S.A. 5:12-100(e) (emphasis added). The Court recognizes that the\ngoals of casino vitality, fair odds to all players and maximum player participation may be in conflict.\nIt is the Commission which must strike the appropriate balance.\nThe Commission should also consider that the Legislature has declared as public policy of\nthis state that \xe2\x80\x9c[c]onfidence in casino gaming operations is eroded to the extent the State of New\nJersey does not provide a regulatory framework for casino gaming that permits and promotes\nstability and continuity in casino gaming operations.\xe2\x80\x9d N.J.S.A. 5:12-1(14). Moreover, \xe2\x80\x9c[a]n integral\nand essential element of the regulation and control of such casino facilities by the State rests in the\npublic confidence and trust in the credibility and integrity of the regulatory process and of casino\noperations.\xe2\x80\x9d N.J.S.A. 5:12-1(6). The exclusion of persons who can play the licensed games to their\nadvantage may diminish public confidence in the fairness of casino gaming. To the extent persons\nnot counting cards would be mistakenly excluded, public confidence might be further diminished.\nHowever, the right of the casinos to have the rules drawn so as to allow some reasonable profit\nmust also be recognized in any realistic assessment. The Commission should consider the potentially\nbroad ramifications of excluding card counters before it seeks to promulgate such a rule. Fairness\nand the integrity of casino gaming are the touchstones.\n393\n\n\x0cV\nIn sum, absent a valid Commission regulation excluding card counters, respondent Uston\nwill be free to employ his card-counting strategy at Resorts\xe2\x80\x99 blackjack tables. There is currently no\nCommission rule banning Uston, and Resorts has no authority to exclude him for card counting.\nHowever, it is not clear whether the Commission would have adopted regulations involving card\ncounters had it known that Resorts could not exclude Uston. The Court therefore continues the\ntemporary order banning Uston from Resorts\xe2\x80\x99 blackjack tables for 90 days from the date of this\nopinion. After that time, respondent is free to play blackjack at Resorts\xe2\x80\x99 casino absent a valid\nCommission rule excluding him.\nFor affirmance -Justices Pashman, Clifford, Schreiber, Handler, and O\'Hern-5.\nFor reversal -None.\nUston has described his strategy and his alleged success at Atlantic City blackjack tables on\nbroadcast media and in books. See Uston, Two Books on Blackjack. \xe2\x86\xa9\nSince then an industry-wide policy has developed to ban card counters. Each casino\nmaintains its own list of persons to be barred as card counters. \xe2\x86\xa9\nThe Appellate Division relied on N.J.S.A. 5:12-71 (s 71) to establish the Commission\xe2\x80\x99s right\nto exclude Uston. That provision directs the Commission to compile a list of persons to be excluded\nfrom gaming casinos whose presence in the casino would be inimical to the interests of casino\ngambling in New Jersey. N.J.S.A. 5:12-71(a)(3). The section applies to persons whose backgrounds\nor occupations indicate either criminal activity or actions hostile to the integrity of licensed casino\ngambling. We do not rely on this portion of the statute. \xe2\x86\xa9\nThe denial of freedom of reasonable access in some States following passage of the\nFourteenth Amendment, and the creation of a common law freedom to arbitrarily exclude following\ninvalidation of segregation statutes, suggest that the current majority rule may have had less than\ndignified origins. See Bell v. Maryland, supra. \xe2\x86\xa9\nWe need not decide whether the common law allows exclusion of those merely suspected of\ncriminal activity, see Garifine, supra, 29 N.J. at 57, because the Casino Control Act clearly vests such\ndecisions in the Commission alone. N.J.S.A. 5:12-71. \xe2\x86\xa9\n\n394\n\n\x0cBrooks v. Chicago Downs Assoc.,\n791 F.2d 512 (7th Cir. 1986)\n\nFrancis X. Grossi, Jr., Eric N. Landau, James E. Hanlon, Jr., Katten, Muchin, Zavis, Pearl &\nGaller, Chicago, Ill., for plaintiffs-appellants.\nGeorge S. Lalich, Nash & Lalich, Chicago, Ill., for defendant-appellee.\nBefore Cudahy, Flaum, and Easterbrook, Circuit Judges.\nFlaum, Circuit Judge.\nThis is a case of first impression on whether under Illinois law the operator of a horse race\ntrack has the absolute right to exclude a patron from the track premises for any reason, or no\nreason, except race, color, creed, national origin, or sex. We find that Illinois follows the common\nlaw rule and would allow the exclusion. The court below is thus affirmed.\n\nI\n\nPlaintiffs are citizens of Pennsylvania who have formed a Pennsylvania partnership whose\nsole purpose is to pool the assets of the partners in order to place bets at horse racing tracks\nthroughout the country. The plaintiffs are self-proclaimed expert handicappers, even though on the\napproximately 140 days they have bet at various race tracks they have ended up with net losses on\n110 of those days. This case is about a bet they were not allowed to make.\nThe defendant is a private Illinois corporation licensed by the State of Illinois to conduct\nharness racing at Sportsman\xe2\x80\x99s Park race track in Cicero, Illinois. At various times during the racing\nseason, Sportsman\xe2\x80\x99s Park conducts a parimutual pool known as \xe2\x80\x9cSuper Bet.\xe2\x80\x9d In order to win the\nSuper Bet pool, one must select the first two finishers of the fifth and sixth races and the first three\nfinishers of the seventh race. The Super Bet pool is able to increase quickly and substantially because\nif the pool is not won on any given day, the total amount wagered is rolled over and added to the\nSuper Bet purse for the next racing date. For example, in April of 1985 the plaintiffs, using their\nmethod for handicapping horses, placed bets on the Super Bet totalling $60,000. They picked the\nright horses and took home approximately $600,000.\nIn late July, 1985 the president of Chicago Downs ordered two of the plaintiffs (Jeffrey Yass\nand Kenneth Brodie) barred from Sportsman\xe2\x80\x99s Park just as they were seeking to place a $250,000\nwager in the Super Bet. After the plaintiffs had been barred from Sportsman\xe2\x80\x99s Park, the Park\xe2\x80\x99s\ncounsel informed them that they would be denied entry to all future racing dates at the Park. The\nplaintiffs then filed suit seeking injunctive relief that would prohibit the defendant from barring\nthem from entering the race track premises. Sportsman\xe2\x80\x99s Park filed a motion to dismiss the\ncomplaint on the ground that under Illinois law the operator of a proprietary race track has the\n395\n\n\x0cabsolute right to exclude a patron from the track premises for any reason except race, creed, color,\nnational origin, or sex. The trial court agreed with the defendants and granted their motion to\ndismiss, from which the plaintiffs now appeal. We affirm.\n\nII\n\n\xe2\x80\xa6.\nThe parties do not contest the Illinois Supreme Court\xe2\x80\x99s holding that a race track operator\nhas the right to exclude patrons for good cause. Phillips v. Graham, 86 Ill.2d 274, 56 Ill.Dec. 355, 427\nN.E.2d 550 (1981). But in this case, the race track argues that it should be able to exclude a patron\nabsent any cause at all, as long as it does not do so on the basis of race, color, creed, national origin,\nor sex. Under the defendant\xe2\x80\x99s theory, because the race track is a privately owned place of\namusement it may exclude someone simply for wearing a green hat or a paisley tie. It need give no\nreason for excluding the patron, under its version of the common law, because it is not a stategranted monopoly, but a state-regulated licensee operating on private property.\nThe most recent Illinois Supreme Court case to touch on this issue was Phillips v. Graham, 86\nIll.2d 274, 56 Ill.Dec. 355, 427 N.E.2d 550 (1981). In Phillips several harness racing drivers, owners,\nand trainers were excluded by formal Order of the State Racing Board from all race tracks in the\nstate because they had been indicted for bribery. The Illinois Supreme Court \xe2\x80\xa6 held that the\nauthority given organization licensees (such as race tracks) to exclude occupation licensees (such as\njockeys) from their private property was not an unconstitutional delegation of legislative power.\nParagraph 9(e) of the Illinois Horse Racing Act of 1975 states:\nThe power to eject or exclude occupation licensees [trainers, jockeys, owners, etc.] may be\nexercised for just cause by the organization licensee [race track] or Board subject to subsequent\nhearing by the Board, as to the propriety of said exclusion.\nIll.Rev.Stat., ch. 8, par. 37-9(e) (1985). The addition of this section to the Act followed\nclosely on the heels of Cox v. National Jockey Club, 25 Ill.App.3d 160, 323 N.E.2d 104 (1974) and\napparently codifies its holding.\n\xe2\x80\xa6.\nThe Cox court differentiated between the right of a track to exclude a licensee and its right to\nbar a patron. The track had argued that its common law right to exclude a patron without reason\napplied equally to a licensee. Although acknowledging precedent which held that the track could\nexclude a patron without reason or justification, the court refused to extend that authority to cover a\nlicensee \xe2\x80\xa6 .\nThe language of Phillips and Cox lead us to conclude that Illinois follows the common law\nrule regarding the exclusion of patrons, as opposed to the exclusion of licensees which is governed\nby the \xe2\x80\x9cjust cause\xe2\x80\x9d rule codified in 9(e). Of the cases cited by the Illinois courts as demonstrating the\ncommon law rule, Madden v. Queens County Jockey Club, 296 N.Y. 249, 72 N.E.2d 697 (Ct.App.), cert.\ndenied, 332 U.S. 761, 68 S.Ct. 63, 92 L.Ed. 346 (1947), is the most explicit and most cited. The\nplaintiff, \xe2\x80\x9cColey\xe2\x80\x9d Madden, who claimed to be a professional \xe2\x80\x9cpatron of the races,\xe2\x80\x9d was barred from\nthe defendant\xe2\x80\x99s Aqueduct Race Track under the mistaken belief that he was \xe2\x80\x9cOwney\xe2\x80\x9d Madden,\nreputed to be the fabled Frank Costello\xe2\x80\x99s bookmaker. Coley Madden brought suit for declaratory\njudgment and contended that as a citizen and taxpayer he had the right to enter the track and\n396\n\n\x0cpatronize the races. The defendant moved to dismiss on the ground that it had an unlimited right of\nexclusion. The trial court granted plaintiff\xe2\x80\x99s motion and entered an order enjoining the defendant\nfrom barring Coley Madden from its race track. The appellate division reversed, 269 App.Div. 644,\n58 N.Y.S.2d 272, and the New York Court of Appeals affirmed the appellate division\xe2\x80\x99s reversal of\nthe trial court. The Court of Appeals framed the question: \xe2\x80\x9cWhether the operator of a race track\ncan, without reason or sufficient excuse, exclude a person from attending its races.\xe2\x80\x9d 72 N.E.2d at\n698. Its answer: \xe2\x80\x9cIn our opinion he can; he has the power to admit as spectators only those whom\nhe may select, and to exclude others solely of his own [volition,] as long as the exclusion is not\nfounded on race, creed, color or national origin.\xe2\x80\x9d 72 N.E.2d at 698.\nThe court went on to explain the common law:\nAt common law a person engaged in a public calling, such as innkeeper or common carrier,\nwas held to be under a duty to the general public and was obliged to serve, without discrimination,\nall who sought service. [Citations omitted.] On the other hand, proprietors of private enterprises,\nsuch as places of amusement and resort, were under no such obligation, enjoying an absolute power\nto serve whom they pleased. [Citations omitted.] A race track, of course, falls within that classification.\n72 N.E.2d at 698 (emphasis added).\n\xe2\x80\xa6.\nIn holding that Illinois follows the traditional common law rule we are not unmindful that\nseveral other states have questioned that rule as a matter both of law and of policy. For example,\nmany of the states that follow the common law rule have used language broader than the facts in the\ncase before them required. While these cases state that a proprietor has the absolute right to exclude,\nthe facts of the case show that just cause existed to exclude the patron. See, e.g., Silbert v. Ramsey, 301\nMd. 96, 482 A.2d 147 (1984) (patron excluded on the basis of his prior conviction for violation of\nstate lottery laws); James v. Churchill Downs, Inc., 620 S.W.2d 323 (Ky.App.1981) (excluded patron was\na convicted bookmaker); Tropical Park, Inc. v. Jack, 374 So.2d 639 (Fla.App.1979) (patron alleged to\nhave \xe2\x80\x9cknown underworld connections\xe2\x80\x9d was rightfully excluded); Burrillville Racing Association v.\nGarabedian, 113 R.I. 134, 318 A.2d 469 (1974) (excluded patron had prior conviction for income tax\nevasion in connection with a wager messenger operation); People v. Licata, 28 N.Y.2d 113, 268\nN.E.2d 787 (1971) (defendant had prior convictions for bookmaking); Flores v. Los Angeles Turf Club,\nInc., 55 Cal.2d 736, 13 Cal.Rptr. 201, 361 P.2d 921 (1961) (plaintiff was a convicted bookmaker). But\nthat fact only demonstrates that proprietors of amusement facilities, whose very survival depends on\nbringing the public into their place of amusement, are reasonable people who usually do not exclude\ntheir customers unless they have a reason to do so. What the proprietor of a race track does not\nwant to have to do is prove or explain that his reason for exclusion is a just reason. He doesn\xe2\x80\x99t want to\nbe liable to Coley Madden solely because he mistakenly believed he was a mobster. The proprietor\nwants to be able to keep someone off his private property even if they only look like a mobster. As\nlong as the proprietor is not excluding the mobster look-a-like because of his national origin (or\nbecause of race, color, creed, or sex), then the common law, and the law of Illinois, allows him to do\njust that.\nWe also choose not to follow the arguable \xe2\x80\x93 but not clear \xe2\x80\x93 abandonment of the common\nlaw rule in New Jersey in the case of Uston v. Resorts International Hotel, Inc., 89 N.J. 163, 445 A.2d 370\n(1982). In 1959 the New Jersey Supreme Court decided Garifine v. Monmouth Park Jockey Club, 29 N.J.\n47, 148 A.2d 1 (Sup.Ct.1959), which was an appeal from the trial court\xe2\x80\x99s refusal to grant the plaintiff\ninjunctive relief from his exclusion from Monmouth Park race track. The defendant race track,\nrelying on Madden, moved to dismiss the complaint on the ground that it had \xe2\x80\x9can absolute right\xe2\x80\x9d to\nexclude the plaintiff. On appeal, the plaintiff contended that the operator of a race track should not\nhave the common law right to exclude a patron without reasonable cause and that under the New\nJersey Civil Rights Act the operator did not have such authority. In a scholarly opinion the court\n397\n\n\x0ctraced the genesis of the right of race tracks to exclude patrons without justifying the exclusion:\nThere was a time in English history when the common law recognized in many callings the\nduty to serve the public without discrimination. [Citations omitted.] With the passing of time and the\nchanging of conditions, the common law confined this duty to exceptional callings where the needs\nof the public urgently called for its continuance. Innkeepers and common carriers may be said to be\nthe most notable illustrations of business operators who, both under early principles and under the\ncommon law today, are obliged to serve the public without discrimination. [Citations omitted.] On\nthe other hand, operators of most businesses, including places of amusement such as race tracks,\nhave never been placed under any such common-law obligation, for no comparable considerations\nof public policy have ever so dictated. See Madden v. Queens County Jockey Club, 296 N.Y. 249, 72\nN.E.2d 697, 1 A.L.R.2d 1160 (Ct.App.1947), cert. denied 332 U.S. 761, 68 S.Ct. 63, 92 L.Ed. 346\n(1947); Greenfield v. Maryland Jockey Club, 190 Md. 96, 57 A.2d 335 (Ct.App.1948). Cf. Marrone v.\nWashington Jockey Club, 227 U.S. 633, 33 S.Ct. 401, 57 L.Ed. 679 (1913)\xe2\x80\xa6.\nNo holdings contrary to the foregoing have been cited by the plaintiff; and although he has\nurged that the defendant\xe2\x80\x99s common-law right of exclusion from its race track should be limited\nbecause as a licensee \xe2\x80\x9cit has secured the advantage of a State monopoly\xe2\x80\x9d we find no force in his\ncontention. See Madden v. Queens County Jockey Club, supra; Greenfeld v. Maryland Jockey Club, supra.\xe2\x80\xa6\nThe burden of the plaintiff\xe2\x80\x99s present attack is on the common-law doctrine which he states should\nbe altered to afford to him a right of admission to the race track in the absence of affirmative legal\nproof by the defendant that there is good cause for his exclusion. We are satisfied that, without\nregard to views which may be entertained in other types of cases, there has been no showing made\nhere for such alteration\xe2\x80\xa6.\n148 A.2d at 6-7. However, in 1982 the New Jersey Supreme Court decided Uston in which\nthe plaintiff was a practitioner of a strategy of playing blackjack known as \xe2\x80\x9ccard counting.\xe2\x80\x9d The\ndefendant operated a gambling casino licensed pursuant to the New Jersey Casino Control Act. The\ndefendant excluded Uston from the blackjack tables in its casino because of Uston\xe2\x80\x99s strategy of\n\xe2\x80\x9ccard counting.\xe2\x80\x9d The New Jersey Supreme Court held that the Casino Control Act gave the Casino\nControl Commission the exclusive authority to exclude patrons based upon their strategies for\nplaying licensed casino games and that any common law right the defendant may have had to\nexclude Uston for these reasons was abrogated by the Act and outweighed by Uston\xe2\x80\x99s right of\naccess. Uston, 445 A.2d at 372.\nIn Marzocca v. Ferone, 93 N.J. 509, 461 A.2d 1133 (1983), the owner of a harness race horse\nwas barred from racing that horse at Freehold Raceway in New Jersey. The appellate court\ndetermined that Uston overruled Garifine v. Monmouth Park Jockey Club, sub silentio, and remanded the\ncase to the trial court to hear evidence as to whether the race track\xe2\x80\x99s exclusion was reasonable. The\ncase was then appealed to the New Jersey Supreme Court, where the court clarified its decision in\nUston and reversed the appellate court, stating:\nNotwithstanding the dicta in Uston, we must part company with the court below on the issue\nof Freehold\xe2\x80\x99s right to exclude. Without commenting on the status of the law in the amusement\nowner/patron context, we hold that the racetrack\xe2\x80\x99s common law right to exclude exists in the\ncontext of this case, i.e., where the relationship [is] between the track management and persons who\nwish to perform their vocational activities on the track premises.\n461 A.2d at 1137. Therefore, it is clear that New Jersey has not per se abandoned the\ncommon law rule but has adapted it, in a limited fashion, to the particular needs of its casino\nindustry. New Jersey has not gone as far as Illinois did in Cox, and in the Illinois Racing Statute, but\nthey give no reason why the patron is more protected than the licensee. The law of New Jersey does\nnot directly conflict with the law of Illinois that we inferred from Phillips and Cox, but to the extent\nthat it is different, the differences are further evidence that Illinois follows the common law\n398\n\n\x0capproach.\nHowever, the New Jersey decisions do paint the wider policy picture of which our decision\ntoday is a part. As a policy matter, it is arguably unfair to allow a place of amusement to exclude for\nany reason or no reason, and to be free of accountability, except in cases of obvious discrimination.\nIn this case, the general public is not only invited but, through advertising, is encouraged to come to\nthe race track and wager on the races\xe2\x80\x99 outcome. But the common law allows the race track to\nexclude patrons, no matter if they come from near or far, or in reasonable reliance on\nrepresentations of accessibility. We may ultimately believe that market forces would preclude any\noutrageous excesses \xe2\x80\x93 such as excluding anyone who has blond hair, or (like the plaintiffs) who is\nfrom Pennsylvania, or (even more outrageous) who has $250,000 to spend in one day of betting. But\nthe premise of the consumer protection laws that the New Jersey Supreme Court alluded to in Uston\nand Marzocca recognizes that the reality of an imperfect market allows numerous consumer\ndepredations. Excluding a patron simply because he is named Adam Smith arguably offends the very\nprecepts of equality and fair dealing expressed in everything from the antitrust statutes to the Illinois\nConsumer Fraud and Deceptive Business Practice Act. Ill.Rev.Stat. ch. 121-, \xc2\xb6\xc2\xb6 262-72.\nBut the market here is not so demonstrably imperfect that there is a monopoly or any\nallegation of consumer fraud. Consequently, there is no such explicit legislative directive in the\ncontext of patrons attending horse races in Illinois \xe2\x80\x93 so the common law rule, relic though it may\nbe,1 still controls. Therefore, within the prohibitions of Erie, the language of the Illinois cases, and\nthe lack of language from the Illinois legislature, we hold that the common law rule is the law of\nIllinois.\n\nIII\n\nFor the foregoing reasons the court below is affirmed.\nAs the New Jersey Supreme court noted in Uston, the rise of the American common law\nright to exclude without cause alarmingly corresponds to the fall of the old segregation laws.\nHowever, that is clearly not an issue in this case because the legislature has justly limited the absolute\nright to exclude to cases not involving exclusion based on race, creed, color, national origin, or sex.\nUston, 445 A.2d at 374 n. 4. \xe2\x86\xa9\n\n399\n\n\x0c7.3. Public Accommodations\n7.3.1. Common Law\nUston v. Resorts Intern. Hotel, Inc.,\n89 N.J. 163 (1982)\n\nPashman, J.\nSince January 30, 1979, appellant Resorts International Hotel, Inc. (Resorts) has excluded\nrespondent, Kenneth Uston, from the blackjack tables in its casino because Uston\xe2\x80\x99s strategy\nincreases his chances of winning money. Uston concedes that his strategy of card counting can tilt\nthe odds in his favor under the current blackjack rules promulgated by the Casino Control\nCommission (Commission). However, Uston contends that Resorts has no common law or\nstatutory right to exclude him because of his strategy for playing blackjack.\nWe hold that the Casino Control Act, N.J.S.A. 5:12-1 to -152 gives the Commission\nexclusive authority to set the rules of licensed casino games, which includes the methods for playing\nthose games. The Casino Control Act therefore precludes Resorts from excluding Uston for card\ncounting. Because the Commission has not exercised its exclusive authority to determine whether\ncard counters should be excluded, we do not decide whether such an exclusion would be lawful.\nI\nKenneth Uston is a renowned teacher and practitioner of a complex strategy for playing\nblackjack known as card counting.1 Card counters keep track of the playing cards as they are dealt\nand adjust their betting patterns when the odds are in their favor. When used over a period of time,\nthis method allegedly ensures a profitable encounter with the casino.\nUston first played blackjack at Resorts\xe2\x80\x99 casino in November 1978. Resorts took no steps to\nbar Uston at that time, apparently because the Commission\xe2\x80\x99s blackjack rules then in operation\nminimized the advantages of card counting.\nOn January 5, 1979, however, a new Commission rule took effect that dramatically improved\nthe card counter\xe2\x80\x99s odds. N.J.A.C. 19:47-2.5. The new rule, which remains in effect, restricted the\nreshuffling of the deck in ways that benefitted card counters. Resorts concedes that the Commission\ncould promulgate blackjack rules that virtually eliminate the advantage of card counting. However,\nsuch rules would slow the game, diminishing the casino\xe2\x80\x99s \xe2\x80\x9ctake\xe2\x80\x9d and consequently its profits from\nblackjack gaming.\nBy letter dated January 30, 1979, attorneys for Resorts wrote to Commission Chairman\nLordi, asking the Commission\xe2\x80\x99s position on the legality of summarily removing card counters from\nits blackjack tables. That same day, Commissioner Lordi responded in writing that no statute or\n400\n\n\x0cregulation barred Resorts from excluding professional card counters from its casino. Before the day\nhad ended, Resorts terminated Uston\xe2\x80\x99s career at its blackjack tables, on the basis that in its opinion\nhe was a professional card counter. Resorts subsequently formulated standards for identification of\ncard counters and adopted a general policy to exclude such players.2\nThe Commission upheld Resorts\xe2\x80\x99 decision to exclude Uston. Relying on Garifine v. Monmouth\nPark Jockey Club, 29 N.J. 47 (1959), the Commission held that Resorts enjoys a common law right to\nexclude anyone it chooses, as long as the exclusion does not violate state and federal civil rights laws.\nThe Appellate Division reversed, 179 N.J. Super. 223 (1981). Although we interpret the Casino\nControl Act, N.J.S.A. 5:12-1 to -152 somewhat differently than did the Appellate Division, we affirm\nthat court\xe2\x80\x99s holding that the Casino Control Act precludes Resorts from excluding Uston. The\nCommission alone has the authority to exclude patrons based upon their strategies for playing\nlicensed casino games. Any common law right Resorts may have had to exclude Uston for these\nreasons is abrogated by the act. We therefore need not decide the precise extent of Resorts\xe2\x80\x99\ncommon law right to exclude patrons for reasons not covered by the act. Nonetheless, we feel\nconstrained to refute any implication arising from the Commission\xe2\x80\x99s opinion that absent\nsupervening statutes, the owners of places open to the public enjoy an absolute right to exclude\npatrons without good cause. We hold that the common law right to exclude is substantially limited\nby a competing common law right of reasonable access to public places.\nII\nThis Court has recognized that \xe2\x80\x9c[t]he statutory and administrative controls over casino\noperations established by the [Casino Control] Act are extraordinarily pervasive and intensive.\xe2\x80\x9d\nKnight v. Margate, 86 N.J. 374, 380-81 (1981). The almost 200 separate statutory provisions \xe2\x80\x9ccover\nvirtually every facet of casino gambling and its potential impact upon the public.\xe2\x80\x9d Id. at 381. See\nBally Mfg. Corp. v. N. J. Casino Control Comm\xe2\x80\x99n, 85 N.J. 325 (1981) (upholding Commission regulation\nbarring a licensed casino from acquiring more than 50% of its slot machines from any one\nmanufacturer). These provisions include a preemption clause, stating that the act prevails over \xe2\x80\x9cany\nother provision of law\xe2\x80\x9d in conflict or inconsistent with its provisions. N.J.S.A. 5:12-133(b).\nMoreover, the act declares as public policy of this State \xe2\x80\x9cthat the institution of licensed casino\nestablishments in New Jersey be strictly regulated and controlled.\xe2\x80\x9d N.J.S.A. 5:12-1(13).\nAt the heart of the Casino Control Act are its provisions for the regulation of licensed casino\ngames. N.J.S.A. 5:12-100 provides:\n\xe2\x80\xa6 e. All gaming shall be conducted according to rules promulgated by the commission. All\nwagers and pay-offs of winning wagers at table games shall be made according to rules promulgated\nby the commission, which shall establish such minimum wagers and other limitations as may be\nnecessary to assure the vitality of casino operations and fair odds to and maximum participation by\ncasino patrons; \xe2\x80\xa6.\nThis provision on games and gaming equipment reinforces the general statutory provisions\ncodified at N.J.S.A. 5:12-70. Those provisions provide in part:\nThe Commission shall, without limitation on the powers conferred in the preceding section,\ninclude within its regulations the following specific provisions in accordance with the provisions of\nthe act;\n\xe2\x80\xa6.\nf. Defining and limiting the areas of operation, the rules of authorized games, odds, and\ndevices permitted, and the method of operation of such games and devices; \xe2\x80\xa6.\n401\n\n\x0cPursuant to these statutes, the Commission has promulgated exhaustive rules on the playing\nof blackjack. N.J.A.C. 19:47-2.1 to -2.13. These rules cover every conceivable aspect of the game,\nfrom determining how the cards are to be shuffled and cut, N.J.A.C. 19:47-2.5, to providing that\ncertain cards shall not be dealt \xe2\x80\x9cuntil the dealer has first announced \xe2\x80\x98Dealer\xe2\x80\x99s Card\xe2\x80\x99 which shall be\nstated by the dealer in a tone of voice calculated to be heard by each person at the table.\xe2\x80\x9d N.J.A.C.\n19:47-2.6(g). It is no exaggeration to state that the Commission\xe2\x80\x99s regulation of blackjack is more\nextensive than the entire administrative regulation of many industries.\nThese exhaustive statutes and regulations make clear that the Commission\xe2\x80\x99s control over the\nrules and conduct of licensed casino games is intended to be comprehensive. The ability of casino\noperators to determine how the games will be played would undermine this control and subvert the\nimportant policy of ensuring the \xe2\x80\x9ccredibility and integrity of the regulatory process and of casino\noperations.\xe2\x80\x9d N.J.S.A. 5:12-1(b). The Commission has promulgated the blackjack rules that give\nUston a comparative advantage, and it has sole authority to change those rules. There is no\nindication that Uston has violated any Commission rule on the playing of blackjack. N.J.A.C. 19:472.1 to -2.13. Put simply, Uston\xe2\x80\x99s gaming is \xe2\x80\x9cconducted according to rules promulgated by the\nCommission.\xe2\x80\x9d N.J.S.A. 5:12-100(e). Resorts has no right to exclude Uston on grounds that he\nsuccessfully plays the game under existing rules.3\nThe Attorney General interpreted s 71 to be a tightly circumscribed intrusion on common\nlaw rights. We need not determine whether s 71, standing alone, would give the Commission the\nauthority to exclude card counters. Cf. Uston v. Hilton Hotels Corp., 448 F.Supp. 116 (D.Nev.1978)\n(interpreting Nevada statute virtually identical to s 71 as having no bearing on whether card-counters\ncan be excluded from casinos).\nIII\nResorts claimed that it could exclude Uston because it had a common law right to exclude\nanyone at all for any reason. While we hold that the Casino Control Act precludes Resorts from\nexcluding Uston for the reasons stated, it is important for us to address the asserted common law\nright for two reasons. First, Resorts\xe2\x80\x99 contentions and the Commission\xe2\x80\x99s position concerning the\ncommon law right are incorrect. Second, the act has not completely divested Resorts of its common\nlaw right to exclude.\nThe right of an amusement place owner to exclude unwanted patrons and the patron\xe2\x80\x99s\ncompeting right of reasonable access both have deep roots in the common law. See Arterburn, The\nOrigin and First Test of Public Callings, 75 U. Pa. L. Rev. 411 (1927); Wyman, The Law of Public Callings as\na Solution of the Trust Problem, 17 Harv. L. Rev. 156 (1904). In this century, however, courts have\ndisregarded the right of reasonable access in the common law of some jurisdictions at the time the\nCivil War Amendments and Civil Rights Act of 1866 were passed.\nAs Justice Goldberg noted in his concurrence in Bell v. Maryland, 378 U.S. 226 (1964):\nUnderlying the congressional discussions and at the heart of the Fourteenth Amendment\xe2\x80\x99s\nguarantee of equal protection, was the assumption that the State by statute or by \xe2\x80\x9cthe good old\ncommon law\xe2\x80\x9d was obligated to guarantee all citizens access to places of public accommodation.\n378 U.S. at 296, Goldberg, J., joined by Warren, C. J. and Douglas, J., concurring. See, e.g.,\nFerguson v. Gies, 82 Mich. 358 (1890) (after passage of the Fourteenth Amendment, both the civil\nrights statutes and the common law provided grounds for a non-white plaintiff to recover damages\n402\n\n\x0cfrom a restaurant owner\xe2\x80\x99s refusal to serve him, because the common law as it existed before passage\nof the civil rights laws \xe2\x80\x9cgave to the white man a remedy against any unjust discrimination to the\ncitizen in all public places\xe2\x80\x9d); Donnell v. State, 48 Miss. 661 (1873) (state\xe2\x80\x99s common law includes a right\nof reasonable access to all public places).\nThe current majority American rule has for many years disregarded the right of reasonable\naccess,4 granting to proprietors of amusement places an absolute right arbitrarily to eject or exclude\nany person consistent with state and federal civil rights laws. See Annot., Propriety of exclusion of persons\nfrom horseracing tracks for reasons other than color or race, 90 A.L.R.3d 1361 (1979); Turner & Kennedy,\nExclusion, Ejection and Segregation of Theater Patrons, 32 Iowa L. Rev. 625 (1947). See also Garifine v.\nMonmouth Park Jockey Club, 29 N.J. at 50, 148 A.2d 1.\nAt one time, an absolute right of exclusion prevailed in this state, though more for reasons\nof deference to the noted English precedent of Wood v. Leadbitter, 153 Eng.Rep. 351, (Ex.1845), than\nfor reasons of policy. In Shubert v. Nixon Amusement Co., 83 N.J.L. 101 (Sup. Ct. 1912), the former\nSupreme Court dismissed a suit for damages resulting from plaintiff\xe2\x80\x99s ejection from defendants\xe2\x80\x99\ntheater. Noting that plaintiff made no allegation of exclusion on the basis of race, color or previous\ncondition of servitude, the Court concluded:\nIn view of the substantially uniform approval of, and reliance on, the decision in Wood v.\nLeadbitter in our state adjudications, it must fairly be considered to be adopted as part of our\njurisprudence, and whatever views may be entertained as to the natural justice or injustice of ejecting\na theater patron without reason after he has paid for his ticket and taken his seat, we feel constrained\nto follow that decision as the settled law.\n83 N.J.L. at 106, 83 A. 369.\nIt hardly bears mention that our common law has evolved in the intervening 70 years. In\nfact, Leadbitter itself was disapproved three years after the Shubert decision by Hurst v. Picture Theatres\nLimited, (1915) 1 K.B. 1 (1914). Of far greater importance, the decisions of this Court have\nrecognized that \xe2\x80\x9cthe more private property is devoted to public use, the more it must accommodate\nthe rights which inhere in individual members of the general public who use that property.\xe2\x80\x9d State v.\nSchmid, 84 N.J. 535, 562 (1980).\nState v. Schmid involved the constitutional right to distribute literature on a private university\ncampus. The Court\xe2\x80\x99s approach in that case balanced individual rights against property rights. It is\ntherefore analogous to a description of the common law right of exclusion. Balancing the\nuniversity\xe2\x80\x99s interest in controlling its property against plaintiff\xe2\x80\x99s interest in access to that property to\nexpress his views, the Court clearly refused to protect unreasonable exclusions. Justice Handler\nnoted that\nRegulations \xe2\x80\xa6 devoid of reasonable standards designed to protect both the legitimate\ninterests of the University as an institution of higher education and the individual exercise of\nexpressional freedom cannot constitutionally be invoked to prohibit the otherwise noninjurious and\nreasonable exercise of [First Amendment] freedoms.\nId. at 567, 423 A.2d 615.\nIn State v. Shack, 58 N.J. 297 (1971), the Court held that although an employer of migrant\nfarm workers \xe2\x80\x9cmay reasonably require\xe2\x80\x9d those visiting his employees to identify themselves, \xe2\x80\x9cthe\nemployer may not deny the worker his privacy or interfere with his opportunity to live with dignity\nand to enjoy associations customary among our citizens.\xe2\x80\x9d Id. at 308. The Court reversed the trespass\nconvictions of an attorney and a social services worker who had entered the property to assist\nfarmworkers there.\nSchmid recognizes implicitly that when property owners open their premises to the general\npublic in the pursuit of their own property interests, they have no right to exclude people\nunreasonably. On the contrary, they have a duty not to act in an arbitrary or discriminatory manner\n403\n\n\x0ctoward persons who come on their premises. That duty applies not only to common carriers,\nMessenger v. Pennsylvania Railroad Co., 37 N.J.L. 531 (E. & A. 1874), innkeepers, see Garifine, supra,\nowners of gasoline service stations, Streeter v. Brogan, 113 N.J. Super. 486 (Ch. Div. 1971), or to\nprivate hospitals, Doe v. Bridgeton Hospital Ass\xe2\x80\x99n, Inc., 71 N.J. 478 (1976), but to all property owners\nwho open their premises to the public. Property owners have no legitimate interest in unreasonably\nexcluding particular members of the public when they open their premises for public use.\nNo party in this appeal questions the right of property owners to exclude from their\npremises those whose actions \xe2\x80\x9cdisrupt the regular and essential operations of the [premises],\xe2\x80\x9d State v.\nSchmid, 84 N.J. at 566 (quoting Princeton University Regulations on solicitation), or threaten the\nsecurity of the premises and its occupants, see State v. Shack, 58 N.J. at 308. In some circumstances,\nproprietors have a duty to remove disorderly or otherwise dangerous persons from the premises. See\nHolly v. Meyers Hotel and Tavern, Inc., 9 N.J. 493, 495. These common law principles enable the casino\nto bar from its entire facility, for instance, the disorderly, the intoxicated, and the repetitive petty\noffender.\nWhether a decision to exclude is reasonable must be determined from the facts of each case.5\nRespondent Uston does not threaten the security of any casino occupant. Nor has he disrupted the\nfunctioning of any casino operations. Absent a valid contrary rule by the Commission, Uston\npossesses the usual right of reasonable access to Resorts International\xe2\x80\x99s blackjack tables.\nIV\nAlthough the Commission alone has authority to exclude persons based upon their methods\nof playing licensed casino games, that authority has constitutional and statutory limits. We expressly\ndecline to decide whether the Casino Control Act empowers the Commission to exclude card\ncounters.\nIf the Commission decides to consider promulgating a rule banning card counters, it should\nreview the statutory mandates regarding both the public policy of this State and the rules of licensed\ngames. The Casino Control Act commands the Commission to regulate gambling with such\n\xe2\x80\x9climitations as may be necessary to assure the vitality of casino operations and fair odds to and maximum\nparticipation by casino patrons,\xe2\x80\x9d N.J.S.A. 5:12-100(e) (emphasis added). The Court recognizes that the\ngoals of casino vitality, fair odds to all players and maximum player participation may be in conflict.\nIt is the Commission which must strike the appropriate balance.\nThe Commission should also consider that the Legislature has declared as public policy of\nthis state that \xe2\x80\x9c[c]onfidence in casino gaming operations is eroded to the extent the State of New\nJersey does not provide a regulatory framework for casino gaming that permits and promotes\nstability and continuity in casino gaming operations.\xe2\x80\x9d N.J.S.A. 5:12-1(14). Moreover, \xe2\x80\x9c[a]n integral\nand essential element of the regulation and control of such casino facilities by the State rests in the\npublic confidence and trust in the credibility and integrity of the regulatory process and of casino\noperations.\xe2\x80\x9d N.J.S.A. 5:12-1(6). The exclusion of persons who can play the licensed games to their\nadvantage may diminish public confidence in the fairness of casino gaming. To the extent persons\nnot counting cards would be mistakenly excluded, public confidence might be further diminished.\nHowever, the right of the casinos to have the rules drawn so as to allow some reasonable profit\nmust also be recognized in any realistic assessment. The Commission should consider the potentially\nbroad ramifications of excluding card counters before it seeks to promulgate such a rule. Fairness\nand the integrity of casino gaming are the touchstones.\n404\n\n\x0cV\nIn sum, absent a valid Commission regulation excluding card counters, respondent Uston\nwill be free to employ his card-counting strategy at Resorts\xe2\x80\x99 blackjack tables. There is currently no\nCommission rule banning Uston, and Resorts has no authority to exclude him for card counting.\nHowever, it is not clear whether the Commission would have adopted regulations involving card\ncounters had it known that Resorts could not exclude Uston. The Court therefore continues the\ntemporary order banning Uston from Resorts\xe2\x80\x99 blackjack tables for 90 days from the date of this\nopinion. After that time, respondent is free to play blackjack at Resorts\xe2\x80\x99 casino absent a valid\nCommission rule excluding him.\nFor affirmance -Justices Pashman, Clifford, Schreiber, Handler, and O\'Hern-5.\nFor reversal -None.\nUston has described his strategy and his alleged success at Atlantic City blackjack tables on\nbroadcast media and in books. See Uston, Two Books on Blackjack. \xe2\x86\xa9\nSince then an industry-wide policy has developed to ban card counters. Each casino\nmaintains its own list of persons to be barred as card counters. \xe2\x86\xa9\nThe Appellate Division relied on N.J.S.A. 5:12-71 (s 71) to establish the Commission\xe2\x80\x99s right\nto exclude Uston. That provision directs the Commission to compile a list of persons to be excluded\nfrom gaming casinos whose presence in the casino would be inimical to the interests of casino\ngambling in New Jersey. N.J.S.A. 5:12-71(a)(3). The section applies to persons whose backgrounds\nor occupations indicate either criminal activity or actions hostile to the integrity of licensed casino\ngambling. We do not rely on this portion of the statute. \xe2\x86\xa9\nThe denial of freedom of reasonable access in some States following passage of the\nFourteenth Amendment, and the creation of a common law freedom to arbitrarily exclude following\ninvalidation of segregation statutes, suggest that the current majority rule may have had less than\ndignified origins. See Bell v. Maryland, supra. \xe2\x86\xa9\nWe need not decide whether the common law allows exclusion of those merely suspected of\ncriminal activity, see Garifine, supra, 29 N.J. at 57, because the Casino Control Act clearly vests such\ndecisions in the Commission alone. N.J.S.A. 5:12-71. \xe2\x86\xa9\nBrooks v. Chicago Downs Assoc.,\n791 F.2d 512 (7th Cir. 1986)\n\nFrancis X. Grossi, Jr., Eric N. Landau, James E. Hanlon, Jr., Katten, Muchin, Zavis, Pearl &\nGaller, Chicago, Ill., for plaintiffs-appellants.\nGeorge S. Lalich, Nash & Lalich, Chicago, Ill., for defendant-appellee.\nBefore Cudahy, Flaum, and Easterbrook, Circuit Judges.\nFlaum, Circuit Judge.\nThis is a case of first impression on whether under Illinois law the operator of a horse race\n405\n\n\x0ctrack has the absolute right to exclude a patron from the track premises for any reason, or no\nreason, except race, color, creed, national origin, or sex. We find that Illinois follows the common\nlaw rule and would allow the exclusion. The court below is thus affirmed.\nI\nPlaintiffs are citizens of Pennsylvania who have formed a Pennsylvania partnership whose\nsole purpose is to pool the assets of the partners in order to place bets at horse racing tracks\nthroughout the country. The plaintiffs are self-proclaimed expert handicappers, even though on the\napproximately 140 days they have bet at various race tracks they have ended up with net losses on\n110 of those days. This case is about a bet they were not allowed to make.\nThe defendant is a private Illinois corporation licensed by the State of Illinois to conduct\nharness racing at Sportsman\xe2\x80\x99s Park race track in Cicero, Illinois. At various times during the racing\nseason, Sportsman\xe2\x80\x99s Park conducts a parimutual pool known as \xe2\x80\x9cSuper Bet.\xe2\x80\x9d In order to win the\nSuper Bet pool, one must select the first two finishers of the fifth and sixth races and the first three\nfinishers of the seventh race. The Super Bet pool is able to increase quickly and substantially because\nif the pool is not won on any given day, the total amount wagered is rolled over and added to the\nSuper Bet purse for the next racing date. For example, in April of 1985 the plaintiffs, using their\nmethod for handicapping horses, placed bets on the Super Bet totalling $60,000. They picked the\nright horses and took home approximately $600,000.\nIn late July, 1985 the president of Chicago Downs ordered two of the plaintiffs (Jeffrey Yass\nand Kenneth Brodie) barred from Sportsman\xe2\x80\x99s Park just as they were seeking to place a $250,000\nwager in the Super Bet. After the plaintiffs had been barred from Sportsman\xe2\x80\x99s Park, the Park\xe2\x80\x99s\ncounsel informed them that they would be denied entry to all future racing dates at the Park. The\nplaintiffs then filed suit seeking injunctive relief that would prohibit the defendant from barring\nthem from entering the race track premises. Sportsman\xe2\x80\x99s Park filed a motion to dismiss the\ncomplaint on the ground that under Illinois law the operator of a proprietary race track has the\nabsolute right to exclude a patron from the track premises for any reason except race, creed, color,\nnational origin, or sex. The trial court agreed with the defendants and granted their motion to\ndismiss, from which the plaintiffs now appeal. We affirm.\nII\n\xe2\x80\xa6.\nThe parties do not contest the Illinois Supreme Court\xe2\x80\x99s holding that a race track operator\nhas the right to exclude patrons for good cause. Phillips v. Graham, 86 Ill.2d 274, 56 Ill.Dec. 355, 427\nN.E.2d 550 (1981). But in this case, the race track argues that it should be able to exclude a patron\nabsent any cause at all, as long as it does not do so on the basis of race, color, creed, national origin,\nor sex. Under the defendant\xe2\x80\x99s theory, because the race track is a privately owned place of\namusement it may exclude someone simply for wearing a green hat or a paisley tie. It need give no\nreason for excluding the patron, under its version of the common law, because it is not a stategranted monopoly, but a state-regulated licensee operating on private property.\nThe most recent Illinois Supreme Court case to touch on this issue was Phillips v. Graham, 86\nIll.2d 274, 56 Ill.Dec. 355, 427 N.E.2d 550 (1981). In Phillips several harness racing drivers, owners,\n406\n\n\x0cand trainers were excluded by formal Order of the State Racing Board from all race tracks in the\nstate because they had been indicted for bribery. The Illinois Supreme Court \xe2\x80\xa6 held that the\nauthority given organization licensees (such as race tracks) to exclude occupation licensees (such as\njockeys) from their private property was not an unconstitutional delegation of legislative power.\nParagraph 9(e) of the Illinois Horse Racing Act of 1975 states:\nThe power to eject or exclude occupation licensees [trainers, jockeys, owners, etc.] may be\nexercised for just cause by the organization licensee [race track] or Board subject to subsequent\nhearing by the Board, as to the propriety of said exclusion.\nIll.Rev.Stat., ch. 8, par. 37-9(e) (1985). The addition of this section to the Act followed\nclosely on the heels of Cox v. National Jockey Club, 25 Ill.App.3d 160, 323 N.E.2d 104 (1974) and\napparently codifies its holding.\n\xe2\x80\xa6.\nThe Cox court differentiated between the right of a track to exclude a licensee and its right to\nbar a patron. The track had argued that its common law right to exclude a patron without reason\napplied equally to a licensee. Although acknowledging precedent which held that the track could\nexclude a patron without reason or justification, the court refused to extend that authority to cover a\nlicensee \xe2\x80\xa6 .\nThe language of Phillips and Cox lead us to conclude that Illinois follows the common law\nrule regarding the exclusion of patrons, as opposed to the exclusion of licensees which is governed\nby the \xe2\x80\x9cjust cause\xe2\x80\x9d rule codified in 9(e). Of the cases cited by the Illinois courts as demonstrating the\ncommon law rule, Madden v. Queens County Jockey Club, 296 N.Y. 249, 72 N.E.2d 697 (Ct.App.), cert.\ndenied, 332 U.S. 761, 68 S.Ct. 63, 92 L.Ed. 346 (1947), is the most explicit and most cited. The\nplaintiff, \xe2\x80\x9cColey\xe2\x80\x9d Madden, who claimed to be a professional \xe2\x80\x9cpatron of the races,\xe2\x80\x9d was barred from\nthe defendant\xe2\x80\x99s Aqueduct Race Track under the mistaken belief that he was \xe2\x80\x9cOwney\xe2\x80\x9d Madden,\nreputed to be the fabled Frank Costello\xe2\x80\x99s bookmaker. Coley Madden brought suit for declaratory\njudgment and contended that as a citizen and taxpayer he had the right to enter the track and\npatronize the races. The defendant moved to dismiss on the ground that it had an unlimited right of\nexclusion. The trial court granted plaintiff\xe2\x80\x99s motion and entered an order enjoining the defendant\nfrom barring Coley Madden from its race track. The appellate division reversed, 269 App.Div. 644,\n58 N.Y.S.2d 272, and the New York Court of Appeals affirmed the appellate division\xe2\x80\x99s reversal of\nthe trial court. The Court of Appeals framed the question: \xe2\x80\x9cWhether the operator of a race track\ncan, without reason or sufficient excuse, exclude a person from attending its races.\xe2\x80\x9d 72 N.E.2d at\n698. Its answer: \xe2\x80\x9cIn our opinion he can; he has the power to admit as spectators only those whom\nhe may select, and to exclude others solely of his own [volition,] as long as the exclusion is not\nfounded on race, creed, color or national origin.\xe2\x80\x9d 72 N.E.2d at 698.\nThe court went on to explain the common law:\nAt common law a person engaged in a public calling, such as innkeeper or common carrier,\nwas held to be under a duty to the general public and was obliged to serve, without discrimination,\nall who sought service. [Citations omitted.] On the other hand, proprietors of private enterprises,\nsuch as places of amusement and resort, were under no such obligation, enjoying an absolute power\nto serve whom they pleased. [Citations omitted.] A race track, of course, falls within that classification.\n72 N.E.2d at 698 (emphasis added).\n\xe2\x80\xa6.\nIn holding that Illinois follows the traditional common law rule we are not unmindful that\nseveral other states have questioned that rule as a matter both of law and of policy. For example,\nmany of the states that follow the common law rule have used language broader than the facts in the\ncase before them required. While these cases state that a proprietor has the absolute right to exclude,\nthe facts of the case show that just cause existed to exclude the patron. See, e.g., Silbert v. Ramsey, 301\n407\n\n\x0cMd. 96, 482 A.2d 147 (1984) (patron excluded on the basis of his prior conviction for violation of\nstate lottery laws); James v. Churchill Downs, Inc., 620 S.W.2d 323 (Ky.App.1981) (excluded patron was\na convicted bookmaker); Tropical Park, Inc. v. Jack, 374 So.2d 639 (Fla.App.1979) (patron alleged to\nhave \xe2\x80\x9cknown underworld connections\xe2\x80\x9d was rightfully excluded); Burrillville Racing Association v.\nGarabedian, 113 R.I. 134, 318 A.2d 469 (1974) (excluded patron had prior conviction for income tax\nevasion in connection with a wager messenger operation); People v. Licata, 28 N.Y.2d 113, 268\nN.E.2d 787 (1971) (defendant had prior convictions for bookmaking); Flores v. Los Angeles Turf Club,\nInc., 55 Cal.2d 736, 13 Cal.Rptr. 201, 361 P.2d 921 (1961) (plaintiff was a convicted bookmaker). But\nthat fact only demonstrates that proprietors of amusement facilities, whose very survival depends on\nbringing the public into their place of amusement, are reasonable people who usually do not exclude\ntheir customers unless they have a reason to do so. What the proprietor of a race track does not\nwant to have to do is prove or explain that his reason for exclusion is a just reason. He doesn\xe2\x80\x99t want to\nbe liable to Coley Madden solely because he mistakenly believed he was a mobster. The proprietor\nwants to be able to keep someone off his private property even if they only look like a mobster. As\nlong as the proprietor is not excluding the mobster look-a-like because of his national origin (or\nbecause of race, color, creed, or sex), then the common law, and the law of Illinois, allows him to do\njust that.\nWe also choose not to follow the arguable \xe2\x80\x93 but not clear \xe2\x80\x93 abandonment of the common\nlaw rule in New Jersey in the case of Uston v. Resorts International Hotel, Inc., 89 N.J. 163, 445 A.2d 370\n(1982). In 1959 the New Jersey Supreme Court decided Garifine v. Monmouth Park Jockey Club, 29 N.J.\n47, 148 A.2d 1 (Sup.Ct.1959), which was an appeal from the trial court\xe2\x80\x99s refusal to grant the plaintiff\ninjunctive relief from his exclusion from Monmouth Park race track. The defendant race track,\nrelying on Madden, moved to dismiss the complaint on the ground that it had \xe2\x80\x9can absolute right\xe2\x80\x9d to\nexclude the plaintiff. On appeal, the plaintiff contended that the operator of a race track should not\nhave the common law right to exclude a patron without reasonable cause and that under the New\nJersey Civil Rights Act the operator did not have such authority. In a scholarly opinion the court\ntraced the genesis of the right of race tracks to exclude patrons without justifying the exclusion:\nThere was a time in English history when the common law recognized in many callings the\nduty to serve the public without discrimination. [Citations omitted.] With the passing of time and the\nchanging of conditions, the common law confined this duty to exceptional callings where the needs\nof the public urgently called for its continuance. Innkeepers and common carriers may be said to be\nthe most notable illustrations of business operators who, both under early principles and under the\ncommon law today, are obliged to serve the public without discrimination. [Citations omitted.] On\nthe other hand, operators of most businesses, including places of amusement such as race tracks,\nhave never been placed under any such common-law obligation, for no comparable considerations\nof public policy have ever so dictated. See Madden v. Queens County Jockey Club, 296 N.Y. 249, 72\nN.E.2d 697, 1 A.L.R.2d 1160 (Ct.App.1947), cert. denied 332 U.S. 761, 68 S.Ct. 63, 92 L.Ed. 346\n(1947); Greenfield v. Maryland Jockey Club, 190 Md. 96, 57 A.2d 335 (Ct.App.1948). Cf. Marrone v.\nWashington Jockey Club, 227 U.S. 633, 33 S.Ct. 401, 57 L.Ed. 679 (1913)\xe2\x80\xa6.\nNo holdings contrary to the foregoing have been cited by the plaintiff; and although he has\nurged that the defendant\xe2\x80\x99s common-law right of exclusion from its race track should be limited\nbecause as a licensee \xe2\x80\x9cit has secured the advantage of a State monopoly\xe2\x80\x9d we find no force in his\ncontention. See Madden v. Queens County Jockey Club, supra; Greenfeld v. Maryland Jockey Club, supra.\xe2\x80\xa6\nThe burden of the plaintiff\xe2\x80\x99s present attack is on the common-law doctrine which he states should\nbe altered to afford to him a right of admission to the race track in the absence of affirmative legal\nproof by the defendant that there is good cause for his exclusion. We are satisfied that, without\nregard to views which may be entertained in other types of cases, there has been no showing made\nhere for such alteration\xe2\x80\xa6.\n408\n\n\x0c148 A.2d at 6-7. However, in 1982 the New Jersey Supreme Court decided Uston in which\nthe plaintiff was a practitioner of a strategy of playing blackjack known as \xe2\x80\x9ccard counting.\xe2\x80\x9d The\ndefendant operated a gambling casino licensed pursuant to the New Jersey Casino Control Act. The\ndefendant excluded Uston from the blackjack tables in its casino because of Uston\xe2\x80\x99s strategy of\n\xe2\x80\x9ccard counting.\xe2\x80\x9d The New Jersey Supreme Court held that the Casino Control Act gave the Casino\nControl Commission the exclusive authority to exclude patrons based upon their strategies for\nplaying licensed casino games and that any common law right the defendant may have had to\nexclude Uston for these reasons was abrogated by the Act and outweighed by Uston\xe2\x80\x99s right of\naccess. Uston, 445 A.2d at 372.\nIn Marzocca v. Ferone, 93 N.J. 509, 461 A.2d 1133 (1983), the owner of a harness race horse\nwas barred from racing that horse at Freehold Raceway in New Jersey. The appellate court\ndetermined that Uston overruled Garifine v. Monmouth Park Jockey Club, sub silentio, and remanded the\ncase to the trial court to hear evidence as to whether the race track\xe2\x80\x99s exclusion was reasonable. The\ncase was then appealed to the New Jersey Supreme Court, where the court clarified its decision in\nUston and reversed the appellate court, stating:\nNotwithstanding the dicta in Uston, we must part company with the court below on the issue\nof Freehold\xe2\x80\x99s right to exclude. Without commenting on the status of the law in the amusement\nowner/patron context, we hold that the racetrack\xe2\x80\x99s common law right to exclude exists in the\ncontext of this case, i.e., where the relationship [is] between the track management and persons who\nwish to perform their vocational activities on the track premises.\n461 A.2d at 1137. Therefore, it is clear that New Jersey has not per se abandoned the\ncommon law rule but has adapted it, in a limited fashion, to the particular needs of its casino\nindustry. New Jersey has not gone as far as Illinois did in Cox, and in the Illinois Racing Statute, but\nthey give no reason why the patron is more protected than the licensee. The law of New Jersey does\nnot directly conflict with the law of Illinois that we inferred from Phillips and Cox, but to the extent\nthat it is different, the differences are further evidence that Illinois follows the common law\napproach.\nHowever, the New Jersey decisions do paint the wider policy picture of which our decision\ntoday is a part. As a policy matter, it is arguably unfair to allow a place of amusement to exclude for\nany reason or no reason, and to be free of accountability, except in cases of obvious discrimination.\nIn this case, the general public is not only invited but, through advertising, is encouraged to come to\nthe race track and wager on the races\xe2\x80\x99 outcome. But the common law allows the race track to\nexclude patrons, no matter if they come from near or far, or in reasonable reliance on\nrepresentations of accessibility. We may ultimately believe that market forces would preclude any\noutrageous excesses \xe2\x80\x93 such as excluding anyone who has blond hair, or (like the plaintiffs) who is\nfrom Pennsylvania, or (even more outrageous) who has $250,000 to spend in one day of betting. But\nthe premise of the consumer protection laws that the New Jersey Supreme Court alluded to in Uston\nand Marzocca recognizes that the reality of an imperfect market allows numerous consumer\ndepredations. Excluding a patron simply because he is named Adam Smith arguably offends the very\nprecepts of equality and fair dealing expressed in everything from the antitrust statutes to the Illinois\nConsumer Fraud and Deceptive Business Practice Act. Ill.Rev.Stat. ch. 121-, \xc2\xb6\xc2\xb6 262-72.\nBut the market here is not so demonstrably imperfect that there is a monopoly or any\nallegation of consumer fraud. Consequently, there is no such explicit legislative directive in the\ncontext of patrons attending horse races in Illinois \xe2\x80\x93 so the common law rule, relic though it may\nbe,1 still controls. Therefore, within the prohibitions of Erie, the language of the Illinois cases, and\nthe lack of language from the Illinois legislature, we hold that the common law rule is the law of\nIllinois.\n409\n\n\x0cIII\nFor the foregoing reasons the court below is affirmed.\nAs the New Jersey Supreme court noted in Uston, the rise of the American common law\nright to exclude without cause alarmingly corresponds to the fall of the old segregation laws.\nHowever, that is clearly not an issue in this case because the legislature has justly limited the absolute\nright to exclude to cases not involving exclusion based on race, creed, color, national origin, or sex.\nUston, 445 A.2d at 374 n. 4. \xe2\x86\xa9\nDonovan, Appellant (Plaintiff below), v. Grand Victoria Casino & Resort, L.P.G,\n934 NE 2d 1111 (Ind., Sep. 30, 2010)\n\nMarc S. Sedwick Indianapolis, Indiana, ATTORNEY FOR APPELLANT.\nPeter J. Rusthoven Paul L. Jefferson Matthew S. Winings Indianapolis, Indiana,\nATTORNEYS FOR APPELLEE.\nFred R. Biesecker John J. Thar Jenny R. Wright Indianapolis, Indiana, ATTORNEYS FOR\nAMICUS CURIAE CASINO ASSOCIATION OF INDIANA.\nSullivan, Justice.\nAn owner of an Indiana business has long had the absolute right to exclude a visitor or\ncustomer, subject only to applicable civil rights laws. This long-standing common law right of\nprivate property owners extends to the operator of a riverboat casino that wishes to exclude a patron\nfor employing strategies designed to give the patron a statistical advantage over the casino. The\nRiverboat Gambling Act, which gives the Indiana Gaming Commission exclusive authority to set\nthe rules of licensed casino games, does not abrogate this common law right.\nBackground\nGrand Victoria Casino & Resort, L.P. (\xe2\x80\x9cGrand Victoria\xe2\x80\x9d), owns and operates a riverboat\ncasino located in Rising Sun, Indiana. One of the games offered by Grand Victoria is blackjack.\nThomas P. Donovan supplements his income by playing blackjack in casinos. Donovan is a selfdescribed \xe2\x80\x9cadvantage player\xe2\x80\x9d who taught himself a strategy known as \xe2\x80\x9ccard counting\xe2\x80\x9d that he\nemploys when playing blackjack. Card counters keep track of the playing cards as they are dealt and\nadjust their betting patterns when the odds are in their favor. When used over a period of time, this\nmethod presumably ensures a more profitable encounter with the casino.\nFor a time, Grand Victoria allowed Donovan to play blackjack and card count if he wagered\nno more than $25 per hand. However, on August 4, 2006, Grand Victoria\xe2\x80\x99s director of table games\nadvised Donovan that Grand Victoria had decided to ban Donovan from playing blackjack, though\nDonovan would still be allowed to play other casino games. After Donovan indicated that he would\n410\n\n\x0cnot comply with Grand Victoria\xe2\x80\x99s request, he was evicted and placed on Grand Victoria\xe2\x80\x99s list of\nexcluded patrons.\nDonovan filed suit against Grand Victoria, alleging breach of contract and seeking a\ndeclaratory judgment that Grand Victoria could not exclude him from playing the game of blackjack\nfor counting cards. The trial court granted summary judgment in favor of the casino on both counts.\nDonovan appealed. The Court of Appeals affirmed summary judgment for Grand Victoria\non the breach of contract claim,1 but it reversed summary judgment on the exclusion issue, holding\nthat Donovan was entitled to a declaratory judgment that Grand Victoria had no right to exclude\nDonovan from blackjack for counting cards\xe2\x80\xa6 . .\nDiscussion\n\xe2\x80\xa6.\nOne of the time-honored principles of property law is the absolute and unconditional right\nof private property owners to exclude from their domain those entering without permission. See\nBrooks v. Chi. Downs Ass\xe2\x80\x99n, 791 F.2d 512, 515-16 (7th Cir. 1986) (citations omitted); see also 2\nWilliam Blackstone, Commentaries on the Laws of England 2 (1766) (defining private property as\n\xe2\x80\x9cthat sole and despotic dominion which one man claims and exercises over the external things of\nthe world, in total exclusion of the right of any other individual in the universe\xe2\x80\x9d). In Bailey v.\nWashington Theatre Co., this common law right was explicitly extended to proprietors of privately\nowned amusements. 34 N.E.2d 17, 19 (1941). The patron in Bailey had sought an order compelling\naccess to a privately owned theatre. In denying the patron relief, this Court held that \xe2\x80\x9d\xe2\x80\x99[t]he\nproprietor of a theater, unlike a carrier of passengers, is engaged in a strictly private business. He is\nunder no implied obligation to serve the public and \xe2\x80\xa6 is under no duty to admit everyone who may\napply and be willing to pay for a ticket.\xe2\x80\x99\xe2\x80\x9d Id. (citation omitted). This long-standing principle of\nproperty law has been frequently reaffirmed, subject only to statutorily imposed prohibitions on\nexclusions for characteristics such as race and religion. Id.; see also Brooks, 791 F.2d at 515-16. But\nwe have never had occasion to explore the application of this rule to the riverboat casino industry,\nwhich is the precise issue in this appeal.\nDonovan\xe2\x80\x99s principal contention is that any common law right that casinos might enjoy to\nexclude patrons from its premises has been preempted by the Indiana Gaming Commission\xe2\x80\x99s\n(\xe2\x80\x9cIGC\xe2\x80\x99s\xe2\x80\x9d) exhaustive regulation of the riverboat casino industry, especially its comprehensive\nregulation of every aspect of the game of blackjack. Grand Victoria responds that nothing in the\nIndiana Riverboat Gambling Act purports to abrogate common law exclusion rights; thus, absent\nexpress direction from the Legislature, the right remains intact.\n\xe2\x80\xa6.\nWe find the reasoning of Justice Gudgel of the Kentucky Court of Appeals in James\npersuasive:\n[T]he legislature possesses the power to abrogate a common law right by enacting a specific\nstatute which accomplishes that purpose. However, for us to conclude, as appellants have, that the\nmere enactment of statutes which confer upon the racing commission the authority to exercise a\nright of exclusion has the effect of abrogating the authority of racetrack proprietors to exercise an\nidentical common law right they possess is unwarranted.\nId. at 325. We agree.2 Grand Victoria enjoyed the common law right to exclude Donovan.\n\xe2\x80\xa6.\nLastly, Donovan urges Indiana to adopt the New Jersey Supreme Court\xe2\x80\x99s decision of Uston\n411\n\n\x0cv. Resorts Int\xe2\x80\x99l Hotel, Inc., 445 A.2d 370 (N.J. 1982). Uston had been excluded from a New Jersey\ncasino for card counting. Id. at 372. Like Donovan, Uston argued that a casino\xe2\x80\x99s common law right\narbitrarily to evict patrons from its premises had been preempted by exhaustive gaming regulations\ngoverning New Jersey\xe2\x80\x99s casino industry. The Uston court held that the Casino Control Act gave\nNew Jersey\xe2\x80\x99s gaming commission the exclusive authority to exclude patrons based upon their\nstrategies for playing licensed casino games and that any common law right the casino may have had\nto exclude Uston for these reasons was abrogated by the Act and outweighed by Uston\xe2\x80\x99s right of\naccess. Id.\nThe statutory language supporting the court\xe2\x80\x99s holding provided that the commission \xe2\x80\x9cshall\nestablish such minimum wagers and other limitations as may be necessary to assure the vitality of\ncasino operations and fair odds to and maximum participation by casino patrons.\xe2\x80\x9d Id. The court\nnoted that the New Jersey Act went into great detail in defining the rules of blackjack, and only the\ncommission had authority to alter these rules. Id. at 373. Following this line of reasoning, the court\nfound that the casinos had changed the rules of the game by excluding patrons based upon their\nmethod of play or their level of success. Id. The court ultimately concluded that such exclusions\ncontravened the Legislature\xe2\x80\x99s express intent for the enactment of New Jersey\xe2\x80\x99s Casino Control Act:\n\xe2\x80\x9c[T]o assure \xe2\x80\xa6 maximum participation by casino patrons.\xe2\x80\x9d Id. at 372-73.\nIndiana courts have never recognized a public right of access to private property. See\nWilhoite v. Melvin Simon & Assocs., Inc., 640 N.E.2d 382, 385 (Ind. Ct. App. 1994) (\xe2\x80\x9cThere is no\nlaw, rule, or understanding stemming from Indiana law, federal law or other source creating a right\nto be admitted to private property.\xe2\x80\x9d) In fact, Wilhoite rebuffed the view \xe2\x80\x9cthat because [a proprietor]\nopens itself to the public, it loses its character as private property.\xe2\x80\x9d Id. at 387 (citing Lloyd Corp. v.\nTanner, 407 U.S. 551, 570 (1972) (\xe2\x80\x9cNor does property lose its private character merely because the\npublic is generally invited to use it for designated purposes.\xe2\x80\x9d)). And in contrast to the express intent\nfor the enactment of New Jersey\xe2\x80\x99s Casino Control Act, our Legislature chose to legalize riverboat\ngambling \xe2\x80\x9cto benefit the people of Indiana by promoting tourism and assisting economic\ndevelopment,\xe2\x80\x9d I.C. \xc2\xa7 4-33-1-2, not to ensure maximum participation by casino patrons.\nAcknowledging this lack of congruence between the two states\xe2\x80\x99 gaming statutes, Donovan\nargues that Grand Victoria opened its premises to the general public for tourism purposes and the\narbitrary exclusion of patrons neither promotes tourism nor economic development. We are not\npersuaded. It seems to us just as likely \xe2\x80\x93 if not more so \xe2\x80\x93 that discouraging card counting enhances a\ncasino\xe2\x80\x99s financial success and directly furthers the Legislature\xe2\x80\x99s express objective of promoting\ntourism and assisting economic development. In point of fact, New Jersey has come to recognize\nthat card counting can threaten economic development. See Campione v. Adamar of N.J., Inc., 714\nA.2d 299, 305 (N.J. 1998) (acknowledging that gaming commission regulations sanctioning the use\nof card counting countermeasures were intended \xe2\x80\x9cto minimize the perceived threat of card counters\nto the statistical advantage that casinos need to remain profitable\xe2\x80\x9d).\nOther considerations counsel against adopting the position Donovan advances. In Brooks,\nthe Seventh Circuit recognized that although it is \xe2\x80\x9carguably unfair\xe2\x80\x9d to allow a place of amusement\narbitrarily to exclude patrons, 791 F.2d at 518, there are sound public policy reasons in support of\nthe common law rule of exclusion:\n[P]roprietors of amusement facilities, whose very survival depends on bringing the public\ninto their place of amusement, are reasonable people who usually do not exclude their customers\nunless they have a reason to do so. What the proprietor of a race track does not want to have to do\nis prove or explain that his reason for exclusion is a just reason.\n791 F.2d at 517 (emphasis omitted). In the words of the Arizona Court of Appeals,\nWe are not persuaded that the common law rule of exclusion should be changed. The policy\nupon which it is based is still convincing. The [casino] proprietor must be able to control admission\n412\n\n\x0cto its facilities without risk of a lawsuit and the necessity of proving that every person excluded\nwould actually engage in some unlawful activity.\nNation, 579 P.2d at 582; see also Brief of Amicus Curiae at 8 (\xe2\x80\x9cSuch decisions are, and\nshould be, matters of business judgment to be evaluated and remedied by competitive market forces,\nnot courts.\xe2\x80\x9d).\nDickson, Justice, dissenting.\nI disagree with the Court\xe2\x80\x99s foundational premise that gambling casinos are entitled to the\nsame common law right of arbitrary exclusion as possessed by proprietors of conventional\nbusinesses at common law. The privilege of operating a casino exists in Indiana only by recent\nspecial enactments of the Indiana General Assembly, and such operation is dependent upon specific\nauthorization and comprehensive regulation of the Indiana Gaming Commission. It is only through\nthe grace of such legislative and administrative permission that casinos exist in Indiana and are\nlicensed and permitted to seek a profit by inviting the general public to participate in games that\noffer the prospect of reward for success. Permitting a casino to restrict its patrons only to those\ncustomers who lack the skill and ability to play such games well intrudes upon principles of fair and\nequal competition and provides unfair financial advantages and rewards to casino operators. I am\nnot persuaded that such schemes are supported or protected by any common law right or privilege.\nI believe the analysis and conclusion of the Court of Appeals is correct in this case.\nDonovan v. Grand Victoria Casino & Resort, L.P., 915 N.E.2d 1001 (Ind. Ct. App. 2009). It\nrecognized the historic prohibition against gambling within Indiana\xe2\x80\x99s borders until selectively\npermitted in the past two decades and that it remains subject to \xe2\x80\x9cstrict regulation.\xe2\x80\x9d See Ind. Code \xc2\xa7\n4-33-4-2. The Indiana Gaming Commission, granted the exclusive authority to set rules of riverboat\ncasino games, did not enact any prohibition against card counting nor did the defendant casino\nrequest Commission approval of such a rule. Card counting is not illegal under the exhaustive set of\nblackjack regulations promulgated by the Gaming Commission. See 68 Ind. Admin. Code 10-2-14.\nThe regulations permit a riverboat licensee to impose additional blackjack rules but only if deemed\nnecessary \xe2\x80\x9cto ensure the integrity of the game.\xe2\x80\x9d 68 I.A.C. 10-2-2(b). I find that targeting unskilled\nblackjack players and excluding gifted ones is grossly incompatible with the integrity of the game.\nThe comprehensive, exclusive authority of the Indiana Gaming Commission is the basis of\nthis Court\xe2\x80\x99s decision today in Caesars Riverboat Casino, LLC v. Kephart, 934 N.E.2d 1120 (Ind.\n2010). The Court in Kephart finds that Indiana\xe2\x80\x99s statutory scheme of riverboat gambling regulation\nand the plaintiff\xe2\x80\x99s common law claim in that case are \xe2\x80\x9cso incompatible that they cannot both occupy\nthe same space.\xe2\x80\x9d Id. slip opin. at 6. If this is so, the same principle should be applied here. I dissent\nin Kephart, however, believing that the common law cause of action by an injured customer against\na business operator failing to exercise reasonable care has not been expressly or unmistakably\nabrogated by Indiana\xe2\x80\x99s gambling statutes. But in the present case, I conclude that, because Indiana\xe2\x80\x99s\ngambling casino businesses exist only by statute and regulation, they are governed exclusively by the\nCommission\xe2\x80\x99s regulatory authority and not by common law.\nI agree with the Court of Appeals conclusion that Grand Victoria should not be allowed to\nexclude the plaintiff from playing blackjack simply because the casino fears that he may be\nexceptionally good at it.\nThis issue has not been raised on transfer by either party. We summarily affirm the Court of\nAppeals. Ind. App. R. 58(A)(2). \xe2\x86\xa9\n413\n\n\x0cThis does not mean that the comprehensive regulatory scheme enacted by the Legislature\nand implemented by the IGC did not abrogate any of the common law. See Caesars Riverboat\nCasino, LLC v. Kephart, 934 N.E.2d 1120, No. 31S01-0909-CV-00403, slip op. (Ind. Sept. 30, 2010)\n(holding that the regulatory scheme abrogated any putative common law duty of casinos to protect\ncompulsive gamblers). In this case, Donovan argues that because the regulatory scheme does not\nprohibit card counting, the common law right to exclude is abrogated. But while the common law\nduty on the part of a casino to exclude a compulsive gambler is incompatible with the regulatory\nscheme at issue in Kephart because the regulation imposes a duty instead on the gambler to register,\nthere is nothing that makes the common law right to exclude incompatible, or even in conflict with,\nthe regulatory scheme at issue in this case. The regulation here dictates the rules of the game of\nblackjack but in no way conflicts with or limits a casino from excluding smokers or college students\nor provocative dressers \xe2\x80\x93 or card counters. \xe2\x86\xa9\n\n414\n\n\x0c7.3.2. Civil Rights Acts\nDale v. Boy Scouts of America,\n160 N.J. 562 (1999)\n\nGeorge A. Davidson, a member of the New York bar, New York City, for defendantsappellants and cross-respondents (Cerrato, Dawes, Collins, Saker & Brown, attorneys, Freehold; Mr.\nDavidson, Sanford D. Brown, Freehold and Carla A. Kerr, a member of the New York bar, New\nYork City, on the briefs).\nEvan Wolfson, a member of the New York bar, New York City, for plaintiff-respondent and\ncross-appellant (Lewis H. Robertson, attorney, Red Bank; Mr. Wolfson, Mr. Robertson and Thomas\nJ. Moloney, a member of the New York bar, New York City, on the briefs).\nThe opinion of the Court was delivered by Poritz C.J.\nIn 1991, the New Jersey Legislature amended the Law Against Discrimination (LAD),\nN.J.S.A. 10:5-1 to -49, to include protections based on \xe2\x80\x9caffectional or sexual orientation.\xe2\x80\x9d This case\nrequires us to decide whether that law prohibits Boy Scouts of America (BSA) from expelling a\nmember solely because he is an avowed homosexual.\nDefendants BSA and Monmouth Council (collectively Boy Scouts) seek review of a decision\nof the Appellate Division holding that: (1) Boy Scouts is a place of public accommodation as defined\nby the LAD; (2) Boy Scouts\xe2\x80\x99 expulsion of plaintiff James Dale, an assistant scoutmaster, based solely\non the club\xe2\x80\x99s policy of excluding avowed homosexuals from membership is prohibited by the LAD;\nand (3) the LAD prohibition does not violate Boy Scouts\xe2\x80\x99 First Amendment rights. Plaintiff, James\nDale, seeks certification on his common law claim, dismissed by the Appellate Division. We granted\nboth parties\xe2\x80\x99 petitions, 156 N.J. 381, 718 A.2d 1210, 156 N.J. 382, 718 A.2d 1210 (1998), and now\naffirm.\n\xe2\x80\xa6.\nJames Dale first became a BSA member in 1978 when, at the age of eight, he joined\nMonmouth Council\xe2\x80\x99s Cub Scout Pack 142. He remained a Cub Scout until 1981, when he became a\nmember of Boy Scout Troop 220, also in Monmouth Council. He joined Monmouth Council\xe2\x80\x99s Boy\nScout Troop 128 in 1983, and Troop 73 in 1985. Until his eighteenth birthday in 1988, he remained\na youth member of Troop 73.\nDale was an exemplary scout. Over the ten years of his membership, he earned more than\ntwentyfive merit badges. In 1983, he was admitted into Boy Scouts\xe2\x80\x99 Order of the Arrow, the\norganization\xe2\x80\x99s honor camping society, and achieved the status of Virgil Honor. The pinnacle of\nDale\xe2\x80\x99s career as a youth member came in 1988, when BSA awarded him an Eagle Scout Badge, an\nhonor achieved by only the top three percent of all scouts.\nDale\xe2\x80\x99s participation in Boy Scout leadership began at an early age. Throughout his years as a\nmember, Dale was an assistant patrol leader, patrol leader, and bugler, and from 1985 to 1988, Dale\nserved as a Junior Assistant Scoutmaster for Troop 73. He was also invited to speak at organized\n415\n\n\x0cBoy Scout functions, such as the Joshua Huddy Distinguished Citizenship Award Dinner, and\nattended national events, including the National Boy Scout Jamboree. On March 21, 1989, Dale\nsought adult membership in Boy Scouts. Monmouth Council and BSA accepted and approved his\napplication for the position of Assistant Scoutmaster of Troop 73 where he served for\napproximately sixteen months.\nAt about the same time that Dale applied for adult membership, he left home to attend\nRutgers University. While at college, Dale first acknowledged to himself, and to his family and\nfriends, that he was gay. Shortly thereafter, he became involved with, and eventually became the copresident of the Rutgers University Lesbian/Gay Alliance. Then, in July 1990, Dale attended a\nseminar that addressed the psychological and health needs of lesbian and gay teenagers. The StarLedger interviewed Dale and published an article on July 8, 1990 that discussed the seminar. The\narticle included Dale\xe2\x80\x99s photograph and a caption identifying him as \xe2\x80\x9cco-president of the Rutgers\nUniversity Lesbian/Gay Alliance.\xe2\x80\x9d Kinga Borondy, Seminar Addresses Needs of Homosexual Teens, StarLedger (Newark), July 8, 1990, \xc2\xa7 2, at 11.\nLater that month, Dale received a letter from Monmouth Council Executive James W. Kay,\nrevoking his BSA membership. The letter asked Dale to \xe2\x80\x9csever any relations [he] may have with the\nBoy Scouts of America,\xe2\x80\x9d and granted Dale sixty days to request a review of his termination from the\nMonmouth Council Regional Review Committee.\nDale wrote to Kay on August 8, 1990, and requested the basis for the Monmouth Council\xe2\x80\x99s\ndecision. In a letter dated August 10, 1990, Kay notified Dale that the \xe2\x80\x9cgrounds for [his]\nmembership revocation\xe2\x80\x9d were \xe2\x80\x9cthe standards for leadership established by the Boy Scouts of\nAmerica, which specifically forbid membership to homosexuals.\xe2\x80\x9d1 On September 30, 1990, Dale\nwrote a letter to the Northeast Regional Director, Rudy Flythe, asking for a review of his\nmembership decision and a copy of BSA\xe2\x80\x99s leadership standards. Dale also requested permission to\nattend the review, a right to which he was entitled under the Monmouth Council Review\nProcedures. The Regional Review Committee acknowledged receipt of Dale\xe2\x80\x99s request, but neglected\nto provide him with a copy of the BSA standards for leadership or a review date.\nIn another letter dated October 16, 1990, Dale once again asked for a copy of the leadership\nstandards and notice of the review date. On November 27, 1990, Charles Ball, the Assistant\nRegional Director of the Northeast Region, notified Dale that the \xe2\x80\x9cNortheast Region, [BSA] Review\nCommittee supports the decision of the Monmouth Council \xe2\x80\xa6 to deny your registration with\n[BSA],\xe2\x80\x9d and granted Dale thirty days to seek review by the National Council Review Committee.\nThree weeks later, through counsel, Dale wrote to the Chief Scout Executive of BSA and requested\na rehearing and an opportunity to attend the review. BSA\xe2\x80\x99s counsel informed Dale on December 21,\n1990, that he had been denied the right to attend because: \xe2\x80\x9c[BSA] does not admit avowed\nhomosexuals to membership in the organization so no useful purpose would apparently be served\nby having Mr. Dale present at the regional review meeting.\xe2\x80\x9d BSA did agree, however, to have the\nNational Council review Dale\xe2\x80\x99s membership revocation. Because Dale believed that a National\nCouncil review \xe2\x80\x9cwould be futile,\xe2\x80\x9d he initiated these legal proceedings.\n\xe2\x80\xa6.\nOn July 29, 1992, Dale filed a six-count complaint against BSA and Monmouth Council in\nthe Superior Court of New Jersey. Dale alleged that Boy Scouts had violated the New Jersey Law\nAgainst Discrimination and common law by revoking his membership based solely on his sexual\norientation. He sought declaratory, injunctive, compensatory and punitive monetary relief, as well as\ncosts and attorney fees.\n\xe2\x80\xa6.\nDale moved for partial summary judgment in September 1993, demanding immediate\nreinstatement based on his claim that defendants had violated the LAD and New Jersey\xe2\x80\x99s public\n416\n\n\x0cpolicy. Defendants, in response, cross-moved for summary judgment on all counts. The court\ndenied Dale\xe2\x80\x99s motion and granted Boy Scouts\xe2\x80\x99 cross-motion. Dale v. Boy Scouts of Am., No. MON-C330-92 (Ch. Div. Nov. 3, 1995). After concluding that Dale was \xe2\x80\x9ca sexually active homosexual,\xe2\x80\x9d the\ncourt found that Boy Scouts had always had a policy of excluding \xe2\x80\x9cactive homosexual[s].\xe2\x80\x9d Id. at 6,\n38. The court opined that homosexual acts are immoral and attributed to Boy Scouts a longstanding\nantipathy toward such behavior. Id. at 39-40. In the judge\xe2\x80\x99s view, \xe2\x80\x9c[i]t [was] unthinkable \xe2\x80\xa6 that the\nBSA could or would tolerate active homosexuality if discovered in any of its members.\xe2\x80\x9d Id. at 40.\nAs to the applicability of the LAD, the court held that Boy Scouts was not a place of public\naccommodation, or alternatively, that Boy Scouts was exempt under the \xe2\x80\x9cdistinctly private\xe2\x80\x9d\nexception found at N.J.S.A. 10:5-5l. Id. at 55. The court rejected Dale\xe2\x80\x99s common law claim, finding\nthat the State\xe2\x80\x99s policy \xe2\x80\x9cis that established by the NJLAD \xe2\x80\xa6 [and] not some prior common law\npolicy.\xe2\x80\x9d Id. at 45. Because the court believed that Boy Scouts\xe2\x80\x99 moral position in respect of active\nhomosexuality was clear, it found that Boy Scouts\xe2\x80\x99 First Amendment freedom of expressive\nassociation \xe2\x80\x9cprevent[ed] government from forcing [the organization] to accept Dale as an adult\nleader-member.\xe2\x80\x9d Id. at 71.\nThe Appellate Division affirmed the dismissal of Dale\xe2\x80\x99s common law claim, but otherwise\nreversed and remanded for further proceedings. Dale v. Boy Scouts of Am., 308 N.J.Super. 516, 523,\n706 A.2d 270 (App.Div.1998).\n\xe2\x80\xa6.\nA.The LAD\nWe first consider whether Boy Scouts is subject to the LAD, which provides that \xe2\x80\x9c[a]ll\npersons shall have the opportunity\xe2\x80\xa6 to obtain all the accommodations, advantages, facilities, and\nprivileges of any place of public accommodation, \xe2\x80\xa6 without discrimination because of \xe2\x80\xa6\naffectional or sexual orientation.\xe2\x80\x9d N.J.S.A. 10:5-4. Boy Scouts must therefore abide by the LAD if\nBoy Scouts is a place of public accommodation and does not meet any of the LAD exceptions. See,\ne.g., N.J.S.A. 10:5-5l (exempting \xe2\x80\x9cdistinctly private\xe2\x80\x9d entities, religious educational facilities, and\nparents or individuals acting \xe2\x80\x9cin loco parentis\xe2\x80\x9d in respect of \xe2\x80\x9cthe education and upbringing of a\nchild\xe2\x80\x9d).\n\n1.Place of Public Accommodation\n\n\xe2\x80\x9c[T]he overarching goal of the [LAD] is nothing less than the eradication \xe2\x80\x98of the cancer of\ndiscrimination.\xe2\x80\x99\xe2\x80\x9d Fuchilla v. Layman, 109 N.J. 319, 334, 537 A.2d 652 (quoting Jackson v. Concord Co.,\n54 N.J. 113, 124, 253 A.2d 793 (1969)), cert. denied, 488 U.S. 826, 109 S.Ct. 75, 102 L. Ed.2d 51\n(1988). \xe2\x80\x9c[D]iscrimination threatens not only the rights and proper privileges of the inhabitants of\n[New Jersey,] but menaces the institutions and foundation of a free democratic State.\xe2\x80\x9d N.J.S.A. 10:53. In furtherance of its purpose to root out discrimination, the Legislature has directed that the LAD\n\xe2\x80\x9cshall be liberally construed.\xe2\x80\x9d Ibid. We have adhered to that legislative mandate by historically and\nconsistently interpreting the LAD \xe2\x80\x9c\xe2\x80\x98with that high degree of liberality which comports with the\npreeminent social significance of its purposes and objects.\xe2\x80\x99\xe2\x80\x9d Andersen v. Exxon Co., 89 N.J. 483, 495,\n446 A.2d 486 (1982) (quoting Passaic Daily News v. Blair, 63 N.J. 474, 484, 308 A.2d 649 (1973)).\nA clear understanding of the phrase \xe2\x80\x9cplace of public accommodation\xe2\x80\x9d is critical. That is\nbecause \xe2\x80\x9cplace of public accommodation\xe2\x80\x9d is, in large measure, determinative of the LAD\xe2\x80\x99s scope.\n417\n\n\x0cCertainly, if the statute is broadly applicable, the antidiscriminatory impact of its provisions is\ngreater. The Legislature\xe2\x80\x99s finding that the effects of discrimination are pernicious, and its directive to\nliberally construe the LAD, have informed our cases interpreting the reach of \xe2\x80\x9cplace of public\naccommodation.\xe2\x80\x9d\na.Place\nIn 1965, the Court held that places of public accommodation were not limited to those\nenumerated in the statute. Fraser v. Robin Dee Day Camp, 44 N.J. 480, 486, 210 A.2d 208 (1965) (then\nN.J.S.A. 18:25-5(l)). At that time, the statutory definition used the word \xe2\x80\x9cinclude\xe2\x80\x9d to preface a list of\nspecific \xe2\x80\x9cplaces\xe2\x80\x9d of public accommodation. See id. at 485, 210 A.2d 208. We reasoned that the\nLegislature\xe2\x80\x99s choice of the word \xe2\x80\x9cinclude\xe2\x80\x9d indicated that the \xe2\x80\x9cplaces\xe2\x80\x9d expressly mentioned were\n\xe2\x80\x9cmerely illustrative of the accommodations the Legislature intended to be within the scope of the\nstatute. Other accommodations, similar in nature to those enumerated, were also intended to be\ncovered.\xe2\x80\x9d Id. at 486, 210 A.2d 208. Less than a year later, the Legislature amended the LAD to\nexpressly state that \xe2\x80\x9c\xe2\x80\x98a place of public accommodation\xe2\x80\x99 shall include, but not be limited to\xe2\x80\x9d the various\nexamples identified, L. 1966, c. 17 (emphasis added), thereby reaffirming our broad construction of\nthe statutory language.2\nLater, the word \xe2\x80\x9cplace\xe2\x80\x9d became a further source of legal dispute. In National Organization of\nWomen v. Little League Baseball, Inc., 67 N.J. 320, 338 A.2d 198 (1974), we affirmed the decision of the\nAppellate Division holding that: \xe2\x80\x9c[t]he statutory noun \xe2\x80\x98place\xe2\x80\x99 \xe2\x80\xa6 is a term of convenience, not of\nlimitation[,] \xe2\x80\xa6 employed to reflect the fact that public accommodations are commonly provided at\nfixed \xe2\x80\x98places.\xe2\x80\x99\xe2\x80\x9d 127 N.J.Super. 522, 531, 318 A.2d 33 (App.Div.1974). The defendant in Little League\nwas a chartered baseball league that excluded girls between the ages of eight and twelve years from\nparticipation in its programs. The league contended that it did not come \xe2\x80\x9cwithin the meaning of the\nstatute, primarily because it [was] a membership organization which does not operate from any fixed\nparcel of real estate in New Jersey of which it had exclusive possession by ownership or lease.\xe2\x80\x9d Id. at\n530, 318 A.2d 33. The court rejected that narrow view of \xe2\x80\x9cplace\xe2\x80\x9d:\nThe \xe2\x80\x9cplace\xe2\x80\x9d of public accommodation in the case of Little League is obviously the ball field\nat which tryouts are arranged, instructions given, practices held and games played. The statutory\n\xe2\x80\x9caccommodations, advantages, facilities and privileges\xe2\x80\x9d at the place of public accommodation is the\nentire agglomeration of the arrangements which Little League and its local chartered leagues make\nand the facilities they provide for the playing of baseball by the children.\n[Id. at 531, 318 A.2d 33 (citations omitted).]\nIn New Jersey, \xe2\x80\x9cplace\xe2\x80\x9d has been more than a fixed location since 1974.\nAs Boy Scouts correctly observes, other jurisdictions interpreting their antidiscrimination\nlaws have found \xe2\x80\x9cplace\xe2\x80\x9d to be a limiting factor encompassing only a fixed location. See, e. g., Welsh v.\nBoy Scouts of Am., 993 F.2d 1267, 1269 (7th Cir.) (holding that Boy Scouts is not \xe2\x80\x9cplace of public\naccommodation\xe2\x80\x9d under Title II of Civil Rights Act of 1964 because \xe2\x80\x9cCongress when enacting \xc2\xa7\n2000a(b) never intended to include membership organizations that do not maintain a close\nconnection to a structural facility within the meaning of \xe2\x80\x98place of public accommodation\xe2\x80\x99\xe2\x80\x9c), cert.\ndenied, 510 U.S. 1012, 114 S.Ct. 602, 126 L.Ed.2d 567 (1993); United States Jaycees v. Richardet, 666 P.2d\n1008, 1011 (Alaska 1983) (stating that \xe2\x80\x9cthe word \xe2\x80\x98place\xe2\x80\x99\xe2\x80\xa6.would not encompass a service\norganization lacking a fixed geographical situs\xe2\x80\x9d); United States Jaycees v. Bloomfield, 434 A.2d 1379, 1381\n(D.C.1981) (disagreeing with lower court\xe2\x80\x99s conclusion that \xe2\x80\x9cit is not necessary that there be a\nbuilding \xe2\x80\xa6 in order to categorize an existing entity as a place of public accommodation\xe2\x80\x9d); United\n418\n\n\x0cStates Jaycees v. Iowa Civil Rights Comm\xe2\x80\x99n, 427 N.W.2d 450, 454 (Iowa 1988) (stating that \xe2\x80\x9cUnited States\nJaycees is not a \xe2\x80\x98place\xe2\x80\x99 within our definition of \xe2\x80\x98public accommodation\xe2\x80\x99\xe2\x80\x9c); United States Jaycees v.\nMassachusetts Comm\xe2\x80\x99n Against Discrimination, 391 Mass.594, 463 N.E.2d 1151, 1156 (1984) (finding that\nMassachusetts antidiscrimination law \xe2\x80\x9cdoes not apply to [a] membership organization, since such an\norganization does not fall within the commonly accepted definition of \xe2\x80\x98place\xe2\x80\x99\xe2\x80\x9c).\nWe observe that not all jurisdictions have interpreted \xe2\x80\x9cplace\xe2\x80\x9d so narrowly. The New York\nCourt of Appeals has held that a \xe2\x80\x9cplace of public accommodation need not be a fixed location, it is\nthe place where petitioners do what they do,\xe2\x80\x9d including \xe2\x80\x9cthe place where petitioners\xe2\x80\x99 meetings and\nactivities occur.\xe2\x80\x9d United States Power Squadrons v. State Human Rights Appeal Bd., 59 N.Y.2d 401, 465\nN.Y.S.2d 871, 452 N.E.2d 1199, 1204 (1983). The Supreme Court of Minnesota has also approved a\nflexible construction of the term \xe2\x80\x9cplace.\xe2\x80\x9d In United States Jaycees v. McClure, 305 N.W.2d 764, 773\n(Minn.1981), the Minnesota court agreed with the Little League premise that a \xe2\x80\x9c\xe2\x80\x98place of public\naccommodation\xe2\x80\x99\xe2\x80\xa6 is less a matter of whether the organization operates on a permanent site, and\nmore a matter of whether the organization engages in activities in places to which an unselected\npublic is given an open invitation.\xe2\x80\x9d\nDespite numerous additions and modifications to the LAD in the twentyfour years since\nLittle League was decided, the New Jersey Legislature has not enacted a limiting definition of place.\nSee Massachusetts Mutual Life Ins. Co. v. Manzo, 122 N.J. 104, 116, 584 A.2d 190 (1991) (stating that\n\xe2\x80\x9c[t]he Legislature\xe2\x80\x99s failure to modify a judicial determination, while not dispositive, is some evidence\nof legislative support for the judicial construction of a statute \xe2\x80\xa6. [especially when] the Legislature\nhas amended [the] statute several times without altering the judicial construction\xe2\x80\x9d). We decline now\nto construe \xe2\x80\x9cplace\xe2\x80\x9d so as to include only membership associations that are connected to a particular\ngeographic location or facility. As the Appellate Division has so aptly pointed out, \xe2\x80\x9c[t]o have the\nLAD\xe2\x80\x99s reach turn on the definition of \xe2\x80\x98place\xe2\x80\x99 is irrational because \xe2\x80\x98places do not discriminate; people\nwho own and operate places do.\xe2\x80\x99\xe2\x80\x9d Dale, supra, 308 N.J.Super. at 533, 706 A.2d 270 (quoting Welsh,\nsupra, 993 F.2d at 1282 (Cummings, J., dissenting)). A membership association, like Boy Scouts, may\nbe a \xe2\x80\x9cplace\xe2\x80\x9d of public accommodation even if the accommodation is provided at \xe2\x80\x9ca moving situs.\xe2\x80\x9d\nLittle League, supra, 127 N.J.Super. at 531, 318 A.2d 33. In this case it is readily apparent that the\nvarious locations where Boy Scout troops meet fulfill the LAD \xe2\x80\x9cplace\xe2\x80\x9d requirement.\nb. Public Accommodation\nOur case law identifies various factors that are helpful in determining whether Boy Scouts is\na \xe2\x80\x9cpublic accommodation.\xe2\x80\x9d We ask, generally, whether the entity before us engages in broad public\nsolicitation, whether it maintains close relationships with the government or other public\naccommodations, or whether it is similar to enumerated or other previously recognized public\naccommodations.\nBroad public solicitation has consistently been a principal characteristic of public\naccommodations. Our courts have repeatedly held that when an entity invites the public to join,\nattend, or participate in some way, that entity is a public accommodation within the meaning of the\nLAD. See, e.g., Clover Hill Swimming Club, Inc. v. Goldsboro, 47 N.J. 25, 33, 219 A.2d 161 (1966) (stating\nthat \xe2\x80\x9c[a]n establishment which by advertising or otherwise extends an invitation to the public\ngenerally is a place of public accommodation\xe2\x80\x9d); Sellers v. Philip\xe2\x80\x99s Barber Shop, 46 N.J. 340, 345, 217\nA.2d 121 (1966) (stating that \xe2\x80\x9c[a]n establishment which caters to the public or by advertising or\nother forms of invitation induces patronage generally is a place of public accommodation\xe2\x80\x9d); Fraser,\nsupra, 44 N.J. at 488, 210 A.2d 208 (stating that \xe2\x80\x9c[i]n light of the nature of the facilities and activities\n419\n\n\x0coffered to the general public by respondent\xe2\x80\x99s day camp, we hold that it is a public accommodation\xe2\x80\x9d);\nLittle League, supra, 127 N.J.Super. at 531, 318 A.2d 33 (stating that \xe2\x80\x9cLittle League is a public\naccommodation because the invitation is open to children in the community at large\xe2\x80\x9d); Evans v. Ross,\n57 N.J.Super. 223, 231, 154 A.2d 441 (App.Div.) (stating that LAD requires \xe2\x80\x9can establishment which\ncaters to the public, and by advertising or other forms of invitation induces patronage generally, [not\nto] refuse to deal with members of the public who have accepted the invitation\xe2\x80\x9d), certif. denied, 31 N.J.\n292, 157 A.2d 362 (1959); see also Kiwanis Int\xe2\x80\x99l v. Ridgewood Kiwanis Club, 806 F.2d 468, 475 (3d\nCir.1986) (stating that LAD applies whenever \xe2\x80\x9cthe organization or club \xe2\x80\xa6 invite[s] an unrestricted\nand unselected public to join as members\xe2\x80\x9d); Brounstein v. American Cat Fanciers Ass\xe2\x80\x99n, 839 F.Supp.\n1100, 1107 (D.N.J. 1993) (stating that \xe2\x80\x9c\xe2\x80\x98primary [public accommodation] consideration\xe2\x80\x99\xe2\x80\x9d under\nLAD is \xe2\x80\x9c\xe2\x80\x98whether the invitation to gather is open to the public at large\xe2\x80\x99\xe2\x80\x9c) (quoting Kiwanis Int\xe2\x80\x99l, supra,\n806 F.2d at 474).\nBSA engages in broad public solicitation through various media. In 1989, for example, BSA\nspent more than $1 million on a national television advertising campaign. A New York Times article\ndescribes one of Boy Scouts\xe2\x80\x98\xe2\x80\x9chip\xe2\x80\x9d television ads, quoting a BSA spokesman as stating, \xe2\x80\x9cscouting [is]\na product and we\xe2\x80\x99ve got to get the product into the hands of as many consumers as we can.\xe2\x80\x9d3 Kim\nFoltz, TV Ad\xe2\x80\x99s Hip Pitch: It\xe2\x80\x99s \xe2\x80\x98Cool\xe2\x80\x99 to be a Boy Scout, N.Y. Times, Oct. 30, 1989. BSA has also\nadvertised in widely distributed magazines, such as Sports Afield and Redbook. Local Boy Scout\ncouncils engage in substantial public solicitation. BSA frequently supplies the councils with\nrecruiting materials, such as television and radio public service announcements, advertisements, and\nother promotional products. Monmouth Council, in particular, has expressly invited the public by\nconducting recruiting drives and by providing local troops with BSA-produced posters and\npromotions aimed at attracting new members.\nBoy Scout troops also take part in perhaps the most powerful invitation of all, albeit an\nimplied one: the symbolic invitation extended by a Boy Scout each time he wears his uniform in\npublic. See Sellers, supra, 46 N.J. at 345, 217 A.2d 121 (finding that barber shop\xe2\x80\x99s pole extended\nimplied invitation to public). A boy in a uniform may well be Boy Scouts\xe2\x80\x99 strongest recruiting tool.\nBy encouraging scouts to wear their uniforms to school, and when participating in \xe2\x80\x9cSchool Nights\xe2\x80\x9d\nand public demonstrations, Boy Scouts invites the curiosity and awareness of others in the\ncommunity. Boy Scouts admits that it encourages these displays in the hope of attracting new\nmembers.\nOn the facts before us, it cannot be controverted that Boy Scouts reaches out to the public\nin a myriad of ways designed to increase and sustain a broad membership base. Whether by\nadvertising or active recruitment, or through the symbolism of a Boy Scout uniform, the intent is to\nsend the invitation to as many members of the general public as possible. Once Boy Scouts has\nextended this invitation, the LAD requires that all members of the public must \xe2\x80\x9chave equal rights \xe2\x80\xa6\nand not be subjected to the embarrassment and humiliation of being invited[,] \xe2\x80\xa6 only to find [the]\ndoors barred to them.\xe2\x80\x9d Evans, supra, 57 N.J.Super. at 231, 154 A.2d 441.\nBoy Scouts is a \xe2\x80\x9cpublic accommodation,\xe2\x80\x9d not simply because of its solicitation activities, but\nalso because it maintains close relationships with federal and state governmental bodies and with\nother recognized public accommodations. Our cases have held that certain organizations that benefit\nfrom relationships with the government and other public accommodations are themselves places of\npublic accommodation within the meaning of the LAD. In Little League, for example, the court\nconcluded that Little League was \xe2\x80\x9cpublic in the added sense that local governmental bodies\ncharacteristically make the playing areas available to the local leagues, ordinarily without charge.\xe2\x80\x9d 127\nN.J.Super. at 531, 318 A.2d 33, aff\xe2\x80\x99d, 67 N.J. 320, 338 A.2d 198 (1974). More recently, in Frank v. Ivy\nClub, 120 N.J. 73, 79, 110, 576 A.2d 241 (1990), a female student sought membership in the all-male\neating clubs at Princeton University. Although they did not publicly solicit new members, we held\n420\n\n\x0cthat the clubs\xe2\x80\x99 close relationship to the University, a place of public accommodation, rendered them\nsubject to the LAD. Id. at 110, 576 A.2d 241.\nIt is clear that Boy Scouts benefits from a close relationship with the federal government.\nIndeed, BSA was chartered by Congress in 1916, 36 U.S.C.A. \xc2\xa7 30901, and has been the recipient of\nequipment, supplies, and services from the federal government, also by act of Congress, 10 U.S.C.A.\n\xc2\xa7 2544. Thus, the Secretary of Defense, 10U.S.C.A. \xc2\xa7 2544(a), and other departments of the federal\ngovernment, 10 U.S.C.A. \xc2\xa7 2544(h), have been authorized to\nlend to the Boy Scouts of America, for the use and accommodation of Scouts, Scouters, and\nofficials who attend any national or world Boy Scout Jamboree, such cots, blankets, commissary\nequipment, flags, refrigerators, and other equipment and without reimbursement, furnish services\nand expendable medical supplies, as may be necessary or useful to the extent that items are in stock\nand items or services are available.\n[10 U.S.C.A. \xc2\xa7 2544(a).]\nSince its inception, BSA has maintained a special association with each successive President\nof the United States. According to a BSA public relations fact sheet:\nOne of the causes contributing to the success of the Boy Scouts of America has been the\nthoughtful, wholehearted way in which each President of the United States since William Howard\nTaft in 1910 has taken an active part in the work of the movement. Each served as Honorary\nPresident during his term in office.\nAnother fact sheet states that seventy-eight percent of the members of the 100th Congress\nparticipated in scouting.\nBoy Scouts also maintains a close relationship with the military. According to a BSA\npamphlet entitled Organizations That Use Scouting, \xe2\x80\x9cmilitary personnel serve Scouting in many\ncapacities.\xe2\x80\x9d \xe2\x80\x9cAt many [Army, Navy, Air Force, and National Coast Guard] installations, facilities are\navailable for Scouting shows, meetings, training activities,\xe2\x80\x9d and other \xe2\x80\x9csimilar Scouting events.\xe2\x80\x9d\nMonmouth Council, in particular, has used the New Jersey military installation known as Fort\nMonmouth.\nLikewise, state and local governments have contributed to Boy Scouts\xe2\x80\x99 success.4 In New\nJersey, the Legislature has authorized the Division of Fish, Game and Wildlife in the Department of\nEnvironmental Protection to \xe2\x80\x9cstock with fish any body of water in this state that is under the\ncontrol of and for the use of \xe2\x80\xa6 Boy Scouts,\xe2\x80\x9d N.J.S.A. 23:2-3, and has exempted Boy Scouts from\nhaving to pay motor vehicle registration fees, N.J.S.A. 39:3-27. Local governmental agencies, such as\nfire departments and law enforcement agencies, serve Boy Scouts by sponsoring scouting units.\nNationally, over 50,000 youth members belong to units sponsored by fire departments, whereas in\nNew Jersey alone over 130 units are sponsored by fire departments and over 100 units are\nsponsored by law enforcement agencies.\nPerhaps Boy Scouts\xe2\x80\x99 connection to public schools and school-affiliated groups constitutes its\nsingle most beneficial governmental relationship. Organizations That Use Scouting advises that \xe2\x80\x9cthe\neducation field holds our greatest potential.\xe2\x80\x9d Boy Scouts currently recruits many of its members\nthrough its presence in and use of school facilities. A large percentage of scouting units nationally, as\nwell as in New Jersey, are chartered by public schools and affiliated organizations.\nMoreover, public schools and community colleges often host scouting meetings, activities,\nand recruiting events such as \xe2\x80\x9cSchool Nights.\xe2\x80\x9d \xe2\x80\x9cSchool Night for Scouting [is a] recruiting plan\noperated by many councils in connection with the schools.\xe2\x80\x9d Under this plan, an open scout meeting\nis held at a school in order to encourage students to join scouting. Public schools not only aid Boy\nScouts by allowing the organization to use their facilities after school, but also during the school day.\nAccording to Boy Scouts, \xe2\x80\x9c[m]ore and more of our schools are becoming available for other than\nformal education\xe2\x80\xa6. Inschool Scouting, where the pack, troop, team, or post meets during the\n421\n\n\x0cschool day, is recognized in many areas.\xe2\x80\x9d In 1992, close to 700,000 students throughout the nation\nwere taught the Boy Scouts\xe2\x80\x99 Learning for Life curriculum during the school day.\nGiven Boy Scouts\xe2\x80\x99 public solicitation activities, and considering its close relationship with\ngovernmental entities, it is not surprising that Boy Scouts resembles many of the recognized and\nenumerated places of public accommodation. Similarity to the places of public accommodation\nlisted in the LAD has been a benchmark for determining whether the unlisted entity should be\nincluded. Cf. Board of Chosen Freeholders v. New Jersey, 159 N.J. 565, 576, 732 A.2d 1053 (1999) (stating\nthat \xe2\x80\x9c[u]nder the ejusdem generis principle of statutory construction, when specific words follow more\ngeneral words in a statutory enumeration, we can consider what additional items might also be\nincluded by asking whether those items are similar to those enumerated\xe2\x80\x9d). In Fraser v. Robin Dee Day\nCamp, for example, this Court held that a \xe2\x80\x9cday camp is the type of accommodation which the\nLegislature intended to reach\xe2\x80\x9d because a \xe2\x80\x9cday camp offers accommodations which have many\nattributes in common with swimming pools, recreation and amusement parks, motion picture\nhouses, theatres, music halls, gymnasiums, kindergarten and primary schools, all of which are\nspecifically enumerated\xe2\x80\x9d in the LAD. 44 N.J. at 487, 210 A.2d 208. The Appellate Division in Little\nLeague identified Little League\xe2\x80\x99s \xe2\x80\x9c\xe2\x80\x98educational or recreational nature\xe2\x80\x99\xe2\x80\x9d as a basis for the court\xe2\x80\x99s\nconclusion that Little League was similar to the types of public accommodations listed in the statute.\n127 N.J.Super. at 531, 318 A.2d 33 (quoting Fraser, supra, 44 N.J. at 487, 210 A.2d 208). Similarly,\nBoy Scouts\xe2\x80\x99 educational and recreational nature, like the day camp in Fraser or the baseball teams in\nLittle League, further supports our conclusion that Boy Scouts is a \xe2\x80\x9cplace of public accommodation\xe2\x80\x9d\nunder the LAD. See, e.g., Advancement Guidelines 4 (1992 ed.) (stating that \xe2\x80\x9c[e]ducation and fun are\nfunctions of the scouting movement\xe2\x80\x9d).\n\n2.LAD Exceptions\n\nBoy Scouts claims that even if it is a place of public accommodation, it is nonetheless\nexempt from the LAD under three express exceptions: (1) the \xe2\x80\x9cdistinctly private\xe2\x80\x9d exception; (2) the\nreligious educational facility exception; and (3) the in loco parentis exception. N.J.S.A. 10:5-5l. Because\nwe determine that these exceptions do not apply to Boy Scouts, we hold that Boy Scouts is subject\nto the LAD.\n\xe2\x80\x9cWhile this Court has been scrupulous in its insistence that the [LAD] be applied to the full\nextent of its facial coverage, it has never found such coverage to exist in the face of an unambiguous\nexclusion.\xe2\x80\x9d Peper v. Princeton Univ. Bd. of Trustees, 77 N.J. 55, 68, 389 A.2d 465 (1978) (citations\nomitted). Nonetheless, despite our adherence to statutory exceptions expressly and unambiguously\nset forth by the Legislature, we are mindful that \xe2\x80\x9c[e]xemptions from remedial statutes should\ngenerally be narrowly construed.\xe2\x80\x9dPoff v. Caro, 228 N.J.Super. 370, 379, 549 A.2d 900 (Law Div.1987)\n(citing Service Armament Co. v. Hyland, 70 N.J. 550, 559, 362 A.2d 13 (1976)).\nWe begin with the \xe2\x80\x9cdistinctly private\xe2\x80\x9d exception. The LAD provides that \xe2\x80\x9c[n]othing herein\ncontained shall be construed to include or to apply to any institution, bona fide club, or place of\naccommodation, which is in its nature distinctly private.\xe2\x80\x9d N.J.S.A. 10:5-5l. Boy Scouts\xe2\x80\x99 status as a\nbona fide club has not been questioned. Our focus is, therefore, on the meaning of \xe2\x80\x9cdistinctly\nprivate.\xe2\x80\x9d We agree with the New York Court of Appeals that this language, found in both the New\nYork Human Rights Law, N.Y. Exec. Law \xc2\xa7 292, and in the LAD, is intended as a narrowly drawn\n422\n\n\x0cstatutory exclusion. Power Squadrons, supra, 465 N.Y.S.2d 871, 452 N.E.2d at 1204 (stating that this\nexception \xe2\x80\x9cdoes not refer simply to private clubs or establishments closed to the public but uses\nmore restrictive language excluding from the statute\xe2\x80\x99s provisions only clubs which are \xe2\x80\x98distinctly\nprivate\xe2\x80\x99\xe2\x80\x9c). Boy Scouts bears the burden of proving that it fits within this narrow exception. Cf. Spragg\nv. Shore Care & Shore Mem\xe2\x80\x99l Hosp., 293 N.J.Super. 33, 51, 679 A.2d 685 (App.Div.1996) (holding\nburden of proof on defendant-employer to prove bona fide occupational qualification exception to\nLAD).\nIn deciding whether Boy Scouts is a place of public accommodation, we considered the\norganization\xe2\x80\x99s public solicitation activities. Solicitation of a broad membership base is closely related\nto the issue of selectivity in membership, which may explain why various courts have considered\nboth factors in their analyses of both \xe2\x80\x9cplace of public accommodation\xe2\x80\x9d and the \xe2\x80\x9cdistinctly private\xe2\x80\x9d\nexception. See, e.g., Kiwanis, supra, 806 F.2d at 476 (stating that \xe2\x80\x9cdistinctly private\xe2\x80\x9d exception\n\xe2\x80\x9crepresents the other side of the \xe2\x80\x98public accommodation\xe2\x80\x99 coin \xe2\x80\xa6. because of the emphasis placed\non \xe2\x80\x98selectivity\xe2\x80\x99 as the standard for determining \xe2\x80\x98public accommodation,\xe2\x80\x99 as well as for determining if\na club is \xe2\x80\x98distinctly private\xe2\x80\x99\xe2\x80\x9c). We have reviewed the multiple ways in which Boy Scouts reaches out\nto the public and, therefore, will consider the selectivity issue as the principal determinant of\n\xe2\x80\x9cdistinctly private\xe2\x80\x9d status. See Power Squadrons, supra, 465 N.Y.S.2d 871, 452 N.E.2d at 1204 (stating\nthat \xe2\x80\x9cthe essence of a private club is selectivity in its membership\xe2\x80\x9d).\nThirty-three years ago, in Clover Hill Swimming Club, Inc. v. Goldsboro, we said that \xe2\x80\x9cnot every\nestablishment using the \xe2\x80\x98club\xe2\x80\x99 label can be considered \xe2\x80\x98distinctly private.\xe2\x80\x99 Self-serving declarations by\n\xe2\x80\xa6 an accommodation are not determinative of its character.\xe2\x80\x9d 47 N.J. at 34, 219 A.2d 161. Although\nthe swimming club had represented to the public that \xe2\x80\x9call applications [for membership] would be\nsubject to approval by club officials,\xe2\x80\x9d it appeared that Clover Hill was only selective when black\nfamilies applied. Ibid. The Court refused to accept bogus representations concerning the \xe2\x80\x9cprivate\xe2\x80\x9d\nnature of the club when it was quite clear that membership was generally open and had to do with a\nfamily\xe2\x80\x99s interest in recreation and not much else. Ibid. Little League, citing Clover Hill, primarily relied\non the baseball league\xe2\x80\x99s \xe2\x80\x9copen [invitation] to children in the community at large, with no restriction\n(other than sex) whatever\xe2\x80\x9d as a basis for the court\xe2\x80\x99s finding that the league was a \xe2\x80\x9cpublic\naccommodation.\xe2\x80\x9d 127 N.J.Super. at 531, 318 A.2d 33. The lack of any membership selectivity\xe2\x80\x93except\nfor the prohibition against the admission of girls\xe2\x80\x93 weighed in the public accommodation calculus; it\nalso bears upon the \xe2\x80\x9cdistinctly private\xe2\x80\x9d exception.\nKiwanis International v. Ridgewood Kiwanis Club is the only case to hold a club exempt under the\n\xe2\x80\x9cdistinctly private\xe2\x80\x9d exception. 806 F.2d at 477. The Third Circuit, relying on Little League, applied a\nselectivity analysis to determine whether Kiwanis Ridgewood was a public accommodation and,\ntherefore, not \xe2\x80\x9cdistinctly private.\xe2\x80\x9d Id. at 476-77. The court found that the local club was selective\nbased on its membership practices, which were described as follows:\nThe Ridgewood club is small, comprised of only twenty-eight members. Ten individuals\nhave been members for over twenty years. Indeed, Kiwanis Ridgewood has admitted no more than\ntwenty members over the course of the past decade. Each new member had to be sponsored by a\ncurrent member, and formally voted in by the Ridgewood Board of Directors. The sponsorship of\nthe existing member acted as a primary screening mechanism in the maintenance of the quality of\nmembership. In addition to national membership requirements, Kiwanis Ridgewood established\nseveral local membership requirements, which included, among others, the candidate\xe2\x80\x99s willingness to\npray at meetings and to recite the pledge of allegiance.\nAlthough Kiwanis International has encouraged large-scale membership solicitation in the\npast, the suggested \xe2\x80\x9cmembership roundup\xe2\x80\x9d mailings were sent only to those prospects already\nknown by current members. These individuals would be invited to a Kiwanis meeting to determine\ntheir compatibility with the organization\xe2\x80\x99s goals and members. The scope of these membership\n423\n\n\x0cdrives was limited. Not only did every solicited individual have to be known by an existing member,\nbut every applicant out of that group of solicited individuals would have to be sponsored by an\nexisting member.\n[Id. at 475.]\nUnlike Kiwanis Ridgewood, which used \xe2\x80\x9csponsorship [by an] existing member \xe2\x80\xa6 as a\nprimary screening mechanism in the maintenance of \xe2\x80\xa6 quality membership,\xe2\x80\x9d Boy Scouts does not\nrequire new members \xe2\x80\x9cto be sponsored by a current member.\xe2\x80\x9d Ibid. Nor does Boy Scouts limit its\nrecruiting, or invitations to the public, to individuals who are \xe2\x80\x9cknown by an existing member.\xe2\x80\x9d To\nthe contrary, Boy Scout publications indicate that the organization seeks a broad membership base.\nIn a booklet, entitled A Representative Membership,5 Boy Scouts states that its \xe2\x80\x9cnational objective, as\nwell as for regions, areas, councils, and districts is to see that all eligible youth have the opportunity\nto affiliate with the Boy Scouts of America.\xe2\x80\x9d Id. at 1 (emphasis added). The booklet is emphatically\ninclusive:\nWe have high hopes for our nation\xe2\x80\x99s future. These hopes cannot flower if any part of our\ncitizenry feels deprived of the opportunity to help shape the future. How can you persuade other\nScouters to accept a commitment to a representative membership? Consider these facts:\n1. Our federal charter sets forth our obligation to serve boys. Neither the charter nor the\nbylaws of the Boy Scouts of America permits the exclusion of any boy. The National Council and\nExecutive Board have always taken the position that Scouting should be available for all boys who\nmeet the entrance age requirements.\n\xe2\x80\xa6.\n4. Another aim of Scouting is the development of leadership. Leadership in America is\nneeded in all sections of the country and in all economic, cultural, and ethnic groups.\n5. To meet these responsibilities we have made a commitment that our membership shall be\nrepresentative of all the population in every community, district, and council.\n[Id. at 2 (emphasis added).]\nBoy Scouts\xe2\x80\x99 large membership further undercuts its claim to selective membership.\nNationally, over four million boys and one million adults were Boy Scout members in 1992.6 Since\nits inception, over 87 million people have joined Boy Scouts. In 1991, Monmouth Council alone had\nover 8400 youths and over 2700 adult members. The New York Court of Appeals, construing\n\xe2\x80\x9cdistinctly private\xe2\x80\x9d in United States Power Squadrons v. State Human Rights Appeal Board, has suggested\nthat an organization\xe2\x80\x99s failure to limit its maximum membership, in and of itself, demonstrates that\nthe club is not private: \xe2\x80\x9cOrganizations which routinely accept applicants and place no subjective\nlimits on the number of persons eligible for membership are not private clubs.\xe2\x80\x9d 465 N.Y.S.2d 871,\n452 N.E.2d at 1204. We note only that the size of the Boy Scout organization certainly implies an\nopen membership policy.\nBoy Scouts argues, however, that it is \xe2\x80\x9cdistinctly private\xe2\x80\x9d because its Scout Oath and Scout\nLaw constitute genuine selectivity criteria. In support of its position, Boy Scouts relies on Welsh v.\nBoy Scouts of_ America, wherein the Seventh Circuit stated:\nAlthough the Scouts intentionally admit a large number of boys from diverse backgrounds,\nadmission to membership is not without exercise of sound discretion and judgment. This is evident\nfrom the Constitution and By-laws as well as the Boy Scouts\xe2\x80\x99 Oath and Scout Law.\n\xe2\x80\xa6 We hold therefore that the Scouts organization not only is selective, but that its very\nConstitution, By-laws and doctrine dictate that it remain selective.\n[993 F.2d at 1276-77.]\nWe acknowledge that Boy Scouts\xe2\x80\x99 membership application requires members to comply with\nthe Scout Oath and Law. We do not find, however, that the Oath and Law operate as genuine\nselectivity criteria. To the contrary, the record discloses few instances in which the Oath and Law\n424\n\n\x0chave been used to exclude a prospective member; in practice, they present no real impediment to\njoining Boy Scouts. Joining requirements are insufficient to establish selectivity where they do not\nfunction as true limits on the admission of members. See Power Squadrons, supra, 465 N.Y.S.2d 871,\n452 N.E.2d at 1204 (requiring examination for basic boating course was not \xe2\x80\x9cselective\xe2\x80\x9d where club\n\xe2\x80\x9cplace[d] no subjective limits on the number of persons eligible for membership\xe2\x80\x9d). Here, there is no\nevidence that Boy Scouts does anything but accept at face value a scout\xe2\x80\x99s affirmation of the Oath\nand Law. See Roberts v. United States Jaycees, 468 U.S. 609, 621, 104 S.Ct. 3244, 3251, 82 L.Ed.2d 462,\n473 (1984) (finding group unselective where \xe2\x80\x9cnew members are routinely recruited and admitted\nwith no inquiry into their backgrounds\xe2\x80\x9d).\nMost important, it is clear that Boy Scouts does not limit its membership to individuals who\nbelong to a particular religion or subscribe to a specific set of moral beliefs. Boy Scouts asserts that\n\xe2\x80\x9c[t]here is a close association between the Boy Scouts of America and virtually all religious bodies\nand denominations in the United States,\xe2\x80\x9d and that each member\xe2\x80\x99s concept of \xe2\x80\x9cmoral fitness\xe2\x80\x9d should\nbe determined by his \xe2\x80\x9ccourage to do what his head and heart tell him is right.\xe2\x80\x9d See supra at 575-76,\n734 A.2d at 1203. Moreover, Boy Scouts encourages its members to \xe2\x80\x9crespect and defend the rights\nof others whose beliefs may differ.\xe2\x80\x9d Scoutmaster Handbook, supra, at 561. By its own teachings then,\nBoy Scouts is inclusive, not selective, in its membership practices.\nBoy Scouts also argues that it is \xe2\x80\x9cdistinctly private\xe2\x80\x9d because it is selective in its adult\nmembership. In addition to the Scout Oath and Law requirements, adult members are bound by the\nDeclaration of Religious Principle, and are subject to evaluation according to informal criteria\ndesigned to select only individuals capable of accepting responsibility for the moral education and\ncare of other people\xe2\x80\x99s children in accordance with scouting values. Several of the Troop 73 leaders\nwho were involved in Dale\xe2\x80\x99s adult membership approval have said that they would not have\napproved Dale\xe2\x80\x99s application had they known that Dale was an \xe2\x80\x9cavowed\xe2\x80\x9d homosexual, thus lending\nsupport to BSA\xe2\x80\x99s position.\nThe Appellate Division\xe2\x80\x99s analysis of Boy Scouts\xe2\x80\x99 adult membership selectivity dispels the\nnotion that an open membership organization can claim the \xe2\x80\x9cdistinctly private\xe2\x80\x9d exception because it\nis selective as to a small subset of the larger group:\nWe reject the suggestion that the BSA organization as a whole is not a place of public\naccommodation because more stringent membership criteria are applied to a single component of\nthe organization, its adult members. Such a result is clearly inconsistent with the remedial purposes\nof the LAD. Acceptance of the argument would mean that public clubs in Clover Hill and Fraser, are\nnot places of public accommodation because their member-counselors or lifeguards are subject to\nmore stringent, enhanced training criteria. An extension of defendants\xe2\x80\x99 argument would be that the\nBSA is not a place of public accommodation because of the demanding standards that must be met\nto become an Eagle Scout.\n[Dale, supra, 308 N.J.Super. at 538, 706 A.2d 270 (citations omitted).]\nSee also Brounstein, supra, 839 F.Supp. at 1107-08 (stating that \xe2\x80\x9c[t]he fact that an organization is\nselective with respect to the privileges and benefits it accords to members does not exempt that\norganization from the proscriptions of the LAD if it is otherwise a \xe2\x80\x98public place of\naccommodation\xe2\x80\x99\xe2\x80\x9c).\nBoy Scouts accepts boys who come from diverse cultures and who belong to different\nreligions. It teaches tolerance and understanding of differences in others. It presents itself to its\nmembers and to the public generally as a nonsectarian organization \xe2\x80\x9cavailable to all boys who meet\nthe entrance age requirements.\xe2\x80\x9d Its Charter and its Bylaws do not permit the exclusion of any boy.\nBoy Scouts is not \xe2\x80\x9cdistinctly private\xe2\x80\x9d because it is not selective in its membership.\nBoy Scouts claims, however, that it is exempt from the LAD because it is an \xe2\x80\x9ceducational\nfacility operated or maintained by a bona fide religious or sectarian institution.\xe2\x80\x9d N.J.S.A. 10:5-5l.\n425\n\n\x0cThis claim deserves little discussion. Boy Scouts repeatedly states that it is nonsectarian. Its Bylaws\ndeclare that no member shall be required \xe2\x80\x9cto take part in or observe a religious ceremony distinctly\nunique\xe2\x80\x9d to a church or other religious organization. Boy Scouts emphasizes that religious instruction\nis better reserved for \xe2\x80\x9cthe home and the organization or group with which the member is\nconnected.\xe2\x80\x9d Further, the Scoutmaster Handbook instructs its leaders that scouting \xe2\x80\x9cis identified with no\nparticular faith, encourages no particular affiliation, nor assumes functions of religious bodies.\xe2\x80\x9d We\ncannot say that Boy Scouts is a \xe2\x80\x9cbona fide religious or sectarian institution\xe2\x80\x9d in the face of the\norganization\xe2\x80\x99s clear pronouncements on this subject.7\n\xe2\x80\xa6.\nWe hold that Boy Scouts is a \xe2\x80\x9cplace of public accommodation\xe2\x80\x9d and is not exempt from the\nLAD under any of the statute\xe2\x80\x99s exceptions.\n[The court went on to hold that the Boy Scouts\xe2\x80\x99 discriminatory membership policy was not\nprotected by the First Amendement. This holding, and thus the outcome of this case, was reversed\nby the Supreme Court of the United States in Boy Scouts of America v. Dale, 530 U.S. 640 (2000).]\nDale subsequently learned that in 1978 BSA had prepared a position paper stating that \xe2\x80\x9can\nindividual who openly declares himself to be a homosexual [may not] be a volunteer scout leader\n[or] \xe2\x80\xa6 a registered unit member[.]\xe2\x80\x9d The position paper \xe2\x80\x9cwas never distributed. Statements were also\nwritten in 1991 and 1993 expressing similar positions. These statements were written after the onset\nof litigation in other states charging the organization with discrimination against members on the\nbasis of sexual orientation. \xe2\x86\xa9\nN.J.S.A. 10:5-5l now reads: \xe2\x80\x9cA place of public accommodation\xe2\x80\x9d shall include, but not be\nlimited to: any tavern, roadhouse, hotel, motel, trailer camp, summer camp, day camp, or resort\ncamp, whether for entertainment of transient guests or accommodation of those seeking health,\nrecreation or rest; any producer, manufacturer, wholesaler, distributor, retail shop, store,\nestablishment, or concession dealing with goods or services of any kind; any restaurant, eating\nhouse, or place where food is sold for consumption on the premises; any place maintained for the\nsale of ice cream, ice and fruit preparations or their derivatives, soda water or confections, or where\nany beverages of any kind are retailed for consumption on the premises; any garage, any public\nconveyance operated on land or water, or in the air, any stations and terminals thereof; any\nbathhouse, boardwalk, or seashore accommodation; any auditorium, meeting place, or hall; any\ntheatre, motion-picture house, music hall, roof garden, skating rink, swimming pool, amusement and\nrecreation park, fair, bowling alley, gymnasium, shooting gallery, billiard and pool parlor, or other\nplace of amusement; any comfort station; any dispensary, clinic or hospital; any public library; any\nkindergarten, primary and secondary school, trade or business school, high school, academy, college\nand university, or any educational institution under the supervision of the State Board of Education,\nor the Commissioner of Education of the State of New Jersey. Nothing herein contained shall be\nconstrued to include or to apply to any institution, bona fide club, or place of accommodation,\nwhich is in its nature distinctly private; nor shall anything herein contained apply to any educational\nfacility operated or maintained by a bona fide religious or sectarian institution, and the right of a\nnatural parent or one in loco parentis to direct the education and upbringing of a child under his\ncontrol is hereby affirmed; nor shall anything herein contained be construed to bar any private\nsecondary or post secondary school from using in good faith criteria other than race, creed, color,\nnational origin, ancestry or affectional or sexual orientation in the admission of students. \xe2\x86\xa9\nBoy Scouts expresses concern that this article is not properly part of the record before us.\nAlthough the quoted statement has not been authenticated, we find it descriptive of material in the\nrecord respecting BSA\xe2\x80\x99s public solicitation and membership recruitment efforts. \xe2\x86\xa9\nNew Jersey governmental entities are, of course, bound by the LAD. Their sponsorship of,\n426\n\n\x0cor conferring of special benefits on, an organization that practices discrimination would be\nprohibited. \xe2\x86\xa9\nBoy Scouts also questions whether this booklet is properly before us. See supra at 590 n. 6,\n734 A.2d at 1211 n. 6). The booklet on its face states that it is a BSA publication prepared for\nnational, council, district, and local board/committee members, and Boy Scouts has not indicated\notherwise. \xe2\x86\xa9\nBoy Scouts argues that this Court should follow Kiwanis, supra, 806 F.2d at 476 n. 14, and\nlimit review of Boy Scouts\xe2\x80\x99 membership selection practices to the local, rather than the national\nlevel. We decline to follow Kiwanis in this case. Boy Scouts\xe2\x80\x99 local units, unlike Kiwanis Ridgewood,\nare not authorized to establish additional \xe2\x80\x9clocal membership requirements,\xe2\x80\x9d id. at 475, nor are they\nempowered generally to change BSA\xe2\x80\x99s policies. We find that the various levels of scouting are\ninterrelated such that a review of the national organization\xe2\x80\x99s membership selection practices\xe2\x80\x93as\nopposed to the local unit\xe2\x80\x93is most appropriate. \xe2\x86\xa9\nThat Boy Scouts\xe2\x80\x99 oath expresses a belief in God does not make it a religious institution. Nor\ndoes Boy Scouts\xe2\x80\x99 commitment to \xe2\x80\x9c[e]ducation and fun,\xe2\x80\x9d see supra at 594, 734 A.2d at 1213 (emphasis\nadded), qualify it as an \xe2\x80\x9ceducational facility\xe2\x80\x9d under N.J.S.A. 10:5-5l. \xe2\x86\xa9\n\n427\n\n\x0c7.3.2. Civil Rights Acts\nDale v. Boy Scouts of America,\n160 N.J. 562 (1999)\n\nGeorge A. Davidson, a member of the New York bar, New York City, for defendantsappellants and cross-respondents (Cerrato, Dawes, Collins, Saker & Brown, attorneys, Freehold; Mr.\nDavidson, Sanford D. Brown, Freehold and Carla A. Kerr, a member of the New York bar, New\nYork City, on the briefs).\nEvan Wolfson, a member of the New York bar, New York City, for plaintiff-respondent and\ncross-appellant (Lewis H. Robertson, attorney, Red Bank; Mr. Wolfson, Mr. Robertson and Thomas\nJ. Moloney, a member of the New York bar, New York City, on the briefs).\nThe opinion of the Court was delivered by Poritz C.J.\nIn 1991, the New Jersey Legislature amended the Law Against Discrimination (LAD),\nN.J.S.A. 10:5-1 to -49, to include protections based on \xe2\x80\x9caffectional or sexual orientation.\xe2\x80\x9d This case\nrequires us to decide whether that law prohibits Boy Scouts of America (BSA) from expelling a\nmember solely because he is an avowed homosexual.\nDefendants BSA and Monmouth Council (collectively Boy Scouts) seek review of a decision\nof the Appellate Division holding that: (1) Boy Scouts is a place of public accommodation as defined\nby the LAD; (2) Boy Scouts\xe2\x80\x99 expulsion of plaintiff James Dale, an assistant scoutmaster, based solely\non the club\xe2\x80\x99s policy of excluding avowed homosexuals from membership is prohibited by the LAD;\nand (3) the LAD prohibition does not violate Boy Scouts\xe2\x80\x99 First Amendment rights. Plaintiff, James\nDale, seeks certification on his common law claim, dismissed by the Appellate Division. We granted\nboth parties\xe2\x80\x99 petitions, 156 N.J. 381, 718 A.2d 1210, 156 N.J. 382, 718 A.2d 1210 (1998), and now\naffirm.\n\xe2\x80\xa6.\nJames Dale first became a BSA member in 1978 when, at the age of eight, he joined\nMonmouth Council\xe2\x80\x99s Cub Scout Pack 142. He remained a Cub Scout until 1981, when he became a\nmember of Boy Scout Troop 220, also in Monmouth Council. He joined Monmouth Council\xe2\x80\x99s Boy\nScout Troop 128 in 1983, and Troop 73 in 1985. Until his eighteenth birthday in 1988, he remained\na youth member of Troop 73.\nDale was an exemplary scout. Over the ten years of his membership, he earned more than\ntwentyfive merit badges. In 1983, he was admitted into Boy Scouts\xe2\x80\x99 Order of the Arrow, the\norganization\xe2\x80\x99s honor camping society, and achieved the status of Virgil Honor. The pinnacle of\nDale\xe2\x80\x99s career as a youth member came in 1988, when BSA awarded him an Eagle Scout Badge, an\nhonor achieved by only the top three percent of all scouts.\nDale\xe2\x80\x99s participation in Boy Scout leadership began at an early age. Throughout his years as a\nmember, Dale was an assistant patrol leader, patrol leader, and bugler, and from 1985 to 1988, Dale\nserved as a Junior Assistant Scoutmaster for Troop 73. He was also invited to speak at organized\n428\n\n\x0cBoy Scout functions, such as the Joshua Huddy Distinguished Citizenship Award Dinner, and\nattended national events, including the National Boy Scout Jamboree. On March 21, 1989, Dale\nsought adult membership in Boy Scouts. Monmouth Council and BSA accepted and approved his\napplication for the position of Assistant Scoutmaster of Troop 73 where he served for\napproximately sixteen months.\nAt about the same time that Dale applied for adult membership, he left home to attend\nRutgers University. While at college, Dale first acknowledged to himself, and to his family and\nfriends, that he was gay. Shortly thereafter, he became involved with, and eventually became the copresident of the Rutgers University Lesbian/Gay Alliance. Then, in July 1990, Dale attended a\nseminar that addressed the psychological and health needs of lesbian and gay teenagers. The StarLedger interviewed Dale and published an article on July 8, 1990 that discussed the seminar. The\narticle included Dale\xe2\x80\x99s photograph and a caption identifying him as \xe2\x80\x9cco-president of the Rutgers\nUniversity Lesbian/Gay Alliance.\xe2\x80\x9d Kinga Borondy, Seminar Addresses Needs of Homosexual Teens, StarLedger (Newark), July 8, 1990, \xc2\xa7 2, at 11.\nLater that month, Dale received a letter from Monmouth Council Executive James W. Kay,\nrevoking his BSA membership. The letter asked Dale to \xe2\x80\x9csever any relations [he] may have with the\nBoy Scouts of America,\xe2\x80\x9d and granted Dale sixty days to request a review of his termination from the\nMonmouth Council Regional Review Committee.\nDale wrote to Kay on August 8, 1990, and requested the basis for the Monmouth Council\xe2\x80\x99s\ndecision. In a letter dated August 10, 1990, Kay notified Dale that the \xe2\x80\x9cgrounds for [his]\nmembership revocation\xe2\x80\x9d were \xe2\x80\x9cthe standards for leadership established by the Boy Scouts of\nAmerica, which specifically forbid membership to homosexuals.\xe2\x80\x9d1 On September 30, 1990, Dale\nwrote a letter to the Northeast Regional Director, Rudy Flythe, asking for a review of his\nmembership decision and a copy of BSA\xe2\x80\x99s leadership standards. Dale also requested permission to\nattend the review, a right to which he was entitled under the Monmouth Council Review\nProcedures. The Regional Review Committee acknowledged receipt of Dale\xe2\x80\x99s request, but neglected\nto provide him with a copy of the BSA standards for leadership or a review date.\nIn another letter dated October 16, 1990, Dale once again asked for a copy of the leadership\nstandards and notice of the review date. On November 27, 1990, Charles Ball, the Assistant\nRegional Director of the Northeast Region, notified Dale that the \xe2\x80\x9cNortheast Region, [BSA] Review\nCommittee supports the decision of the Monmouth Council \xe2\x80\xa6 to deny your registration with\n[BSA],\xe2\x80\x9d and granted Dale thirty days to seek review by the National Council Review Committee.\nThree weeks later, through counsel, Dale wrote to the Chief Scout Executive of BSA and requested\na rehearing and an opportunity to attend the review. BSA\xe2\x80\x99s counsel informed Dale on December 21,\n1990, that he had been denied the right to attend because: \xe2\x80\x9c[BSA] does not admit avowed\nhomosexuals to membership in the organization so no useful purpose would apparently be served\nby having Mr. Dale present at the regional review meeting.\xe2\x80\x9d BSA did agree, however, to have the\nNational Council review Dale\xe2\x80\x99s membership revocation. Because Dale believed that a National\nCouncil review \xe2\x80\x9cwould be futile,\xe2\x80\x9d he initiated these legal proceedings.\n\xe2\x80\xa6.\nOn July 29, 1992, Dale filed a six-count complaint against BSA and Monmouth Council in\nthe Superior Court of New Jersey. Dale alleged that Boy Scouts had violated the New Jersey Law\nAgainst Discrimination and common law by revoking his membership based solely on his sexual\norientation. He sought declaratory, injunctive, compensatory and punitive monetary relief, as well as\ncosts and attorney fees.\n\xe2\x80\xa6.\nDale moved for partial summary judgment in September 1993, demanding immediate\nreinstatement based on his claim that defendants had violated the LAD and New Jersey\xe2\x80\x99s public\n429\n\n\x0cpolicy. Defendants, in response, cross-moved for summary judgment on all counts. The court\ndenied Dale\xe2\x80\x99s motion and granted Boy Scouts\xe2\x80\x99 cross-motion. Dale v. Boy Scouts of Am., No. MON-C330-92 (Ch. Div. Nov. 3, 1995). After concluding that Dale was \xe2\x80\x9ca sexually active homosexual,\xe2\x80\x9d the\ncourt found that Boy Scouts had always had a policy of excluding \xe2\x80\x9cactive homosexual[s].\xe2\x80\x9d Id. at 6,\n38. The court opined that homosexual acts are immoral and attributed to Boy Scouts a longstanding\nantipathy toward such behavior. Id. at 39-40. In the judge\xe2\x80\x99s view, \xe2\x80\x9c[i]t [was] unthinkable \xe2\x80\xa6 that the\nBSA could or would tolerate active homosexuality if discovered in any of its members.\xe2\x80\x9d Id. at 40.\nAs to the applicability of the LAD, the court held that Boy Scouts was not a place of public\naccommodation, or alternatively, that Boy Scouts was exempt under the \xe2\x80\x9cdistinctly private\xe2\x80\x9d\nexception found at N.J.S.A. 10:5-5l. Id. at 55. The court rejected Dale\xe2\x80\x99s common law claim, finding\nthat the State\xe2\x80\x99s policy \xe2\x80\x9cis that established by the NJLAD \xe2\x80\xa6 [and] not some prior common law\npolicy.\xe2\x80\x9d Id. at 45. Because the court believed that Boy Scouts\xe2\x80\x99 moral position in respect of active\nhomosexuality was clear, it found that Boy Scouts\xe2\x80\x99 First Amendment freedom of expressive\nassociation \xe2\x80\x9cprevent[ed] government from forcing [the organization] to accept Dale as an adult\nleader-member.\xe2\x80\x9d Id. at 71.\nThe Appellate Division affirmed the dismissal of Dale\xe2\x80\x99s common law claim, but otherwise\nreversed and remanded for further proceedings. Dale v. Boy Scouts of Am., 308 N.J.Super. 516, 523,\n706 A.2d 270 (App.Div.1998).\n\xe2\x80\xa6.\nA.The LAD\nWe first consider whether Boy Scouts is subject to the LAD, which provides that \xe2\x80\x9c[a]ll\npersons shall have the opportunity\xe2\x80\xa6 to obtain all the accommodations, advantages, facilities, and\nprivileges of any place of public accommodation, \xe2\x80\xa6 without discrimination because of \xe2\x80\xa6\naffectional or sexual orientation.\xe2\x80\x9d N.J.S.A. 10:5-4. Boy Scouts must therefore abide by the LAD if\nBoy Scouts is a place of public accommodation and does not meet any of the LAD exceptions. See,\ne.g., N.J.S.A. 10:5-5l (exempting \xe2\x80\x9cdistinctly private\xe2\x80\x9d entities, religious educational facilities, and\nparents or individuals acting \xe2\x80\x9cin loco parentis\xe2\x80\x9d in respect of \xe2\x80\x9cthe education and upbringing of a\nchild\xe2\x80\x9d).\n\n1.Place of Public Accommodation\n\n\xe2\x80\x9c[T]he overarching goal of the [LAD] is nothing less than the eradication \xe2\x80\x98of the cancer of\ndiscrimination.\xe2\x80\x99\xe2\x80\x9d Fuchilla v. Layman, 109 N.J. 319, 334, 537 A.2d 652 (quoting Jackson v. Concord Co.,\n54 N.J. 113, 124, 253 A.2d 793 (1969)), cert. denied, 488 U.S. 826, 109 S.Ct. 75, 102 L. Ed.2d 51\n(1988). \xe2\x80\x9c[D]iscrimination threatens not only the rights and proper privileges of the inhabitants of\n[New Jersey,] but menaces the institutions and foundation of a free democratic State.\xe2\x80\x9d N.J.S.A. 10:53. In furtherance of its purpose to root out discrimination, the Legislature has directed that the LAD\n\xe2\x80\x9cshall be liberally construed.\xe2\x80\x9d Ibid. We have adhered to that legislative mandate by historically and\nconsistently interpreting the LAD \xe2\x80\x9c\xe2\x80\x98with that high degree of liberality which comports with the\npreeminent social significance of its purposes and objects.\xe2\x80\x99\xe2\x80\x9d Andersen v. Exxon Co., 89 N.J. 483, 495,\n446 A.2d 486 (1982) (quoting Passaic Daily News v. Blair, 63 N.J. 474, 484, 308 A.2d 649 (1973)).\nA clear understanding of the phrase \xe2\x80\x9cplace of public accommodation\xe2\x80\x9d is critical. That is\nbecause \xe2\x80\x9cplace of public accommodation\xe2\x80\x9d is, in large measure, determinative of the LAD\xe2\x80\x99s scope.\n430\n\n\x0cCertainly, if the statute is broadly applicable, the antidiscriminatory impact of its provisions is\ngreater. The Legislature\xe2\x80\x99s finding that the effects of discrimination are pernicious, and its directive to\nliberally construe the LAD, have informed our cases interpreting the reach of \xe2\x80\x9cplace of public\naccommodation.\xe2\x80\x9d\na.Place\nIn 1965, the Court held that places of public accommodation were not limited to those\nenumerated in the statute. Fraser v. Robin Dee Day Camp, 44 N.J. 480, 486, 210 A.2d 208 (1965) (then\nN.J.S.A. 18:25-5(l)). At that time, the statutory definition used the word \xe2\x80\x9cinclude\xe2\x80\x9d to preface a list of\nspecific \xe2\x80\x9cplaces\xe2\x80\x9d of public accommodation. See id. at 485, 210 A.2d 208. We reasoned that the\nLegislature\xe2\x80\x99s choice of the word \xe2\x80\x9cinclude\xe2\x80\x9d indicated that the \xe2\x80\x9cplaces\xe2\x80\x9d expressly mentioned were\n\xe2\x80\x9cmerely illustrative of the accommodations the Legislature intended to be within the scope of the\nstatute. Other accommodations, similar in nature to those enumerated, were also intended to be\ncovered.\xe2\x80\x9d Id. at 486, 210 A.2d 208. Less than a year later, the Legislature amended the LAD to\nexpressly state that \xe2\x80\x9c\xe2\x80\x98a place of public accommodation\xe2\x80\x99 shall include, but not be limited to\xe2\x80\x9d the various\nexamples identified, L. 1966, c. 17 (emphasis added), thereby reaffirming our broad construction of\nthe statutory language.2\nLater, the word \xe2\x80\x9cplace\xe2\x80\x9d became a further source of legal dispute. In National Organization of\nWomen v. Little League Baseball, Inc., 67 N.J. 320, 338 A.2d 198 (1974), we affirmed the decision of the\nAppellate Division holding that: \xe2\x80\x9c[t]he statutory noun \xe2\x80\x98place\xe2\x80\x99 \xe2\x80\xa6 is a term of convenience, not of\nlimitation[,] \xe2\x80\xa6 employed to reflect the fact that public accommodations are commonly provided at\nfixed \xe2\x80\x98places.\xe2\x80\x99\xe2\x80\x9d 127 N.J.Super. 522, 531, 318 A.2d 33 (App.Div.1974). The defendant in Little League\nwas a chartered baseball league that excluded girls between the ages of eight and twelve years from\nparticipation in its programs. The league contended that it did not come \xe2\x80\x9cwithin the meaning of the\nstatute, primarily because it [was] a membership organization which does not operate from any fixed\nparcel of real estate in New Jersey of which it had exclusive possession by ownership or lease.\xe2\x80\x9d Id. at\n530, 318 A.2d 33. The court rejected that narrow view of \xe2\x80\x9cplace\xe2\x80\x9d:\nThe \xe2\x80\x9cplace\xe2\x80\x9d of public accommodation in the case of Little League is obviously the ball field\nat which tryouts are arranged, instructions given, practices held and games played. The statutory\n\xe2\x80\x9caccommodations, advantages, facilities and privileges\xe2\x80\x9d at the place of public accommodation is the\nentire agglomeration of the arrangements which Little League and its local chartered leagues make\nand the facilities they provide for the playing of baseball by the children.\n[Id. at 531, 318 A.2d 33 (citations omitted).]\nIn New Jersey, \xe2\x80\x9cplace\xe2\x80\x9d has been more than a fixed location since 1974.\nAs Boy Scouts correctly observes, other jurisdictions interpreting their antidiscrimination\nlaws have found \xe2\x80\x9cplace\xe2\x80\x9d to be a limiting factor encompassing only a fixed location. See, e. g., Welsh v.\nBoy Scouts of Am., 993 F.2d 1267, 1269 (7th Cir.) (holding that Boy Scouts is not \xe2\x80\x9cplace of public\naccommodation\xe2\x80\x9d under Title II of Civil Rights Act of 1964 because \xe2\x80\x9cCongress when enacting \xc2\xa7\n2000a(b) never intended to include membership organizations that do not maintain a close\nconnection to a structural facility within the meaning of \xe2\x80\x98place of public accommodation\xe2\x80\x99\xe2\x80\x9c), cert.\ndenied, 510 U.S. 1012, 114 S.Ct. 602, 126 L.Ed.2d 567 (1993); United States Jaycees v. Richardet, 666 P.2d\n1008, 1011 (Alaska 1983) (stating that \xe2\x80\x9cthe word \xe2\x80\x98place\xe2\x80\x99\xe2\x80\xa6.would not encompass a service\norganization lacking a fixed geographical situs\xe2\x80\x9d); United States Jaycees v. Bloomfield, 434 A.2d 1379, 1381\n(D.C.1981) (disagreeing with lower court\xe2\x80\x99s conclusion that \xe2\x80\x9cit is not necessary that there be a\nbuilding \xe2\x80\xa6 in order to categorize an existing entity as a place of public accommodation\xe2\x80\x9d); United\n431\n\n\x0cStates Jaycees v. Iowa Civil Rights Comm\xe2\x80\x99n, 427 N.W.2d 450, 454 (Iowa 1988) (stating that \xe2\x80\x9cUnited States\nJaycees is not a \xe2\x80\x98place\xe2\x80\x99 within our definition of \xe2\x80\x98public accommodation\xe2\x80\x99\xe2\x80\x9c); United States Jaycees v.\nMassachusetts Comm\xe2\x80\x99n Against Discrimination, 391 Mass.594, 463 N.E.2d 1151, 1156 (1984) (finding that\nMassachusetts antidiscrimination law \xe2\x80\x9cdoes not apply to [a] membership organization, since such an\norganization does not fall within the commonly accepted definition of \xe2\x80\x98place\xe2\x80\x99\xe2\x80\x9c).\nWe observe that not all jurisdictions have interpreted \xe2\x80\x9cplace\xe2\x80\x9d so narrowly. The New York\nCourt of Appeals has held that a \xe2\x80\x9cplace of public accommodation need not be a fixed location, it is\nthe place where petitioners do what they do,\xe2\x80\x9d including \xe2\x80\x9cthe place where petitioners\xe2\x80\x99 meetings and\nactivities occur.\xe2\x80\x9d United States Power Squadrons v. State Human Rights Appeal Bd., 59 N.Y.2d 401, 465\nN.Y.S.2d 871, 452 N.E.2d 1199, 1204 (1983). The Supreme Court of Minnesota has also approved a\nflexible construction of the term \xe2\x80\x9cplace.\xe2\x80\x9d In United States Jaycees v. McClure, 305 N.W.2d 764, 773\n(Minn.1981), the Minnesota court agreed with the Little League premise that a \xe2\x80\x9c\xe2\x80\x98place of public\naccommodation\xe2\x80\x99\xe2\x80\xa6 is less a matter of whether the organization operates on a permanent site, and\nmore a matter of whether the organization engages in activities in places to which an unselected\npublic is given an open invitation.\xe2\x80\x9d\nDespite numerous additions and modifications to the LAD in the twentyfour years since\nLittle League was decided, the New Jersey Legislature has not enacted a limiting definition of place.\nSee Massachusetts Mutual Life Ins. Co. v. Manzo, 122 N.J. 104, 116, 584 A.2d 190 (1991) (stating that\n\xe2\x80\x9c[t]he Legislature\xe2\x80\x99s failure to modify a judicial determination, while not dispositive, is some evidence\nof legislative support for the judicial construction of a statute \xe2\x80\xa6. [especially when] the Legislature\nhas amended [the] statute several times without altering the judicial construction\xe2\x80\x9d). We decline now\nto construe \xe2\x80\x9cplace\xe2\x80\x9d so as to include only membership associations that are connected to a particular\ngeographic location or facility. As the Appellate Division has so aptly pointed out, \xe2\x80\x9c[t]o have the\nLAD\xe2\x80\x99s reach turn on the definition of \xe2\x80\x98place\xe2\x80\x99 is irrational because \xe2\x80\x98places do not discriminate; people\nwho own and operate places do.\xe2\x80\x99\xe2\x80\x9d Dale, supra, 308 N.J.Super. at 533, 706 A.2d 270 (quoting Welsh,\nsupra, 993 F.2d at 1282 (Cummings, J., dissenting)). A membership association, like Boy Scouts, may\nbe a \xe2\x80\x9cplace\xe2\x80\x9d of public accommodation even if the accommodation is provided at \xe2\x80\x9ca moving situs.\xe2\x80\x9d\nLittle League, supra, 127 N.J.Super. at 531, 318 A.2d 33. In this case it is readily apparent that the\nvarious locations where Boy Scout troops meet fulfill the LAD \xe2\x80\x9cplace\xe2\x80\x9d requirement.\nb. Public Accommodation\nOur case law identifies various factors that are helpful in determining whether Boy Scouts is\na \xe2\x80\x9cpublic accommodation.\xe2\x80\x9d We ask, generally, whether the entity before us engages in broad public\nsolicitation, whether it maintains close relationships with the government or other public\naccommodations, or whether it is similar to enumerated or other previously recognized public\naccommodations.\nBroad public solicitation has consistently been a principal characteristic of public\naccommodations. Our courts have repeatedly held that when an entity invites the public to join,\nattend, or participate in some way, that entity is a public accommodation within the meaning of the\nLAD. See, e.g., Clover Hill Swimming Club, Inc. v. Goldsboro, 47 N.J. 25, 33, 219 A.2d 161 (1966) (stating\nthat \xe2\x80\x9c[a]n establishment which by advertising or otherwise extends an invitation to the public\ngenerally is a place of public accommodation\xe2\x80\x9d); Sellers v. Philip\xe2\x80\x99s Barber Shop, 46 N.J. 340, 345, 217\nA.2d 121 (1966) (stating that \xe2\x80\x9c[a]n establishment which caters to the public or by advertising or\nother forms of invitation induces patronage generally is a place of public accommodation\xe2\x80\x9d); Fraser,\nsupra, 44 N.J. at 488, 210 A.2d 208 (stating that \xe2\x80\x9c[i]n light of the nature of the facilities and activities\n432\n\n\x0coffered to the general public by respondent\xe2\x80\x99s day camp, we hold that it is a public accommodation\xe2\x80\x9d);\nLittle League, supra, 127 N.J.Super. at 531, 318 A.2d 33 (stating that \xe2\x80\x9cLittle League is a public\naccommodation because the invitation is open to children in the community at large\xe2\x80\x9d); Evans v. Ross,\n57 N.J.Super. 223, 231, 154 A.2d 441 (App.Div.) (stating that LAD requires \xe2\x80\x9can establishment which\ncaters to the public, and by advertising or other forms of invitation induces patronage generally, [not\nto] refuse to deal with members of the public who have accepted the invitation\xe2\x80\x9d), certif. denied, 31 N.J.\n292, 157 A.2d 362 (1959); see also Kiwanis Int\xe2\x80\x99l v. Ridgewood Kiwanis Club, 806 F.2d 468, 475 (3d\nCir.1986) (stating that LAD applies whenever \xe2\x80\x9cthe organization or club \xe2\x80\xa6 invite[s] an unrestricted\nand unselected public to join as members\xe2\x80\x9d); Brounstein v. American Cat Fanciers Ass\xe2\x80\x99n, 839 F.Supp.\n1100, 1107 (D.N.J. 1993) (stating that \xe2\x80\x9c\xe2\x80\x98primary [public accommodation] consideration\xe2\x80\x99\xe2\x80\x9d under\nLAD is \xe2\x80\x9c\xe2\x80\x98whether the invitation to gather is open to the public at large\xe2\x80\x99\xe2\x80\x9c) (quoting Kiwanis Int\xe2\x80\x99l, supra,\n806 F.2d at 474).\nBSA engages in broad public solicitation through various media. In 1989, for example, BSA\nspent more than $1 million on a national television advertising campaign. A New York Times article\ndescribes one of Boy Scouts\xe2\x80\x98\xe2\x80\x9chip\xe2\x80\x9d television ads, quoting a BSA spokesman as stating, \xe2\x80\x9cscouting [is]\na product and we\xe2\x80\x99ve got to get the product into the hands of as many consumers as we can.\xe2\x80\x9d3 Kim\nFoltz, TV Ad\xe2\x80\x99s Hip Pitch: It\xe2\x80\x99s \xe2\x80\x98Cool\xe2\x80\x99 to be a Boy Scout, N.Y. Times, Oct. 30, 1989. BSA has also\nadvertised in widely distributed magazines, such as Sports Afield and Redbook. Local Boy Scout\ncouncils engage in substantial public solicitation. BSA frequently supplies the councils with\nrecruiting materials, such as television and radio public service announcements, advertisements, and\nother promotional products. Monmouth Council, in particular, has expressly invited the public by\nconducting recruiting drives and by providing local troops with BSA-produced posters and\npromotions aimed at attracting new members.\nBoy Scout troops also take part in perhaps the most powerful invitation of all, albeit an\nimplied one: the symbolic invitation extended by a Boy Scout each time he wears his uniform in\npublic. See Sellers, supra, 46 N.J. at 345, 217 A.2d 121 (finding that barber shop\xe2\x80\x99s pole extended\nimplied invitation to public). A boy in a uniform may well be Boy Scouts\xe2\x80\x99 strongest recruiting tool.\nBy encouraging scouts to wear their uniforms to school, and when participating in \xe2\x80\x9cSchool Nights\xe2\x80\x9d\nand public demonstrations, Boy Scouts invites the curiosity and awareness of others in the\ncommunity. Boy Scouts admits that it encourages these displays in the hope of attracting new\nmembers.\nOn the facts before us, it cannot be controverted that Boy Scouts reaches out to the public\nin a myriad of ways designed to increase and sustain a broad membership base. Whether by\nadvertising or active recruitment, or through the symbolism of a Boy Scout uniform, the intent is to\nsend the invitation to as many members of the general public as possible. Once Boy Scouts has\nextended this invitation, the LAD requires that all members of the public must \xe2\x80\x9chave equal rights \xe2\x80\xa6\nand not be subjected to the embarrassment and humiliation of being invited[,] \xe2\x80\xa6 only to find [the]\ndoors barred to them.\xe2\x80\x9d Evans, supra, 57 N.J.Super. at 231, 154 A.2d 441.\nBoy Scouts is a \xe2\x80\x9cpublic accommodation,\xe2\x80\x9d not simply because of its solicitation activities, but\nalso because it maintains close relationships with federal and state governmental bodies and with\nother recognized public accommodations. Our cases have held that certain organizations that benefit\nfrom relationships with the government and other public accommodations are themselves places of\npublic accommodation within the meaning of the LAD. In Little League, for example, the court\nconcluded that Little League was \xe2\x80\x9cpublic in the added sense that local governmental bodies\ncharacteristically make the playing areas available to the local leagues, ordinarily without charge.\xe2\x80\x9d 127\nN.J.Super. at 531, 318 A.2d 33, aff\xe2\x80\x99d, 67 N.J. 320, 338 A.2d 198 (1974). More recently, in Frank v. Ivy\nClub, 120 N.J. 73, 79, 110, 576 A.2d 241 (1990), a female student sought membership in the all-male\neating clubs at Princeton University. Although they did not publicly solicit new members, we held\n433\n\n\x0cthat the clubs\xe2\x80\x99 close relationship to the University, a place of public accommodation, rendered them\nsubject to the LAD. Id. at 110, 576 A.2d 241.\nIt is clear that Boy Scouts benefits from a close relationship with the federal government.\nIndeed, BSA was chartered by Congress in 1916, 36 U.S.C.A. \xc2\xa7 30901, and has been the recipient of\nequipment, supplies, and services from the federal government, also by act of Congress, 10 U.S.C.A.\n\xc2\xa7 2544. Thus, the Secretary of Defense, 10U.S.C.A. \xc2\xa7 2544(a), and other departments of the federal\ngovernment, 10 U.S.C.A. \xc2\xa7 2544(h), have been authorized to\nlend to the Boy Scouts of America, for the use and accommodation of Scouts, Scouters, and\nofficials who attend any national or world Boy Scout Jamboree, such cots, blankets, commissary\nequipment, flags, refrigerators, and other equipment and without reimbursement, furnish services\nand expendable medical supplies, as may be necessary or useful to the extent that items are in stock\nand items or services are available.\n[10 U.S.C.A. \xc2\xa7 2544(a).]\nSince its inception, BSA has maintained a special association with each successive President\nof the United States. According to a BSA public relations fact sheet:\nOne of the causes contributing to the success of the Boy Scouts of America has been the\nthoughtful, wholehearted way in which each President of the United States since William Howard\nTaft in 1910 has taken an active part in the work of the movement. Each served as Honorary\nPresident during his term in office.\nAnother fact sheet states that seventy-eight percent of the members of the 100th Congress\nparticipated in scouting.\nBoy Scouts also maintains a close relationship with the military. According to a BSA\npamphlet entitled Organizations That Use Scouting, \xe2\x80\x9cmilitary personnel serve Scouting in many\ncapacities.\xe2\x80\x9d \xe2\x80\x9cAt many [Army, Navy, Air Force, and National Coast Guard] installations, facilities are\navailable for Scouting shows, meetings, training activities,\xe2\x80\x9d and other \xe2\x80\x9csimilar Scouting events.\xe2\x80\x9d\nMonmouth Council, in particular, has used the New Jersey military installation known as Fort\nMonmouth.\nLikewise, state and local governments have contributed to Boy Scouts\xe2\x80\x99 success.4 In New\nJersey, the Legislature has authorized the Division of Fish, Game and Wildlife in the Department of\nEnvironmental Protection to \xe2\x80\x9cstock with fish any body of water in this state that is under the\ncontrol of and for the use of \xe2\x80\xa6 Boy Scouts,\xe2\x80\x9d N.J.S.A. 23:2-3, and has exempted Boy Scouts from\nhaving to pay motor vehicle registration fees, N.J.S.A. 39:3-27. Local governmental agencies, such as\nfire departments and law enforcement agencies, serve Boy Scouts by sponsoring scouting units.\nNationally, over 50,000 youth members belong to units sponsored by fire departments, whereas in\nNew Jersey alone over 130 units are sponsored by fire departments and over 100 units are\nsponsored by law enforcement agencies.\nPerhaps Boy Scouts\xe2\x80\x99 connection to public schools and school-affiliated groups constitutes its\nsingle most beneficial governmental relationship. Organizations That Use Scouting advises that \xe2\x80\x9cthe\neducation field holds our greatest potential.\xe2\x80\x9d Boy Scouts currently recruits many of its members\nthrough its presence in and use of school facilities. A large percentage of scouting units nationally, as\nwell as in New Jersey, are chartered by public schools and affiliated organizations.\nMoreover, public schools and community colleges often host scouting meetings, activities,\nand recruiting events such as \xe2\x80\x9cSchool Nights.\xe2\x80\x9d \xe2\x80\x9cSchool Night for Scouting [is a] recruiting plan\noperated by many councils in connection with the schools.\xe2\x80\x9d Under this plan, an open scout meeting\nis held at a school in order to encourage students to join scouting. Public schools not only aid Boy\nScouts by allowing the organization to use their facilities after school, but also during the school day.\nAccording to Boy Scouts, \xe2\x80\x9c[m]ore and more of our schools are becoming available for other than\nformal education\xe2\x80\xa6. Inschool Scouting, where the pack, troop, team, or post meets during the\n434\n\n\x0cschool day, is recognized in many areas.\xe2\x80\x9d In 1992, close to 700,000 students throughout the nation\nwere taught the Boy Scouts\xe2\x80\x99 Learning for Life curriculum during the school day.\nGiven Boy Scouts\xe2\x80\x99 public solicitation activities, and considering its close relationship with\ngovernmental entities, it is not surprising that Boy Scouts resembles many of the recognized and\nenumerated places of public accommodation. Similarity to the places of public accommodation\nlisted in the LAD has been a benchmark for determining whether the unlisted entity should be\nincluded. Cf. Board of Chosen Freeholders v. New Jersey, 159 N.J. 565, 576, 732 A.2d 1053 (1999) (stating\nthat \xe2\x80\x9c[u]nder the ejusdem generis principle of statutory construction, when specific words follow more\ngeneral words in a statutory enumeration, we can consider what additional items might also be\nincluded by asking whether those items are similar to those enumerated\xe2\x80\x9d). In Fraser v. Robin Dee Day\nCamp, for example, this Court held that a \xe2\x80\x9cday camp is the type of accommodation which the\nLegislature intended to reach\xe2\x80\x9d because a \xe2\x80\x9cday camp offers accommodations which have many\nattributes in common with swimming pools, recreation and amusement parks, motion picture\nhouses, theatres, music halls, gymnasiums, kindergarten and primary schools, all of which are\nspecifically enumerated\xe2\x80\x9d in the LAD. 44 N.J. at 487, 210 A.2d 208. The Appellate Division in Little\nLeague identified Little League\xe2\x80\x99s \xe2\x80\x9c\xe2\x80\x98educational or recreational nature\xe2\x80\x99\xe2\x80\x9d as a basis for the court\xe2\x80\x99s\nconclusion that Little League was similar to the types of public accommodations listed in the statute.\n127 N.J.Super. at 531, 318 A.2d 33 (quoting Fraser, supra, 44 N.J. at 487, 210 A.2d 208). Similarly,\nBoy Scouts\xe2\x80\x99 educational and recreational nature, like the day camp in Fraser or the baseball teams in\nLittle League, further supports our conclusion that Boy Scouts is a \xe2\x80\x9cplace of public accommodation\xe2\x80\x9d\nunder the LAD. See, e.g., Advancement Guidelines 4 (1992 ed.) (stating that \xe2\x80\x9c[e]ducation and fun are\nfunctions of the scouting movement\xe2\x80\x9d).\n\n2.LAD Exceptions\n\nBoy Scouts claims that even if it is a place of public accommodation, it is nonetheless\nexempt from the LAD under three express exceptions: (1) the \xe2\x80\x9cdistinctly private\xe2\x80\x9d exception; (2) the\nreligious educational facility exception; and (3) the in loco parentis exception. N.J.S.A. 10:5-5l. Because\nwe determine that these exceptions do not apply to Boy Scouts, we hold that Boy Scouts is subject\nto the LAD.\n\xe2\x80\x9cWhile this Court has been scrupulous in its insistence that the [LAD] be applied to the full\nextent of its facial coverage, it has never found such coverage to exist in the face of an unambiguous\nexclusion.\xe2\x80\x9d Peper v. Princeton Univ. Bd. of Trustees, 77 N.J. 55, 68, 389 A.2d 465 (1978) (citations\nomitted). Nonetheless, despite our adherence to statutory exceptions expressly and unambiguously\nset forth by the Legislature, we are mindful that \xe2\x80\x9c[e]xemptions from remedial statutes should\ngenerally be narrowly construed.\xe2\x80\x9dPoff v. Caro, 228 N.J.Super. 370, 379, 549 A.2d 900 (Law Div.1987)\n(citing Service Armament Co. v. Hyland, 70 N.J. 550, 559, 362 A.2d 13 (1976)).\nWe begin with the \xe2\x80\x9cdistinctly private\xe2\x80\x9d exception. The LAD provides that \xe2\x80\x9c[n]othing herein\ncontained shall be construed to include or to apply to any institution, bona fide club, or place of\naccommodation, which is in its nature distinctly private.\xe2\x80\x9d N.J.S.A. 10:5-5l. Boy Scouts\xe2\x80\x99 status as a\nbona fide club has not been questioned. Our focus is, therefore, on the meaning of \xe2\x80\x9cdistinctly\nprivate.\xe2\x80\x9d We agree with the New York Court of Appeals that this language, found in both the New\nYork Human Rights Law, N.Y. Exec. Law \xc2\xa7 292, and in the LAD, is intended as a narrowly drawn\n435\n\n\x0cstatutory exclusion. Power Squadrons, supra, 465 N.Y.S.2d 871, 452 N.E.2d at 1204 (stating that this\nexception \xe2\x80\x9cdoes not refer simply to private clubs or establishments closed to the public but uses\nmore restrictive language excluding from the statute\xe2\x80\x99s provisions only clubs which are \xe2\x80\x98distinctly\nprivate\xe2\x80\x99\xe2\x80\x9c). Boy Scouts bears the burden of proving that it fits within this narrow exception. Cf. Spragg\nv. Shore Care & Shore Mem\xe2\x80\x99l Hosp., 293 N.J.Super. 33, 51, 679 A.2d 685 (App.Div.1996) (holding\nburden of proof on defendant-employer to prove bona fide occupational qualification exception to\nLAD).\nIn deciding whether Boy Scouts is a place of public accommodation, we considered the\norganization\xe2\x80\x99s public solicitation activities. Solicitation of a broad membership base is closely related\nto the issue of selectivity in membership, which may explain why various courts have considered\nboth factors in their analyses of both \xe2\x80\x9cplace of public accommodation\xe2\x80\x9d and the \xe2\x80\x9cdistinctly private\xe2\x80\x9d\nexception. See, e.g., Kiwanis, supra, 806 F.2d at 476 (stating that \xe2\x80\x9cdistinctly private\xe2\x80\x9d exception\n\xe2\x80\x9crepresents the other side of the \xe2\x80\x98public accommodation\xe2\x80\x99 coin \xe2\x80\xa6. because of the emphasis placed\non \xe2\x80\x98selectivity\xe2\x80\x99 as the standard for determining \xe2\x80\x98public accommodation,\xe2\x80\x99 as well as for determining if\na club is \xe2\x80\x98distinctly private\xe2\x80\x99\xe2\x80\x9c). We have reviewed the multiple ways in which Boy Scouts reaches out\nto the public and, therefore, will consider the selectivity issue as the principal determinant of\n\xe2\x80\x9cdistinctly private\xe2\x80\x9d status. See Power Squadrons, supra, 465 N.Y.S.2d 871, 452 N.E.2d at 1204 (stating\nthat \xe2\x80\x9cthe essence of a private club is selectivity in its membership\xe2\x80\x9d).\nThirty-three years ago, in Clover Hill Swimming Club, Inc. v. Goldsboro, we said that \xe2\x80\x9cnot every\nestablishment using the \xe2\x80\x98club\xe2\x80\x99 label can be considered \xe2\x80\x98distinctly private.\xe2\x80\x99 Self-serving declarations by\n\xe2\x80\xa6 an accommodation are not determinative of its character.\xe2\x80\x9d 47 N.J. at 34, 219 A.2d 161. Although\nthe swimming club had represented to the public that \xe2\x80\x9call applications [for membership] would be\nsubject to approval by club officials,\xe2\x80\x9d it appeared that Clover Hill was only selective when black\nfamilies applied. Ibid. The Court refused to accept bogus representations concerning the \xe2\x80\x9cprivate\xe2\x80\x9d\nnature of the club when it was quite clear that membership was generally open and had to do with a\nfamily\xe2\x80\x99s interest in recreation and not much else. Ibid. Little League, citing Clover Hill, primarily relied\non the baseball league\xe2\x80\x99s \xe2\x80\x9copen [invitation] to children in the community at large, with no restriction\n(other than sex) whatever\xe2\x80\x9d as a basis for the court\xe2\x80\x99s finding that the league was a \xe2\x80\x9cpublic\naccommodation.\xe2\x80\x9d 127 N.J.Super. at 531, 318 A.2d 33. The lack of any membership selectivity\xe2\x80\x93except\nfor the prohibition against the admission of girls\xe2\x80\x93 weighed in the public accommodation calculus; it\nalso bears upon the \xe2\x80\x9cdistinctly private\xe2\x80\x9d exception.\nKiwanis International v. Ridgewood Kiwanis Club is the only case to hold a club exempt under the\n\xe2\x80\x9cdistinctly private\xe2\x80\x9d exception. 806 F.2d at 477. The Third Circuit, relying on Little League, applied a\nselectivity analysis to determine whether Kiwanis Ridgewood was a public accommodation and,\ntherefore, not \xe2\x80\x9cdistinctly private.\xe2\x80\x9d Id. at 476-77. The court found that the local club was selective\nbased on its membership practices, which were described as follows:\nThe Ridgewood club is small, comprised of only twenty-eight members. Ten individuals\nhave been members for over twenty years. Indeed, Kiwanis Ridgewood has admitted no more than\ntwenty members over the course of the past decade. Each new member had to be sponsored by a\ncurrent member, and formally voted in by the Ridgewood Board of Directors. The sponsorship of\nthe existing member acted as a primary screening mechanism in the maintenance of the quality of\nmembership. In addition to national membership requirements, Kiwanis Ridgewood established\nseveral local membership requirements, which included, among others, the candidate\xe2\x80\x99s willingness to\npray at meetings and to recite the pledge of allegiance.\nAlthough Kiwanis International has encouraged large-scale membership solicitation in the\npast, the suggested \xe2\x80\x9cmembership roundup\xe2\x80\x9d mailings were sent only to those prospects already\nknown by current members. These individuals would be invited to a Kiwanis meeting to determine\ntheir compatibility with the organization\xe2\x80\x99s goals and members. The scope of these membership\n436\n\n\x0cdrives was limited. Not only did every solicited individual have to be known by an existing member,\nbut every applicant out of that group of solicited individuals would have to be sponsored by an\nexisting member.\n[Id. at 475.]\nUnlike Kiwanis Ridgewood, which used \xe2\x80\x9csponsorship [by an] existing member \xe2\x80\xa6 as a\nprimary screening mechanism in the maintenance of \xe2\x80\xa6 quality membership,\xe2\x80\x9d Boy Scouts does not\nrequire new members \xe2\x80\x9cto be sponsored by a current member.\xe2\x80\x9d Ibid. Nor does Boy Scouts limit its\nrecruiting, or invitations to the public, to individuals who are \xe2\x80\x9cknown by an existing member.\xe2\x80\x9d To\nthe contrary, Boy Scout publications indicate that the organization seeks a broad membership base.\nIn a booklet, entitled A Representative Membership,5 Boy Scouts states that its \xe2\x80\x9cnational objective, as\nwell as for regions, areas, councils, and districts is to see that all eligible youth have the opportunity\nto affiliate with the Boy Scouts of America.\xe2\x80\x9d Id. at 1 (emphasis added). The booklet is emphatically\ninclusive:\nWe have high hopes for our nation\xe2\x80\x99s future. These hopes cannot flower if any part of our\ncitizenry feels deprived of the opportunity to help shape the future. How can you persuade other\nScouters to accept a commitment to a representative membership? Consider these facts:\n1. Our federal charter sets forth our obligation to serve boys. Neither the charter nor the\nbylaws of the Boy Scouts of America permits the exclusion of any boy. The National Council and\nExecutive Board have always taken the position that Scouting should be available for all boys who\nmeet the entrance age requirements.\n\xe2\x80\xa6.\n4. Another aim of Scouting is the development of leadership. Leadership in America is\nneeded in all sections of the country and in all economic, cultural, and ethnic groups.\n5. To meet these responsibilities we have made a commitment that our membership shall be\nrepresentative of all the population in every community, district, and council.\n[Id. at 2 (emphasis added).]\nBoy Scouts\xe2\x80\x99 large membership further undercuts its claim to selective membership.\nNationally, over four million boys and one million adults were Boy Scout members in 1992.6 Since\nits inception, over 87 million people have joined Boy Scouts. In 1991, Monmouth Council alone had\nover 8400 youths and over 2700 adult members. The New York Court of Appeals, construing\n\xe2\x80\x9cdistinctly private\xe2\x80\x9d in United States Power Squadrons v. State Human Rights Appeal Board, has suggested\nthat an organization\xe2\x80\x99s failure to limit its maximum membership, in and of itself, demonstrates that\nthe club is not private: \xe2\x80\x9cOrganizations which routinely accept applicants and place no subjective\nlimits on the number of persons eligible for membership are not private clubs.\xe2\x80\x9d 465 N.Y.S.2d 871,\n452 N.E.2d at 1204. We note only that the size of the Boy Scout organization certainly implies an\nopen membership policy.\nBoy Scouts argues, however, that it is \xe2\x80\x9cdistinctly private\xe2\x80\x9d because its Scout Oath and Scout\nLaw constitute genuine selectivity criteria. In support of its position, Boy Scouts relies on Welsh v.\nBoy Scouts of_ America, wherein the Seventh Circuit stated:\nAlthough the Scouts intentionally admit a large number of boys from diverse backgrounds,\nadmission to membership is not without exercise of sound discretion and judgment. This is evident\nfrom the Constitution and By-laws as well as the Boy Scouts\xe2\x80\x99 Oath and Scout Law.\n\xe2\x80\xa6 We hold therefore that the Scouts organization not only is selective, but that its very\nConstitution, By-laws and doctrine dictate that it remain selective.\n[993 F.2d at 1276-77.]\nWe acknowledge that Boy Scouts\xe2\x80\x99 membership application requires members to comply with\nthe Scout Oath and Law. We do not find, however, that the Oath and Law operate as genuine\nselectivity criteria. To the contrary, the record discloses few instances in which the Oath and Law\n437\n\n\x0chave been used to exclude a prospective member; in practice, they present no real impediment to\njoining Boy Scouts. Joining requirements are insufficient to establish selectivity where they do not\nfunction as true limits on the admission of members. See Power Squadrons, supra, 465 N.Y.S.2d 871,\n452 N.E.2d at 1204 (requiring examination for basic boating course was not \xe2\x80\x9cselective\xe2\x80\x9d where club\n\xe2\x80\x9cplace[d] no subjective limits on the number of persons eligible for membership\xe2\x80\x9d). Here, there is no\nevidence that Boy Scouts does anything but accept at face value a scout\xe2\x80\x99s affirmation of the Oath\nand Law. See Roberts v. United States Jaycees, 468 U.S. 609, 621, 104 S.Ct. 3244, 3251, 82 L.Ed.2d 462,\n473 (1984) (finding group unselective where \xe2\x80\x9cnew members are routinely recruited and admitted\nwith no inquiry into their backgrounds\xe2\x80\x9d).\nMost important, it is clear that Boy Scouts does not limit its membership to individuals who\nbelong to a particular religion or subscribe to a specific set of moral beliefs. Boy Scouts asserts that\n\xe2\x80\x9c[t]here is a close association between the Boy Scouts of America and virtually all religious bodies\nand denominations in the United States,\xe2\x80\x9d and that each member\xe2\x80\x99s concept of \xe2\x80\x9cmoral fitness\xe2\x80\x9d should\nbe determined by his \xe2\x80\x9ccourage to do what his head and heart tell him is right.\xe2\x80\x9d See supra at 575-76,\n734 A.2d at 1203. Moreover, Boy Scouts encourages its members to \xe2\x80\x9crespect and defend the rights\nof others whose beliefs may differ.\xe2\x80\x9d Scoutmaster Handbook, supra, at 561. By its own teachings then,\nBoy Scouts is inclusive, not selective, in its membership practices.\nBoy Scouts also argues that it is \xe2\x80\x9cdistinctly private\xe2\x80\x9d because it is selective in its adult\nmembership. In addition to the Scout Oath and Law requirements, adult members are bound by the\nDeclaration of Religious Principle, and are subject to evaluation according to informal criteria\ndesigned to select only individuals capable of accepting responsibility for the moral education and\ncare of other people\xe2\x80\x99s children in accordance with scouting values. Several of the Troop 73 leaders\nwho were involved in Dale\xe2\x80\x99s adult membership approval have said that they would not have\napproved Dale\xe2\x80\x99s application had they known that Dale was an \xe2\x80\x9cavowed\xe2\x80\x9d homosexual, thus lending\nsupport to BSA\xe2\x80\x99s position.\nThe Appellate Division\xe2\x80\x99s analysis of Boy Scouts\xe2\x80\x99 adult membership selectivity dispels the\nnotion that an open membership organization can claim the \xe2\x80\x9cdistinctly private\xe2\x80\x9d exception because it\nis selective as to a small subset of the larger group:\nWe reject the suggestion that the BSA organization as a whole is not a place of public\naccommodation because more stringent membership criteria are applied to a single component of\nthe organization, its adult members. Such a result is clearly inconsistent with the remedial purposes\nof the LAD. Acceptance of the argument would mean that public clubs in Clover Hill and Fraser, are\nnot places of public accommodation because their member-counselors or lifeguards are subject to\nmore stringent, enhanced training criteria. An extension of defendants\xe2\x80\x99 argument would be that the\nBSA is not a place of public accommodation because of the demanding standards that must be met\nto become an Eagle Scout.\n[Dale, supra, 308 N.J.Super. at 538, 706 A.2d 270 (citations omitted).]\nSee also Brounstein, supra, 839 F.Supp. at 1107-08 (stating that \xe2\x80\x9c[t]he fact that an organization is\nselective with respect to the privileges and benefits it accords to members does not exempt that\norganization from the proscriptions of the LAD if it is otherwise a \xe2\x80\x98public place of\naccommodation\xe2\x80\x99\xe2\x80\x9c).\nBoy Scouts accepts boys who come from diverse cultures and who belong to different\nreligions. It teaches tolerance and understanding of differences in others. It presents itself to its\nmembers and to the public generally as a nonsectarian organization \xe2\x80\x9cavailable to all boys who meet\nthe entrance age requirements.\xe2\x80\x9d Its Charter and its Bylaws do not permit the exclusion of any boy.\nBoy Scouts is not \xe2\x80\x9cdistinctly private\xe2\x80\x9d because it is not selective in its membership.\nBoy Scouts claims, however, that it is exempt from the LAD because it is an \xe2\x80\x9ceducational\nfacility operated or maintained by a bona fide religious or sectarian institution.\xe2\x80\x9d N.J.S.A. 10:5-5l.\n438\n\n\x0cThis claim deserves little discussion. Boy Scouts repeatedly states that it is nonsectarian. Its Bylaws\ndeclare that no member shall be required \xe2\x80\x9cto take part in or observe a religious ceremony distinctly\nunique\xe2\x80\x9d to a church or other religious organization. Boy Scouts emphasizes that religious instruction\nis better reserved for \xe2\x80\x9cthe home and the organization or group with which the member is\nconnected.\xe2\x80\x9d Further, the Scoutmaster Handbook instructs its leaders that scouting \xe2\x80\x9cis identified with no\nparticular faith, encourages no particular affiliation, nor assumes functions of religious bodies.\xe2\x80\x9d We\ncannot say that Boy Scouts is a \xe2\x80\x9cbona fide religious or sectarian institution\xe2\x80\x9d in the face of the\norganization\xe2\x80\x99s clear pronouncements on this subject.7\n\xe2\x80\xa6.\nWe hold that Boy Scouts is a \xe2\x80\x9cplace of public accommodation\xe2\x80\x9d and is not exempt from the\nLAD under any of the statute\xe2\x80\x99s exceptions.\n[The court went on to hold that the Boy Scouts\xe2\x80\x99 discriminatory membership policy was not\nprotected by the First Amendement. This holding, and thus the outcome of this case, was reversed\nby the Supreme Court of the United States in Boy Scouts of America v. Dale, 530 U.S. 640 (2000).]\nDale subsequently learned that in 1978 BSA had prepared a position paper stating that \xe2\x80\x9can\nindividual who openly declares himself to be a homosexual [may not] be a volunteer scout leader\n[or] \xe2\x80\xa6 a registered unit member[.]\xe2\x80\x9d The position paper \xe2\x80\x9cwas never distributed. Statements were also\nwritten in 1991 and 1993 expressing similar positions. These statements were written after the onset\nof litigation in other states charging the organization with discrimination against members on the\nbasis of sexual orientation. \xe2\x86\xa9\nN.J.S.A. 10:5-5l now reads: \xe2\x80\x9cA place of public accommodation\xe2\x80\x9d shall include, but not be\nlimited to: any tavern, roadhouse, hotel, motel, trailer camp, summer camp, day camp, or resort\ncamp, whether for entertainment of transient guests or accommodation of those seeking health,\nrecreation or rest; any producer, manufacturer, wholesaler, distributor, retail shop, store,\nestablishment, or concession dealing with goods or services of any kind; any restaurant, eating\nhouse, or place where food is sold for consumption on the premises; any place maintained for the\nsale of ice cream, ice and fruit preparations or their derivatives, soda water or confections, or where\nany beverages of any kind are retailed for consumption on the premises; any garage, any public\nconveyance operated on land or water, or in the air, any stations and terminals thereof; any\nbathhouse, boardwalk, or seashore accommodation; any auditorium, meeting place, or hall; any\ntheatre, motion-picture house, music hall, roof garden, skating rink, swimming pool, amusement and\nrecreation park, fair, bowling alley, gymnasium, shooting gallery, billiard and pool parlor, or other\nplace of amusement; any comfort station; any dispensary, clinic or hospital; any public library; any\nkindergarten, primary and secondary school, trade or business school, high school, academy, college\nand university, or any educational institution under the supervision of the State Board of Education,\nor the Commissioner of Education of the State of New Jersey. Nothing herein contained shall be\nconstrued to include or to apply to any institution, bona fide club, or place of accommodation,\nwhich is in its nature distinctly private; nor shall anything herein contained apply to any educational\nfacility operated or maintained by a bona fide religious or sectarian institution, and the right of a\nnatural parent or one in loco parentis to direct the education and upbringing of a child under his\ncontrol is hereby affirmed; nor shall anything herein contained be construed to bar any private\nsecondary or post secondary school from using in good faith criteria other than race, creed, color,\nnational origin, ancestry or affectional or sexual orientation in the admission of students. \xe2\x86\xa9\nBoy Scouts expresses concern that this article is not properly part of the record before us.\nAlthough the quoted statement has not been authenticated, we find it descriptive of material in the\nrecord respecting BSA\xe2\x80\x99s public solicitation and membership recruitment efforts. \xe2\x86\xa9\nNew Jersey governmental entities are, of course, bound by the LAD. Their sponsorship of,\n439\n\n\x0cor conferring of special benefits on, an organization that practices discrimination would be\nprohibited. \xe2\x86\xa9\nBoy Scouts also questions whether this booklet is properly before us. See supra at 590 n. 6,\n734 A.2d at 1211 n. 6). The booklet on its face states that it is a BSA publication prepared for\nnational, council, district, and local board/committee members, and Boy Scouts has not indicated\notherwise. \xe2\x86\xa9\nBoy Scouts argues that this Court should follow Kiwanis, supra, 806 F.2d at 476 n. 14, and\nlimit review of Boy Scouts\xe2\x80\x99 membership selection practices to the local, rather than the national\nlevel. We decline to follow Kiwanis in this case. Boy Scouts\xe2\x80\x99 local units, unlike Kiwanis Ridgewood,\nare not authorized to establish additional \xe2\x80\x9clocal membership requirements,\xe2\x80\x9d id. at 475, nor are they\nempowered generally to change BSA\xe2\x80\x99s policies. We find that the various levels of scouting are\ninterrelated such that a review of the national organization\xe2\x80\x99s membership selection practices\xe2\x80\x93as\nopposed to the local unit\xe2\x80\x93is most appropriate. \xe2\x86\xa9\nThat Boy Scouts\xe2\x80\x99 oath expresses a belief in God does not make it a religious institution. Nor\ndoes Boy Scouts\xe2\x80\x99 commitment to \xe2\x80\x9c[e]ducation and fun,\xe2\x80\x9d see supra at 594, 734 A.2d at 1213 (emphasis\nadded), qualify it as an \xe2\x80\x9ceducational facility\xe2\x80\x9d under N.J.S.A. 10:5-5l. \xe2\x86\xa9\nExcerpt from TITLE II OF THE CIVIL RIGHTS ACT\n42 U.S.C. \xc2\xa72000a\n(a)All persons shall be entitled to the full and equal enjoyment of the goods, services,\nfacilities, privileges, advantages, and accommodations of any place of public accommodation, as\ndefined in this section, without discrimination on the ground of race, color, religion, or national\norigin.\n(b) Each of the following establishments is a place of public accommodation within this title\nif its operations affect commerce, or if discrimination or segregation by it is supported by State\naction:\n(1) any inn, hotel, motel, or other establishment which provides lodging to transient guests,\nother than an establishment located within a building which contains not more than five rooms for\nrent or hire and which is actually occupied by the proprietor of such establishment as his residence.\n(2) any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility principally\nengaged in selling food for consumption on the premises, including, but not limited to, any such\nfacility located on the premises of any retail establishment, or any gasoline station;\n(3) any motion picture house, theater, concert hall, sports arena, stadium or other place of\nexhibition or entertainment; and\n(4) any establishment (A)(i) which is physically located within the premises of any establishment\notherwise covered by this subsection, or (ii) within the premises of which is physically located any\nsuch covered establishment and (B) which holds itself out as serving patrons of any such covered\nestablishment.\n(c) The operations of an establishment affect commerce within the meaning of this title if (1)\nit is one of the establishments described in paragraph (1) of subsection (b); (2) in the case of an\nestablishment described in paragraph (2) of subsection (b), it serves or offers to serve interstate\ntravelers or a substantial portion of the food which it serves or gasoline or other products which it\nsells, has moved in commerce; (3) in the case of an establishment described in paragraph (3) of\nsubsection (b), it customarily presents films, performances, athletic teams, exhibitions, or other\n440\n\n\x0csources of entertainment which move in commerce, and (4) in the case of an establishment\ndescribed in paragraph (4) of subsection (b), it is physically located within the premises of, or there is\nphysically located within its premises, an establishment the operations of which affect commerce\nwithin the meaning of this subsection. For purposes of this section, \xe2\x80\x9ccommerce\xe2\x80\x9d means travel,\ntrade, traffic, commerce, transportation, or communication among the several States, or between the\nDistrict of Columbia and any State, or between any foreign country or any territory or possession\nand any state or the District of Columbia, or between points in the same State but through any other\nState or the District of Columbia or a foreign country.\n(e) The provisions of this title shall not apply to a private club or other establishment not in\nfact open to the public, except to the extent that the facilities of such establishment are made\navailable to the customers or patrons of an establishment within the scope of subsection (b).\n\n441\n\n\x0c7.3.3. Americans with Disabilities Act\nAmericans with Disabilities Act, 42 U.S.C. \xc2\xa7 12101\n\nas amended by the ADA Amendments Act of 2008\n\xc2\xa712102. DEFINITION OF DISABILITY.\nAs used in this Act:\n(1) DISABILITY. \xe2\x80\x93 The term \xe2\x80\x98disability\xe2\x80\x99 means, with respect to an individual \xe2\x80\x93\n(A) a physical or mental impairment that substantially limits one or more major life activities\nof such individual;\n(B) a record of such an impairment; or\n(C) being regarded as having such an impairment (as described in paragraph (3)).\n(2) MAJOR LIFE ACTIVITIES.\xe2\x80\x93\n(A) IN GENERAL.\xe2\x80\x93For purposes of paragraph (1), major life activities include, but are not\nlimited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking,\nstanding, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking,\ncommunicating, and working.\n(B) MAJOR BODILY FUNCTIONS.\xe2\x80\x93For purposes of paragraph (1), a major life activity also\nincludes the operation of a major bodily function, including but not limited to, functions of the\nimmune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory,\ncirculatory, endocrine, and reproductive functions.\n(3) REGARDED AS HAVING SUCH AN IMPAIRMENT.\xe2\x80\x93For purposes of paragraph\n(1)(C):\n(A) An individual meets the requirement of \xe2\x80\x98being regarded as having such an impairment\xe2\x80\x99 if\nthe individual establishes that he or she has been subjected to an action prohibited under this Act\nbecause of an actual or perceived physical or mental impairment whether or not the impairment\nlimits or is perceived to limit a major life activity.\n(B) Paragraph (1)(C) shall not apply to impairments that are transitory and minor. A transitory\nimpairment is an impairment with an actual or expected duration of 6 months or less.\n(4) RULES OF CONSTRUCTION REGARDING THE DEFINITION OF\nDISABILITY.\xe2\x80\x93The definition of \xe2\x80\x98disability\xe2\x80\x99 in paragraph (1) shall be construed in accordance with\nthe following:\n(A) The definition of disability in this Act shall be construed in favor of broad coverage of\nindividuals under this Act, to the maximum extent permitted by the terms of this Act.\n(B) The term \xe2\x80\x98substantially limits\xe2\x80\x99 shall be interpreted consistently with the findings and purposes of\nthe ADA Amendments Act of 2008.\n(C) An impairment that substantially limits one major life activity need not limit other major life\nactivities in order to be considered a disability.\n(D) An impairment that is episodic or in remission is a disability if it would substantially limit a\nmajor life activity when active.\n(E)(i) The determination of whether an impairment substantially limits a major life activity shall be\n442\n\n\x0cmade without regard to the ameliorative effects of mitigating measures such as\xe2\x80\x93\n(I) medication, medical supplies, equipment, or appliances, low-vision devices (which do not\ninclude ordinary eye glasses or contact lenses), prosthetics including limbs and devices, hearing aids\nand cochlear implants or other implantable hearing devices, mobility devices, or oxygen therapy\nequipment and supplies;\n(II) use of assistive technology;\n(III) reasonable accommodations or auxiliary aids or services; or\n(IV) learned behavioral or adaptive neurological modifications.\n(E)(ii) The ameliorative effects of the mitigating measures of ordinary eyeglasses or contact\nlenses shall be considered in determining whether an impairment substantially limits a major life\nactivity.\n(E)(iii) As used in this subparagraph\xe2\x80\x93\n(I) the term \xe2\x80\x98ordinary eyeglasses or contact lenses\xe2\x80\x99 means lenses that are intended to fully\ncorrect visual acuity or eliminate refractive error; and\n(II) the term \xe2\x80\x98low-vision devices\xe2\x80\x99 means devices that magnify, enhance, or otherwise augment a\nvisual image.\n\xe2\x80\xa6.\nSUBCHAPTER III - PUBLIC ACCOMMODATIONS AND SERVICES OPERATED\nBY PRIVATE ENTITIES\n\xc2\xa712181. DEFINITIONS.\nAs used in this title:\n\xe2\x80\xa6.\n(7) Public accommodation. The following private entities are considered public\naccommodations for purposes of this title, if the operations of such entities affect commerce\n(A) an inn, hotel, motel, or other place of lodging, except for an establishment located within\na building that contains not more than five rooms for rent or hire and that is actually occupied by\nthe proprietor of such establishment as the residence of such proprietor;\n(B) a restaurant, bar, or other establishment serving food or drink;\n(C) a motion picture house, theater, concert hall, stadium, or other place of exhibition or\nentertainment;\n(D) an auditorium, convention center, lecture hall, or other place of public gathering;\n(E) a bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental\nestablishment;\n(F) a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service,\nfuneral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office,\nprofessional office of a health care provider, hospital, or other service establishment;\n(G) a terminal, depot, or other station used for specified public transportation;\n(H) a museum, library, gallery, or other place of public display or collection;\n(I) a park, zoo, amusement park, or other place of recreation;\n(J) a nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place\nof education;\n(K) a day care center, senior citizen center, homeless shelter, food bank, adoption agency, or other\nsocial service center establishment; and\n(L) a gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation.\n\xe2\x80\xa6.\n(9) Readily achievable. The term \xe2\x80\x9creadily achievable\xe2\x80\x9d means easily accomplishable and able\nto be carried out without much difficulty or expense. In determining whether an action is readily\nachievable, factors to be considered include\n443\n\n\x0c(A) the nature and cost of the action needed under this Act;\n(B) the overall financial resources of the facility or facilities involved in the action; the number of\npersons employed at such facility; the effect on expenses and resources, or the impact otherwise of\nsuch action upon the operation of the facility;\n(C) the overall financial resources of the covered entity; the overall size of the business of a covered\nentity with respect to the number of its employees; the number, type, and location of its facilities;\nand\n(D) the type of operation or operations of the covered entity, including the composition, structure,\nand functions of the workforce of such entity; the geographic separateness, administrative or fiscal\nrelationship of the facility or facilities in question to the covered entity.\n\xe2\x80\xa6.\n\xc2\xa712182. PROHIBITION OF DISCRIMINATION BY PUBLIC ACCOMMODATIONS.\n(a) General Rule. No individual shall be discriminated against on the basis of disability in the\nfull and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations\nof any place of public accommodation by any person who owns, leases (or leases to), or operates a\nplace of public accommodation.\n(b) Construction.\n(1) General prohibition.\n(A) Activities.\n(i) Denial of participation. It shall be discriminatory to subject an individual or class of\nindividuals on the basis of a disability or disabilities of such individual or class, directly, or through\ncontractual, licensing, or other arrangements, to a denial of the opportunity of the individual or class\nto participate in or benefit from the goods, services, facilities, privileges, advantages, or\naccommodations of an entity.\n(ii) Participation in unequal benefit. It shall be discriminatory to afford an individual or class of\nindividuals, on the basis of a disability or disabilities of such individual or class, directly, or through\ncontractual, licensing, or other arrangements with the opportunity to participate in or benefit from a\ngood, service, facility, privilege, advantage, or accommodation that is not equal to that afforded to\nother individuals.\n(iii) Separate benefit. It shall be discriminatory to provide an individual or class of individuals, on\nthe basis of a disability or disabilities of such individual or class, directly, or through contractual,\nlicensing, or other arrangements with a good, service, facility, privilege, advantage, or\naccommodation that is different or separate from that provided to other individuals, unless such\naction is necessary to provide the individual or class of individuals with a good, service, facility,\nprivilege, advantage, or accommodation, or other opportunity that is as effective as that provided to\nothers.\n(iv) Individual or class of individuals. For purposes of clauses (i) through (iii) of this subparagraph,\nthe term \xe2\x80\x9cindividual or class of individuals\xe2\x80\x9d refers to the clients or customers of the covered public\naccommodation that enters into the contractual, licensing or other arrangement.\n(B) Integrated settings. Goods, services, facilities, privileges, advantages, and\naccommodations shall be afforded to an individual with a disability in the most integrated setting\nappropriate to the needs of the individual.\n(C) Opportunity to participate. Notwithstanding the existence of separate or different programs or\nactivities provided in accordance with this section, an individual with a disability shall not be denied\nthe opportunity to participate in such programs or activities that are not separate or different.\n(D) Administrative methods. An individual or entity shall not, directly or through contractual or\nother arrangements, utilize standards or criteria or methods of administration\n(i) that have the effect of discriminating on the basis of disability; or (ii) that perpetuate the\n444\n\n\x0cdiscrimination of others who are subject to common administrative control.\n(E) Association. It shall be discriminatory to exclude or otherwise deny equal goods,\nservices, facilities, privileges, advantages, accommodations, or other opportunities to an individual or\nentity because of the known disability of an individual with whom the individual or entity is known\nto have a relationship or association.\n(2) Specific prohibitions.\n(A) Discrimination. For purposes of subsection (a) of this section, discrimination includes\n(i) the imposition or application of eligibility criteria that screen out or tend to screen out an\nindividual with a disability or any class of individuals with disabilities from fully and equally enjoying\nany goods, services, facilities, privileges, advantages, or accommodations, unless such criteria can be\nshown to be necessary for the provision of the goods, services, facilities, privileges, advantages, or\naccommodations being offered;\n(ii) a failure to make reasonable modifications in policies, practices, or procedures, when such\nmodifications are necessary to afford such goods, services, facilities, privileges, advantages, or\naccommodations to individuals with disabilities, unless the entity can demonstrate that making such\nmodifications would fundamentally alter the nature of such goods, services, facilities, privileges,\nadvantages, or accommodations;\n(iii) a failure to take such steps as may be necessary to ensure that no individual with a disability is\nexcluded, denied services, segregated or otherwise treated differently than other individuals because\nof the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps\nwould fundamentally alter the nature of the good, service, facility, privilege, advantage, or\naccommodation being offered or would result in an undue burden;\n(iv) a failure to remove architectural barriers, and communication barriers that are structural in\nnature, in existing facilities, and transportation barriers in existing vehicles and rail passenger cars\nused by an establishment for transporting individuals (not including barriers that can only be\nremoved through the retrofitting of vehicles or rail passenger cars by the installation of a hydraulic\nor other lift), where such removal is readily achievable; and\n(v) where an entity can demonstrate that the removal of a barrier under clause (iv) is not readily\nachievable, a failure to make such goods, services, facilities, privileges, advantages, or\naccommodations available through alternative methods if such methods are readily achievable.\n\xe2\x80\xa6.\n\xc2\xa712183. NEW CONSTRUCTION AND ALTERATIONS IN PUBLIC\nACCOMMODATIONS AND COMMERCIAL FACILITIES.\n(a) Application of Term. Except as provided in subsection (b) of this section, as applied to\npublic accommodations and commercial facilities, discrimination for purposes of section 12182(a)\nincludes\n(1) a failure to design and construct facilities for first occupancy later than 30 months after\nthe date of enactment of this Act that are readily accessible to and usable by individuals with\ndisabilities, except where an entity can demonstrate that it is structurally impracticable to meet the\nrequirements of such subsection in accordance with standards set forth or incorporated by reference\nin regulations issued under this title; and\n(2) with respect to a facility or part thereof that is altered by, on behalf of, or for the use of an\nestablishment in a manner that affects or could affect the usability of the facility or part thereof, a\nfailure to make alterations in such a manner that, to the maximum extent feasible, the altered\nportions of the facility are readily accessible to and usable by individuals with disabilities, including\nindividuals who use wheelchairs. Where the entity is undertaking an alteration that affects or could\naffect usability of or access to an area of the facility containing a primary function, the entity shall\nalso make the alterations in such a manner that, to the maximum extent feasible, the path of travel\n445\n\n\x0cto the altered area and the bathrooms, telephones, and drinking fountains serving the altered area,\nare readily accessible to and usable by individuals with disabilities where such alterations to the path\nof travel or the bathrooms, telephones, and drinking fountains serving the altered area are not\ndisproportionate to the overall alterations in terms of cost and scope (as determined under criteria\nestablished by the Attorney General).\n(b) Elevator. Subsection (a) of this section shall not be construed to require the installation\nof an elevator for facilities that are less than three stories or have less than 3,000 square feet per\nstory unless the building is a shopping center, a shopping mall, or the professional office of a health\ncare provider or unless the Attorney General determines that a particular category of such facilities\nrequires the installation of elevators based on the usage of such facilities.\n\xe2\x80\xa6.\n\xc2\xa712187. EXEMPTIONS FOR PRIVATE CLUBS AND RELIGIOUS\nORGANIZATIONS.\nThe provisions of this title shall not apply to private clubs or establishments exempted from\ncoverage under title II of the Civil Rights Act of 1964 (42 U.S.C. 2000a(e)) or to religious\norganizations or entities controlled by religious organizations, including places of worship.\n\xe2\x80\xa6.\n\xc2\xa712189. EXAMINATIONS AND COURSES.\nAny person that offers examinations or courses related to applications, licensing,\ncertification, or credentialing for secondary or postsecondary education, professional, or trade\npurposes shall offer such examinations or courses in a place and manner accessible to persons with\ndisabilities or offer alternative accessible arrangements for such individuals.\nPGA Tour, Inc. v. Martin,\n532 U.S. 661 (2001)\nCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH\nCIRCUIT\nStevens, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O\xe2\x80\x99Connor,\nKennedy, Souter, Ginsburg, and Breyer, JJ., joined. Scalia, J., filed a dissenting opinion, in which\nThomas, J., joined, post, p. 691.\nH. Bartow Farr III argued the cause for petitioner. With him on the briefs were Richard G.\nTaranto, William J. Maledon, and Andrew D. Hurtiwz.\nRoy L. Reardon argued the cause for respondent. With him on the brief was Joseph M.\nMcLaughlin.\nDeputy Solicitor General Underwood argued the cause for the United States as amicus curiae\nurging affirmance. With her on the brief were Solicitor General Waxman, Assistant Attorney\nGeneral Lee, Patricia A. Millett, Jessica Dunsay Silver, and Thomas E. Chandler.\nJustice Stevens, delivered the opinion of the Court.\nThis case raises two questions concerning the application of the Americans with Disabilities\nAct of 1990, 42 U. S. C. \xc2\xa7 12101 et seq., to a gifted athlete: first, whether the Act protects access to\nprofessional golf tournaments by a qualified entrant with a disability; and second, whether a disabled\n446\n\n\x0ccontestant may be denied the use of a golf cart because it would \xe2\x80\x9cfundamentally alter the nature\xe2\x80\x9d of\nthe tournaments, \xc2\xa7 12182(b)(2)(A)(ii), to allow him to ride when all other contestants must walk.\n\nI\n\nPetitioner PGA TOUR, Inc., a nonprofit entity formed in 1968, sponsors and cosponsors\nprofessional golf tournaments conducted on three annual tours. About 200 golfers participate in the\nPGA TOUR; about 170 in the NIKE TOUR; and about 100 in the SENIOR PGA TOUR. PGA\nTOUR and NIKE TOUR tournaments typically are 4-day events, played on courses leased and\noperated by petitioner. The entire field usually competes in two 18-hole rounds played on Thursday\nand Friday; those who survive the \xe2\x80\x9ccut\xe2\x80\x9d play on Saturday and Sunday and receive prize money in\namounts determined by their aggregate scores for all four rounds. The revenues generated by\ntelevision, admissions, concessions, and contributions from cosponsors amount to about $300\nmillion a year, much of which is distributed in prize money.\nThere are various ways of gaining entry into particular tours. For example, a player who wins\nthree NIKE TOUR events in the same year, or is among the top-15 money winners on that tour,\nearns the right to play in the PGA TOUR. Additionally, a golfer may obtain a spot in an official\ntournament through successfully competing in \xe2\x80\x9copen\xe2\x80\x9d qualifying rounds, which are conducted the\nweek before each tournament. Most participants, however, earn playing privileges in the PGA\nTOUR or NIKE TOUR by way of a three-stage qualifying tournament known as the \xe2\x80\x9cQ-School.\xe2\x80\x9d\nAny member of the public may enter the Q-School by paying a $3,000 entry fee and\nsubmitting two letters of reference from, among others, PGA TOUR or NIKE TOUR members.\nThe $3,000 entry fee covers the players\xe2\x80\x99 greens fees and the cost of golf carts, which are permitted\nduring the first two stages, but which have been prohibited during the third stage since 1997. Each\nyear, over a thousand contestants compete in the first stage, which consists of four 18-hole rounds\nat different locations. Approximately half of them make it to the second stage, which also includes\n72 holes. Around 168 players survive the second stage and advance to the final one, where they\ncompete over 108 holes. Of those finalists, about a fourth qualify for membership in the PGA\nTOUR, and the rest gain membership in the NIKE TOUR. The significance of making it into either\ntour is illuminated by the fact that there are about 25 million golfers in the country.\nThree sets of rules govern competition in tour events. First, the \xe2\x80\x9cRules of Golf,\xe2\x80\x9d jointly\nwritten by the United States Golf Association (USGA) and the Royal and Ancient Golf Club of\nScotland, apply to the game as it is played, not only by millions of amateurs on public courses and in\nprivate country clubs throughout the United States and worldwide, but also by the professionals in\nthe tournaments conducted by petitioner, the USGA, the Ladies\xe2\x80\x99 Professional Golf Association, and\nthe Senior Women\xe2\x80\x99s Golf Association. Those rules do not prohibit the use of golf carts at any time.1\nSecond, the \xe2\x80\x9cConditions of Competition and Local Rules,\xe2\x80\x9d often described as the \xe2\x80\x9chard\ncard,\xe2\x80\x9d apply specifically to petitioner\xe2\x80\x99s professional tours. The hard cards for the PGA TOUR and\nNIKE TOUR require players to walk the golf course during tournaments, but not during open\nqualifying rounds.2 On the SENIOR PGA TOUR, which is limited to golfers age 50 and older, the\ncontestants may use golf carts. Most seniors, however, prefer to walk.3\nThird, \xe2\x80\x9cNotices to Competitors\xe2\x80\x9d are issued for particular tournaments and cover conditions\nfor that specific event. Such a notice may, for example, explain how the Rules of Golf should be\n447\n\n\x0capplied to a particular water hazard or manmade obstruction. It might also authorize the use of carts\nto speed up play when there is an unusual distance between one green and the next tee.\nThe basic Rules of Golf, the hard cards, and the weekly notices apply equally to all players in\ntour competitions. As one of petitioner\xe2\x80\x99s witnesses explained with reference to \xe2\x80\x9cthe Masters\nTournament, which is golf at its very highest level, \xe2\x80\xa6 the key is to have everyone tee off on the first\nhole under exactly the same conditions and all of them be tested over that 72-hole event under the\nconditions that exist during those four days of the event.\xe2\x80\x9d App. 192.\n\nII\n\nCasey Martin is a talented golfer. As an amateur, he won 17 Oregon Golf Association junior\nevents before he was 15, and won the state championship as a high school senior. He played on the\nStanford University golf team that won the 1994 National Collegiate Athletic Association (NCAA)\nchampionship. As a professional, Martin qualified for the NIKE TOUR in 1998 and 1999, and\nbased on his 1999 performance, qualified for the PGA TOUR in 2000. In the 1999 season, he\nentered 24 events, made the cut 13 times, and had 6 top-10 finishes, coming in second twice and\nthird once.\nMartin is also an individual with a disability as defined in the Americans with Disabilities Act\nof 1990 (ADA or Act).4 Since birth he has been afflicted with Klippel-TrenaunayWeber Syndrome, a\ndegenerative circulatory disorder that obstructs the flow of blood from his right leg back to his\nheart. The disease is progressive; it causes severe pain and has atrophied his right leg. During the\nlatter part of his college career, because of the progress of the disease, Martin could no longer walk\nan 18-hole golf course.5 Walking not only caused him pain, fatigue, and anxiety, but also created a\nsignificant risk of hemorrhaging, developing blood clots, and fracturing his tibia so badly that an\namputation might be required. For these reasons, Stanford made written requests to the Pacific 10\nConference and the NCAA to waive for Martin their rules requiring players to walk and carry their\nown clubs. The requests were granted.6\nWhen Martin turned pro and entered petitioner\xe2\x80\x99s Q-School, the hard card permitted him to\nuse a cart during his successful progress through the first two stages. He made a request, supported\nby detailed medical records, for permission to use a golf cart during the third stage. Petitioner\nrefused to review those records or to waive its walking rule for the third stage. Martin therefore filed\nthis action. A preliminary injunction entered by the District Court made it possible for him to use a\ncart in the final stage of the Q-School and as a competitor in the NIKE TOUR and PGA TOUR.\nAlthough not bound by the injunction, and despite its support for petitioner\xe2\x80\x99s position in this\nlitigation, the USGA voluntarily granted Martin a similar waiver in events that it sponsors, including\nthe U. S. Open.\n\nIII\n\n448\n\n\x0c[The Court recounts the procedural history of the case and summarizes the rulings below,\nnamely that the PGA Tour is not a private club, that it is a place of public accommodation, and that\ngranting Martin the use of a court would not fundamentally alter the nature of the game. The\npassage below is notable for the testimony excerpted in footnotes. The Court also went on to note\nthat the Seventh Circuit had reached opposite conclusion concerning the fundamental nature of\nwalking to the game.]\n\xe2\x80\xa6.\nAt trial, petitioner did not contest the conclusion that Martin has a disability covered by the\nADA, or the fact \xe2\x80\x9cthat his disability prevents him from walking the course during a round of golf.\xe2\x80\x9d\n994 F. Supp. 1242, 1244 (Ore. 1998). Rather, petitioner asserted that the condition of walking is a\nsubstantive rule of competition, and that waiving it as to any individual for any reason would\nfundamentally alter the nature of the competition. Petitioner\xe2\x80\x99s evidence included the testimony of a\nnumber of experts, among them some of the greatest golfers in history. Arnold Palmer,7 Jack\nNicklaus,8 and Ken Venturi9 explained that fatigue can be a critical factor in a tournament,\nparticularly on the last day when psychological pressure is at a maximum. Their testimony makes it\nclear that, in their view, permission to use a cart might well give some players a competitive\nadvantage over other players who must walk. They did not, however, express any opinion on\nwhether a cart would give Martin such an advantage.10\n\xe2\x80\xa6.\n\nIV\n\nCongress enacted the ADA in 1990 to remedy widespread discrimination against disabled\nindividuals. In studying the need for such legislation, Congress found that \xe2\x80\x9chistorically, society has\ntended to isolate and segregate individuals with disabilities, and, despite some improvements, such\nforms of discrimination against individuals with disabilities continue to be a serious and pervasive\nsocial problem.\xe2\x80\x9d 42 U. S. C. \xc2\xa7 12101(a)(2); see \xc2\xa7 12101(a)(3) (\xe2\x80\x9c[D]iscrimination against individuals\nwith disabilities persists in such critical areas as employment, housing, public accommodations,\neducation, transportation, communication, recreation, institutionalization, health services, voting,\nand access to public services\xe2\x80\x9d). Congress noted that the many forms such discrimination takes\ninclude \xe2\x80\x9coutright intentional exclusion\xe2\x80\x9d as well as the \xe2\x80\x9cfailure to make modifications to existing\nfacilities and practices.\xe2\x80\x9d \xc2\xa7 12101(a)(5). After thoroughly investigating the problem, Congress\nconcluded that there was a \xe2\x80\x9ccompelling need\xe2\x80\x9d for a \xe2\x80\x9cclear and comprehensive national mandate\xe2\x80\x9d to\neliminate discrimination against disabled individuals, and to integrate them \xe2\x80\x9cinto the economic and\nsocial mainstream of American life.\xe2\x80\x9d S. Rep. No. 101-116, p. 20 (1989); H. R. Rep. No. 101-485, pt.\n2, p. 50 (1990).\nIn the ADA, Congress provided that broad mandate. See 42 U. S. C. \xc2\xa7 12101(b). In fact, one\nof the Act\xe2\x80\x99s \xe2\x80\x9cmost impressive strengths\xe2\x80\x9d has been identified as its \xe2\x80\x9ccomprehensive character,\xe2\x80\x9d\nHearings on S. 933 before the Senate Committee on Labor and Human Resources and the\nSubcommittee on the Handicapped, 101st Cong., 1st Sess., 197 (1989) (statement of Attorney\nGeneral Thornburgh), and accordingly the Act has been described as \xe2\x80\x9ca milestone on the path to a\nmore decent, tolerant, progressive society,\xe2\x80\x9d Board of Trustees of Univ. of Ala. v. Garrett, 531 U. S. 356,\n375 (2001) (Kennedy, J., concurring). To effectuate its sweeping purpose, the ADA forbids\n449\n\n\x0cdiscrimination against disabled individuals in major areas of public life, among them employment\n(Title I of the Act),11 public services (Title II),12 and public accommodations (Title III).13 At issue\nnow, as a threshold matter, is the applicability of Title III to petitioner\xe2\x80\x99s golf tours and qualifying\nrounds, in particular to petitioner\xe2\x80\x99s treatment of a qualified disabled golfer wishing to compete in\nthose events.\nTitle III of the ADA prescribes, as a \xe2\x80\x9c[g]eneral rule\xe2\x80\x9d:\n\xe2\x80\x9cNo individual shall be discriminated against on the basis of disability in the full and equal\nenjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place\nof public accommodation by any person who owns, leases (or leases to), or operates a place of\npublic accommodation.\xe2\x80\x9d 42 U. S. C. \xc2\xa7 12182(a).\nThe phrase \xe2\x80\x9cpublic accommodation\xe2\x80\x9d is defined in terms of 12 extensive categories,14 which\nthe legislative history indicates \xe2\x80\x9cshould be construed liberally\xe2\x80\x9d to afford people with disabilities\n\xe2\x80\x9cequal access\xe2\x80\x9d to the wide variety of establishments available to the nondisabled.15\nIt seems apparent, from both the general rule and the comprehensive definition of \xe2\x80\x9cpublic\naccommodation,\xe2\x80\x9d that petitioner\xe2\x80\x99s golf tours and their qualifying rounds fit comfortably within the\ncoverage of Title III, and Martin within its protection. The events occur on \xe2\x80\x9cgolf course[s],\xe2\x80\x9d a type\nof place specifically identified by the Act as a public accommodation. \xc2\xa7 12181(7)(L). In addition, at\nall relevant times, petitioner \xe2\x80\x9cleases\xe2\x80\x9d and \xe2\x80\x9coperates\xe2\x80\x9d golf courses to conduct its Q-School and tours.\n\xc2\xa7 12182(a). As a lessor and operator of golf courses, then, petitioner must not discriminate against\nany \xe2\x80\x9cindividual\xe2\x80\x9d in the \xe2\x80\x9cfull and equal enjoyment of the goods, services, facilities,privileges,\nadvantages, or accommodations\xe2\x80\x9d of those courses. Ibid. Certainly, among the \xe2\x80\x9cprivileges\xe2\x80\x9d offered by\npetitioner on the courses are those of competing in the Q-School and playing in the tours; indeed,\nthe former is a privilege for which thousands of individuals from the general public pay, and the\nlatter is one for which they vie. Martin, of course, is one of those individuals. It would therefore\nappear that Title III of the ADA, by its plain terms, prohibits petitioner from denying Martin equal\naccess to its tours on the basis of his disability. Cf. Pennsylvania Dept. of Corrections v. Yeskey, 524 U. S.\n206, 209 (1998) (holding that text of Title II\xe2\x80\x99s prohibition of discrimination by \xe2\x80\x9cpublic entities\xe2\x80\x9d\nagainst disabled individuals \xe2\x80\x9cunmistakably includes State prisons and prisoners within its coverage\xe2\x80\x9d).\nPetitioner argues otherwise. To be clear about its position,it does not assert (as it did in the\nDistrict Court) that it is a private club altogether exempt from Title III\xe2\x80\x99 scoverage. In fact, petitioner\nadmits that its tournaments are conducted at places of public accommodation.16 Nor does petitioner\ncontend (as it did in both the District Court and the Court of Appeals) that the competitors\xe2\x80\x99 area\n\xe2\x80\x9cbehind the ropes\xe2\x80\x9d is not a public accommodation, notwithstanding the status of the rest of the golf\ncourse. Rather, petitioner reframes the coverage issue by arguing that the competing golfers are not\nmembers of the class protected by Title III of the ADA.17\nAccording to petitioner, Title III is concerned with discrimination against \xe2\x80\x9cclients and\ncustomers\xe2\x80\x9d seeking to obtain \xe2\x80\x9cgoods and services\xe2\x80\x9d at places of public accommodation, whereas it is\nTitle I that protects persons who work at such places.18 As the argument goes, petitioner operates\nnot a \xe2\x80\x9cgolf course\xe2\x80\x9d during its tournaments but a \xe2\x80\x9cplace of exhibition or entertainment,\xe2\x80\x9d 42 U. S. C.\n\xc2\xa7 12181(7)(C), and a professional golfer such as Martin, like an actor in a theater production, is a\nprovider rather than a consumer of the entertainment that petitioner sells to the public. Martin\ntherefore cannot bring a claim under Title III because he is not one of the \xe2\x80\x9d\xe2\x80\x99clients or customers of the\ncovered public accommodation.\xe2\x80\x99 \xe2\x80\x9d19 Rather, Martin\xe2\x80\x99s claim of discrimination is \xe2\x80\x9cjob-related\xe2\x80\x9d20 and\ncould only be brought under Title I\xe2\x80\x93but that Title does not apply because he is an independent\ncontractor (as the District Court found) rather than an employee.\nThe reference to \xe2\x80\x9cclients or customers\xe2\x80\x9d that petitioner quotes appears in 42 U. S. C. \xc2\xa7\n12182(b)(1)(A)(iv), which states: \xe2\x80\x9cFor purposes of clauses (i) through (iii) of this subparagraph, the\nterm \xe2\x80\x98individual or class of individuals\xe2\x80\x99 refers to the clients or customers of the covered public\n450\n\n\x0caccommodation that enters into the contractual, licensing or other arrangement.\xe2\x80\x9d Clauses (i) through\n(iii) of the subparagraph prohibit public accommodations from discriminating against a disabled\n\xe2\x80\x9cindividual or class of individuals\xe2\x80\x9d in certain ways21 either directly or indirectly through contractual\narrangements with other entities. Those clauses make clear on the one hand that their prohibitions\ncannot be avoided by means of contract, while clause (iv) makes clear on the other hand that\ncontractual relationships will not expand a public accommodation\xe2\x80\x99s obligations under the\nsubparagraph beyond its own clients or customers.\nAs petitioner recognizes, clause (iv) is not literally applicable to Title III\xe2\x80\x99s general rule\nprohibiting discrimination against disabled individuals.22 Title III\xe2\x80\x99s broad general rule contains no\nexpress \xe2\x80\x9cclients or customers\xe2\x80\x9d limitation, \xc2\xa7 12182(a), and \xc2\xa7 12182(b)(1)(A)(iv) provides that its\nlimitation is only \xe2\x80\x9c[f]or purposes of\xe2\x80\x9d the clauses in that separate subparagraph. Nevertheless,\npetitioner contends that clause (iv)\xe2\x80\x99s restriction of the subparagraph\xe2\x80\x99s coverage to the clients or\ncustomers of public accommodations fairly describes the scope of Title III\xe2\x80\x99s protection as a whole.\nWe need not decide whether petitioner\xe2\x80\x99s construction of the statute is correct, because\npetitioner\xe2\x80\x99s argument falters even on its own terms. If Title III\xe2\x80\x99s protected class were limited to\n\xe2\x80\x9cclients or customers,\xe2\x80\x9d it would be entirely appropriate to classify the golfers who pay petitioner\n$3,000 for the chance to compete in the Q-School and, if successful, in the subsequent tour events,\nas petitioner\xe2\x80\x99s clients or customers. In our view, petitioner\xe2\x80\x99s tournaments (whether situated at a \xe2\x80\x9cgolf\ncourse\xe2\x80\x9d or at a \xe2\x80\x9cplace of exhibition or entertainment\xe2\x80\x9d) simultaneously offer at least two \xe2\x80\x9cprivileges\xe2\x80\x9d\nto the public\xe2\x80\x93that of watching the golf competition and that of competing in it. Although the latter\nis more difficult and more expensive to obtain than the former, it is nonetheless a privilege that\npetitioner makes available to members of the general public. In consideration of the entry fee, any\ngolfer with the requisite letters of recommendation acquires the opportunity to qualify for and\ncompete in petitioner\xe2\x80\x99s tours. Additionally, any golfer who succeeds in the open qualifying rounds\nfor a tournament may play in the event. That petitioner identifies one set of clients or customers that\nit serves (spectators at tournaments) does not preclude it from having another set (players in\ntournaments) against whom it may not discriminate. It would be inconsistent with the literal text of\nthe statute as well as its expansive purpose to read Title III\xe2\x80\x99s coverage, even given petitioner\xe2\x80\x99s\nsuggested limitation, any less broadly.23\nOur conclusion is consistent with case law in the analogous context of Title II of the Civil\nRights Act of 1964, 78 Stat. 243, 42 U. S. C. \xc2\xa7 2000a et seq. Title II of that Act prohibits public\naccommodations from discriminating on the basis of race, color, religion, or national origin. \xc2\xa7\n2000a(a). In Daniel v. Paul, 395 U. S. 298, 306 (1969), applying Title II to the Lake Nixon Club in\nLittle Rock, Arkansas, we held that the definition of a \xe2\x80\x9cplace of exhibition or entertainment,\xe2\x80\x9d as a\npublic accommodation, covered participants \xe2\x80\x9cin some sport or activity\xe2\x80\x9d as well as \xe2\x80\x9cspectators or\nlisteners.\xe2\x80\x9d We find equally persuasive two lower court opinions applying Title II specifically to\ngolfers and golf tournaments. In Evans v. Laurel Links, Inc., 261 F. Supp. 474, 477 (ED Va. 1966), a\nclass action brought to require a commercial golf establishment to permit black golfers to play on its\ncourse, the District Court held that Title II \xe2\x80\x9cis not limited to spectators if the place of exhibition or\nentertainment provides facilities for the public to participate in the entertainment.\xe2\x80\x9d24 And in Wesley v.\nSavannah, 294 F. Supp. 698 (SD Ga. 1969), the District Court found that a private association\nviolated Title II when it limited entry in a golf tournament on a municipal course to its own\nmembers but permitted all (and only) white golfers who paid the membership and entry fees to\ncompete.25 These cases support our conclusion that, as a public accommodation during its tours and\nqualifying rounds, petitioner may not discriminate against either spectators or competitors on the\nbasis of disability.\n\n451\n\n\x0cV\n\nAs we have noted, 42 U. S. C. \xc2\xa7 12182(a) sets forth Title III\xe2\x80\x99s general rule prohibiting public\naccommodations from discriminating against individuals because of their disabilities. The question\nwhether petitioner has violated that rule depends on a proper construction of the term\n\xe2\x80\x9cdiscrimination,\xe2\x80\x9d which is defined by Title III to include\n\xe2\x80\x9ca failure to make reasonable modifications in policies, practices, or procedures, when such\nmodifications are necessary to afford such goods, services, facilities, privileges, advantages, or\naccommodations to individuals with disabilities, unless the entity can demonstrate that making such\nmodifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages,\nor accommodations.\xe2\x80\x9d \xc2\xa7 12182(b)(2)(A)(ii) (emphasis added).\nPetitioner does not contest that a golf cart is a reasonable modification that is necessary if\nMartin is to play in its tournaments. Martin\xe2\x80\x99s claim thus differs from one that might be asserted by\nplayers with less serious afflictions that make walking the course uncomfortable or difficult, but not\nbeyond their capacity. In such cases, an accommodation might be reasonable but not necessary. In\nthis case, however, the narrow dispute is whether allowing Martin to use a golf cart, despite the\nwalking requirement that applies to the PGA TOUR, the NIKE TOUR, and the third stage of the\nQ-School, is a modification that would \xe2\x80\x9cfundamentally alter the nature\xe2\x80\x9d of those events.\nIn theory, a modification of petitioner\xe2\x80\x99s golf tournaments might constitute a fundamental\nalteration in two different ways. It might alter such an essential aspect of the game of golf that it\nwould be unacceptable even if it affected all competitors equally; changing the diameter of the hole\nfrom three to six inches might be such a modification.26 Alternatively, a less significant change that\nhas only a peripheral impact on the game itself might nevertheless give a disabled player, in addition\nto access to the competition as required by Title III, an advantage over others and, for that reason,\nfundamentally alter the character of the competition.27 We are not persuaded that a waiver of the\nwalking rule for Martin would work a fundamental alteration in either sense.28\nAs an initial matter, we observe that the use of carts is not itself inconsistent with the\nfundamental character of the game of golf. From early on, the essence of the game has been\nshotmaking\xe2\x80\x93using clubs to cause a ball to progress from the teeing ground to a hole some distance\naway with as few strokes as possible.29 That essential aspect of the game is still reflected in the very\nfirst of the Rules of Golf, which declares: \xe2\x80\x9cThe Game of Golf consists in playing a ball from the\nteeing ground into the hole by a stroke or successive strokes in accordance with the rules.\xe2\x80\x9d Rule 1-1,\nRules of Golf, App. 104 (emphasis in original). Over the years, there have been many changes in the\nplayers\xe2\x80\x99 equipment, in golf course design, in the Rules of Golf, and in the method of transporting\nclubs from hole to hole.30 Originally, so few clubs were used that each player could carry them\nwithout a bag. Then came golf bags, caddies, carts that were pulled by hand, and eventually\nmotorized carts that carried players as well as clubs. \xe2\x80\x9cGolf carts started appearing with increasing\nregularity on American golf courses in the 1950\xe2\x80\x99s. Today they are everywhere. And they are\nencouraged. For one thing, they often speed up play, and for another, they are great revenue\nproducers.\xe2\x80\x9d31 There is nothing in the Rules of Golf that either forbids the use of carts or penalizes a\nplayer for using a cart. That set of rules, as we have observed, is widely accepted in both the amateur\nand professional golf world as the rules of the game.32 The walking rule that is contained in\npetitioner\xe2\x80\x99s hard cards, based on an optional condition buried in an appendix to the Rules of Golf,33\nis not an essential attribute of the game itself.\n452\n\n\x0cIndeed, the walking rule is not an indispensable feature of tournament golf either. As already\nmentioned, petitioner permits golf carts to be used in the SENIOR PGA TOUR, the open\nqualifying events for petitioner\xe2\x80\x99s tournaments, the first two stages of the Q-School, and, until 1997,\nthe third stage of the Q-School as well. See supra, at 665-667. Moreover, petitioner allows the use of\ncarts during certain tournament rounds in both the PGA TOUR and the NIKE TOUR. See supra, at\n667, and n. 6. In addition, although the USGA enforces a walking rule in most of the tournaments\nthat it sponsors, it permits carts in the Senior Amateur and the Senior Women\xe2\x80\x99s Amateur\nchampionships.34\nPetitioner, however, distinguishes the game of golf as it is generally played from the game\nthat it sponsors in the PGA TOUR, NIKE TOUR, and (at least recently) the last stage of the QSchool\xe2\x80\x93golf at the \xe2\x80\x9chighest level.\xe2\x80\x9d According to petitioner, \xe2\x80\x9c[t]he goal of the highest-level\ncompetitive athletics is to assess and compare the performance of different competitors, a task that\nis meaningful only if the competitors are subject to identical substantive rules.\xe2\x80\x9d35 The waiver of any\npossibly \xe2\x80\x9coutcome-affecting\xe2\x80\x9d rule for a contestant would violate this principle and therefore, in\npetitioner\xe2\x80\x99s view, fundamentally alter the nature of the highest level athletic event.36 The walking rule\nis one such rule, petitioner submits, because its purpose is \xe2\x80\x9cto inject the element of fatigue into the\nskill of shotmaking,\xe2\x80\x9d37 and thus its effect may be the critical loss of a stroke. As a consequence, the\nreasonable modification Martin seeks would fundamentally alter the nature of petitioner\xe2\x80\x99s highest\nlevel tournaments even if he were the only person in the world who has both the talent to compete\nin those elite events and a disability sufficiently serious that he cannot do so without using a cart.\nThe force of petitioner\xe2\x80\x99s argument is, first of all, mitigated by the fact that golf is a game in\nwhich it is impossible to guarantee that all competitors will play under exactly the same conditions\nor that an individual\xe2\x80\x99s ability will be the sole determinant of the outcome. For example, changes in\nthe weather may produce harder greens and more head winds for the tournament leader than for his\nclosest pursuers. A lucky bounce may save a shot or two.38 Whether such happenstance events are\nmore or less probable than the likelihood that a golfer afflicted with Klippel-Trenaunay-Weber\nSyndrome would one day qualify for the NIKE TOUR and PGA TOUR, they at least demonstrate\nthat pure chance may have a greater impact on the outcome of elite golf tournaments than the\nfatigue resulting from the enforcement of the walking rule.\nFurther, the factual basis of petitioner\xe2\x80\x99s argument is undermined by the District Court\xe2\x80\x99s\nfinding that the fatigue from walking during one of petitioner\xe2\x80\x99s 4-day tournaments cannot be\ndeemed significant. The District Court credited the testimony of a professor in physiology and\nexpert on fatigue, who calculated the calories expended in walking a golf course (about five miles) to\nbe approximately 500 calories\xe2\x80\x93 \xe2\x80\x9c\xe2\x80\x98nutritionally \xe2\x80\xa6less than a Big Mac.\xe2\x80\x99\xe2\x80\x9d 994 F. Supp., at 1250. What is\nmore, that energy is expended over a 5-hour period, during which golfers have numerous intervals\nfor rest and refreshment. In fact, the expert concluded, because golf is a low intensity activity,\nfatigue from the game is primarily a psychological phenomenon in which stress and motivation are\nthe key ingredients. And even under conditions of severe heat and humidity, the critical factor in\nfatigue is fluid loss rather than exercise from walking.\nMoreover, when given the option of using a cart, the majority of golfers in petitioner\xe2\x80\x99s\ntournaments have chosen to walk, often to relieve stress or for other strategic reasons.39 As NIKE\nTOUR member Eric Johnson testified, walking allows him to keep in rhythm, stay warmer when it\nis chilly, and develop a better sense of the elements and the course than riding a cart.40\nEven if we accept the factual predicate for petitioner\xe2\x80\x99s argument\xe2\x80\x93that the walking rule is\n\xe2\x80\x9coutcome affecting\xe2\x80\x9d because fatigue may adversely affect performance\xe2\x80\x93its legal position is fatally\nflawed. Petitioner\xe2\x80\x99s refusal to consider Martin\xe2\x80\x99s personal circumstances in deciding whether to\naccommodate his disability runs counter to the clear language and purpose of the ADA. As\npreviously stated, the ADA was enacted to eliminate discrimination against \xe2\x80\x9cindividuals\xe2\x80\x9d with\n453\n\n\x0cdisabilities, 42 U. S. C. \xc2\xa7 12101(b)(1), and to that end Title III of the Act requires without exception\nthat any \xe2\x80\x9cpolicies, practices, or procedures\xe2\x80\x9d of a public accommodation be reasonably modified for\ndisabled \xe2\x80\x9cindividuals\xe2\x80\x9d as necessary to afford access unless doing so would fundamentally alter what\nis offered, \xc2\xa7 12182(b)(2)(A)(ii). To comply with this command, an individualized inquiry must be\nmade to determine whether a specific modification for a particular person\xe2\x80\x99s disability would be\nreasonable under the circumstances as well as necessary for that person, and yet at the same time not\nwork a fundamental alteration. See S. Rep. No. 101-116, at 61; H. R. Rep. No. 101-485, pt. 2, at 102\n(public accommodations \xe2\x80\x9care required to make decisions based on facts applicable to individuals\xe2\x80\x9d).\nCf. Sutton v. United Air Lines, Inc., 527 U. S. 471, 483 (1999) (\xe2\x80\x9c[W]hether a person has a disability\nunder the ADA is an individualized inquiry\xe2\x80\x9d).\nTo be sure, the waiver of an essential rule of competition for anyone would fundamentally\nalter the nature of petitioner\xe2\x80\x99s tournaments. As we have demonstrated, however, the walking rule is\nat best peripheral to the nature of petitioner\xe2\x80\x99s athletic events, and thus it might be waived in\nindividual cases without working a fundamental alteration. Therefore, petitioner\xe2\x80\x99s claim that all the\nsubstantive rules for its \xe2\x80\x9chighest-level\xe2\x80\x9d competitions are sacrosanct and cannot be modified under\nany circumstances is effectively a contention that it is exempt from Title III\xe2\x80\x99s reasonable\nmodification requirement. But that provision carves out no exemption for elite athletics, and given\nTitle III\xe2\x80\x99s coverage not only of places of \xe2\x80\x9cexhibition or entertainment\xe2\x80\x9d but also of \xe2\x80\x9cgolf course[s],\xe2\x80\x9d\n42 U. S. C. \xc2\xa7\xc2\xa7 12181(7)(C), (L), its application to petitioner\xe2\x80\x99s tournaments cannot be said to be\nunintended or unexpected, see \xc2\xa7\xc2\xa7 12101(a)(1), (5). Even if it were, \xe2\x80\x9cthe fact that a statute can be\napplied in situations not expressly anticipated by Congress does not demonstrate ambiguity. It\ndemonstrates breadth.\xe2\x80\x9d Pennsylvania Dept. of Corrections v. Yeskey, 524 U. S., at 212 (internal quotation\nmarks omitted).41\nUnder the ADA\xe2\x80\x99s basic requirement that the need of a disabled person be evaluated on an\nindividual basis, we have no doubt that allowing Martin to use a golf cart would not fundamentally\nalter the nature of petitioner\xe2\x80\x99s tournaments. As we have discussed, the purpose of the walking rule is\nto subject players to fatigue, which in turn may influence the outcome of tournaments. Even if the\nrule does serve that purpose, it is an uncontested finding of the District Court that Martin \xe2\x80\x9ceasily\nendures greater fatigue even with a cart than his able-bodied competitors do by walking.\xe2\x80\x9d 994 F.\nSupp., at 1252. The purpose of the walking rule is therefore not compromised in the slightest by\nallowing Martin to use a cart. A modification that provides an exception to a peripheral tournament\nrule without impairing its purpose cannot be said to \xe2\x80\x9cfundamentally alter\xe2\x80\x9d the tournament. What it\ncan be said to do, on the other hand, is to allow Martin the chance to qualify for, and compete in,\nthe athletic events petitioner offers to those members of the public who have the skill and desire to\nenter. That is exactly what the ADA requires.42 As a result, Martin\xe2\x80\x99s request for a waiver of the\nwalking rule should have been granted.\nThe ADA admittedly imposes some administrative burdens on the operators of places of\npublic accommodation that could be avoided by strictly adhering to general rules and policies that\nare entirely fair with respect to the able-bodied but that may indiscriminately preclude access by\nqualified persons with disabilities.43 But surely, in a case of this kind, Congress intended that an\nentity like the PGA not only give individualized attention to the handful of requests that it might\nreceive from talented but disabled athletes for a modification or waiver of a rule to allow them\naccess to the competition, but also carefully weigh the purpose, as well as the letter, of the rule\nbefore determining that no accommodation would be tolerable.\nThe judgment of the Court of Appeals is affirmed.\nIt is so ordered.\n\n454\n\n\x0cJustice Scalia, with whom Justice Thomas joins, dissenting.\nIn my view today\xe2\x80\x99s opinion exercises a benevolent compassion that the law does not place it\nwithin our power to impose. The judgment distorts the text of Title III, the structure of the ADA,\nand common sense. I respectfully dissent.\n\nI\n\nThe Court holds that a professional sport is a place of public accommodation and that\nrespondent is a \xe2\x80\x9ccustome[r]\xe2\x80\x9d of \xe2\x80\x9ccompetition\xe2\x80\x9d when he practices his profession. Ante, at 679-680. It\nfinds, ante, at 680, that this strange conclusion is compelled by the \xe2\x80\x9cliteral text\xe2\x80\x9d of Title III of the\nAmericans with Disabilities Act of 1990 (ADA), 42 U. S. C. \xc2\xa7 12101 et seq., by the \xe2\x80\x9cexpansive\npurpose\xe2\x80\x9d of the ADA, and by the fact that Title II of the Civil Rights Act of 1964, 42 U. S. C. \xc2\xa7\n2000a(a), has been applied to an amusement park and public golf courses. I disagree.\nThe ADA has three separate titles: Title I covers employment discrimination, Title II covers\ndiscrimination by government entities, and Title III covers discrimination by places of public\naccommodation. Title II is irrelevant to this case. Title I protects only \xe2\x80\x9cemployees\xe2\x80\x9d of employers\nwho have 15 or more employees, \xc2\xa7\xc2\xa7 12112(a), 12111(5)(A). It does not protect independent\ncontractors. See, e. g., Birchem v. Knights of Columbus, 116 F. 3d 310, 312-313 (CA8 1997); cf. Nationwide\nMut. Ins. Co. v. Darden, 503 U. S. 318, 322\xe2\x80\x93 323 (1992). Respondent claimed employment\ndiscrimination under Title I, but the District Court found him to be an independent contractor\nrather than an employee.\nRespondent also claimed protection under \xc2\xa7 12182 of Title III. That section applies only to\nparticular places and persons. The place must be a \xe2\x80\x9cplace of public accommodation,\xe2\x80\x9d and the person\nmust be an \xe2\x80\x9cindividual\xe2\x80\x9d seeking \xe2\x80\x9cenjoyment of the goods, services, facilities, privileges, advantages,\nor accommodations\xe2\x80\x9d of the covered place. \xc2\xa7 12182(a). Of course a court indiscriminately invoking\nthe \xe2\x80\x9csweeping\xe2\x80\x9d and \xe2\x80\x9cexpansive\xe2\x80\x9d purposes of the ADA, ante, at 675, 680, could argue that when a\nplace of public accommodation denied any \xe2\x80\x9cindividual,\xe2\x80\x9d on the basis of his disability, anything that\nmight be called a \xe2\x80\x9cprivileg[e],\xe2\x80\x9d the individual has a valid Title III claim. Cf. ante, at 677. On such an\ninterpretation, the employees and independent contractors of every place of public accommodation\ncome within Title III: The employee enjoys the \xe2\x80\x9cprivilege\xe2\x80\x9d of employment, the contractor the\n\xe2\x80\x9cprivilege\xe2\x80\x9d of the contract.\nFor many reasons, Title III will not bear such an interpretation. The provision of Title III at\nissue here (\xc2\xa7 12182, its principal provision) is a public-accommodation law, and it is the traditional\nunderstanding of public-accommodation laws that they provide rights for customers. \xe2\x80\x9cAt common\nlaw, innkeepers, smiths, and others who made profession of a public employment, were prohibited\nfrom refusing, without good reason, to serve a customer.\xe2\x80\x9d Hurley v. Irish-American Gay, Lesbian and\nBisexual Group of Boston, Inc., 515 U. S. 557, 571 (1995) (internal quotation marks omitted). See also\nHeart of Atlanta Motel, Inc. v. United States, 379 U. S. 241 (1964). This understanding is clearly reflected\nin the text of Title III itself. Section 12181(7) lists 12 specific types of entities that qualify as \xe2\x80\x9cpublic\naccommodations,\xe2\x80\x9d with a follow-on expansion that makes it clear what the \xe2\x80\x9cenjoyment of the\ngoods, services, etc.,\xe2\x80\x9d of those entities consists of\xe2\x80\x93and it plainly envisions that the person \xe2\x80\x9cenjoying\xe2\x80\x9d\n455\n\n\x0cthe \xe2\x80\x9cpublic accommodation\xe2\x80\x9d will be a customer. For example, Title III is said to cover an\n\xe2\x80\x9cauditorium\xe2\x80\x9d or \xe2\x80\x9cother place of public gathering,\xe2\x80\x9d \xc2\xa7 12181(7)(D). Thus, \xe2\x80\x9cgathering\xe2\x80\x9d is the\ndistinctive enjoyment derived from an auditorium; the persons \xe2\x80\x9cgathering\xe2\x80\x9d at an auditorium are\npresumably covered by Title III, but those contracting to clean the auditorium are not. Title III is\nsaid to cover a \xe2\x80\x9czoo\xe2\x80\x9d or \xe2\x80\x9cother place of recreation,\xe2\x80\x9d \xc2\xa7 12181(7)(I). The persons \xe2\x80\x9crecreat[ing]\xe2\x80\x9d at a\n\xe2\x80\x9czoo\xe2\x80\x9d are presumably covered, but the animal handlers bringing in the latest panda are not. The one\nplace where Title III specifically addresses discrimination by places of public accommodation\nthrough \xe2\x80\x9ccontractual\xe2\x80\x9d arrangements, it makes clear that discrimination against the other party to the\ncontract is not covered, but only discrimination against \xe2\x80\x9cclients or customers of the covered public\naccommodation that enters into the contractual, licensing or other arrangement.\xe2\x80\x9d \xc2\xa7\n12182(b)(1)(A)(iv). And finally, the regulations promulgated by the Department of Justice reinforce\nthe conclusion that Title III\xe2\x80\x99s protections extend only to customers. \xe2\x80\x9cThe purpose of the ADA\xe2\x80\x99s\npublic accommodations requirements,\xe2\x80\x9d they say, \xe2\x80\x9cis to ensure accessibility to the goods offered by a\npublic accommodation.\xe2\x80\x9d 28 CFR, ch. 1, pt. 36, App. B, p. 650 (2000). Surely this has nothing to do\nwith employees and independent contractors.\nIf there were any doubt left that \xc2\xa7 12182 covers only clients and customers of places of\npublic accommodation, it is eliminated by the fact that a contrary interpretation would make a\nmuddle of the ADA as a whole. The words of Title III must be read \xe2\x80\x9cin their context and with a\nview to their place in the overall statutory scheme.\xe2\x80\x9d Davis v. Michigan Dept. of Treasury, 489 U. S. 803,\n809 (1989). Congress expressly excluded employers of fewer than 15 employees from Title I. The\nmom-and-pop grocery store or laundromat need not worry about altering the nonpublic areas of its\nplace of business to accommodate handicapped employees\xe2\x80\x93or about the litigation that failure to do\nso will invite. Similarly, since independent contractors are not covered by Title I, the small business\n(or the large one, for that matter) need not worry about making special accommodations for the\npainters, electricians, and other independent workers whose services are contracted for from time to\ntime. It is an entirely unreasonable interpretation of the statute to say that these exemptions so\ncarefully crafted in Title I are entirely eliminated by Title III (for the many businesses that are places\nof public accommodation) because employees and independent contractors \xe2\x80\x9cenjoy\xe2\x80\x9d the employment\nand contracting that such places provide. The only distinctive feature of places of public\naccommodation is that they accommodate the public, and Congress could have no conceivable\nreason for according the employees and independent contractors of such businesses protections that\nemployees and independent contractors of other businesses do not enjoy.\nThe United States apparently agrees that employee claims are not cognizable under Title III,\nsee Brief for United States as Amicus Curiae 18-19, n. 17, but despite the implications of its own\nregulations, see 28 CFR, ch. 1, pt. 36, App. B, at 650, appears to believe (though it does not explicitly\nstate) that claims of independent contractors are cognizable. In a discussion littered with entirely\nvague statements from the legislative history, cf. ante, at 674-675, the United States argues that\nCongress presumably wanted independent contractors with private entities covered under Title III\nbecause independent contractors with governmental entities are covered by Title II, see Brief for\nUnited States as Amicus Curiae 18, and n. 17\xe2\x80\x93a line of reasoning that does not commend itself to the\nuntutored intellect. But since the United States does not provide (and I cannot conceive of) any\npossible construction of the terms of Title III that will exclude employees while simultaneously\ncovering independent contractors, its concession regarding employees effectively concedes\nindependent contractors as well. Title III applies only to customers.\nThe Court, for its part, assumes that conclusion for the sake of argument, ante, at 679-680,\nbut pronounces respondent to be a \xe2\x80\x9ccustomer\xe2\x80\x9d of the PGA TOUR or of the golf courses on which\nit is played. That seems to me quite incredible. The PGA TOUR is a professional sporting event,\nstaged for the entertainment of a live and TV audience, the receipts from whom (the TV audience\xe2\x80\x99s\n456\n\n\x0cadmission price is paid by advertisers) pay the expenses of the tour, including the cash prizes for the\nwinning golfers. The professional golfers on the tour are no more \xe2\x80\x9cenjoying\xe2\x80\x9d (the statutory term)\nthe entertainment that the tour provides, or the facilities of the golf courses on which it is held, than\nprofessional baseball players \xe2\x80\x9cenjoy\xe2\x80\x9d the baseball games in which they play or the facilities of\nYankee Stadium. To be sure, professional ballplayers participate in the games, and use the ballfields,\nbut no one in his right mind would think that they are customers of the American League or of\nYankee Stadium. They are themselves the entertainment that the customers pay to watch. And\nprofessional golfers are no different. It makes not a bit of difference, insofar as their \xe2\x80\x9ccustomer\xe2\x80\x9d\nstatus is concerned, that the remuneration for their performance (unlike most of the remuneration\nfor ballplayers) is not fixed but contingent\xe2\x80\x93viz., the purses for the winners in the various events, and\nthe compensation from product endorsements that consistent winners are assured. The\ncompensation of many independent contractors is contingent upon their success\xe2\x80\x93real estate brokers,\nfor example, or insurance salesmen.\nAs the Court points out, the ADA specifically identifies golf courses as one of the covered\nplaces of public accommodation. See \xc2\xa7 12181(7)(L) (\xe2\x80\x9ca gymnasium, health spa, bowling alley, golf\ncourse, or other place of exercise or recreation\xe2\x80\x9d); and the distinctive \xe2\x80\x9cgoo[d], servic[e], facilit[y],\nprivileg[e], advantag[e], or accommodatio[n]\xe2\x80\x9d identified by that provision as distinctive to that\ncategory of place of public accommodation is \xe2\x80\x9cexercise or recreation.\xe2\x80\x9d Respondent did not seek to\n\xe2\x80\x9cexercise\xe2\x80\x9d or \xe2\x80\x9crecreate\xe2\x80\x9d at the PGA TOUR events; he sought to make money (which is why he is\ncalled a professional golfer). He was not a customer buying recreation or entertainment; he was a\nprofessional athlete selling it. That is the reason (among others) the Court\xe2\x80\x99s reliance upon Civil Rights\nAct cases like Daniel v. Paul, 395 U. S. 298 (1969), see ante, at 681, is misplaced. A professional\ngolfer\xe2\x80\x99s practicing his profession is not comparable to John Q. Public\xe2\x80\x99s frequenting \xe2\x80\x9ca 232-acre\namusement area with swimming, boating, sun bathing, picnicking, miniature golf, dancing facilities,\nand a snack bar.\xe2\x80\x9d Daniel, supra, at 301.\nThe Court relies heavily upon the Q-School. It says that petitioner offers the golfing public\nthe \xe2\x80\x9cprivilege\xe2\x80\x9d of \xe2\x80\x9ccompeting in the Q-School and playing in the tours; indeed, the former is a\nprivilege for which thousands of individuals from the general public pay, and the latter is one for\nwhich they vie.\xe2\x80\x9d Ante, at 677. But the Q-School is no more a \xe2\x80\x9cprivilege\xe2\x80\x9d offered for the general\npublic\xe2\x80\x99s \xe2\x80\x9cenjoyment\xe2\x80\x9d than is the California Bar Exam.44 It is a competition for entry into the PGA\nTOUR\xe2\x80\x93an open tryout, no different in principle from open casting for a movie or stage production,\nor walk-on tryouts for other professional sports, such as baseball. See, e. g., Amateurs Join Pros for\nNew Season of HBO\xe2\x80\x99s \xe2\x80\x9cSopranos,\xe2\x80\x9d Detroit News, Dec. 22, 2000, p. 2 (20,000 attend open casting\nfor \xe2\x80\x9cThe Sopranos\xe2\x80\x9d); Bill Zack, Atlanta Braves, Sporting News, Feb. 6, 1995 (1,300 would-be\nplayers attended an open tryout for the Atlanta Braves). It may well be that some amateur golfers\nenjoy trying to make the grade, just as some amateur actors may enjoy auditions, and amateur\nbaseball players may enjoy open tryouts (I hesitate to say that amateur lawyers may enjoy taking the\nCalifornia Bar Exam). But the purpose of holding those tryouts is not to provide entertainment; it is\nto hire. At bottom, open tryouts for performances to be held at a place of public accommodation\nare no different from open bidding on contracts to cut the grass at a place of public\naccommodation, or open applications for any job at a place of public accommodation. Those\nbidding, those applying\xe2\x80\x93and those trying out\xe2\x80\x93are not converted into customers. By the Court\xe2\x80\x99s\nreasoning, a business exists not only to sell goods and services to the public, but to provide the\n\xe2\x80\x9cprivilege\xe2\x80\x9d of employment to the public; wherefore it follows, like night the day, that everyone who\nseeks a job is a customer.45\n\n457\n\n\x0cII\n\nHaving erroneously held that Title III applies to the \xe2\x80\x9ccustomers\xe2\x80\x9d of professional golf who\nconsist of its practitioners, the Court then erroneously answers\xe2\x80\x93or to be accurate simply ignores\xe2\x80\x93a\nsecond question. The ADA requires covered businesses to make such reasonable modifications of\n\xe2\x80\x9cpolicies, practices, or procedures\xe2\x80\x9d as are necessary to \xe2\x80\x9cafford\xe2\x80\x9d goods, services, and privileges to\nindividuals with disabilities; but it explicitly does not require \xe2\x80\x9cmodifications [that] would\nfundamentally alter the nature\xe2\x80\x9d of the goods, services, and privileges. \xc2\xa7 12182(b)(2)(A)(ii). In other\nwords, disabled individuals must be given access to the same goods, services, and privileges that\nothers enjoy. The regulations state that Title III \xe2\x80\x9cdoes not require a public accommodation to alter\nits inventory to include accessible or special goods with accessibility features that are designed for, or\nfacilitate use by, individuals with disabilities.\xe2\x80\x9d 28 CFR \xc2\xa7 36.307 (2000); see also 28 CFR, ch. 1, pt. 36,\nApp. B, at 650. As one Court of Appeals has explained:\n\xe2\x80\x9cThe common sense of the statute is that the content of the goods or services offered by a\nplace of public accommodation is not regulated. A camera store may not refuse to sell cameras to a\ndisabled person, but it is not required to stock cameras specially designed for such persons. Had\nCongress purposed to impose so enormous a burden on the retail sector of the economy and so vast\na supervisory responsibility on the federal courts, we think it would have made its intention clearer\nand would at least have imposed some standards. It is hardly a feasible judicial function to decide\nwhether shoestores should sell single shoes to one-legged persons and if so at what price, or how\nmany Braille books the Borders or Barnes and Noble bookstore chains should stock in each of their\nstores.\xe2\x80\x9d Doe v. Mutual of Omaha Ins. Co., 179 F. 3d 557, 560 (CA7 1999).\nSince this is so, even if respondent here is a consumer of the \xe2\x80\x9cprivilege\xe2\x80\x9d of the PGA TOUR\ncompetition, see ante, at 677, I see no basis for considering whether the rules of that competition\nmust be altered. It is as irrelevant to the PGA TOUR\xe2\x80\x99s compliance with the statute whether walking\nis essential to the game of golf as it is to the shoe store\xe2\x80\x99s compliance whether \xe2\x80\x9cpairness\xe2\x80\x9d is essential\nto the nature of shoes. If a shoe store wishes to sell shoes only in pairs it may; and if a golf tour (or a\ngolf course) wishes to provide only walkaround golf, it may. The PGA TOUR cannot deny\nrespondent access to that game because of his disability, but it need not provide him a game different\n(whether in its essentials or in its details) from that offered to everyone else.\nSince it has held (or assumed) professional golfers to be customers \xe2\x80\x9cenjoying\xe2\x80\x9d the\n\xe2\x80\x9cprivilege\xe2\x80\x9d that consists of PGA TOUR golf; and since it inexplicably regards the rules of PGA\nTOUR golf as merely \xe2\x80\x9cpolicies, practices, or procedures\xe2\x80\x9d by which access to PGA TOUR golf is\nprovided, the Court must then confront the question whether respondent\xe2\x80\x99s requested modification\nof the supposed policy, practice, or procedure of walking would \xe2\x80\x9cfundamentally alter the nature\xe2\x80\x9d of\nthe PGA TOUR game, \xc2\xa7 12182(b)(2)(A)(ii). The Court attacks this \xe2\x80\x9cfundamental alteration\xe2\x80\x9d analysis\nby asking two questions: first, whether the \xe2\x80\x9cessence\xe2\x80\x9d or an \xe2\x80\x9cessential aspect\xe2\x80\x9d of the sport of golf has\nbeen altered; and second, whether the change, even if not essential to the game, would give the\ndisabled player an advantage over others and thereby \xe2\x80\x9cfundamentally alter the character of the\ncompetition.\xe2\x80\x9d Ante, at 683. It answers no to both.\nBefore considering the Court\xe2\x80\x99s answer to the first question, it is worth pointing out that the\nassumption which underlies that question is false. Nowhere is it writ that PGA TOUR golf must be\nclassic \xe2\x80\x9cessential\xe2\x80\x9d golf. Why cannot the PGA TOUR, if it wishes, promote a new game, with\ndistinctive rules (much as the American League promotes a game of baseball in which the pitcher\xe2\x80\x99s\n458\n\n\x0cturn at the plate can be taken by a \xe2\x80\x9cdesignated hitter\xe2\x80\x9d)? If members of the public do not like the new\nrules\xe2\x80\x93if they feel that these rules do not truly test the individual\xe2\x80\x99s skill at \xe2\x80\x9creal golf\xe2\x80\x9d (or the team\xe2\x80\x99s\nskill at \xe2\x80\x9creal baseball\xe2\x80\x9d) they can withdraw their patronage. But the rules are the rules. They are (as in\nall games) entirely arbitrary, and there is no basis on which anyone\xe2\x80\x93not even the Supreme Court of\nthe United States\xe2\x80\x93can pronounce one or another of them to be \xe2\x80\x9cnonessential\xe2\x80\x9d if the rulemaker (here\nthe PGA TOUR) deems it to be essential.\nIf one assumes, however, that the PGA TOUR has some legal obligation to play classic,\nPlatonic golf\xe2\x80\x93and if one assumes the correctness of all the other wrong turns the Court has made to\nget to this point\xe2\x80\x93then we Justices must confront what is indeed an awesome responsibility. It has\nbeen rendered the solemn duty of the Supreme Court of the United States, laid upon it by Congress\nin pursuance of the Federal Government\xe2\x80\x99s power \xe2\x80\x9c[t]o regulate Commerce with foreign Nations,\nand among the several States,\xe2\x80\x9d U. S. Const., Art. I,\xc2\xa7 8, cl. 3, to decide What Is Golf. I am sure that\nthe Framers of the Constitution, aware of the 1457 edict of King James II of Scotland prohibiting\ngolf because it interfered with the practice of archery, fully expected that sooner or later the paths of\ngolf and government, the law and the links, would once again cross, and that the judges of this\naugust Court would some day have to wrestle with that age-old jurisprudential question, for which\ntheir years of study in the law have so well prepared them: Is someone riding around a golf course\nfrom shot to shot really a golfer? The answer, we learn, is yes. The Court ultimately concludes, and it\nwill henceforth be the Law of the Land, that walking is not a \xe2\x80\x9cfundamental\xe2\x80\x9d aspect of golf.\nEither out of humility or out of self-respect (one or the other) the Court should decline to\nanswer this incredibly difficult and incredibly silly question. To say that something is \xe2\x80\x9cessential\xe2\x80\x9d is\nordinarily to say that it is necessary to the achievement of a certain object. But since it is the very\nnature of a game to have no object except amusement (that is what distinguishes games from\nproductive activity), it is quite impossible to say that any of a game\xe2\x80\x99s arbitrary rules is \xe2\x80\x9cessential.\xe2\x80\x9d\nEighteen-hole golf courses, 10-foot-high basketball hoops, 90-foot baselines, 100-yard football\nfields\xe2\x80\x93all are arbitrary and none is essential. The only support for any of them is tradition and (in\nmore modern times) insistence by what has come to be regarded as the ruling body of the sport\xe2\x80\x93\nboth of which factors support the PGA TOUR\xe2\x80\x99s position in the present case. (Many, indeed,\nconsider walking to be the central feature of the game of golf\xe2\x80\x93hence Mark Twain\xe2\x80\x99s classic criticism of\nthe sport: \xe2\x80\x9ca good walk spoiled.\xe2\x80\x9d) I suppose there is some point at which the rules of a wellknown\ngame are changed to such a degree that no reasonable person would call it the same game. If the\nPGA TOUR competitors were required to dribble a large, inflated ball and put it through a round\nhoop, the game could no longer reasonably be called golf. But this criterion\xe2\x80\x93destroying\nrecognizability as the same generic game\xe2\x80\x93is surely not the test of \xe2\x80\x9cessentialness\xe2\x80\x9d or\n\xe2\x80\x9cfundamentalness\xe2\x80\x9d that the Court applies, since it apparently thinks that merely changing the\ndiameter of the cup might \xe2\x80\x9cfundamentally alter\xe2\x80\x9d the game of golf, ante, at 682.\nHaving concluded that dispensing with the walking rule would not violate federal-Platonic\n\xe2\x80\x9cgolf\xe2\x80\x9d (and, implicitly, that it is federal-Platonic golf, and no other, that the PGA TOUR can insist\nupon), the Court moves on to the second part of its test: the competitive effects of waiving this\nnonessential rule. In this part of its analysis, the Court first finds that the effects of the change are\n\xe2\x80\x9cmitigated\xe2\x80\x9d by the fact that in the game of golf weather, a \xe2\x80\x9clucky bounce,\xe2\x80\x9d and \xe2\x80\x9cpure chance\xe2\x80\x9d\nprovide different conditions for each competitor and individual ability may not \xe2\x80\x9cbe the sole\ndeterminant of the outcome.\xe2\x80\x9d Ante, at 687. I guess that is why those who follow professional golfing\nconsider Jack Nicklaus the luckiest golfer of all time, only to be challenged of late by the phenomenal\nluck of Tiger Woods. The Court\xe2\x80\x99s empiricism is unpersuasive. \xe2\x80\x9cPure chance\xe2\x80\x9d is randomly distributed\namong the players, but allowing respondent to use a cart gives him a \xe2\x80\x9clucky\xe2\x80\x9d break every time he\nplays. Pure chance also only matters at the margin\xe2\x80\x93a stroke here or there; the cart substantially\nimproves this respondent\xe2\x80\x99s competitive prospects beyond a couple of strokes. But even granting that\n459\n\n\x0cthere are significant nonhuman variables affecting competition, that fact does not justify adding\nanother variable that always favors one player.\nIn an apparent effort to make its opinion as narrow as possible, the Court relies upon the\nDistrict Court\xe2\x80\x99s finding that even with a cart, respondent will be at least as fatigued as everyone else.\nAnte, at 690. This, the Court says, proves that competition will not be affected. Far from thinking that\nreliance on this finding cabins the effect of today\xe2\x80\x99s opinion, I think it will prove to be its most\nexpansive and destructive feature. Because step one of the Court\xe2\x80\x99s two-part inquiry into whether a\nrequested change in a sport will \xe2\x80\x9cfundamentally alter [its] nature,\xe2\x80\x9d \xc2\xa7 12182(b)(2)(A)(ii), consists of an\nutterly unprincipled ontology of sports (pursuant to which the Court is not even sure whether golf\xe2\x80\x99s\n\xe2\x80\x9cessence\xe2\x80\x9d requires a 3-inch hole), there is every reason to think that in future cases involving\nrequests for special treatment by would-be athletes the second step of the analysis will be\ndeterminative. In resolving that second step\xe2\x80\x93determining whether waiver of the \xe2\x80\x9cnonessential\xe2\x80\x9d rule\nwill have an impermissible \xe2\x80\x9ccompetitive effect\xe2\x80\x9d\xe2\x80\x93by measuring the athletic capacity of the requesting\nindividual, and asking whether the special dispensation would do no more than place him on a par\n(so to speak) with other competitors, the Court guarantees that future cases of this sort will have to\nbe decided on the basis of individualized factual findings. Which means that future cases of this sort\nwill be numerous, and a rich source of lucrative litigation. One can envision the parents of a Little\nLeague player with attention deficit disorder trying to convince a judge that their son\xe2\x80\x99s disability\nmakes it at least 25% more difficult to hit a pitched ball. (If they are successful, the only thing that\ncould prevent a court order giving the kid four strikes would be a judicial determination that, in\nbaseball, three strikes are metaphysically necessary, which is quite absurd.)\nThe statute, of course, provides no basis for this individualized analysis that is the Court\xe2\x80\x99s\nlast step on a long and misguided journey. The statute seeks to assure that a disabled person\xe2\x80\x99s\ndisability will not deny him equal access to (among other things) competitive sporting events\xe2\x80\x93not that\nhis disability will not deny him an equal chance to win competitive sporting events. The latter is quite\nimpossible, since the very nature of competitive sport is the measurement, by uniform rules, of\nunevenly distributed excellence. This unequal distribution is precisely what determines the winners\nand losers\xe2\x80\x93and artificially to \xe2\x80\x9ceven out\xe2\x80\x9d that distribution, by giving one or another player exemption\nfrom a rule that emphasizes his particular weakness, is to destroy the game. That is why the\n\xe2\x80\x9chandicaps\xe2\x80\x9d that are customary in social games of golf\xe2\x80\x93which, by adding strokes to the scores of the\ngood players and subtracting them from scores of the bad ones, \xe2\x80\x9ceven out\xe2\x80\x9d the varying abilities\xe2\x80\x93are\nnot used in professional golf. In the Court\xe2\x80\x99s world, there is one set of rules that is \xe2\x80\x9cfair with respect\nto the able-bodied\xe2\x80\x9d but \xe2\x80\x9cindividualized\xe2\x80\x9d rules, mandated by the ADA, for \xe2\x80\x9ctalented but disabled\nathletes.\xe2\x80\x9d Ante, at 691. The ADA mandates no such ridiculous thing. Agility, strength, speed,\nbalance, quickness of mind, steadiness of nerves, intensity of concentration\xe2\x80\x93these talents are not\nevenly distributed. No wildeyed dreamer has ever suggested that the managing bodies of the\ncompetitive sports that test precisely these qualities should try to take account of the uneven\ndistribution of Godgiven gifts when writing and enforcing the rules of competition. And I have no\ndoubt Congress did not authorize misty-eyed judicial supervision of such a revolution.\n*\nMy belief that today\xe2\x80\x99s judgment is clearly in error should not be mistaken for a belief that the\nPGA TOUR clearly ought not allow respondent to use a golf cart. That is a close question, on which\neven those who compete in the PGA TOUR are apparently divided; but it is a different question from\nthe one before the Court. Just as it is a different question whether the Little League ought to give\n460\n\n\x0cdisabled youngsters a fourth strike, or some other waiver from the rules that makes up for their\ndisabilities. In both cases, whether they ought to do so depends upon (1) how central to the game that\nthey have organized (and over whose rules they are the master) they deem the waived provision to\nbe, and (2) how competitive\xe2\x80\x93how strict a test of raw athletic ability in all aspects of the competition\xe2\x80\x93\nthey want their game to be. But whether Congress has said they must do so depends upon the\nanswers to the legal questions I have discussed above\xe2\x80\x93not upon what this Court sententiously\ndecrees to be \xe2\x80\x9c\xe2\x80\x98decent, tolerant, [and] progressive,\xe2\x80\x99 \xe2\x80\x9d ante, at 675 (quoting Board of Trustees of Univ. of\nAla. v. Garrett, 531 U. S. 356, 375 (2001) (Kennedy, J., concurring)).\nAnd it should not be assumed that today\xe2\x80\x99s decent, tolerant, and progressive judgment will, in\nthe long run, accrue to the benefit of sports competitors with disabilities. Now that it is clear courts\nwill review the rules of sports for \xe2\x80\x9cfundamentalness,\xe2\x80\x9d organizations that value their autonomy have\nevery incentive to defend vigorously the necessity of every regulation. They may still be secondguessed in the end as to the Platonic requirements of the sport, but they will assuredly lose if they\nhave at all wavered in their enforcement. The lesson the PGA TOUR and other sports organizations\nshould take from this case is to make sure that the same written rules are set forth for all levels of\nplay, and never voluntarily to grant any modifications. The second lesson is to end open tryouts. I\ndoubt that, in the long run, even disabled athletes will be well served by these incentives that the\nCourt has created.\nComplaints about this case are not \xe2\x80\x9cproperly directed to Congress,\xe2\x80\x9d ante, at 689, n. 51. They\nare properly directed to this Court\xe2\x80\x99s Kafkaesque determination that professional sports\norganizations, and the fields they rent for their exhibitions, are \xe2\x80\x9cplaces of public accommodation\xe2\x80\x9d to\nthe competing athletes, and the athletes themselves \xe2\x80\x9ccustomers\xe2\x80\x9d of the organization that pays them;\nits Alice in Wonderland determination that there are such things as judicially determinable\n\xe2\x80\x9cessential\xe2\x80\x9d and \xe2\x80\x9cnonessential\xe2\x80\x9d rules of a made-up game; and its Animal Farm determination that\nfairness and the ADA mean that everyone gets to play by individualized rules which will assure that\nno one\xe2\x80\x99s lack of ability (or at least no one\xe2\x80\x99s lack of ability so pronounced that it amounts to a\ndisability) will be a handicap. The year was 2001, and \xe2\x80\x9ceverybody was finally equal.\xe2\x80\x9d K. Vonnegut,\nHarrison Bergeron, in Animal Farm and Related Readings 129 (1997).\nInstead, Appendix I to the Rules of Golf lists a number of \xe2\x80\x9coptional\xe2\x80\x9d conditions, among\nthem one related to transportation: \xe2\x80\x9cIf it is desired to require players to walk in a competition, the\nfollowing condition is suggested: \xe2\x80\x98Players shall walk at all times during a stipulated round.\xe2\x80\x99\xe2\x80\x9d App.\n125. \xe2\x86\xa9\nThe PGA TOUR hard card provides: \xe2\x80\x9cPlayers shall walk at all times during a stipulated\nround unless permitted to ride by the PGA TOUR Rules Committee.\xe2\x80\x9d Id., at 127. The NIKE\nTOUR hard card similarly requires walking unless otherwise permitted. Id., at 129. Additionally, as\nnoted, golf carts have not been permitted during the third stage of the Q-School since 1997.\nPetitioner added this recent prohibition in order to \xe2\x80\x9capproximat[e] a PGA TOUR event as closely as\npossible.\xe2\x80\x9d Id., at 152. \xe2\x86\xa9\n994 F. Supp. 1242, 1251 (Ore. 1998). \xe2\x86\xa9\nTitle 42 U. S. C. \xc2\xa7 12102 provides, in part: The term \xe2\x80\x98disability\xe2\x80\x99 means, with respect to an\nindividual\xe2\x80\x93 (A) a physical or mental impairment that substantially limits one or more of the major\nlife activities of such individual \xe2\x80\xa6 . \xe2\x86\xa9\nBefore then, even when Martin was in extreme pain, and was offered a cart, he declined. Tr.\n564-565. \xe2\x86\xa9\nWhen asked about the other teams\xe2\x80\x99 reaction to Martin\xe2\x80\x99s use of a cart, the Stanford coach\ntestified: \xe2\x80\x9cQ. Was there any complaint ever made to you by the coaches when he was allowed a cart\nthat that gave a competitive advantage over the\xe2\x80\x93 \xe2\x80\x9cA. Any complaints? No sir, there were exactly\xe2\x80\x93\n461\n\n\x0cexactly the opposite. Everybody recognized Casey for the person he was, and what he was doing\nwith his life, and every coach, to my knowledge, and every player wanted Casey in the tournament\nand they welcomed him there. \xe2\x80\x9cQ. Did anyone contend that that constituted an alteration of the\ncompetition to the extent that it didn\xe2\x80\x99t constitute the game to your level, the college level? \xe2\x80\x9cA. Not\nat all, sir.\xe2\x80\x9d App. 208. \xe2\x86\xa9\n\xe2\x80\x9cQ.And fatigue is one of the factors that can cause a golfer at the PGA Tour level to lose\none stroke or more? \xe2\x80\x9cA. Oh, it is.And it has happened. \xe2\x80\x9cQ. And can one stroke be the difference\nbetween winning and not winning a tournament at the PGA Tour level? \xe2\x80\x9cA. As I said, I\xe2\x80\x99ve lost a few\nnational opens by one stroke.\xe2\x80\x9d App. 177. \xe2\x86\xa9\n\xe2\x80\x9cQ.Mr. Nicklaus, what is your understanding of the reason why in these competitive events\n\xe2\x80\xa6that competitors are required to walk the course? \xe2\x80\x9cA. Well, in my opinion, physical fitness and\nfatigue are part of the game of golf.\xe2\x80\x9d Id., at 190. \xe2\x86\xa9\n\xe2\x80\x9cQ.So are you telling the court that this fatigue factor tends to accumulate over the course\nof the four days of the tournament? \xe2\x80\x9cA. Oh definitely. There\xe2\x80\x99s no doubt. \xe2\x80\xa6 . . \xe2\x80\x9cQ. Does this fatigue\nfactor that you\xe2\x80\x99ve talked about, Mr. Venturi, affect the manner in which you\xe2\x80\x93you perform as a\nprofessional out on the golf course? \xe2\x80\x9cA. Oh, there\xe2\x80\x99s no doubt, again, but that, that fatigue does play\na big part. It will influence your game. It will influence your shotmaking. It will influence your\ndecisions.\xe2\x80\x9d Id., at 236-237. \xe2\x86\xa9\n\xe2\x80\x9cQ.Based on your experience, do you believe that it would fundamentally alter the nature of\nthe competition on the PGA Tour and the Nike Tour if competitors in those events were permitted\nto use golf carts? \xe2\x80\x9cA. Yes, absolutely. \xe2\x80\x9cQ. Why do you say so, sir? \xe2\x80\x9cA. It would\xe2\x80\x93it would take away\nthe fatigue factor in many ways. It would\xe2\x80\x93it would change the game. \xe2\x80\xa6 . . \xe2\x80\x9cQ. Now, when you say\nthat the use of carts takes away the fatigue factor, it would be an aid, et cetera, again, as I understand\nit, you are not testifying now about the plaintiff. You are just talking in general terms? \xe2\x80\xa6 . . \xe2\x80\x9cA. Yes,\nsir.\xe2\x80\x9d Id., at 238. See also id., at 177-178 (Palmer); id., at 191 (Nicklaus). \xe2\x86\xa9\n42 U. S. C. \xc2\xa7\xc2\xa7 12111-12117. \xe2\x86\xa9\n\xc2\xa7\xc2\xa7 12131-12165. \xe2\x86\xa9\n\xc2\xa7\xc2\xa7 12181-12189. \xe2\x86\xa9\n\xe2\x80\x9c(A)an inn, hotel, motel, or other place of lodging, except for an establishment located\nwithin a building that contains not more than five rooms for rent or hire and that is actually\noccupied by the proprietor of such establishment as the residence of such proprietor; \xe2\x80\x9c(B) a\nrestaurant, bar, or other establishment serving food or drink; \xe2\x80\x9c(C) a motion picture house,\ntheater,concert hall,stadium, or other place of exhibition or entertainment; \xe2\x80\x9c(D) an\nauditorium,convention center, lecture hall, or other place of public gathering; \xe2\x80\x9c(E) a bakery, grocery\nstore, clothing store, hardware store, shopping center, or other sales or rental establishment; \xe2\x80\x9c(F) a\nlaundromat, dry-cleaner, bank, barber shop, beauty shop, travel service,shoe repair service,funeral\nparlor,gas station,office of anaccountant or lawyer,pharmacy, insurance office, professional office of\na health care provider, hospital, or other service establishment; \xe2\x80\x9c(G) a terminal, depot, or other\nstation used for specified public transportation; \xe2\x80\x9c(H) a museum, library, gallery, or other place of\ndisplay or collection; \xe2\x80\x9c(I)a park, zoo, amusement park, or other place of recreation; \xe2\x80\x9c(J) a nursery,\nelementary, secondary, undergraduate, or postgraduate private school, or other place of education;\n\xe2\x80\x9c(K) a day care center, seniorcitizencenter, homeless shelter, food bank, adoption agency, or other\nsocial service center establishment; and \xe2\x80\x9c(L) a gymnasium, health spa, bowling alley, golf course, or\nother place of exercise or recreation.\xe2\x80\x9d\xc2\xa7 12181(7) (emphasis added). \xe2\x86\xa9\nS. Rep. No. 101-116, p. 59 (1989); H. R. Rep. No. 101-485, pt. 2, p. 100 (1990). \xe2\x86\xa9\nReply Brief for Petitioner 1-2. \xe2\x86\xa9\nMartin complains that petitioner\xe2\x80\x99s failure to make this exact argument below precludes its\n462\n\n\x0cassertion here.However, the Title III coverage issue was raised in the lower courts, petitioner\nadvanced this particular argument in support of its position on the issue in its petition for certiorari,\nand the argument was fully briefed on the merits by both parties.Given the importance of the issue,\nwe exercise our discretion to consider it.See Harris Trust and Sav. Bank v. Salomon Smith Barney Inc.,\n530 U. S. 238, 245-246, n. 2 (2000); Carlson v. Green, 446 U. S. 14, 17, n. 2 (1980). \xe2\x86\xa9\nBrief for Petitioner 10, 11. \xe2\x86\xa9\nId., at 19 (quoting 42 U. S. C. \xc2\xa7 12182(b)(1)(A)(iv)). \xe2\x86\xa9\nBrief for Petitioner 15; see also id., at 16 (Martin\xe2\x80\x99s claim \xe2\x80\x9cis nothing more than a\nstraightforward discrimination-in-the-workplacecomplaint\xe2\x80\x9d). \xe2\x86\xa9\nClause (i) prohibits the denial of participation, clause (ii) participation in unequal benefits,\nand clause (iii) the provision of separate benefits. \xe2\x86\xa9\nBrief for Petitioner 20 (clause (iv) \xe2\x80\x9capplies directly just to subsection 12182(b)\xe2\x80\x9d); Reply Brief\nfor Petitioner 4, n. 1 (clause (iv) \xe2\x80\x9cdoes not apply directly to the general provision prohibiting\ndiscrimination\xe2\x80\x9d). \xe2\x86\xa9\nContrary to the dissent\xe2\x80\x99s suggestion, our view of the Q-School does not make \xe2\x80\x9ceveryone\nwho seeks a job\xe2\x80\x9d at a public accommodation, through \xe2\x80\x9can open tryout\xe2\x80\x9d or otherwise, \xe2\x80\x9ca customer.\xe2\x80\x9d\nPost, at 697 (opinion of Scalia, J.). Unlike those who successfully apply for a job at a place of public\naccommodation, or those who successfully bid for a contract, the golfers who qualify for petitioner\xe2\x80\x99s\ntours play at their own pleasure (perhaps, but not necessarily, for prize money), and although they\ncommit to playing in at least 15 tournaments, they are not bound by any obligations typically\nassociated with employment. See, e. g., App. 260 (trial testimony of PGA commissioner Timothy\nFinchem) (petitioner lacks control over when and where tour members compete, and over their\nmanner of performance outside the rules of competition). Furthermore, unlike athletes in \xe2\x80\x9cother\nprofessional sports, such as baseball,\xe2\x80\x9d post, at 697, in which players are employed by their clubs, the\ngolfers on tour are not employed by petitioner or any related organizations. The record does not\nsupport the proposition that the purpose of the Q-School \xe2\x80\x9cis to hire,\xe2\x80\x9d ibid., rather than to narrow\nthe field of participants in the sporting events that petitioner sponsors at places of public\naccommodation. \xe2\x86\xa9\nTitle II of the Civil Rights Act of 1964 includes in its definition of \xe2\x80\x9cpublic accommodation\xe2\x80\x9d\na \xe2\x80\x9cplace of exhibition or entertainment\xe2\x80\x9d but does not specifically list a \xe2\x80\x9cgolf course\xe2\x80\x9d as an\nexample.See 42 U. S. C. \xc2\xa7 2000a(b). \xe2\x86\xa9\nUnder petitioner\xe2\x80\x99s theory, Title II would not preclude it from discriminating against golfers\non racial grounds.App. 197; Tr. of Oral Arg. 11-12. \xe2\x86\xa9\nCf. post, at 701 (Scalia, J., dissenting) (\xe2\x80\x9cI suppose there is some point at which the rules of a\nwellknown game are changed to such a degree that no reasonable person would call it the same\ngame\xe2\x80\x9d). \xe2\x86\xa9\nAccord, post, at 703 (Scalia, J., dissenting) (\xe2\x80\x9cThe statute seeks to assure that a disabled\nperson\xe2\x80\x99s disability will not deny him equal access to (among other things) competitive sporting events\xe2\x80\x93\nnot that his disability will not deny him an equal chance to win competitive sporting events\xe2\x80\x9d). \xe2\x86\xa9\nAs we have noted, the statute contemplates three inquiries: whether the requested\nmodification is \xe2\x80\x9creasonable,\xe2\x80\x9d whether it is \xe2\x80\x9cnecessary\xe2\x80\x9d for the disabled individual, and whether it\nwould \xe2\x80\x9cfundamentally alter the nature of\xe2\x80\x9d the competition. 42 U. S. C. \xc2\xa7 12182(b)(2)(A)(ii). Whether\none question should be decided before the others likely will vary from case to case, for in logic there\nseems to be no necessary priority among the three. In routine cases, the fundamental alteration\ninquiry may end with the question whether a rule is essential. Alternatively, the specifics of the\nclaimed disability might be examined within the context of what is a reasonable or necessary\nmodification. Given the concession by petitioner that the modification sought is reasonable and\n463\n\n\x0cnecessary, and given petitioner\xe2\x80\x99s reliance on the fundamental alteration provision, we have no\noccasion to consider the alternatives in this case. \xe2\x86\xa9\nGolf is an ancient game, tracing its ancestry to Scotland, and played by such no tables as\nMary Queen of Scots and her son James. That shotmaking has been the essence of golf since early in\nits history is reflected in the first recorded rules of golf, published in 1744 for a tournament on the\nLeith Links in Edinburgh: \xe2\x80\x9cArticles & Laws in Playing at Golf \xe2\x80\x9c1. You must Tee your Ball, within a\nClub\xe2\x80\x99s length of the [previous] Hole. \xe2\x80\x9c2. Your Tee must be upon the Ground. \xe2\x80\x9c3. You are not to\nchange the Ball which you Strike off the Tee. \xe2\x80\x9c4. You are not to remove, Stones, Bones or any Break\nClub for the sake of playing your Ball, Except upon the fair Green/& that only/ within a Club\xe2\x80\x99s\nlength of your Ball. \xe2\x80\x9c5. If your Ball comes among Water, or any Watery Filth, you are at liberty to\ntake out your Ball & bringing it behind the hazard and Teeing it, you may play it with any Club and\nallow your Adversary a Stroke for so getting out your Ball. \xe2\x80\x9c6. If your Balls be found anywhere\ntouching one another, You are to lift the first Ball, till you play the last. \xe2\x80\x9c7. At Holling, you are to\nplay your Ball honestly for the Hole, and, not to play upon your Adversary\xe2\x80\x99s Ball, not lying in your\nway to the Hole. \xe2\x80\x9c8. If you should lose your Ball, by its being taken up, or any other way, you are to\ngo back to the Spot, where you struck last & drop another Ball, And allow your Adversary a Stroke\nfor the misfortune. \xe2\x80\x9c9. No man at Holling his Ball, is to be allowed, to mark his way to the Hole\nwith his Club or, any thing else. \xe2\x80\x9c10. If a Ball be stopp\xe2\x80\x99d by any person, Horse, Dog, or any thing\nelse, The Ball so stop\xe2\x80\x99d must be play\xe2\x80\x99d where it lyes. \xe2\x80\x9c11. If you draw your Club, in order to Strike &\nproceed so far in the Stroke, as to be bringing down your Club; If then, your Club shall break, in,\nany way, it is to be Accounted a Stroke. \xe2\x80\x9c12. He, whose Ball lyes farthest from the Hole is obliged to\nplay first. \xe2\x80\x9c13. Neither Trench, Ditch, or Dyke, made for the preservation of the Links, nor the\nScholar\xe2\x80\x99s Holes or the Soldier\xe2\x80\x99s Lines, Shall be accounted a Hazard; But the Ball is to be taken\nout/Teed/and play\xe2\x80\x99d with any Iron Club.\xe2\x80\x9d K. Chapman, Rules of the Green 14-15 (1997). \xe2\x86\xa9\nSee generally M. Campbell, The Random House International Encyclopedia of Golf 9-57\n(1991); Golf Magazine\xe2\x80\x99s Encyclopedia of Golf 1-17 (2d ed. 1993). \xe2\x86\xa9\nOlinger v. United States Golf Assn., 205 F. 3d 1001, 1003 (CA7 2000). \xe2\x86\xa9\nOn this point, the testimony of the immediate past president of the USGA (and one of\npetitioner\xe2\x80\x99s witnesses at trial) is illuminating: \xe2\x80\x9cTell the court, if you would, Ms. Bell, who it is that\nplays under these Rules of Golf \xe2\x80\xa6 ? \xe2\x80\x9cA. Well, these are the rules of the game, so all golfers. These\nare for all people who play the game. \xe2\x80\x9cQ. So the two amateurs that go out on the weekend to play\ngolf together would\xe2\x80\x93would play by the Rules of Golf? \xe2\x80\x9cA. We certainly hope so. \xe2\x80\x9cQ. Or a\ntournament that is conducted at a private country club for its members, is it your understanding that\nthat would typically be conducted under the Rules of Golf? \xe2\x80\x9cA. Well, that\xe2\x80\x99s\xe2\x80\x93that\xe2\x80\x99s right. If you want\nto play golf, you need to play by these rules.\xe2\x80\x9d App. 239. \xe2\x86\xa9\nSee n. 3, supra. \xe2\x86\xa9\nFurthermore, the USGA\xe2\x80\x99s handicap system, used by over 4 million amateur golfers playing\non courses rated by the USGA, does not consider whether a player walks or rides in a cart, or\nwhether she uses a caddy or carries her own clubs. Rather, a player\xe2\x80\x99s handicap is determined by a\nformula that takes into account the average score in the 10 best of her 20 most recent rounds, the\ndifficulty of the different courses played, and whether or not a round was a \xe2\x80\x9ctournament\xe2\x80\x9d event. \xe2\x86\xa9\nBrief for Petitioner 13. \xe2\x86\xa9\nId., at 37. \xe2\x86\xa9\n994 F. Supp., at 1250. \xe2\x86\xa9\nA drive by Andrew Magee earlier this year produced a result that he neither intended nor\nexpected. While the foursome ahead of him was still on the green, he teed off on a 322-yard par\nfour. To his surprise, the ball not only reached the green, but also bounced off Tom Byrum\xe2\x80\x99s putter\n464\n\n\x0cand into the hole. Davis, Magee Gets Ace on Par-4, Ariz. Republic, Jan. 26, 2001, p. C16, 2001 WL\n8510792. \xe2\x86\xa9\nThat has been so not only in the SENIOR PGA TOUR and the first two stages of the QSchool, but also, as Martin himself noticed, in the third stage of the Q-School after petitioner\npermitted everyone to ride rather than just waiving the walking rule for Martin as required by the\nDistrict Court\xe2\x80\x99s injunction. \xe2\x86\xa9\nApp. 201. See also id., at 179-180 (deposition testimony of Gerry Norquist); id., at 225-226\n(trial testimony of Harry Toscano). \xe2\x86\xa9\nHence, petitioner\xe2\x80\x99s questioning of the ability of courts to apply the reasonable modification\nrequirement to athletic competition is a complaint more properly directed to Congress, which\ndrafted the ADA\xe2\x80\x99s coverage broadly, than to us. Even more misguided is Justice Scalia\xe2\x80\x99s suggestion\nthat Congress did not place that inquiry into the hands of the courts at all. According to the dissent,\nthe game of golf as sponsored by petitioner is, like all sports games, the sum of its \xe2\x80\x9carbitrary rules,\xe2\x80\x9d\nand no one, including courts, \xe2\x80\x9ccan pronounce one or another of them to be \xe2\x80\x98nonessential\xe2\x80\x99 if the\nrulemaker (here the PGA TOUR) deems it to be essential.\xe2\x80\x9d Post, at 700. Whatever the merit of\nJustice Scalia\xe2\x80\x99s postmodern view of \xe2\x80\x9cWhat Is [Sport],\xe2\x80\x9d ibid., it is clear that Congress did not enshrine\nit in Title III of the ADA. While Congress expressly exempted \xe2\x80\x9cprivate clubs or establishments\xe2\x80\x9d and\n\xe2\x80\x9creligious organizations or entities\xe2\x80\x9d from Title III\xe2\x80\x99s coverage, 42 U. S. C. \xc2\xa7 12187, Congress made\nno such exception for athletic competitions, much less did it give sports organizations carte blanche\nauthority to exempt themselves from the fundamental alteration inquiry by deeming any rule, no\nmatter how peripheral to the competition, to be essential. In short, Justice Scalia\xe2\x80\x99s reading of the\nstatute renders the word \xe2\x80\x9cfundamentally\xe2\x80\x9d largely superfluous, because it treats the alteration of any\nrule governing an event at a public accommodation to be a fundamental alteration. \xe2\x86\xa9\nOn this fundamental point, the dissent agrees. See post, at 699 (\xe2\x80\x9cThe PGA TOUR cannot\ndeny respondent access to that game because of his disability\xe2\x80\x9d). \xe2\x86\xa9\nHowever, we think petitioner\xe2\x80\x99s contention that the task of assessing requests for\nmodifications will amount to a substantial burden is overstated. As Martin indicates, in the three\nyears since he requested the use of a cart, no one else has sued the PGA, and only two other golfers\n(one of whom is Olinger) have sued the USGA for a waiver of the walking rule. In addition, we\nbelieve petitioner\xe2\x80\x99s point is misplaced, as nowhere in \xc2\xa7 12182(b)(2)(A)(ii) does Congress limit the\nreasonable modification requirement only to requests that are easy to evaluate. \xe2\x86\xa9\nThe Court suggests that respondent is not an independent contractor because he \xe2\x80\x9cplay[s] at\n[his] own pleasure,\xe2\x80\x9d and is not subject to PGA TOUR control \xe2\x80\x9cover [his] manner of performance,\xe2\x80\x9d\nante, at 680, n. 33. But many independent contractors\xe2\x80\x93composers of movie music, portrait artists,\nscript writers, and even (some would say) plumbers\xe2\x80\x93retain at least as much control over when and\nhow they work as does respondent, who agrees to play in a minimum of 15 of the designated PGA\nTOUR events, and to play by the rules that the PGA TOUR specifies. Cf. Community for Creative NonViolence v. Reid, 490 U. S. 730, 751-753 (1989) (discussing independent contractor status of a\nsculptor). Moreover, although, as the Court suggests in the same footnote, in rare cases a PGA\nTOUR winner will choose to forgo the prize money (in order, for example, to preserve amateur\nstatus necessary for continuing participation in college play) he is contractually entitled to the prize\nmoney if he demands it, which is all that a contractual relationship requires. \xe2\x86\xa9\nThe Court suggests that respondent is not an independent contractor because he \xe2\x80\x9cplay[s] at\n[his] own pleasure,\xe2\x80\x9d and is not subject to PGA TOUR control \xe2\x80\x9cover [his] manner of performance,\xe2\x80\x9d\nante, at 680, n. 33. But many independent contractors\xe2\x80\x93composers of movie music, portrait artists,\nscript writers, and even (some would say) plumbers\xe2\x80\x93retain at least as much control over when and\nhow they work as does respondent, who agrees to play in a minimum of 15 of the designated PGA\n465\n\n\x0cTOUR events, and to play by the rules that the PGA TOUR specifies. Cf. Community for Creative NonViolence v. Reid, 490 U. S. 730, 751-753 (1989) (discussing independent contractor status of a\nsculptor). Moreover, although, as the Court suggests in the same footnote, in rare cases a PGA\nTOUR winner will choose to forgo the prize money (in order, for example, to preserve amateur\nstatus necessary for continuing participation in college play) he is contractually entitled to the prize\nmoney if he demands it, which is all that a contractual relationship requires. \xe2\x86\xa9\nExcerpt from Mark Kelman, Market Discrimination and Groups, 53 Stan. L. Rev. 833 (2001)\nThe Americans with Disabilities Act contemplates granting those people whose rights under\nthe statute are violated two distinct remedies, each of which implicitly instantiates a distinct\nentitlement. First, like all antidiscrimination statutes, it clearly prohibits \xe2\x80\x9csimple discrimination\xe2\x80\x9d\n(differential treatment despite equality along \xe2\x80\x9crelevant\xe2\x80\x9d dimensions), permitting plaintiffs to enjoin\nimproper refusals to serve or refusals to hire in situations in which plaintiffs can convince\ndecisionmakers that they were denied access though \xe2\x80\x9cqualified\xe2\x80\x9d for such access. Second, it mandates\n\xe2\x80\x9creasonable accommodation\xe2\x80\x9d (of relevant differences), permitting plaintiffs to secure more complex\nmandatory injunctions demanding that the defendant take particular affirmative steps to permit\nthem to enjoy the relevant public accommodation or to work at the relevant job.\nObviously, people may be unequal in ways some would deem relevant and others would not;\nthus, figuring out when a party can invoke the right to prohibit simple discrimination requires some\nconsensus on what traits potential defendants can deem relevant. The right to demand reasonable\naccommodation likewise requires us to decide which distinctions should be accommodated. (As a\nmatter of positive law, a blind lawyer may be entitled to a reader, without bearing the cost of hiring\nthe reader; a lawyer who spells poorly or writes ungrammatically, unless deemed \xe2\x80\x9cdyslexic\xe2\x80\x9d is not\nentitled to a free spell-check program or an editor. As I note in a bit more detail later, the reason for\nthe distinction is hardly lucid as a matter of distributive ethics.)\nThere are relatively precise conventional understandings of when plaintiffs are mistreated in\nways that entitle them to these remedies, though, defined in relationship to conventional\nunderstandings of the workings of a market economy. A person suffers from simple discrimination\ninsofar as an employer (in the employment discrimination context traditionally regulated by Title\nVII) or a public accommodation owner (in the public accommodation context traditionally regulated\nby Title II of the 1964 Civil Rights Act) fails to treat him \xe2\x80\x9cimpersonally.\xe2\x80\x9d Insofar as the employer or\npublic accommodation owner fails to give the employee or customer something he desires because\nof traits that are irrelevant to his economic function, he is breaching the duty to avoid simple\ndiscrimination. A public accommodation owner discriminates in this way if he does not treat a\npotential customer as well as he treats other customers who supply him the same net proceeds\n(money he will receive to provide a service net of the costs of service provision). An employer\ndiscriminates insofar as he treats the plaintiff employee or job applicant worse than he treats\nstatistically typical employees or applicants whose net marginal product is no higher. (A worker\xe2\x80\x99s net\nmarginal product is equal to the value of the increase in goods or services the firm will produce if\nthe employee is added to the firm, net of the added costs that the firm will incur if she were\nemployed by that firm.) In this sense, what distinguishes a market actor\xe2\x80\x99s claim that there are only\ncertain \xe2\x80\x9crelevant\xe2\x80\x9d grounds for differentiation from what are clearly closely cognate claims that any\nactor is entitled to \xe2\x80\x9cmeritocratic\xe2\x80\x9d treatment in any realm (e.g., college admissions) is the relative\nconsensus on how limited the logical criteria for employment and service really are.\nIn certain circumstances, customers or employees may be entitled to reasonable\naccommodation in the sense that the public accommodation owner or employer has a duty to treat\nthe customer or worker in terms of her gross, not net, value added to the firm. That is to say, the\n466\n\n\x0cputative defendant may have an obligation to ignore the incremental input costs associated with\nserving the customer or insuring that the worker/applicant produces the same gross output as those\nwho have been treated more favorably.\nThe accommodation obligation, though, is invariably a limited one. First, the added inputs\nthat the plaintiff seeks are unreasonable if they would benefit (large numbers of?) other customers or\npotential employees (nearly as much?) as they would benefit the plaintiff. In this sense, the\naccommodation obligation is limited to those who are thought to be as \xe2\x80\x9cmeritorious\xe2\x80\x9d as those who\ncan work without accommodation. Naturally, the concept of merit that the accommodation plaintiff\nrelies on is (at least marginally) more contested than the concept the simple discrimination plaintiff\nrelies on. The plaintiff seeking accommodation does not claim to merit the treatment she asks for\nbecause she has the same relevant traits as the person who has received better treatment: She\nconcedes that a business rationally differentiates workers or customers on the basis of the\ndifferential input costs associated with serving them. Instead, she argues that her \xe2\x80\x9ctalent\xe2\x80\x9d is defined\nby her capacity to produce, and that her capacity to produce is measured by the output she can\ngenerate without using aids that benefit workers generally. The metaphor is one of athletes\ncompeting in a contest: A \xe2\x80\x9cdisabled\xe2\x80\x9d pole vaulter who vaults as high as his competitors using the\nespecially expensive shoes he needs that would not benefit other vaulters is \xe2\x80\x9cas good\xe2\x80\x9d a vaulter as\nthose using ordinary shoes. One who can do as well only by using an expensive pole made of a\nstrong, flexible material that would improve any pole vaulter\xe2\x80\x99s performance is not \xe2\x80\x9cas good.\xe2\x80\x9d\nSecond, the cost of these atypical inputs must not be unduly high: It must be \xe2\x80\x9creasonable\xe2\x80\x9d in\nthat sense. In this sense, the accommodation obligation is limited by the fact that we must expend\nreal social resources to meet it. (I return to discuss the fact that the defendant who wishes to engage\nin simple discrimination must sacrifice private, psychic utility if asked to desist, but not physical\nresources. His discriminatory desires are not representative of society\xe2\x80\x99s desires; we wish no one had\nthose tastes. The defendant resisting demands to accommodate attempts to save real resources. In\nthat sense, his desire to save resources is representative of general social desires to save resources.\nWe do not wish to abolish the taste to save such resources, even if we believe in a particular case\nthat the best use of the resources is to use them to accommodate.) Because we must expend real\nresources to meet the demand for accommodation, we compare the value of expending the\nresources to meet the policy goals of accommodation with the value of expending the resources to\nmeet other social policy aims.\nTwo straightforward illustrations might help differentiate accommodation and simple\ndiscrimination claims. The simple antidiscrimination principle would preclude a dentist (as public\naccommodations provider) from refusing to treat a hearing impaired patient, so long as his inability\nto communicate with the patient neither affected the price the patient would pay nor the cost of\nserving him. The accommodation principle would require that the dentist take steps to be able to\ncommunicate with the hearing impaired patient, if necessary to provide her with the same quality\ncare he gives other patients, without charging the patient the incremental costs of treating her. This\nis true even though a simple nondiscriminating, impersonal, capitalist calculator would refuse to treat\na patient who is atypically costly to serve unless permitted to charge more for the services in the\nabsence of a supplementary duty to accommodate.\nIn the employment context, the conventional antidiscrimination norm forbids an employer\nfrom refusing to hire a blind lawyer who can do the same legal work as a sighted one. The\naccommodation principle demands that the employer not reduce the blind lawyer\xe2\x80\x99s pay if he requires\na (\xe2\x80\x9creasonably\xe2\x80\x9d costly) reader to generate the same work that sighted lawyers do without an aide.\nIt is vital to note that it is often difficult to determine whether a particular plaintiff claims to\nbe the victim of simple discrimination or whether she claims instead that she is entitled to a\nreasonable accommodation. When, for instance, an employee asks an employer to adjust his work\n467\n\n\x0cschedule, he is claiming first that his net output on the adjusted schedule is no lower than that of\nfellow employees following the more conventional schedule. Thus, the refusal to hire him on the\nreduced schedule is a form of simple discrimination. He will often argue in the alternative, though,\nthat if his net output is indeed lower, it is nonetheless reasonable to ask the employer to bear the\ncosts associated with the net productivity shortfall because they must be borne if the plaintiff is to\nwork.\n\xe2\x80\xa6.\nIn this section, I argue briefly that it is appropriate to think that those seeking protection\nfrom simple discrimination possess \xe2\x80\x9crights\xe2\x80\x9d claims while those seeking accommodations are making\n\xe2\x80\x9cdistributive\xe2\x80\x9d claims. Accommodation claims are best conceived of as zero-sum, distributive claims\nto a finite pot of redistributed social resources, competing not only with the demands of others who\nseek accommodation (or the wishes of putative defendants) but with all claimants on state resources.\n(Because the demands are zero-sum competitive resource demands, it may be apt to reject them\nsimply because they are \xe2\x80\x9ctoo costly\xe2\x80\x9d\xe2\x80\x93unreasonable in the sense that the resources could do more\ngood put to other uses.) On the other hand, claims to abolish simple discrimination should be\nthought of as rights claims in the sense that they do not compete with other claims to abolish such\ndiscrimination nor the cost concerns of defendants.\nThough I wish to distinguish these antidiscrimination principles, I recognize that claims\nmade by those seeking protection from simple discrimination and claims made by those seeking\ncostly accommodations clearly resemble one another in significant ways. Most obviously, in each\ncase, the putative plaintiffs seek inclusion in a situation in which the putative defendant\nspontaneously chooses to deny him access. Tautologically, then, the defendant will bear some cost if\nthe plaintiff is to gain what he seeks: If she did not bear such a cost, she would willingly give the\nplaintiff access.\nLess obviously, the claims are similar in the sense that each is incomplete insofar as the goal\nof the norm is to guarantee inclusion. Plaintiffs may still be excluded (and suffer at least some of the\nharms we associate with exclusion) even if their claims under each norm are fully vindicated.\nCustomers unable to pay market prices will not receive service from public accommodation owners\nobeying norms against simple discrimination, even if such customers are disproportionately\nmembers of the social groups typically protected by antidiscrimination norms. (Similarly, workers\nwith lower marginal products will be excluded from more desirable positions.) Customers who\ncannot be served without unreasonably costly accommodations will not receive service; workers\nwho cannot produce as much as others without using inputs that are unreasonable (too expensive,\nor of \xe2\x80\x9csubstantial\xe2\x80\x9d use to others) will not get desired jobs. In each case, too, the norm would be\nmore inclusive if we increased the fiscal burden on the putative defendants. If sellers were asked to\nsubsidize purchases by poorer buyers from subordinated groups, the norm against simple\ndiscrimination would be less exclusionary. Similarly, more members of excluded groups would be\nincluded if we demanded more expensive accommodations that would permit those seeking\ninclusion to function in the workplace.\nWhat ultimately distinguishes the cases is that the deliberate simple discriminator (just like\nthe deliberate tortfeasor) gains utility if able to resist the plaintiffs\xe2\x80\x99 demands for reasons that are\nquite distinct from the reasons that the nonaccommodating defendant (or potential taxpayer) does.\nThe nonaccommodating defendant (and taxpayer) attempts to retain (or save) real social resources,\nresources that could be utilized by themselves for any number of projects (or by others the state\ndesignates given its power to tax and spend). These resources are public and objective, and the\ndesire to expend them completely socially legitimate. Moreover, they are intrinsically finite. It is\nconceptually impossible that all demands for accommodation (or demands to meet medical \xe2\x80\x9cneed\xe2\x80\x9d)\ncould be met simply if the defendants of the world desired them to be met.\n468\n\n\x0cOn the other hand, both the simple discriminator (and the tortfeasor) gain utility from acting\non tastes that are ordinarily imperfectly fungible, private/subjective, and arguably illegitimate.\nMoreover, it is conceptually possible to meet all demands to be free from simple discrimination\nsimply through (privately controllable) changes in subjective tastes (or conduct). If each individual\nchanged her attitude (and gained nothing from market irrational treatment in the discrimination\ncontext, gained nothing from causing pain in the intentional torts context), all simple discrimination\n(and intentional torts) could disappear. Thus, when the nonaccommodating defendant resists the\nexpenditure of real social resources, she is acting, in essence, as a representative surrogate for the\npublic, seeking optimal expenditure of these funds. (And thus should be thought of as a taxpayer, a\nsource of public funds.) When she seeks to protect her gains from discriminating or injuring others,\nshe does not act in such a representative capacity. The state does not try to appropriate, but destroy,\nher \xe2\x80\x9cresource.\xe2\x80\x9d\n\n469\n\n\x0c7.4. Takings\n7.4.1. Eminent Domain\nKelo et al. v. City of New London et. al.,\n545 U.S. 469 (2005)\n\nScott G. Bullock argued the cause for petitioners. With him on the briefs were William H.\nMellor, Dana Berliner, and Scott W. Sawyer.\nWesley W. Horton argued the cause for respondents. With him on the brief were Thomas J.\nLondregan, Jeffrey T. Londregan, Edward B. O\xe2\x80\x99Connell, and David P. Condon.1\nJustice Stevens delivered the opinion of the Court.\nIn 2000, the city of New London approved a development plan that, in the words of the\nSupreme Court of Connecticut, was \xe2\x80\x9cprojected to create in excess of 1,000 jobs, to increase tax and\nother revenues, and to revitalize an economically distressed city, including its downtown and\nwaterfront areas.\xe2\x80\x9d 268 Conn. 1, 5, 843 A. 2d 500, 507 (2004). In assembling the land needed for this\nproject, the city\xe2\x80\x99s development agent has purchased property from willing sellers and proposes to\nuse the power of eminent domain to acquire the remainder of the property from unwilling owners in\nexchange for just compensation. The question presented is whether the city\xe2\x80\x99s proposed disposition\nof this property qualifies as a \xe2\x80\x9cpublic use\xe2\x80\x9d within the meaning of the Takings Clause of the Fifth\nAmendment to the Constitution.2\n\nI\n\nThe city of New London (hereinafter City) sits at the junction of the Thames River and the\nLong Island Sound in southeastern Connecticut. Decades of economic decline led a state agency in\n1990 to designate the City a \xe2\x80\x9cdistressed municipality.\xe2\x80\x9d In 1996, the Federal Government closed the\nNaval Undersea Warfare Center, which had been located in the Fort Trumbull area of the City and\nhad employed over 1,500 people. In 1998, the City\xe2\x80\x99s unemployment rate was nearly double that of\nthe State, and its population of just under 24,000 residents was at its lowest since 1920.\nThese conditions prompted state and local officials to target New London, and particularly\nits Fort Trumbull area, for economic revitalization. To this end, respondent New London\nDevelopment Corporation (NLDC), a private nonprofit entity established some years earlier to\n470\n\n\x0cassist the City in planning economic development, was reactivated. In January 1998, the State\nauthorized a $5.35 million bond issue to support the NLDC\xe2\x80\x99s planning activities and a $10 million\nbond issue toward the creation of a Fort Trumbull State Park. In February, the pharmaceutical\ncompany Pfizer Inc. announced that it would build a $300 million research facility on a site\nimmediately adjacent to Fort Trumbull; local planners hoped that Pfizer would draw new business to\nthe area, thereby serving as a catalyst to the area\xe2\x80\x99s rejuvenation. After receiving initial approval from\nthe city council, the NLDC continued its planning activities and held a series of neighborhood\nmeetings to educate the public about the process. In May, the city council authorized the NLDC to\nformally submit its plans to the relevant state agencies for review.3 Upon obtaining state-level\napproval, the NLDC finalized an integrated development plan focused on 90 acres of the Fort\nTrumbull area.\nThe Fort Trumbull area is situated on a peninsula that juts into the Thames River. The area\ncomprises approximately 115 privately owned properties, as well as the 32 acres of land formerly\noccupied by the naval facility (Trumbull State Park now occupies 18 of those 32 acres). The\ndevelopment plan encompasses seven parcels. Parcel 1 is designated for a waterfront conference\nhotel at the center of a \xe2\x80\x9csmall urban village\xe2\x80\x9d that will include restaurants and shopping. This parcel\nwill also have marinas for both recreational and commercial uses. A pedestrian \xe2\x80\x9criverwalk\xe2\x80\x9d will\noriginate here and continue down the coast, connecting the waterfront areas of the development.\nParcel 2 will be the site of approximately 80 new residences organized into an urban neighborhood\nand linked by public walkway to the remainder of the development, including the state park. This\nparcel also includes space reserved for a new U. S. Coast Guard Museum. Parcel 3, which is located\nimmediately north of the Pfizer facility, will contain at least 90,000 square feet of research and\ndevelopment office space. Parcel 4A is a 2.4-acre site that will be used either to support the adjacent\nstate park, by providing parking or retail services for visitors, or to support the nearby marina. Parcel\n4B will include a renovated marina, as well as the final stretch of the riverwalk. Parcels 5, 6, and 7\nwill provide land for office and retail space, parking, and water-dependent commercial uses. App.\n109-113.\nThe NLDC intended the development plan to capitalize on the arrival of the Pfizer facility\nand the new commerce it was expected to attract. In addition to creating jobs, generating tax\nrevenue, and helping to \xe2\x80\x9cbuild momentum for the revitalization of downtown New London,\xe2\x80\x9d id., at\n92, the plan was also designed to make the City more attractive and to create leisure and recreational\nopportunities on the waterfront and in the park.\nThe city council approved the plan in January 2000, and designated the NLDC as its\ndevelopment agent in charge of implementation. See Conn. Gen. Stat. \xc2\xa7 8-188 (2005). The city\ncouncil also authorized the NLDC to purchase property or to acquire property by exercising\neminent domain in the City\xe2\x80\x99s name. \xc2\xa7 8-193. The NLDC successfully negotiated the purchase of\nmost of the real estate in the 90-acre area, but its negotiations with petitioners failed. As a\nconsequence, in November 2000, the NLDC initiated the condemnation proceedings that gave rise\nto this case.4\n\nII\n\nPetitioner Susette Kelo has lived in the Fort Trumbull area since 1997. She has made\n471\n\n\x0cextensive improvements to her house, which she prizes for its water view. Petitioner Wilhelmina\nDery was born in her Fort Trumbull house in 1918 and has lived there her entire life. Her husband\nCharles (also a petitioner) has lived in the house since they married some 60 years ago. In all, the\nnine petitioners own 15 properties in Fort Trumbull\xe2\x80\x934 in parcel 3 of the development plan and 11 in\nparcel 4A. Ten of the parcels are occupied by the owner or a family member; the other five are held\nas investment properties. There is no allegation that any of these properties is blighted or otherwise\nin poor condition; rather, they were condemned only because they happen to be located in the\ndevelopment area.\nIn December 2000, petitioners brought this action in the New London Superior Court. They\nclaimed, among other things, that the taking of their properties would violate the \xe2\x80\x9cpublic use\xe2\x80\x9d\nrestriction in the Fifth Amendment. After a 7-day bench trial, the Superior Court granted a\npermanent restraining order prohibiting the taking of the properties located in parcel 4A (park or\nmarina support). It, however, denied petitioners relief as to the properties located in parcel 3 (office\nspace). App. to Pet. for Cert. 343-350.5\nAfter the Superior Court ruled, both sides took appeals to the Supreme Court of\nConnecticut. That court held, over a dissent, that all of the City\xe2\x80\x99s proposed takings were valid. It\nbegan by upholding the lower court\xe2\x80\x99s determination that the takings were authorized by chapter 132,\nthe State\xe2\x80\x99s municipal development statute. See Conn. Gen. Stat. \xc2\xa7 8-186 et seq. (2005). That statute\nexpresses a legislative determination that the taking of land, even developed land, as part of an\neconomic development project is a \xe2\x80\x9cpublic use\xe2\x80\x9d and in the \xe2\x80\x9cpublic interest.\xe2\x80\x9d 268 Conn., at 18-28,\n843 A. 2d, at 515-521. Next, relying on cases such as Hawaii Housing Authority v. Midkiff, 467 U. S.\n229 (1984), and Berman v. Parker, 348 U. S. 26 (1954), the court held that such economic\ndevelopment qualified as a valid public use under both the Federal and State Constitutions. 268\nConn., at 40, 843 A. 2d, at 527.\nFinally, adhering to its precedents, the court went on to determine, first, whether the takings\nof the particular properties at issue were \xe2\x80\x9creasonably necessary\xe2\x80\x9d to achieving the City\xe2\x80\x99s intended\npublic use, id., at 82-84, 843 A. 2d, at 552-553, and, second, whether the takings were for\n\xe2\x80\x9creasonably foreseeable needs,\xe2\x80\x9d id., at 93-94, 843 A. 2d, at 558-559. The court upheld the trial\ncourt\xe2\x80\x99s factual findings as to parcel 3, but reversed the trial court as to parcel 4A, agreeing with the\nCity that the intended use of this land was sufficiently definite and had been given \xe2\x80\x9creasonable\nattention\xe2\x80\x9d during the planning process. Id., at 120-121, 843 A. 2d, at 574.\nThe three dissenting justices would have imposed a \xe2\x80\x9cheightened\xe2\x80\x9d standard of judicial review\nfor takings justified by economic development. Although they agreed that the plan was intended to\nserve a valid public use, they would have found all the takings unconstitutional because the City had\nfailed to adduce \xe2\x80\x9cclear and convincing evidence\xe2\x80\x9d that the economic benefits of the plan would in\nfact come to pass. Id., at 144, 146, 843 A. 2d, at 587, 588 (Zarella, J., joined by Sullivan, C. J., and\nKatz, J., concurring in part and dissenting in part).\nWe granted certiorari to determine whether a city\xe2\x80\x99s decision to take property for the purpose\nof economic development satisfies the \xe2\x80\x9cpublic use\xe2\x80\x9d requirement of the Fifth Amendment. 542 U. S.\n965 (2004).\n\nIII\n\n472\n\n\x0cTwo polar propositions are perfectly clear. On the one hand, it has long been accepted that\nthe sovereign may not take the property of A for the sole purpose of transferring it to another\nprivate party B, even though A is paid just compensation. On the other hand, it is equally clear that a\nState may transfer property from one private party to another if future \xe2\x80\x9cuse by the public\xe2\x80\x9d is the\npurpose of the taking; the condemnation of land for a railroad with common-carrier duties is a\nfamiliar example. Neither of these propositions, however, determines the disposition of this case.\nAs for the first proposition, the City would no doubt be forbidden from taking petitioners\xe2\x80\x99\nland for the purpose of conferring a private benefit on a particular private party. See Midkiff, 467 U.\nS., at 245 (\xe2\x80\x9cA purely private taking could not withstand the scrutiny of the public use requirement; it\nwould serve no legitimate purpose of government and would thus be void\xe2\x80\x9d); Missouri Pacific R. Co. v.\nNebraska, 164 U. S. 403 (1896).6 Nor would the City be allowed to take property under the mere\npretext of a public purpose, when its actual purpose was to bestow a private benefit. The takings\nbefore us, however, would be executed pursuant to a \xe2\x80\x9ccarefully considered\xe2\x80\x9d development plan. 268\nConn., at 54, 843 A. 2d, at 536. The trial judge and all the members of the Supreme Court of\nConnecticut agreed that there was no evidence of an illegitimate purpose in this case.7 Therefore, as\nwas true of the statute challenged in Midkiff, 467 U. S., at 245, the City\xe2\x80\x99s development plan was not\nadopted \xe2\x80\x9cto benefit a particular class of identifiable individuals.\xe2\x80\x9d\nOn the other hand, this is not a case in which the City is planning to open the condemned\nland\xe2\x80\x93at least not in its entirety\xe2\x80\x93to use by the general public. Nor will the private lessees of the land\nin any sense be required to operate like common carriers, making their services available to all\ncomers. But although such a projected use would be sufficient to satisfy the public use requirement,\nthis \xe2\x80\x9cCourt long ago rejected any literal requirement that condemned property be put into use for\nthe general public.\xe2\x80\x9d Id., at 244. Indeed, while many state courts in the mid-19th century endorsed\n\xe2\x80\x9cuse by the public\xe2\x80\x9d as the proper definition of public use, that narrow view steadily eroded over\ntime. Not only was the \xe2\x80\x9cuse by the public\xe2\x80\x9d test difficult to administer (e. g., what proportion of the\npublic need have access to the property? at what price?),8 but it proved to be impractical given the\ndiverse and always evolving needs of society.9 Accordingly, when this Court began applying the Fifth\nAmendment to the States at the close of the 19th century, it embraced the broader and more natural\ninterpretation of public use as \xe2\x80\x9cpublic purpose.\xe2\x80\x9d See, e. g., Fallbrook Irrigation Dist. v. Bradley, 164 U. S.\n112, 158-164 (1896). Thus, in a case upholding a mining company\xe2\x80\x99s use of an aerial bucket line to\ntransport ore over property it did not own, Justice Holmes\xe2\x80\x99 opinion for the Court stressed \xe2\x80\x9cthe\ninadequacy of use by the general public as a universal test.\xe2\x80\x9d Strickley v. Highland Boy Gold Mining Co.,\n200 U. S. 527, 531 (1906).10 We have repeatedly and consistently rejected that narrow test ever\nsince.11\nThe disposition of this case therefore turns on the question whether the City\xe2\x80\x99s development\nplan serves a \xe2\x80\x9cpublic purpose.\xe2\x80\x9d Without exception, our cases have defined that concept broadly,\nreflecting our longstanding policy of deference to legislative judgments in this field.\nIn Berman v. Parker, 348 U. S. 26 (1954), this Court upheld a redevelopment plan targeting a\nblighted area of Washington, D. C., in which most of the housing for the area\xe2\x80\x99s 5,000 inhabitants\nwas beyond repair. Under the plan, the area would be condemned and part of it utilized for the\nconstruction of streets, schools, and other public facilities. The remainder of the land would be\nleased or sold to private parties for the purpose of redevelopment, including the construction of\nlow-cost housing.\nThe owner of a department store located in the area challenged the condemnation, pointing\nout that his store was not itself blighted and arguing that the creation of a \xe2\x80\x9cbetter balanced, more\nattractive community\xe2\x80\x9d was not a valid public use. Id., at 31. Writing for a unanimous Court, Justice\nDouglas refused to evaluate this claim in isolation, deferring instead to the legislative and agency\njudgment that the area \xe2\x80\x9cmust be planned as a whole\xe2\x80\x9d for the plan to be successful. Id., at 34. The\n473\n\n\x0cCourt explained that \xe2\x80\x9ccommunity redevelopment programs need not, by force of the Constitution,\nbe on a piecemeal basis\xe2\x80\x93lot by lot, building by building.\xe2\x80\x9d Id., at 35. The public use underlying the\ntaking was unequivocally affirmed:\n\xe2\x80\x9cWe do not sit to determine whether a particular housing project is or is not desirable. The\nconcept of the public welfare is broad and inclusive\xe2\x80\xa6 . The values it represents are spiritual as well\nas physical, aesthetic as well as monetary. It is within the power of the legislature to determine that\nthe community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well\nas carefully patrolled. In the present case, the Congress and its authorized agencies have made\ndeterminations that take into account a wide variety of values. It is not for us to reappraise them. If\nthose who govern the District of Columbia decide that the Nation\xe2\x80\x99s Capital should be beautiful as\nwell as sanitary, there is nothing in the Fifth Amendment that stands in the way.\xe2\x80\x9d Id., at 33.\nIn Hawaii Housing Authority v. Midkiff, 467 U. S. 229 (1984), the Court considered a Hawaii\nstatute whereby fee title was taken from lessors and transferred to lessees (for just compensation) in\norder to reduce the concentration of land ownership. We unanimously upheld the statute and\nrejected the Ninth Circuit\xe2\x80\x99s view that it was \xe2\x80\x9ca naked attempt on the part of the state of Hawaii to\ntake the property of A and transfer it to B solely for B\xe2\x80\x99s private use and benefit.\xe2\x80\x9d Id., at 235 (internal\nquotation marks omitted). Reaffirming Berman\xe2\x80\x99s deferential approach to legislative judgments in this\nfield, we concluded that the State\xe2\x80\x99s purpose of eliminating the \xe2\x80\x9csocial and economic evils of a land\noligopoly\xe2\x80\x9d qualified as a valid public use. 467 U. S., at 241-242. Our opinion also rejected the\ncontention that the mere fact that the State immediately transferred the properties to private\nindividuals upon condemnation somehow diminished the public character of the taking. \xe2\x80\x9c[I]t is only\nthe taking\xe2\x80\x99s purpose, and not its mechanics,\xe2\x80\x9d we explained, that matters in determining public use.\nId., at 244.\nIn that same Term we decided another public use case that arose in a purely economic\ncontext. In Ruckelshaus v. Monsanto Co., 467 U. S. 986 (1984), the Court dealt with provisions of the\nFederal Insecticide, Fungicide, and Rodenticide Act under which the Environmental Protection\nAgency could consider the data (including trade secrets) submitted by a prior pesticide applicant in\nevaluating a subsequent application, so long as the second applicant paid just compensation for the\ndata. We acknowledged that the \xe2\x80\x9cmost direct beneficiaries\xe2\x80\x9d of these provisions were the subsequent\napplicants, id., at 1014, but we nevertheless upheld the statute under Berman and Midkiff. We found\nsufficient Congress\xe2\x80\x99 belief that sparing applicants the cost of time-consuming research eliminated a\nsignificant barrier to entry in the pesticide market and thereby enhanced competition. 467 U. S., at\n1015.\nViewed as a whole, our jurisprudence has recognized that the needs of society have varied\nbetween different parts of the Nation, just as they have evolved over time in response to changed\ncircumstances. Our earliest cases in particular embodied a strong theme of federalism, emphasizing\nthe \xe2\x80\x9cgreat respect\xe2\x80\x9d that we owe to state legislatures and state courts in discerning local public needs.\nSee Hairston v. Danville & Western R. Co., 208 U. S. 598, 606-607 (1908) (noting that these needs were\nlikely to vary depending on a State\xe2\x80\x99s \xe2\x80\x9cresources, the capacity of the soil, the relative importance of\nindustries to the general public welfare, and the long-established methods and habits of the\npeople\xe2\x80\x9d).12 For more than a century, our public use jurisprudence has wisely eschewed rigid formulas\nand intrusive scrutiny in favor of affording legislatures broad latitude in determining what public\nneeds justify the use of the takings power.\n\nIV\n474\n\n\x0cThose who govern the City were not confronted with the need to remove blight in the Fort\nTrumbull area, but their determination that the area was sufficiently distressed to justify a program\nof economic rejuvenation is entitled to our deference. The City has carefully formulated an\neconomic development plan that it believes will provide appreciable benefits to the community,\nincluding\xe2\x80\x93but by no means limited to\xe2\x80\x93new jobs and increased tax revenue. As with other exercises\nin urban planning and development,13 the City is endeavoring to coordinate a variety of commercial,\nresidential, and recreational uses of land, with the hope that they will form a whole greater than the\nsum of its parts. To effectuate this plan, the City has invoked a state statute that specifically\nauthorizes the use of eminent domain to promote economic development. Given the\ncomprehensive character of the plan, the thorough deliberation that preceded its adoption, and the\nlimited scope of our review, it is appropriate for us, as it was in Berman, to resolve the challenges of\nthe individual owners, not on a piecemeal basis, but rather in light of the entire plan. Because that\nplan unquestionably serves a public purpose, the takings challenged here satisfy the public use\nrequirement of the Fifth Amendment.\nTo avoid this result, petitioners urge us to adopt a new bright-line rule that economic\ndevelopment does not qualify as a public use. Putting aside the unpersuasive suggestion that the\nCity\xe2\x80\x99s plan will provide only purely economic benefits, neither precedent nor logic supports\npetitioners\xe2\x80\x99 proposal. Promoting economic development is a traditional and long-accepted function\nof government. There is, moreover, no principled way of distinguishing economic development\nfrom the other public purposes that we have recognized. In our cases upholding takings that\nfacilitated agriculture and mining, for example, we emphasized the importance of those industries to\nthe welfare of the States in question, see, e. g., Strickley, 200 U. S. 527; in Berman, we endorsed the\npurpose of transforming a blighted area into a \xe2\x80\x9cwell-balanced\xe2\x80\x9d community through redevelopment,\n348 U. S., at 33;14 in Midkiff, we upheld the interest in breaking up a land oligopoly that \xe2\x80\x9ccreated\nartificial deterrents to the normal functioning of the State\xe2\x80\x99s residential land market,\xe2\x80\x9d 467 U. S., at\n242; and in Monsanto, we accepted Congress\xe2\x80\x99 purpose of eliminating a \xe2\x80\x9csignificant barrier to entry in\nthe pesticide market,\xe2\x80\x9d 467 U. S., at 1014-1015. It would be incongruous to hold that the City\xe2\x80\x99s\ninterest in the economic benefits to be derived from the development of the Fort Trumbull area has\nless of a public character than any of those other interests. Clearly, there is no basis for exempting\neconomic development from our traditionally broad understanding of public purpose.\nPetitioners contend that using eminent domain for economic development impermissibly\nblurs the boundary between public and private takings. Again, our cases foreclose this objection.\nQuite simply, the government\xe2\x80\x99s pursuit of a public purpose will often benefit individual private\nparties. For example, in Midkiff, the forced transfer of property conferred a direct and significant\nbenefit on those lessees who were previously unable to purchase their homes. In Monsanto, we\nrecognized that the \xe2\x80\x9cmost direct beneficiaries\xe2\x80\x9d of the data-sharing provisions were the subsequent\npesticide applicants, but benefiting them in this way was necessary to promoting competition in the\npesticide market. 467 U. S., at 1014.15 The owner of the department store in Berman objected to\n\xe2\x80\x9ctaking from one businessman for the benefit of another businessman,\xe2\x80\x9d 348 U. S., at 33, referring to\nthe fact that under the redevelopment plan land would be leased or sold to private developers for\nredevelopment.16 Our rejection of that contention has particular relevance to the instant case: \xe2\x80\x9cThe\npublic end may be as well or better served through an agency of private enterprise than through a\ndepartment of government\xe2\x80\x93or so the Congress might conclude. We cannot say that public\nownership is the sole method of promoting the public purposes of community redevelopment\n475\n\n\x0cprojects.\xe2\x80\x9d Id., at 33-34.17\nIt is further argued that without a bright-line rule nothing would stop a city from transferring\ncitizen A\xe2\x80\x99s property to citizen B for the sole reason that citizen B will put the property to a more\nproductive use and thus pay more taxes. Such a one-to-one transfer of property, executed outside\nthe confines of an integrated development plan, is not presented in this case. While such an unusual\nexercise of government power would certainly raise a suspicion that a private purpose was afoot,18\nthe hypothetical cases posited by petitioners can be confronted if and when they arise.19 They do not\nwarrant the crafting of an artificial restriction on the concept of public use.20\nAlternatively, petitioners maintain that for takings of this kind we should require a\n\xe2\x80\x9creasonable certainty\xe2\x80\x9d that the expected public benefits will actually accrue. Such a rule, however,\nwould represent an even greater departure from our precedent. \xe2\x80\x9cWhen the legislature\xe2\x80\x99s purpose is\nlegitimate and its means are not irrational, our cases make clear that empirical debates over the\nwisdom of takings\xe2\x80\x93no less than debates over the wisdom of other kinds of socioeconomic\nlegislation\xe2\x80\x93are not to be carried out in the federal courts.\xe2\x80\x9d Midkiff, 467 U. S., at 242-243.21 Indeed,\nearlier this Term we explained why similar practical concerns (among others) undermined the use of\nthe \xe2\x80\x9csubstantially advances\xe2\x80\x9d formula in our regulatory takings doctrine. See Lingle v. Chevron U. S. A.\nInc., 544 U. S. 528, 544 (2005) (noting that this formula \xe2\x80\x9cwould empower\xe2\x80\x93and might often require\xe2\x80\x93\ncourts to substitute their predictive judgments for those of elected legislatures and expert agencies\xe2\x80\x9d).\nThe disadvantages of a heightened form of review are especially pronounced in this type of case.\nOrderly implementation of a comprehensive redevelopment plan obviously requires that the legal\nrights of all interested parties be established before new construction can be commenced. A\nconstitutional rule that required postponement of the judicial approval of every condemnation until\nthe likelihood of success of the plan had been assured would unquestionably impose a significant\nimpediment to the successful consummation of many such plans.\nJust as we decline to second-guess the City\xe2\x80\x99s considered judgments about the efficacy of its\ndevelopment plan, we also decline to second-guess the City\xe2\x80\x99s determinations as to what lands it\nneeds to acquire in order to effectuate the project. \xe2\x80\x9cIt is not for the courts to oversee the choice of\nthe boundary line nor to sit in review on the size of a particular project area. Once the question of\nthe public purpose has been decided, the amount and character of land to be taken for the project\nand the need for a particular tract to complete the integrated plan rests in the discretion of the\nlegislative branch.\xe2\x80\x9d Berman, 348 U. S., at 35-36.\nIn affirming the City\xe2\x80\x99s authority to take petitioners\xe2\x80\x99 properties, we do not minimize the\nhardship that condemnations may entail, notwithstanding the payment of just compensation.22 We\nemphasize that nothing in our opinion precludes any State from placing further restrictions on its\nexercise of the takings power. Indeed, many States already impose \xe2\x80\x9cpublic use\xe2\x80\x9d requirements that\nare stricter than the federal baseline. Some of these requirements have been established as a matter\nof state constitutional law,23 while others are expressed in state eminent domain statutes that\ncarefully limit the grounds upon which takings may be exercised.24 As the submissions of the parties\nand their amici make clear, the necessity and wisdom of using eminent domain to promote economic\ndevelopment are certainly matters of legitimate public debate.25 This Court\xe2\x80\x99s authority, however,\nextends only to determining whether the City\xe2\x80\x99s proposed condemnations are for a \xe2\x80\x9cpublic use\xe2\x80\x9d\nwithin the meaning of the Fifth Amendment to the Federal Constitution. Because over a century of\nour case law interpreting that provision dictates an affirmative answer to that question, we may not\ngrant petitioners the relief that they seek.\nThe judgment of the Supreme Court of Connecticut is affirmed.\nIt is so ordered.\n\n476\n\n\x0cJustice Kennedy, concurring.\nI join the opinion for the Court and add these further observations.\nThis Court has declared that a taking should be upheld as consistent with the Public Use\nClause, U. S. Const., Amdt. 5, as long as it is \xe2\x80\x9crationally related to a conceivable public purpose.\xe2\x80\x9d\nHawaii Housing Authority v. Midkiff, 467 U. S. 229, 241 (1984); see also Berman v. Parker, 348 U. S. 26\n(1954). This deferential standard of review echoes the rational-basis test used to review economic\nregulation under the Due Process and Equal Protection Clauses, see, e. g., FCC v. Beach\nCommunications, Inc., 508 U. S. 307, 313-314 (1993); Williamson v. Lee Optical of Okla., Inc., 348 U. S.\n483 (1955). The determination that a rational-basis standard of review is appropriate does not,\nhowever, alter the fact that transfers intended to confer benefits on particular, favored private\nentities, and with only incidental or pretextual public benefits, are forbidden by the Public Use\nClause.\nA court applying rational-basis review under the Public Use Clause should strike down a\ntaking that, by a clear showing, is intended to favor a particular private party, with only incidental or\npretextual public benefits, just as a court applying rational-basis review under the Equal Protection\nClause must strike down a government classification that is clearly intended to injure a particular\nclass of private parties, with only incidental or pretextual public justifications. See Cleburne v. Cleburne\nLiving Center, Inc., 473 U. S. 432, 446-447, 450 (1985); Department of Agriculture v. Moreno, 413 U. S. 528,\n533-536 (1973). As the trial court in this case was correct to observe: \xe2\x80\x9cWhere the purpose [of a\ntaking] is economic development and that development is to be carried out by private parties or\nprivate parties will be benefited, the court must decide if the stated public purpose\xe2\x80\x93economic\nadvantage to a city sorely in need of it\xe2\x80\x93is only incidental to the benefits that will be confined on\nprivate parties of a development plan.\xe2\x80\x9d App. to Pet. for Cert. 263. See also ante, at 477-478.\nA court confronted with a plausible accusation of impermissible favoritism to private parties\nshould treat the objection as a serious one and review the record to see if it has merit, though with\nthe presumption that the government\xe2\x80\x99s actions were reasonable and intended to serve a public\npurpose. Here, the trial court conducted a careful and extensive inquiry into \xe2\x80\x9cwhether, in fact, the\ndevelopment plan is of primary benefit to \xe2\x80\xa6 the developer [i. e., Corcoran Jennison], and private\nbusinesses which may eventually locate in the plan area [e. g., Pfizer], and in that regard, only of\nincidental benefit to the city.\xe2\x80\x9d App. to Pet. for Cert. 261. The trial court considered testimony from\ngovernment officials and corporate officers, id., at 266-271; documentary evidence of\ncommunications between these parties, ibid.; respondents\xe2\x80\x99 awareness of New London\xe2\x80\x99s depressed\neconomic condition and evidence corroborating the validity of this concern, id., at 272-273, 278-279;\nthe substantial commitment of public funds by the State to the development project before most of\nthe private beneficiaries were known, id., at 276; evidence that respondents reviewed a variety of\ndevelopment plans and chose a private developer from a group of applicants rather than picking out\na particular transferee beforehand, id., at 273, 278; and the fact that the other private beneficiaries of\nthe project are still unknown because the office space proposed to be built has not yet been rented,\nid., at 278.\nThe trial court concluded, based on these findings, that benefiting Pfizer was not \xe2\x80\x9cthe\nprimary motivation or effect of this development plan\xe2\x80\x9d; instead, \xe2\x80\x9cthe primary motivation for\n[respondents] was to take advantage of Pfizer\xe2\x80\x99s presence.\xe2\x80\x9d Id., at 276. Likewise, the trial court\nconcluded that \xe2\x80\x9c[t]here is nothing in the record to indicate that \xe2\x80\xa6 [respondents] were motivated by\na desire to aid [other] particular private entities.\xe2\x80\x9d Id., at 278. See also ante, at 478. Even the dissenting\njustices on the Connecticut Supreme Court agreed that respondents\xe2\x80\x99 development plan was intended\nto revitalize the local economy, not to serve the interests of Pfizer, Corcoran Jennison, or any other\n477\n\n\x0cprivate party. 268 Conn. 1, 159, 843 A. 2d 500, 595 (2004) (Zarella, J., concurring in part and\ndissenting in part). This case, then, survives the meaningful rational-basis review that in my view is\nrequired under the Public Use Clause.\nPetitioners and their amici argue that any taking justified by the promotion of economic\ndevelopment must be treated by the courts as per se invalid, or at least presumptively invalid.\nPetitioners overstate the need for such a rule, however, by making the incorrect assumption that\nreview under Berman and Midkiff imposes no meaningful judicial limits on the government\xe2\x80\x99s power\nto condemn any property it likes. A broad per se rule or a strong presumption of invalidity,\nfurthermore, would prohibit a large number of government takings that have the purpose and\nexpected effect of conferring substantial benefits on the public at large and so do not offend the\nPublic Use Clause.\nMy agreement with the Court that a presumption of invalidity is not warranted for economic\ndevelopment takings in general, or for the particular takings at issue in this case, does not foreclose\nthe possibility that a more stringent standard of review than that announced in Berman and Midkiff\nmight be appropriate for a more narrowly drawn category of takings. There may be private transfers\nin which the risk of undetected impermissible favoritism of private parties is so acute that a\npresumption (rebuttable or otherwise) of invalidity is warranted under the Public Use Clause. Cf.\nEastern Enterprises v. Apfel, 524 U. S. 498, 549-550 (1998) (Kennedy, J., concurring in judgment and\ndissenting in part) (heightened scrutiny for retroactive legislation under the Due Process Clause).\nThis demanding level of scrutiny, however, is not required simply because the purpose of the taking\nis economic development.\nThis is not the occasion for conjecture as to what sort of cases might justify a more\ndemanding standard, but it is appropriate to underscore aspects of the instant case that convince me\nno departure from Berman and Midkiff is appropriate here. This taking occurred in the context of a\ncomprehensive development plan meant to address a serious citywide depression, and the projected\neconomic benefits of the project cannot be characterized as de minimis. The identities of most of the\nprivate beneficiaries were unknown at the time the city formulated its plans. The city complied with\nelaborate procedural requirements that facilitate review of the record and inquiry into the city\xe2\x80\x99s\npurposes. In sum, while there may be categories of cases in which the transfers are so suspicious, or\nthe procedures employed so prone to abuse, or the purported benefits are so trivial or implausible,\nthat courts should presume an impermissible private purpose, no such circumstances are present in\nthis case.\n*\nFor the foregoing reasons, I join in the Court\xe2\x80\x99s opinion.\nJustice O\'Connor, with whom The Chief Justice, Justice Scalia, and Justice Thomas join,\ndissenting.\nOver two centuries ago, just after the Bill of Rights was ratified, Justice Chase wrote:\n\xe2\x80\x9cAn ACT of the Legislature (for I cannot call it a law) contrary to the great first principles of\nthe social compact, cannot be considered a rightful exercise of legislative authority\xe2\x80\xa6. A few\ninstances will suffice to explain what I mean\xe2\x80\xa6. [A] law that takes property from A. and gives it to B:\n478\n\n\x0cIt is against all reason and justice, for a people to entrust a Legislature with SUCH powers; and,\ntherefore, it cannot be presumed that they have done it.\xe2\x80\x9d Calder v. Bull, 3 Dall. 386, 388 (1798)\n(emphasis deleted).\nToday the Court abandons this long-held, basic limitation on government power. Under the\nbanner of economic development, all private property is now vulnerable to being taken and\ntransferred to another private owner, so long as it might be upgraded\xe2\x80\x93i. e., given to an owner who\nwill use it in a way that the legislature deems more beneficial to the public\xe2\x80\x93in the process. To reason,\nas the Court does, that the incidental public benefits resulting from the subsequent ordinary use of\nprivate property render economic development takings \xe2\x80\x9cfor public use\xe2\x80\x9d is to wash out any\ndistinction between private and public use of property\xe2\x80\x93and thereby effectively to delete the words\n\xe2\x80\x9cfor public use\xe2\x80\x9d from the Takings Clause of the Fifth Amendment. Accordingly I respectfully\ndissent.\n\nI\n\nPetitioners are nine resident or investment owners of 15 homes in the Fort Trumbull\nneighborhood of New London, Connecticut. Petitioner Wilhelmina Dery, for example, lives in a\nhouse on Walbach Street that has been in her family for over 100 years. She was born in the house\nin 1918; her husband, petitioner Charles Dery, moved into the house when they married in 1946.\nTheir son lives next door with his family in the house he received as a wedding gift, and joins his\nparents in this suit. Two petitioners keep rental properties in the neighborhood.\nIn February 1998, Pfizer Inc., the pharmaceuticals manufacturer, announced that it would\nbuild a global research facility near the Fort Trumbull neighborhood. Two months later, New\nLondon\xe2\x80\x99s city council gave initial approval for the New London Development Corporation (NLDC)\nto prepare the development plan at issue here. The NLDC is a private, nonprofit corporation whose\nmission is to assist the city council in economic development planning. It is not elected by popular\nvote, and its directors and employees are privately appointed. Consistent with its mandate, the\nNLDC generated an ambitious plan for redeveloping 90 acres of Fort Trumbull in order to\n\xe2\x80\x9ccomplement the facility that Pfizer was planning to build, create jobs, increase tax and other\nrevenues, encourage public access to and use of the city\xe2\x80\x99s waterfront, and eventually \xe2\x80\x98build\nmomentum\xe2\x80\x99 for the revitalization of the rest of the city.\xe2\x80\x9d App. to Pet. for Cert. 5.\nPetitioners own properties in two of the plan\xe2\x80\x99s seven parcels\xe2\x80\x93Parcel 3 and Parcel 4A. Under\nthe plan, Parcel 3 is slated for the construction of research and office space as a market develops for\nsuch space. It will also retain the existing Italian Dramatic Club (a private cultural organization)\nthough the homes of three plaintiffs in that parcel are to be demolished. Parcel 4A is slated,\nmysteriously, for \xe2\x80\x9c\xe2\x80\x98park support.\xe2\x80\x99\xe2\x80\x9d Id., at 345-346. At oral argument, counsel for respondents\nconceded the vagueness of this proposed use, and offered that the parcel might eventually be used\nfor parking. Tr. of Oral Arg. 36.\nTo save their homes, petitioners sued New London and the NLDC, to whom New London\nhas delegated eminent domain power. Petitioners maintain that the Fifth Amendment prohibits the\nNLDC from condemning their properties for the sake of an economic development plan.\nPetitioners are not holdouts; they do not seek increased compensation, and none is opposed to new\ndevelopment in the area. Theirs is an objection in principle: They claim that the NLDC\xe2\x80\x99s proposed\n479\n\n\x0cuse for their confiscated property is not a \xe2\x80\x9cpublic\xe2\x80\x9d one for purposes of the Fifth Amendment. While\nthe government may take their homes to build a road or a railroad or to eliminate a property use that\nharms the public, say petitioners, it cannot take their property for the private use of other owners\nsimply because the new owners may make more productive use of the property.\n\nII\n\nThe Fifth Amendment to the Constitution, made applicable to the States by the Fourteenth\nAmendment, provides that \xe2\x80\x9cprivate property [shall not] be taken for public use, without just\ncompensation.\xe2\x80\x9d When interpreting the Constitution, we begin with the unremarkable presumption\nthat every word in the document has independent meaning, \xe2\x80\x9cthat no word was unnecessarily used,\nor needlessly added.\xe2\x80\x9d Wright v. United States, 302 U. S. 583, 588 (1938). In keeping with that\npresumption, we have read the Fifth Amendment\xe2\x80\x99s language to impose two distinct conditions on\nthe exercise of eminent domain: \xe2\x80\x9c[T]he taking must be for a \xe2\x80\x98public use\xe2\x80\x99 and \xe2\x80\x98just compensation\xe2\x80\x99\nmust be paid to the owner.\xe2\x80\x9d Brown v. Legal Foundation of Wash., 538 U. S. 216, 231-232 (2003).\nThese two limitations serve to protect \xe2\x80\x9cthe security of Property,\xe2\x80\x9d which Alexander Hamilton\ndescribed to the Philadelphia Convention as one of the \xe2\x80\x9cgreat obj[ects] of Gov[ernment].\xe2\x80\x9d 1\nRecords of the Federal Convention of 1787, p. 302 (M. Farrand ed. 1911). Together they ensure\nstable property ownership by providing safeguards against excessive, unpredictable, or unfair use of\nthe government\xe2\x80\x99s eminent domain power\xe2\x80\x93particularly against those owners who, for whatever\nreasons, may be unable to protect themselves in the political process against the majority\xe2\x80\x99s will.\nWhile the Takings Clause presupposes that government can take private property without\nthe owner\xe2\x80\x99s consent, the just compensation requirement spreads the cost of condemnations and\nthus \xe2\x80\x9cprevents the public from loading upon one individual more than his just share of the burdens\nof government.\xe2\x80\x9d Monongahela Nav. Co. v. United States, 148 U. S. 312, 325 (1893); see also Armstrong v.\nUnited States, 364 U. S. 40, 49 (1960). The public use requirement, in turn, imposes a more basic\nlimitation, circumscribing the very scope of the eminent domain power: Government may compel\nan individual to forfeit her property for the public\xe2\x80\x99s use, but not for the benefit of another private\nperson. This requirement promotes fairness as well as security. Cf. Tahoe-Sierra Preservation Council, Inc.\nv. Tahoe Regional Planning Agency, 535 U. S. 302, 336 (2002) (\xe2\x80\x9cThe concepts of \xe2\x80\x98fairness and justice\xe2\x80\x99 \xe2\x80\xa6\nunderlie the Takings Clause\xe2\x80\x9d).\nWhere is the line between \xe2\x80\x9cpublic\xe2\x80\x9d and \xe2\x80\x9cprivate\xe2\x80\x9d property use? We give considerable\ndeference to legislatures\xe2\x80\x99 determinations about what governmental activities will advantage the\npublic. But were the political branches the sole arbiters of the public-private distinction, the Public\nUse Clause would amount to little more than hortatory fluff. An external, judicial check on how the\npublic use requirement is interpreted, however limited, is necessary if this constraint on government\npower is to retain any meaning. See Cincinnati v. Vester, 281 U. S. 439, 446 (1930) (\xe2\x80\x9cIt is well\nestablished that \xe2\x80\xa6 the question [of] what is a public use is a judicial one\xe2\x80\x9d).\nOur cases have generally identified three categories of takings that comply with the public\nuse requirement, though it is in the nature of things that the boundaries between these categories are\nnot always firm. Two are relatively straightforward and uncontroversial. First, the sovereign may\ntransfer private property to public ownership\xe2\x80\x93such as for a road, a hospital, or a military base. See, e.\ng., Old Dominion Land Co. v. United States, 269 U. S. 55 (1925); Rindge Co. v. County of Los Angeles, 262 U.\n480\n\n\x0cS. 700 (1923). Second, the sovereign may transfer private property to private parties, often common\ncarriers, who make the property available for the public\xe2\x80\x99s use\xe2\x80\x93such as with a railroad, a public utility,\nor a stadium. See, e. g., National Railroad Passenger Corporation v. Boston & Maine Corp., 503 U. S. 407\n(1992); Mt. Vernon-Woodberry Cotton Duck Co. v. Alabama Interstate Power Co., 240 U. S. 30 (1916). But\n\xe2\x80\x9cpublic ownership\xe2\x80\x9d and \xe2\x80\x9cuse-by-the-public\xe2\x80\x9d are sometimes too constricting and impractical ways to\ndefine the scope of the Public Use Clause. Thus we have allowed that, in certain circumstances and\nto meet certain exigencies, takings that serve a public purpose also satisfy the Constitution even if\nthe property is destined for subsequent private use. See, e. g., Berman v. Parker, 348 U. S. 26 (1954);\nHawaii Housing Authority v. Midkiff, 467 U. S. 229 (1984).\nThis case returns us for the first time in over 20 years to the hard question of when a\npurportedly \xe2\x80\x9cpublic purpose\xe2\x80\x9d taking meets the public use requirement. It presents an issue of first\nimpression: Are economic development takings constitutional? I would hold that they are not. We\nare guided by two precedents about the taking of real property by eminent domain. In Berman, we\nupheld takings within a blighted neighborhood of Washington, D. C. The neighborhood had so\ndeteriorated that, for example, 64.3% of its dwellings were beyond repair. 348 U. S., at 30. It had\nbecome burdened with \xe2\x80\x9covercrowding of dwellings,\xe2\x80\x9d \xe2\x80\x9clack of adequate streets and alleys,\xe2\x80\x9d and \xe2\x80\x9clack\nof light and air.\xe2\x80\x9d Id., at 34. Congress had determined that the neighborhood had become \xe2\x80\x9cinjurious\nto the public health, safety, morals, and welfare\xe2\x80\x9d and that it was necessary to \xe2\x80\x9celiminat[e] all such\ninjurious conditions by employing all means necessary and appropriate for the purpose,\xe2\x80\x9d including\neminent domain. Id., at 28 (internal quotation marks omitted). Mr. Berman\xe2\x80\x99s department store was\nnot itself blighted. Having approved of Congress\xe2\x80\x99 decision to eliminate the harm to the public\nemanating from the blighted neighborhood, however, we did not second-guess its decision to treat\nthe neighborhood as a whole rather than lot-by-lot. Id., at 34-35; see also Midkiff, 467 U. S., at 244\n(\xe2\x80\x9c[I]t is only the taking\xe2\x80\x99s purpose, and not its mechanics, that must pass scrutiny\xe2\x80\x9d).\nIn Midkiff, we upheld a land condemnation scheme in Hawaii whereby title in real property\nwas taken from lessors and transferred to lessees. At that time, the State and Federal Governments\nowned nearly 49% of the State\xe2\x80\x99s land, and another 47% was in the hands of only 72 private\nlandowners. Concentration of land ownership was so dramatic that on the State\xe2\x80\x99s most urbanized\nisland, Oahu, 22 landowners owned 72.5% of the fee simple titles. Id., at 232. The Hawaii Legislature\nhad concluded that the oligopoly in land ownership was \xe2\x80\x9cskewing the State\xe2\x80\x99s residential fee simple\nmarket, inflating land prices, and injuring the public tranquility and welfare,\xe2\x80\x9d and therefore enacted a\ncondemnation scheme for redistributing title. Ibid.\nIn those decisions, we emphasized the importance of deferring to legislative judgments\nabout public purpose. Because courts are ill equipped to evaluate the efficacy of proposed legislative\ninitiatives, we rejected as unworkable the idea of courts\xe2\x80\x99 \xe2\x80\x9c\xe2\x80\x98deciding on what is and is not a\ngovernmental function and \xe2\x80\xa6 invalidating legislation on the basis of their view on that question at\nthe moment of decision, a practice which has proved impracticable in other fields.\xe2\x80\x99\xe2\x80\x9d Id., at 240-241\n(quoting United States ex rel. TVA v. Welch, 327 U. S. 546, 552 (1946)); see Berman, supra, at 32 (\xe2\x80\x9c[T]he\nlegislature, not the judiciary, is the main guardian of the public needs to be served by social\nlegislation\xe2\x80\x9d); see also Lingle v. Chevron U. S. A. Inc., 544 U. S. 528 (2005). Likewise, we recognized our\ninability to evaluate whether, in a given case, eminent domain is a necessary means by which to\npursue the legislature\xe2\x80\x99s ends. Midkiff, supra, at 242; Berman, supra, at 33.\nYet for all the emphasis on deference, Berman and Midkiff hewed to a bedrock principle\nwithout which our public use jurisprudence would collapse: \xe2\x80\x9cA purely private taking could not\nwithstand the scrutiny of the public use requirement; it would serve no legitimate purpose of\ngovernment and would thus be void.\xe2\x80\x9d Midkiff, 467 U. S., at 245; id., at 241 (\xe2\x80\x9c[T]he Court\xe2\x80\x99s cases have\nrepeatedly stated that \xe2\x80\x98one person\xe2\x80\x99s property may not be taken for the benefit of another private\nperson without a justifying public purpose, even though compensation be paid\xe2\x80\x99\xe2\x80\x9d (quoting Thompson\n481\n\n\x0cv. Consolidated Gas Util. Corp., 300 U. S. 55, 80 (1937))); see also Missouri Pacific R. Co. v. Nebraska, 164\nU. S. 403, 417 (1896). To protect that principle, those decisions reserved \xe2\x80\x9ca role for courts to play in\nreviewing a legislature\xe2\x80\x99s judgment of what constitutes a public use \xe2\x80\xa6 [though] the Court in Berman\nmade clear that it is \xe2\x80\x98an extremely narrow\xe2\x80\x99 one.\xe2\x80\x9d Midkiff, supra, at 240 (quoting Berman, supra, at 32).\nThe Court\xe2\x80\x99s holdings in Berman and Midkiff were true to the principle underlying the Public\nUse Clause. In both those cases, the extraordinary, precondemnation use of the targeted property\ninflicted affirmative harm on society\xe2\x80\x93in Berman through blight resulting from extreme poverty and in\nMidkiff through oligopoly resulting from extreme wealth. And in both cases, the relevant legislative\nbody had found that eliminating the existing property use was necessary to remedy the harm. Berman,\nsupra, at 28-29; Midkiff, supra, at 232. Thus a public purpose was realized when the harmful use was\neliminated. Because each taking directly achieved a public benefit, it did not matter that the property\nwas turned over to private use. Here, in contrast, New London does not claim that Susette Kelo\xe2\x80\x99s\nand Wilhelmina Dery\xe2\x80\x99s well-maintained homes are the source of any social harm. Indeed, it could\nnot so claim without adopting the absurd argument that any single-family home that might be razed\nto make way for an apartment building, or any church that might be replaced with a retail store, or\nany small business that might be more lucrative if it were instead part of a national franchise, is\ninherently harmful to society and thus within the government\xe2\x80\x99s power to condemn.\nIn moving away from our decisions sanctioning the condemnation of harmful property use,\nthe Court today significantly expands the meaning of public use. It holds that the sovereign may take\nprivate property currently put to ordinary private use, and give it over for new, ordinary private use,\nso long as the new use is predicted to generate some secondary benefit for the public\xe2\x80\x93such as\nincreased tax revenue, more jobs, maybe even esthetic pleasure. But nearly any lawful use of real\nprivate property can be said to generate some incidental benefit to the public. Thus, if predicted (or\neven guaranteed) positive side effects are enough to render transfer from one private party to\nanother constitutional, then the words \xe2\x80\x9cfor public use\xe2\x80\x9d do not realistically exclude any takings, and\nthus do not exert any constraint on the eminent domain power.\nThere is a sense in which this troubling result follows from errant language in Berman and\nMidkiff. In discussing whether takings within a blighted neighborhood were for a public use, Berman\nbegan by observing: \xe2\x80\x9cWe deal, in other words, with what traditionally has been known as the police\npower.\xe2\x80\x9d 348 U. S., at 32. From there it declared that \xe2\x80\x9c[o]nce the object is within the authority of\nCongress, the right to realize it through the exercise of eminent domain is clear.\xe2\x80\x9d Id., at 33.\nFollowing up, we said in Midkiff that \xe2\x80\x9c[t]he \xe2\x80\x98public use\xe2\x80\x99 requirement is coterminous with the scope of\na sovereign\xe2\x80\x99s police powers.\xe2\x80\x9d 467 U. S., at 240. This language was unnecessary to the specific\nholdings of those decisions. Berman and Midkiff simply did not put such language to the\nconstitutional test, because the takings in those cases were within the police power but also for\n\xe2\x80\x9cpublic use\xe2\x80\x9d for the reasons I have described. The case before us now demonstrates why, when\ndeciding if a taking\xe2\x80\x99s purpose is constitutional, the police power and \xe2\x80\x9cpublic use\xe2\x80\x9d cannot always be\nequated.\nThe Court protests that it does not sanction the bare transfer from A to B for B\xe2\x80\x99s benefit. It\nsuggests two limitations on what can be taken after today\xe2\x80\x99s decision. First, it maintains a role for\ncourts in ferreting out takings whose sole purpose is to bestow a benefit on the private transferee\xe2\x80\x93\nwithout detailing how courts are to conduct that complicated inquiry. Ante, at 477-478. For his part,\nJUSTICE KENNEDY suggests that courts may divine illicit purpose by a careful review of the\nrecord and the process by which a legislature arrived at the decision to take\xe2\x80\x93without specifying what\ncourts should look for in a case with different facts, how they will know if they have found it, and\nwhat to do if they do not. Ante, at 491-492 (concurring opinion). Whatever the details of JUSTICE\nKENNEDY\xe2\x80\x99s as-yet-undisclosed test, it is difficult to envision anyone but the \xe2\x80\x9cstupid staff[er]\xe2\x80\x9d\nfailing it. See Lucas v. South Carolina Coastal Council, 505 U. S. 1003, 1025-1026, n. 12 (1992). The\n482\n\n\x0ctrouble with economic development takings is that private benefit and incidental public benefit are,\nby definition, merged and mutually reinforcing. In this case, for example, any boon for Pfizer or the\nplan\xe2\x80\x99s developer is difficult to disaggregate from the promised public gains in taxes and jobs. See\nApp. to Pet. for Cert. 275-277.\nEven if there were a practical way to isolate the motives behind a given taking, the gesture\ntoward a purpose test is theoretically flawed. If it is true that incidental public benefits from new\nprivate use are enough to ensure the \xe2\x80\x9cpublic purpose\xe2\x80\x9d in a taking, why should it matter, as far as the\nFifth Amendment is concerned, what inspired the taking in the first place? How much the\ngovernment does or does not desire to benefit a favored private party has no bearing on whether an\neconomic development taking will or will not generate secondary benefit for the public. And\nwhatever the reason for a given condemnation, the effect is the same from the constitutional\nperspective\xe2\x80\x93private property is forcibly relinquished to new private ownership.\nA second proposed limitation is implicit in the Court\xe2\x80\x99s opinion. The logic of today\xe2\x80\x99s decision\nis that eminent domain may only be used to upgrade\xe2\x80\x93not downgrade\xe2\x80\x93property. At best this makes\nthe Public Use Clause redundant with the Due Process Clause, which already prohibits irrational\ngovernment action. See Lingle, 544 U. S. 528. The Court rightfully admits, however, that the judiciary\ncannot get bogged down in predictive judgments about whether the public will actually be better off\nafter a property transfer. In any event, this constraint has no realistic import. For who among us can\nsay she already makes the most productive or attractive possible use of her property? The specter of\ncondemnation hangs over all property. Nothing is to prevent the State from replacing any Motel 6\nwith a Ritz-Carlton, any home with a shopping mall, or any farm with a factory. Cf. Bugryn v. Bristol,\n63 Conn. App. 98, 774 A. 2d 1042 (2001) (taking the homes and farm of four owners in their 70\xe2\x80\x99s\nand 80\xe2\x80\x99s and giving it to an \xe2\x80\x9cindustrial park\xe2\x80\x9d); 99 Cents Only Stores v. Lancaster Redevelopment Agency,\n237 F. Supp. 2d 1123 (CD Cal. 2001) (attempted taking of 99 Cents store to replace with a Costco);\nPoletown Neighborhood Council v. Detroit, 410 Mich. 616, 304 N. W. 2d 455 (1981) (taking a workingclass, immigrant community in Detroit and giving it to a General Motors assembly plant), overruled\nby County of Wayne v. Hathcock, 471 Mich. 445, 684 N. W. 2d 765 (2004); Brief for Becket Fund for\nReligious Liberty as Amicus Curiae 4-11 (describing takings of religious institutions\xe2\x80\x99 properties);\nInstitute for Justice, D. Berliner, Public Power, Private Gain: A Five-Year, State-by-State Report\nExamining the Abuse of Eminent Domain (2003) (collecting accounts of economic development\ntakings).\nThe Court also puts special emphasis on facts peculiar to this case: The NLDC\xe2\x80\x99s plan is the\nproduct of a relatively careful deliberative process; it proposes to use eminent domain for a\nmultipart, integrated plan rather than for isolated property transfer; it promises an array of incidental\nbenefits (even esthetic ones), not just increased tax revenue; it comes on the heels of a legislative\ndetermination that New London is a depressed municipality. See, e. g., ante, at 487 (\xe2\x80\x9c[A] one-to-one\ntransfer of property, executed outside the confines of an integrated development plan, is not\npresented in this case\xe2\x80\x9d). JUSTICE KENNEDY, too, takes great comfort in these facts. Ante, at 493\n(concurring opinion). But none has legal significance to blunt the force of today\xe2\x80\x99s holding. If\nlegislative prognostications about the secondary public benefits of a new use can legitimate a taking,\nthere is nothing in the Court\xe2\x80\x99s rule or in JUSTICE KENNEDY\xe2\x80\x99s gloss on that rule to prohibit\nproperty transfers generated with less care, that are less comprehensive, that happen to result from\nless elaborate process, whose only projected advantage is the incidence of higher taxes, or that hope\nto transform an already prosperous city into an even more prosperous one.\nFinally, in a coda, the Court suggests that property owners should turn to the States, who\nmay or may not choose to impose appropriate limits on economic development takings. Ante, at\n489. This is an abdication of our responsibility. States play many important functions in our system\nof dual sovereignty, but compensating for our refusal to enforce properly the Federal Constitution\n483\n\n\x0c(and a provision meant to curtail state action, no less) is not among them.\n*\nIt was possible after Berman and Midkiff to imagine unconstitutional transfers from A to B.\nThose decisions endorsed government intervention when private property use had veered to such an\nextreme that the public was suffering as a consequence. Today nearly all real property is susceptible\nto condemnation on the Court\xe2\x80\x99s theory. In the prescient words of a dissenter from the infamous\ndecision in Poletown, \xe2\x80\x9c[n]ow that we have authorized local legislative bodies to decide that a different\ncommercial or industrial use of property will produce greater public benefits than its present use, no\nhomeowner\xe2\x80\x99s, merchant\xe2\x80\x99s or manufacturer\xe2\x80\x99s property, however productive or valuable to its owner,\nis immune from condemnation for the benefit of other private interests that will put it to a \xe2\x80\x98higher\xe2\x80\x99\nuse.\xe2\x80\x9d 410 Mich., at 644-645, 304 N. W. 2d, at 464 (opinion of Fitzgerald, J.). This is why economic\ndevelopment takings \xe2\x80\x9cseriously jeopardiz[e] the security of all private property ownership.\xe2\x80\x9d Id., at\n645, 304 N. W. 2d, at 465 (Ryan, J., dissenting).\nAny property may now be taken for the benefit of another private party, but the fallout from\nthis decision will not be random. The beneficiaries are likely to be those citizens with\ndisproportionate influence and power in the political process, including large corporations and\ndevelopment firms. As for the victims, the government now has license to transfer property from\nthose with fewer resources to those with more. The Founders cannot have intended this perverse\nresult. \xe2\x80\x9c[T]hat alone is a just government,\xe2\x80\x9d wrote James Madison, \xe2\x80\x9cwhich impartially secures to every\nman, whatever is his own.\xe2\x80\x9d For the National Gazette, Property (Mar. 27, 1792), reprinted in 14\nPapers of James Madison 266 (R. Rutland et al. eds. 1983).\nI would hold that the takings in both Parcel 3 and Parcel 4A are unconstitutional, reverse the\njudgment of the Supreme Court of Connecticut, and remand for further proceedings.\nJustice Thomas, dissenting.\nLong ago, William Blackstone wrote that \xe2\x80\x9cthe law of the land \xe2\x80\xa6 postpone[s] even public\nnecessity to the sacred and inviolable rights of private property.\xe2\x80\x9d 1 Commentaries on the Laws of\nEngland 134-135 (1765) (hereinafter Blackstone). The Framers embodied that principle in the\nConstitution, allowing the government to take property not for \xe2\x80\x9cpublic necessity,\xe2\x80\x9d but instead for\n\xe2\x80\x9cpublic use.\xe2\x80\x9d Amdt. 5. Defying this understanding, the Court replaces the Public Use Clause with a\n\xe2\x80\x9d\xe2\x80\x99[P]ublic [P]urpose\xe2\x80\x99\xe2\x80\x9d Clause, ante, at 479-480 (or perhaps the \xe2\x80\x9cDiverse and Always Evolving Needs\nof Society\xe2\x80\x9d Clause, ante, at 479 (capitalization added)), a restriction that is satisfied, the Court\ninstructs, so long as the purpose is \xe2\x80\x9clegitimate\xe2\x80\x9d and the means \xe2\x80\x9cnot irrational,\xe2\x80\x9d ante, at 488 (internal\nquotation marks omitted). This deferential shift in phraseology enables the Court to hold, against all\ncommon sense, that a costly urban-renewal project whose stated purpose is a vague promise of new\njobs and increased tax revenue, but which is also suspiciously agreeable to the Pfizer Corporation, is\nfor a \xe2\x80\x9cpublic use.\xe2\x80\x9d\nI cannot agree. If such \xe2\x80\x9ceconomic development\xe2\x80\x9d takings are for a \xe2\x80\x9cpublic use,\xe2\x80\x9d any taking is,\nand the Court has erased the Public Use Clause from our Constitution, as JUSTICE O\xe2\x80\x99CONNOR\npowerfully argues in dissent. Ante, at 494, 501-505. I do not believe that this Court can eliminate\nliberties expressly enumerated in the Constitution and therefore join her dissenting opinion.\n484\n\n\x0cRegrettably, however, the Court\xe2\x80\x99s error runs deeper than this. Today\xe2\x80\x99s decision is simply the latest in\na string of our cases construing the Public Use Clause to be a virtual nullity, without the slightest\nnod to its original meaning. In my view, the Public Use Clause, originally understood, is a\nmeaningful limit on the government\xe2\x80\x99s eminent domain power. Our cases have strayed from the\nClause\xe2\x80\x99s original meaning, and I would reconsider them.\n\nI\n\nThe Fifth Amendment provides:\n\xe2\x80\x9cNo person shall be held to answer for a capital, or otherwise infamous crime, unless on a\npresentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in\nthe Militia, when in actual service in time of War or public danger; nor shall any person be subject\nfor the same offence to be twice put in jeopardy of life or limb, nor shall be compelled in any\ncriminal case to be a witness against himself, nor be deprived of life, liberty, or property, without\ndue process of law; nor shall private property be taken for public use, without just compensation.\xe2\x80\x9d (Emphasis\nadded.)\nIt is the last of these liberties, the Takings Clause, that is at issue in this case. In my view, it is\n\xe2\x80\x9cimperative that the Court maintain absolute fidelity to\xe2\x80\x9d the Clause\xe2\x80\x99s express limit on the power of\nthe government over the individual, no less than with every other liberty expressly enumerated in the\nFifth Amendment or the Bill of Rights more generally. Shepard v. United States, 544 U. S. 13, 28\n(2005) (THOMAS, J., concurring in part and concurring in judgment) (internal quotation marks\nomitted).\nThough one component of the protection provided by the Takings Clause is that the\ngovernment can take private property only if it provides \xe2\x80\x9cjust compensation\xe2\x80\x9d for the taking, the\nTakings Clause also prohibits the government from taking property except \xe2\x80\x9cfor public use.\xe2\x80\x9d Were it\notherwise, the Takings Clause would either be meaningless or empty. If the Public Use Clause\nserved no function other than to state that the government may take property through its eminent\ndomain power\xe2\x80\x93for public or private uses\xe2\x80\x93then it would be surplusage. See ante, at 496\n(O\xe2\x80\x99CONNOR, J., dissenting); see also Marbury v. Madison, 1 Cranch 137, 174 (1803) (\xe2\x80\x9cIt cannot be\npresumed that any clause in the constitution is intended to be without effect\xe2\x80\x9d); Myers v. United States,\n272 U. S. 52, 151 (1926). Alternatively, the Clause could distinguish those takings that require\ncompensation from those that do not. That interpretation, however, \xe2\x80\x9cwould permit private property\nto be taken or appropriated for private use without any compensation whatever.\xe2\x80\x9d Cole v. La Grange,\n113 U. S. 1, 8 (1885) (interpreting same language in the Missouri Public Use Clause). In other words,\nthe Clause would require the government to compensate for takings done \xe2\x80\x9cfor public use,\xe2\x80\x9d leaving it\nfree to take property for purely private uses without the payment of compensation. This would\ncontradict a bedrock principle well established by the time of the founding: that all takings required\nthe payment of compensation. 1 Blackstone 135; 2 J. Kent, Commentaries on American Law 275\n(1827) (hereinafter Kent); For the National Gazette, Property (Mar. 27, 1792), in 14 Papers of James\nMadison 266, 267 (R. Rutland et al. eds. 1983) (arguing that no property \xe2\x80\x9cshall be taken directly even\nfor public use without indemnification to the owner\xe2\x80\x9d).26 The Public Use Clause, like the Just\nCompensation Clause, is therefore an express limit on the government\xe2\x80\x99s power of eminent domain.\nThe most natural reading of the Clause is that it allows the government to take property only\n485\n\n\x0cif the government owns, or the public has a legal right to use, the property, as opposed to taking it\nfor any public purpose or necessity whatsoever. At the time of the founding, dictionaries primarily\ndefined the noun \xe2\x80\x9cuse\xe2\x80\x9d as \xe2\x80\x9c[t]he act of employing any thing to any purpose.\xe2\x80\x9d 2 S. Johnson, A\nDictionary of the English Language 2194 (4th ed. 1773) (hereinafter Johnson). The term \xe2\x80\x9cuse,\xe2\x80\x9d\nmoreover, \xe2\x80\x9cis from the Latin utor, which means \xe2\x80\x98to use, make use of, avail one\xe2\x80\x99s self of, employ,\napply, enjoy, etc.\xe2\x80\x9d J. Lewis, Law of Eminent Domain \xc2\xa7 165, p. 224, n. 4 (1888) (hereinafter Lewis).\nWhen the government takes property and gives it to a private individual, and the public has no right\nto use the property, it strains language to say that the public is \xe2\x80\x9cemploying\xe2\x80\x9d the property, regardless\nof the incidental benefits that might accrue to the public from the private use. The term \xe2\x80\x9cpublic\nuse,\xe2\x80\x9d then, means that either the government or its citizens as a whole must actually \xe2\x80\x9cemploy\xe2\x80\x9d the\ntaken property. See id., at 223 (reviewing founding-era dictionaries).\nGranted, another sense of the word \xe2\x80\x9cuse\xe2\x80\x9d was broader in meaning, extending to\n\xe2\x80\x9c[c]onvenience\xe2\x80\x9d or \xe2\x80\x9chelp,\xe2\x80\x9d or \xe2\x80\x9c[q]ualities that make a thing proper for any purpose.\xe2\x80\x9d 2 Johnson\n2194. Nevertheless, read in context, the term \xe2\x80\x9cpublic use\xe2\x80\x9d possesses the narrower meaning.\nElsewhere, the Constitution twice employs the word \xe2\x80\x9cuse,\xe2\x80\x9d both times in its narrower sense. Claeys,\nPublic-Use Limitations and Natural Property Rights, 2004 Mich. St. L. Rev. 877, 897 (hereinafter\nPublic Use Limitations). Article I, \xc2\xa7 10, provides that \xe2\x80\x9cthe net Produce of all Duties and Imposts,\nlaid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States,\xe2\x80\x9d\nmeaning the Treasury itself will control the taxes, not use it to any beneficial end. And Article I, \xc2\xa7 8,\ngrants Congress power \xe2\x80\x9c[t]o raise and support Armies, but no Appropriation of Money to that Use\nshall be for a longer Term than two Years.\xe2\x80\x9d Here again, \xe2\x80\x9cuse\xe2\x80\x9d means \xe2\x80\x9cemployed to raise and\nsupport Armies,\xe2\x80\x9d not anything directed to achieving any military end. The same word in the Public\nUse Clause should be interpreted to have the same meaning.\nTellingly, the phrase \xe2\x80\x9cpublic use\xe2\x80\x9d contrasts with the very different phrase \xe2\x80\x9cgeneral Welfare\xe2\x80\x9d\nused elsewhere in the Constitution. See ibid. (\xe2\x80\x9cCongress shall have Power To\xe2\x80\xa6 provide for the\ncommon Defence and general Welfare of the United States\xe2\x80\x9d); preamble (Constitution established\n\xe2\x80\x9cto promote the general Welfare\xe2\x80\x9d). The Framers would have used some such broader term if they\nhad meant the Public Use Clause to have a similarly sweeping scope. Other founding-era documents\nmade the contrast between these two usages still more explicit. See Sales, Classical Republicanism\nand the Fifth Amendment\xe2\x80\x99s \xe2\x80\x9cPublic Use\xe2\x80\x9d Requirement, 49 Duke L. J. 339, 367-368 (1999)\n(hereinafter Sales) (noting contrast between, on the one hand, the term \xe2\x80\x9cpublic use\xe2\x80\x9d used by 6 of the\nfirst 13 States and, on the other, the terms \xe2\x80\x9cpublic exigencies\xe2\x80\x9d employed in the Massachusetts Bill of\nRights and the Northwest Ordinance, and the term \xe2\x80\x9cpublic necessity\xe2\x80\x9d used in the Vermont\nConstitution of 1786). The Constitution\xe2\x80\x99s text, in short, suggests that the Takings Clause authorizes\nthe taking of property only if the public has a right to employ it, not if the public realizes any\nconceivable benefit from the taking.\nThe Constitution\xe2\x80\x99s common-law background reinforces this understanding. The common\nlaw provided an express method of eliminating uses of land that adversely impacted the public\nwelfare: nuisance law. Blackstone and Kent, for instance, both carefully distinguished the law of\nnuisance from the power of eminent domain. Compare 1 Blackstone 135 (noting government\xe2\x80\x99s\npower to take private property with compensation) with 3 id., at 216 (noting action to remedy \xe2\x80\x9dpublic\n\xe2\x80\xa6 nuisances, which affect the public, and are an annoyance to all the king\xe2\x80\x99s subjects\xe2\x80\x9d); see also 2\nKent 274-276 (distinguishing the two). Blackstone rejected the idea that private property could be\ntaken solely for purposes of any public benefit. \xe2\x80\x9cSo great \xe2\x80\xa6 is the regard of the law for private\nproperty,\xe2\x80\x9d he explained, \xe2\x80\x9cthat it will not authorize the least violation of it; no, not even for the\ngeneral good of the whole community.\xe2\x80\x9d 1 Blackstone 135. He continued: \xe2\x80\x9cIf a new road \xe2\x80\xa6 were to\nbe made through the grounds of a private person, it might perhaps be extensively beneficial to the\npublic; but the law permits no man, or set of men, to do this without the consent of the owner of\n486\n\n\x0cthe land.\xe2\x80\x9d Ibid. Only \xe2\x80\x9cby giving [the landowner] full indemnification\xe2\x80\x9d could the government take\nproperty, and even then \xe2\x80\x9c[t]he public [was] now considered as an individual, treating with an\nindividual for an exchange.\xe2\x80\x9d Ibid. When the public took property, in other words, it took it as an\nindividual buying property from another typically would: for one\xe2\x80\x99s own use. The Public Use Clause,\nin short, embodied the Framers\xe2\x80\x99 understanding that property is a natural, fundamental right,\nprohibiting the government from \xe2\x80\x9ctak[ing] property from A. and giv[ing] it to B.\xe2\x80\x9d Calder v. Bull, 3 Dall.\n386, 388 (1798); see also Wilkinson v. Leland, 2 Pet. 627, 658 (1829); Vanhorne\xe2\x80\x99s Lessee v. Dorrance, 2\nDall. 304, 311 (CC Pa. 1795).\nThe public purpose interpretation of the Public Use Clause also unnecessarily duplicates a\nsimilar inquiry required by the Necessary and Proper Clause. The Takings Clause is a prohibition,\nnot a grant of power: The Constitution does not expressly grant the Federal Government the power\nto take property for any public purpose whatsoever. Instead, the Government may take property\nonly when necessary and proper to the exercise of an expressly enumerated power. See Kohl v. United\nStates, 91 U. S. 367, 371-372 (1876) (noting Federal Government\xe2\x80\x99s power under the Necessary and\nProper Clause to take property \xe2\x80\x9cneeded for forts, armories, and arsenals, for navy-yards and lighthouses, for custom-houses, post-offices, and court-houses, and for other public uses\xe2\x80\x9d). For a law to\nbe within the Necessary and Proper Clause, as I have elsewhere explained, it must bear an \xe2\x80\x9cobvious,\nsimple, and direct relation\xe2\x80\x9d to an exercise of Congress\xe2\x80\x99 enumerated powers, Sabri v. United States, 541\nU. S. 600, 613 (2004) (THOMAS, J., concurring in judgment), and it must not \xe2\x80\x9csubvert basic\nprinciples of\xe2\x80\x9d constitutional design, Gonzales v. Raich, ante, at 65 (THOMAS, J., dissenting). In other\nwords, a taking is permissible under the Necessary and Proper Clause only if it serves a valid public\npurpose. Interpreting the Public Use Clause likewise to limit the government to take property only\nfor sufficiently public purposes replicates this inquiry. If this is all the Clause means, it is, once again,\nsurplusage. See supra, at 507. The Clause is thus most naturally read to concern whether the property\nis used by the public or the government, not whether the purpose of the taking is legitimately public.\n\nII\n\nEarly American eminent domain practice largely bears out this understanding of the Public\nUse Clause. This practice concerns state limits on eminent domain power, not the Fifth\nAmendment, since it was not until the late 19th century that the Federal Government began to use\nthe power of eminent domain, and since the Takings Clause did not even arguably limit state power\nuntil after the passage of the Fourteenth Amendment. See Note, The Public Use Limitation on\nEminent Domain: An Advance Requiem, 58 Yale L. J. 599, 599-600, and nn. 3-4 (1949); Barron ex\nrel. Tiernan v. Mayor of Baltimore, 7 Pet. 243, 250-251 (1833) (holding the Takings Clause inapplicable\nto the States of its own force). Nevertheless, several early state constitutions at the time of the\nfounding likewise limited the power of eminent domain to \xe2\x80\x9cpublic uses.\xe2\x80\x9d See Sales 367-369, and n.\n137 (emphasis deleted). Their practices therefore shed light on the original meaning of the same\nwords contained in the Public Use Clause.\nStates employed the eminent domain power to provide quintessentially public goods, such as\npublic roads, toll roads, ferries, canals, railroads, and public parks. Lewis \xc2\xa7\xc2\xa7 166, 168-171, 175, at\n227-228, 234-241, 243. Though use of the eminent domain power was sparse at the time of the\nfounding, many States did have so-called Mill Acts, which authorized the owners of grist mills\n487\n\n\x0coperated by water power to flood upstream lands with the payment of compensation to the\nupstream landowner. See, e. g., id., \xc2\xa7 178, at 245-246; Head v. Amoskeag Mfg. Co., 113 U. S. 9, 16-19,\nand n. (1885). Those early grist mills \xe2\x80\x9cwere regulated by law and compelled to serve the public for a\nstipulated toll and in regular order,\xe2\x80\x9d and therefore were actually used by the public. Lewis \xc2\xa7 178, at\n246, and n. 3; see also Head, supra, at 18-19. They were common carriers\xe2\x80\x93quasi-public entities. These\nwere \xe2\x80\x9cpublic uses\xe2\x80\x9d in the fullest sense of the word, because the public could legally use and benefit\nfrom them equally. See Public Use Limitations 903 (common-carrier status traditionally afforded to\n\xe2\x80\x9cprivate beneficiaries of a state franchise or another form of state monopoly, or to companies that\noperated in conditions of natural monopoly\xe2\x80\x9d).\nTo be sure, some early state legislatures tested the limits of their state-law eminent domain\npower. Some States enacted statutes allowing the taking of property for the purpose of building\nprivate roads. See Lewis \xc2\xa7 167, at 230. These statutes were mixed; some required the private\nlandowner to keep the road open to the public, and others did not. See id., \xc2\xa7 167, at 230-234. Later\nin the 19th century, moreover, the Mill Acts were employed to grant rights to private manufacturing\nplants, in addition to grist mills that had common-carrier duties. See, e. g., M. Horwitz, The\nTransformation of American Law 1780-1860, pp. 51-52 (1977).\nThese early uses of the eminent domain power are often cited as evidence for the broad\n\xe2\x80\x9cpublic purpose\xe2\x80\x9d interpretation of the Public Use Clause, see, e. g., ante, at 479-480, n. 8 (majority\nopinion); Brief for Respondents 30; Brief for American Planning Assn. et al. as Amici Curiae 6-7, but\nin fact the constitutionality of these exercises of eminent domain power under state public use\nrestrictions was a hotly contested question in state courts throughout the 19th and into the 20th\ncentury. Some courts construed those clauses to authorize takings for public purposes, but others\nadhered to the natural meaning of \xe2\x80\x9cpublic use.\xe2\x80\x9d27 As noted above, the earliest Mill Acts were applied\nto entities with duties to remain open to the public, and their later extension is not deeply probative\nof whether that subsequent practice is consistent with the original meaning of the Public Use Clause.\nSee McIntyre v. Ohio Elections Comm\xe2\x80\x99n, 514 U. S. 334, 370 (1995) (THOMAS, J., concurring in\njudgment). At the time of the founding, \xe2\x80\x9c[b]usiness corporations were only beginning to upset the\nold corporate model, in which the raison d\xe2\x80\x99\xc3\xaatre of chartered associations was their service to the\npublic,\xe2\x80\x9d Horwitz, supra, at 49-50, so it was natural to those who framed the first Public Use Clauses\nto think of mills as inherently public entities. The disagreement among state courts, and state\nlegislatures\xe2\x80\x99 attempts to circumvent public use limits on their eminent domain power, cannot\nobscure that the Public Use Clause is most naturally read to authorize takings for public use only if\nthe government or the public actually uses the taken property.\n\nIII\n\nOur current Public Use Clause jurisprudence, as the Court notes, has rejected this natural\nreading of the Clause. Ante, at 479-483. The Court adopted its modern reading blindly, with little\ndiscussion of the Clause\xe2\x80\x99s history and original meaning, in two distinct lines of cases: first, in cases\nadopting the \xe2\x80\x9cpublic purpose\xe2\x80\x9d interpretation of the Clause, and second, in cases deferring to\nlegislatures\xe2\x80\x99 judgments regarding what constitutes a valid public purpose. Those questionable cases\nconverged in the boundlessly broad and deferential conception of \xe2\x80\x9cpublic use\xe2\x80\x9d adopted by this\nCourt in Berman v. Parker, 348 U. S. 26 (1954), and Hawaii Housing Authority v. Midkiff, 467 U. S. 229\n488\n\n\x0c(1984), cases that take center stage in the Court\xe2\x80\x99s opinion. See ante, at 480-482. The weakness of\nthose two lines of cases, and consequently Berman and Midkiff, fatally undermines the doctrinal\nfoundations of the Court\xe2\x80\x99s decision. Today\xe2\x80\x99s questionable application of these cases is further proof\nthat the \xe2\x80\x9cpublic purpose\xe2\x80\x9d standard is not susceptible of principled application. This Court\xe2\x80\x99s reliance\nby rote on this standard is ill advised and should be reconsidered.\n\nA\n\nAs the Court notes, the \xe2\x80\x9cpublic purpose\xe2\x80\x9d interpretation of the Public Use Clause stems from\nFallbrook Irrigation Dist. v. Bradley, 164 U. S. 112, 161-162 (1896). Ante, at 479-480. The issue in Bradley\nwas whether a condemnation for purposes of constructing an irrigation ditch was for a public use.\n164 U. S., at 161. This was a public use, Justice Peckham declared for the Court, because \xe2\x80\x9c[t]o\nirrigate and thus to bring into possible cultivation these large masses of otherwise worthless lands\nwould seem to be a public purpose and a matter of public interest, not confined to landowners, or\neven to any one section of the State.\xe2\x80\x9d Ibid. That broad statement was dictum, for the law under\nreview also provided that \xe2\x80\x9c[a]ll landowners in the district have the right to a proportionate share of\nthe water.\xe2\x80\x9d Id., at 162. Thus, the \xe2\x80\x9cpublic\xe2\x80\x9d did have the right to use the irrigation ditch because all\nsimilarly situated members of the public\xe2\x80\x93those who owned lands irrigated by the ditch\xe2\x80\x93had a right\nto use it. The Court cited no authority for its dictum, and did not discuss either the Public Use\nClause\xe2\x80\x99s original meaning or the numerous authorities that had adopted the \xe2\x80\x9cactual use\xe2\x80\x9d test (though\nit at least acknowledged the conflict of authority in state courts, see id., at 158; supra, at 513-514, and\nn. 2). Instead, the Court reasoned that \xe2\x80\x9c[t]he use must be regarded as a public use, or else it would\nseem to follow that no general scheme of irrigation can be formed or carried into effect.\xe2\x80\x9d Bradley,\nsupra, at 160-161. This is no statement of constitutional principle: Whatever the utility of irrigation\ndistricts or the merits of the Court\xe2\x80\x99s view that another rule would be \xe2\x80\x9cimpractical given the diverse\nand always evolving needs of society,\xe2\x80\x9d ante, at 479, the Constitution does not embody those policy\npreferences any more than it \xe2\x80\x9cenact[s] Mr. Herbert Spencer\xe2\x80\x99s Social Statics,\xe2\x80\x9d >Lochner v. New York,\n198 U. S. 45, 75 (1905) (Holmes, J., dissenting); but see id., at 58-62 (Peckham, J., for the Court).\nThis Court\xe2\x80\x99s cases followed Bradley\xe2\x80\x99s test with little analysis. In Clark v. Nash, 198 U. S. 361\n(1905) (Peckham, J., for the Court), this Court relied on little more than a citation to Bradley in\nupholding another condemnation for the purpose of laying an irrigation ditch. 198 U. S., at 369-370.\nAs in Bradley, use of the \xe2\x80\x9cpublic purpose\xe2\x80\x9d test was unnecessary to the result the Court reached. The\ngovernment condemned the irrigation ditch for the purpose of ensuring access to water in which\n\xe2\x80\x9c[o]ther land owners adjoining the defendant in error \xe2\x80\xa6 might share,\xe2\x80\x9d 198 U. S., at 370, and\ntherefore Clark also involved a condemnation for the purpose of ensuring access to a resource to\nwhich similarly situated members of the public had a legal right of access. Likewise, in Strickley v.\nHighland Boy Gold Mining Co., 200 U. S. 527 (1906), the Court upheld a condemnation establishing an\naerial right-of-way for a bucket line operated by a mining company, relying on little more than Clark,\nsee Strickley, supra, at 531. This case, too, could have been disposed of on the narrower ground that\n\xe2\x80\x9cthe plaintiff [was] a carrier for itself and others,\xe2\x80\x9d 200 U. S., at 531-532, and therefore that the\nbucket line was legally open to the public. Instead, the Court unnecessarily rested its decision on the\n\xe2\x80\x9cinadequacy of use by the general public as a universal test.\xe2\x80\x9d Id., at 531. This Court\xe2\x80\x99s cases quickly\nincorporated the public purpose standard set forth in Clark and Strickley by barren citation. See, e. g.,\n489\n\n\x0cRindge Co. v. County of Los Angeles, 262 U. S. 700, 707 (1923); Block v. Hirsh, 256 U. S. 135, 155 (1921);\nMt. Vernon-Woodberry Cotton Duck Co. v. Alabama Interstate Power Co., 240 U. S. 30, 32 (1916); O\xe2\x80\x99Neill v.\nLeamer, 239 U. S. 244, 253 (1915).\n\nB\n\nA second line of this Court\xe2\x80\x99s cases also deviated from the Public Use Clause\xe2\x80\x99s original\nmeaning by allowing legislatures to define the scope of valid \xe2\x80\x9cpublic uses.\xe2\x80\x9d United States v. Gettysburg\nElectric R. Co., 160 U. S. 668 (1896), involved the question whether Congress\xe2\x80\x99 decision to condemn\ncertain private land for the purpose of building battlefield memorials at Gettysburg, Pennsylvania,\nwas for a public use. Id., at 679-680. Since the Federal Government was to use the lands in question,\nid., at 682, there is no doubt that it was a public use under any reasonable standard. Nonetheless, the\nCourt, speaking through Justice Peckham, declared that \xe2\x80\x9cwhen the legislature has declared the use or\npurpose to be a public one, its judgment will be respected by the courts, unless the use be palpably\nwithout reasonable foundation.\xe2\x80\x9d Id., at 680. As it had with the \xe2\x80\x9cpublic purpose\xe2\x80\x9d dictum in Bradley,\nthe Court quickly incorporated this dictum into its Public Use Clause cases with little discussion.\nSee, e. g., United States ex rel. TVA v. Welch, 327 U. S. 546, 552 (1946); Old Dominion Land Co. v. United\nStates, 269 U. S. 55, 66 (1925).\nThere is no justification, however, for affording almost insurmountable deference to\nlegislative conclusions that a use serves a \xe2\x80\x9cpublic use.\xe2\x80\x9d To begin with, a court owes no deference to\na legislature\xe2\x80\x99s judgment concerning the quintessentially legal question of whether the government\nowns, or the public has a legal right to use, the taken property. Even under the \xe2\x80\x9cpublic purpose\xe2\x80\x9d\ninterpretation, moreover, it is most implausible that the Framers intended to defer to legislatures as\nto what satisfies the Public Use Clause, uniquely among all the express provisions of the Bill of\nRights. We would not defer to a legislature\xe2\x80\x99s determination of the various circumstances that\nestablish, for example, when a search of a home would be reasonable, see, e. g., Payton v. New York,\n445 U. S. 573, 589-590 (1980), or when a convicted double-murderer may be shackled during a\nsentencing proceeding without on-the-record findings, see Deck v. Missouri, 544 U. S. 622 (2005), or\nwhen state law creates a property interest protected by the Due Process Clause, see, e. g., Castle Rock\nv. Gonzales, post, at 756-758; Board of Regents of State Colleges v. Roth, 408 U. S. 564, 576 (1972); Goldberg\nv. Kelly, 397 U. S. 254, 262-263 (1970).\nStill worse, it is backwards to adopt a searching standard of constitutional review for\nnontraditional property interests, such as welfare benefits, see, e. g., Goldberg, supra, while deferring to\nthe legislature\xe2\x80\x99s determination as to what constitutes a public use when it exercises the power of\neminent domain, and thereby invades individuals\xe2\x80\x99 traditional rights in real property. The Court has\nelsewhere recognized \xe2\x80\x9cthe overriding respect for the sanctity of the home that has been embedded\nin our traditions since the origins of the Republic,\xe2\x80\x9d Payton, supra, at 601, when the issue is only\nwhether the government may search a home. Yet today the Court tells us that we are not to\n\xe2\x80\x9csecond-guess the City\xe2\x80\x99s considered judgments,\xe2\x80\x9d ante, at 488, when the issue is, instead, whether the\ngovernment may take the infinitely more intrusive step of tearing down petitioners\xe2\x80\x99 homes.\nSomething has gone seriously awry with this Court\xe2\x80\x99s interpretation of the Constitution. Though\ncitizens are safe from the government in their homes, the homes themselves are not. Once one\naccepts, as the Court at least nominally does, ante, at 477, that the Public Use Clause is a limit on the\n490\n\n\x0ceminent domain power of the Federal Government and the States, there is no justification for the\nalmost complete deference it grants to legislatures as to what satisfies it.\n\nC\n\nThese two misguided lines of precedent converged in Berman v. Parker, 348 U. S. 26 (1954),\nand Hawaii Housing Authority v. Midkiff, 467 U. S. 229 (1984). Relying on those lines of cases, the\nCourt in Berman and Midkiff upheld condemnations for the purposes of slum clearance and land\nredistribution, respectively. \xe2\x80\x9cSubject to specific constitutional limitations,\xe2\x80\x9d Berman proclaimed,\n\xe2\x80\x9cwhen the legislature has spoken, the public interest has been declared in terms wellnigh conclusive.\nIn such cases the legislature, not the judiciary, is the main guardian of the public needs to be served\nby social legislation.\xe2\x80\x9d 348 U. S., at 32. That reasoning was question begging, since the question to be\ndecided was whether the \xe2\x80\x9cspecific constitutional limitation\xe2\x80\x9d of the Public Use Clause prevented the\ntaking of the appellant\xe2\x80\x99s (concededly \xe2\x80\x9cnonblighted\xe2\x80\x9d) department store. Id., at 31, 34. Berman also\nappeared to reason that any exercise by Congress of an enumerated power (in this case, its plenary\npower over the District of Columbia) was per se a \xe2\x80\x9cpublic use\xe2\x80\x9d under the Fifth Amendment. Id., at\n33. But the very point of the Public Use Clause is to limit that power. See supra, at 508.\nMore fundamentally, Berman and Midkiff erred by equating the eminent domain power with\nthe police power of States. See Midkiff, supra, at 240 (\xe2\x80\x9cThe \xe2\x80\x98public use\xe2\x80\x99 requirement is \xe2\x80\xa6\ncoterminous with the scope of a sovereign\xe2\x80\x99s police powers\xe2\x80\x9d); Berman, supra, at 32. Traditional uses of\nthat regulatory power, such as the power to abate a nuisance, required no compensation whatsoever,\nsee Mugler v. Kansas, 123 U. S. 623, 668-669 (1887), in sharp contrast to the takings power, which has\nalways required compensation, see supra, at 508, and n. 1. The question whether the State can take\nproperty using the power of eminent domain is therefore distinct from the question whether it can\nregulate property pursuant to the police power. See, e. g., Lucas v. South Carolina Coastal Council, 505 U.\nS. 1003, 1014 (1992); Mugler, supra, at 668-669. In Berman, for example, if the slums at issue were truly\n\xe2\x80\x9cblighted,\xe2\x80\x9d then state nuisance law, see, e. g., supra, at 510; Lucas, supra, at 1029, not the power of\neminent domain, would provide the appropriate remedy. To construe the Public Use Clause to\noverlap with the States\xe2\x80\x99 police power conflates these two categories.28\nThe \xe2\x80\x9cpublic purpose\xe2\x80\x9d test applied by Berman and Midkiff also cannot be applied in principled\nmanner. \xe2\x80\x9cWhen we depart from the natural import of the term \xe2\x80\x98public use,\xe2\x80\x99 and substitute for the\nsimple idea of a public possession and occupation, that of public utility, public interest, common\nbenefit, general advantage or convenience \xe2\x80\xa6 we are afloat without any certain principle to guide\nus.\xe2\x80\x9d Bloodgood v. Mohawk & Hudson R. Co., 18 Wend. 9, 60-61 (NY 1837) (opinion of Tracy, Sen.).\nOnce one permits takings for public purposes in addition to public uses, no coherent principle limits\nwhat could constitute a valid public use\xe2\x80\x93at least, none beyond JUSTICE O\xe2\x80\x99CONNOR\xe2\x80\x99s (entirely\nproper) appeal to the text of the Constitution itself. See ante, at 494, 501-505 (dissenting opinion). I\nshare the Court\xe2\x80\x99s skepticism about a public use standard that requires courts to second-guess the\npolicy wisdom of public works projects. Ante, at 486-489. The \xe2\x80\x9cpublic purpose\xe2\x80\x9d standard this Court\nhas adopted, however, demands the use of such judgment, for the Court concedes that the Public\nUse Clause would forbid a purely private taking. Ante, at 477-478. It is difficult to imagine how a\ncourt could find that a taking was purely private except by determining that the taking did not, in\nfact, rationally advance the public interest. Cf. ante, at 502-503 (O\xe2\x80\x99CONNOR, J., dissenting) (noting\n491\n\n\x0cthe complicated inquiry the Court\xe2\x80\x99s test requires). The Court is therefore wrong to criticize the\n\xe2\x80\x9cactual use\xe2\x80\x9d test as \xe2\x80\x9cdifficult to administer.\xe2\x80\x9d Ante, at 479. It is far easier to analyze whether the\ngovernment owns or the public has a legal right to use the taken property than to ask whether the\ntaking has a \xe2\x80\x9cpurely private purpose\xe2\x80\x9d\xe2\x80\x93unless the Court means to eliminate public use scrutiny of\ntakings entirely. Ante, at 477-478, 488-489. Obliterating a provision of the Constitution, of course,\nguarantees that it will not be misapplied.\nFor all these reasons, I would revisit our Public Use Clause cases and consider returning to\nthe original meaning of the Public Use Clause: that the government may take property only if it\nactually uses or gives the public a legal right to use the property.\n\nIV\n\nThe consequences of today\xe2\x80\x99s decision are not difficult to predict, and promise to be harmful.\nSo-called \xe2\x80\x9curban renewal\xe2\x80\x9d programs provide some compensation for the properties they take, but\nno compensation is possible for the subjective value of these lands to the individuals displaced and\nthe indignity inflicted by uprooting them from their homes. Allowing the government to take\nproperty solely for public purposes is bad enough, but extending the concept of public purpose to\nencompass any economically beneficial goal guarantees that these losses will fall disproportionately\non poor communities. Those communities are not only systematically less likely to put their lands to\nthe highest and best social use, but are also the least politically powerful. If ever there were\njustification for intrusive judicial review of constitutional provisions that protect \xe2\x80\x9cdiscrete and\ninsular minorities,\xe2\x80\x9d United States v. Carolene Products Co., 304 U. S. 144, 152, n. 4 (1938), surely that\nprinciple would apply with great force to the powerless groups and individuals the Public Use Clause\nprotects. The deferential standard this Court has adopted for the Public Use Clause is therefore\ndeeply perverse. It encourages \xe2\x80\x9cthose citizens with disproportionate influence and power in the\npolitical process, including large corporations and development firms,\xe2\x80\x9d to victimize the weak. Ante,\nat 505 (O\xe2\x80\x99CONNOR, J., dissenting).\nThose incentives have made the legacy of this Court\xe2\x80\x99s \xe2\x80\x9cpublic purpose\xe2\x80\x9d test an unhappy one.\nIn the 1950\xe2\x80\x99s, no doubt emboldened in part by the expansive understanding of \xe2\x80\x9cpublic use\xe2\x80\x9d this\nCourt adopted in Berman, cities \xe2\x80\x9crushed to draw plans\xe2\x80\x9d for downtown development. B. Frieden & L.\nSagalyn, Downtown, Inc. How America Rebuilds Cities 17 (1989). \xe2\x80\x9cOf all the families displaced by\nurban renewal from 1949 through 1963, 63 percent of those whose race was known were nonwhite,\nand of these families, 56 percent of nonwhites and 38 percent of whites had incomes low enough to\nqualify for public housing, which, however, was seldom available to them.\xe2\x80\x9d Id., at 28. Public works\nprojects in the 1950\xe2\x80\x99s and 1960\xe2\x80\x99s destroyed predominantly minority communities in St. Paul,\nMinnesota, and Baltimore, Maryland. Id., at 28-29. In 1981, urban planners in Detroit, Michigan,\nuprooted the largely \xe2\x80\x9clower-income and elderly\xe2\x80\x9d Poletown neighborhood for the benefit of the\nGeneral Motors Corporation. J. Wylie, Poletown: Community Betrayed 58 (1989). Urban renewal\nprojects have long been associated with the displacement of blacks; \xe2\x80\x9c[i]n cities across the country,\nurban renewal came to be known as \xe2\x80\x98Negro removal.\xe2\x80\x99\xe2\x80\x9d Pritchett, The \xe2\x80\x9cPublic Menace\xe2\x80\x9d of Blight:\nUrban Renewal and the Private Uses of Eminent Domain, 21 Yale L. & Pol\xe2\x80\x99y Rev. 1, 47 (2003).\nOver 97 percent of the individuals forcibly removed from their homes by the \xe2\x80\x9cslum-clearance\xe2\x80\x9d\nproject upheld by this Court in Berman were black. 348 U. S., at 30. Regrettably, the predictable\n492\n\n\x0cconsequence of the Court\xe2\x80\x99s decision will be to exacerbate these effects.\n*\nThe Court relies almost exclusively on this Court\xe2\x80\x99s prior cases to derive today\xe2\x80\x99s far-reaching,\nand dangerous, result. See ante, at 479-483. But the principles this Court should employ to dispose of\nthis case are found in the Public Use Clause itself, not in Justice Peckham\xe2\x80\x99s high opinion of\nreclamation laws, see supra, at 515-516. When faced with a clash of constitutional principle and a line\nof unreasoned cases wholly divorced from the text, history, and structure of our founding\ndocument, we should not hesitate to resolve the tension in favor of the Constitution\xe2\x80\x99s original\nmeaning. For the reasons I have given, and for the reasons given in JUSTICE O\xe2\x80\x99CONNOR\xe2\x80\x99s\ndissent, the conflict of principle raised by this boundless use of the eminent domain power should\nbe resolved in petitioners\xe2\x80\x99 favor. I would reverse the judgment of the Connecticut Supreme Court.\nBriefs of amici curiae urging reversal were filed for the American Farm Bureau Federation et\nal. by Michael M. Berger, Nancy McDonough, and Gideon Kanner; for America\xe2\x80\x99s Future, Inc., et al. by\nAndrew L. Schlafly; for the Becket Fund for Religious Liberty by Anthony R. Picarello, Jr., and Roman P.\nStorzer; for the Better Government Association et al. by Barry Levenstam and Jeremy M. Taylor; for the\nCascade Policy Institute et al. by James L. Huffman; for the Cato Institute by Richard A. Epstein,\nTimothy Lynch, and Robert A. Levy; for the Claremont Institute Center for Constitutional\nJurisprudence by John C. Eastman; for Develop Don\xe2\x80\x99t Destroy (Brooklyn), Inc., et al. by Norman Siegel\nand Steven Hyman; for the Goldwater Institute et al. by Mark Brnovich; for King Ranch, Inc., by Michael\nAustin Hatchell and William Scott Hastings; for the Mountain States Legal Foundation et al. by William\nPerry Pendley and Joseph F. Becker; for the National Association for the Advancement of Colored\nPeople et al. by Jason M. Freier, Dennis Courtland Hayes, Michael Schuster, and Douglas E. Gershuny; for the\nNational Association of Home Builders et al. by Mary Lynn Pickel, John J. Delaney, Laurene K. Janik, and\nRalph W. Holmen; for New London Landmarks, Inc., et al. by Michael E. Malamut, Andrew R. Grainger,\nand Martin J. Newhouse; for the New London R. R. Co., Inc., by Michael D. O\xe2\x80\x99Connell; for the Property\nRights Foundation of America, Inc., by H. Christopher Bartolomucci and Jonathan L. Abram; for the\nReason Foundation by Mark A. Perry and Thomas H. Dupree, Jr.; for the Rutherford Institute by John\nW. Whitehead; for the Tidewater Libertarian Party by Stephen Merrill; for David L. Callies et al. by Mr.\nCallies, pro se; for Mary Bugryn Dudko et al. by James S. Burling; for Jane Jacobs by Robert S. Getman;\nfor Laura B. Kohr et al. by Joel R. Burcat and John C. Snyder; for John Norquist by Frank Schnidman;\nand for Robert Nigel Richards et al. by Kenneth R. Kupchak and Robert H. Thomas. Briefs of amici curiae\nurging affirmance were filed for the State of Connecticut by Richard Blumenthal, Attorney General,\nand Robert D. Snook, Assistant Attorney General; for the State of Vermont et al. by William H. Sorrell,\nAttorney General of Vermont, and Bridget C. Asay and S. Mark Sciarrotta, Assistant Attorneys\nGeneral, and by the Attorneys General for their respective jurisdictions as follows: M. Jane Brady of\nDelaware, Robert J. Spagnoletti of the District of Columbia, Mark J. Bennett of Hawaii, Lisa Madigan of\nIllinois, J. Joseph Curran, Jr., of Maryland, Mike McGrath of Montana, Eliot Spitzer of New York, W. A.\nDrew Edmondson of Oklahoma, Hardy Myers of Oregon, Patrick C. Lynch of Rhode Island, Lawrence E.\nLong of South Dakota, and Paul G. Summers of Tennessee; for the American Planning Association et\nal. by Thomas W. Merrill and John D. Echeverria; for Brooklyn United for Innovative Local\nDevelopment (BUILD) et al. by David T. Goldberg and Sean H. Donahue; for the California\nRedevelopment Association by Iris P. Yang; for the City of New York by Michael A. Cardozo, Leonard\nJ. Koerner, Edward F. X. Hart, and Jane L. Gordon; for the Connecticut Conference of Municipalities et\nal. by Allan B. Taylor and Michael P. Shea; for the K. Hovnanian Companies, LLC, by Paul H.\n493\n\n\x0cSchneider; for the Massachusetts Chapter of the National Association of Industrial and Office\nProperties by R. Jeffrey Lyman and Richard A. Oetheimer; for the Mayor and City Council of Baltimore\nby Ralph S. Tyler III; for the National League of Cities et al. by Richard Ruda, Timothy J. Dowling, and J.\nPeter Byrne; for the New York State Urban Development Corp. d/b/a Empire State Development\nCorp. by Joseph M. Ryan, John R. Casolaro, Susan B. Kalib, and Jack Kaplan; and for Robert H. Freilich et\nal. by Mr. Freilich, pro se. \xe2\x86\xa9\n\xe2\x80\x9c[N]or shall private property be taken for public use, without just compensation.\xe2\x80\x9d U. S.\nConst., Amdt. 5. That Clause is made applicable to the States by the Fourteenth Amendment. See\nChicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226 (1897). \xe2\x86\xa9\nVarious state agencies studied the project\xe2\x80\x99s economic, environmental, and social\nramifications. As part of this process, a team of consultants evaluated six alternative development\nproposals for the area, which varied in extensiveness and emphasis. The Office of Policy and\nManagement, one of the primary state agencies undertaking the review, made findings that the\nproject was consistent with relevant state and municipal development policies. See App. 89-95. \xe2\x86\xa9\nIn the remainder of the opinion we will differentiate between the City and the NLDC only\nwhere necessary. \xe2\x86\xa9\nWhile this litigation was pending before the Superior Court, the NLDC announced that it\nwould lease some of the parcels to private developers in exchange for their agreement to develop the\nland according to the terms of the development plan. Specifically, the NLDC was negotiating a 99year ground lease with Corcoran Jennison, a developer selected from a group of applicants. The\nnegotiations contemplated a nominal rent of $1 per year, but no agreement had yet been signed. See\n268 Conn. 1, 9, 61, 843 A. 2d 500, 509-510, 540 (2004). \xe2\x86\xa9\nSee also Calder v. Bull, 3 Dall. 386, 388 (1798) (\xe2\x80\x9cAn ACT of the Legislature (for I cannot call\nit a law) contrary to the great first principles of the social compact, cannot be considered a rightful\nexercise of legislative authority\xe2\x80\xa6 . A few instances will suffice to explain what I mean\xe2\x80\xa6 . [A] law\nthat takes property from A. and gives it to B: It is against all reason and justice, for a people to\nentrust a Legislature with SUCH powers; and, therefore, it cannot be presumed that they have done\nit. The genius, the nature, and the spirit, of our State Governments, amount to a prohibition of such\nacts of legislation; and the general principles of law and reason forbid them\xe2\x80\x9d (emphasis deleted)). \xe2\x86\xa9\nSee 268 Conn., at 159, 843 A. 2d, at 595 (Zarella, J., concurring in part and dissenting in\npart) (\xe2\x80\x9cThe record clearly demonstrates that the development plan was not intended to serve the\ninterests of Pfizer, Inc., or any other private entity, but rather, to revitalize the local economy by\ncreating temporary and permanent jobs, generating a significant increase in tax revenue, encouraging\nspin-off economic activities and maximizing public access to the waterfront\xe2\x80\x9d). And while the City\nintends to transfer certain of the parcels to a private developer in a long-term lease\xe2\x80\x93which\ndeveloper, in turn, is expected to lease the office space and so forth to other private tenants\xe2\x80\x93the\nidentities of those private parties were not known when the plan was adopted. It is, of course,\ndifficult to accuse the government of having taken A\xe2\x80\x99s property to benefit the private interests of B\nwhen the identity of B was unknown. \xe2\x86\xa9\nSee, e. g., Dayton Gold & Silver Mining Co. v. Seawell, 11 Nev. 394, 410, 1876 WL 4573, *11\n(1876) (\xe2\x80\x9cIf public occupation and enjoyment of the object for which land is to be condemned\nfurnishes the only and true test for the right of eminent domain, then the legislature would certainly\nhave the constitutional authority to condemn the lands of any private citizen for the purpose of\nbuilding hotels and theaters. Why not? A hotel is used by the public as much as a railroad. The\npublic have the same right, upon payment of a fixed compensation, to seek rest and refreshment at a\npublic inn as they have to travel upon a railroad\xe2\x80\x9d). \xe2\x86\xa9\nFrom upholding the Mill Acts (which authorized manufacturers dependent on power494\n\n\x0cproducing dams to flood upstream lands in exchange for just compensation), to approving takings\nnecessary for the economic development of the West through mining and irrigation, many state\ncourts either circumvented the \xe2\x80\x9cuse by the public\xe2\x80\x9d test when necessary or abandoned it completely.\nSee Nichols, The Meaning of Public Use in the Law of Eminent Domain, 20 B. U. L. Rev. 615, 619624 (1940) (tracing this development and collecting cases). For example, in rejecting the \xe2\x80\x9cuse by the\npublic\xe2\x80\x9d test as overly restrictive, the Nevada Supreme Court stressed that \xe2\x80\x9c[m]ining is the greatest of\nthe industrial pursuits in this state. All other interests are subservient to it. Our mountains are almost\nbarren of timber, and our valleys could never be made profitable for agricultural purposes except for\nthe fact of a home market having been created by the mining developments in different sections of\nthe state. The mining and milling interests give employment to many men, and the benefits derived\nfrom this business are distributed as much, and sometimes more, among the laboring classes than\nwith the owners of the mines and mills\xe2\x80\xa6 . The present prosperity of the state is entirely due to the\nmining developments already made, and the entire people of the state are directly interested in\nhaving the future developments unobstructed by the obstinate action of any individual or\nindividuals.\xe2\x80\x9d Dayton Gold & Silver Mining Co., 11 Nev., at 409-410, 1876 WL, at *11. \xe2\x86\xa9\nSee also Clark v. Nash, 198 U. S. 361 (1905) (upholding a statute that authorized the owner\nof arid land to widen a ditch on his neighbor\xe2\x80\x99s property so as to permit a nearby stream to irrigate\nhis land). \xe2\x86\xa9\nSee, e. g., Mt. Vernon-Woodberry Cotton Duck Co. v. Alabama Interstate Power Co., 240 U. S. 30, 32\n(1916)(\xe2\x80\x9cThe inadequacy of use by the general public as a universal test is established\xe2\x80\x9d); Ruckelshaus v.\nMonsanto Co., 467 U. S. 986, 1014-1015 (1984) (\xe2\x80\x9cThis Court, however, has rejected the notion that a\nuse is a public use only if the property taken is put to use for the general public\xe2\x80\x9d). \xe2\x86\xa9\nSee also Clark, 198 U. S., at 367-368; Strickley v. Highland Boy Gold Mining Co., 200 U. S. 527,\n531 (1906) (\xe2\x80\x9cIn the opinion of the legislature and the Supreme Court of Utah the public welfare of\nthat State demands that aerial lines between the mines upon its mountain sides and railways in the\nvalleys below should not be made impossible by the refusal of a private owner to sell the right to\ncross his land. The Constitution of the United States does not require us to say that they are\nwrong\xe2\x80\x9d); O\xe2\x80\x99Neill v. Leamer, 239 U. S. 244, 253 (1915) (\xe2\x80\x9cStates may take account of their special\nexigencies, and when the extent of their arid or wet lands is such that a plan for irrigation or\nreclamation according to districts may fairly be regarded as one which promotes the public interest,\nthere is nothing in the Federal Constitution which denies to them the right to formulate this policy\nor to exercise the power of eminent domain in carrying it into effect. With the local situation the\nstate court is peculiarly familiar and its judgment is entitled to the highest respect\xe2\x80\x9d). \xe2\x86\xa9\nCf. Village of Euclid v. Ambler Realty Co., 272 U. S. 365 (1926). \xe2\x86\xa9\nIt is a misreading of Berman to suggest that the only public use upheld in that case was the\ninitial removal of blight. See Reply Brief for Petitioners 8. The public use described in Berman\nextended beyond that to encompass the purpose of developing that area to create conditions that\nwould prevent a reversion to blight in the future. See 348 U. S., at 34-35 (\xe2\x80\x9cIt was not enough, [the\nexperts] believed, to remove existing buildings that were insanitary or unsightly. It was important to\nredesign the whole area so as to eliminate the conditions that cause slums\xe2\x80\xa6 . The entire area needed\nredesigning so that a balanced, integrated plan could be developed for the region, including not only\nnew homes, but also schools, churches, parks, streets, and shopping centers. In this way it was\nhoped that the cycle of decay of the area could be controlled and the birth of future slums\nprevented\xe2\x80\x9d). Had the public use in Berman been defined more narrowly, it would have been difficult\nto justify the taking of the plaintiff\xe2\x80\x99s nonblighted department store. \xe2\x86\xa9\nAny number of cases illustrate that the achievement of a public good often coincides with\nthe immediate benefiting of private parties. See, e. g., National Railroad Passenger Corporation v. Boston &\n495\n\n\x0cMaine Corp., 503 U. S. 407, 422 (1992) (public purpose of \xe2\x80\x9cfacilitating Amtrak\xe2\x80\x99s rail service\xe2\x80\x9d served\nby taking rail track from one private company and transferring it to another private company); Brown\nv. Legal Foundation of Wash., 538 U. S. 216 (2003)(provision of legal services to the poor is a valid\npublic purpose). It is worth noting that in Hawaii Housing Authority v. Midkiff, 467 U. S. 229 (1984),\nMonsanto, and Boston & Maine Corp., the property in question retained the same use even after the\nchange of ownership. \xe2\x86\xa9\nNotably, as in the instant case, the private developers in Berman were required by contract to\nuse the property to carry out the redevelopment plan. See 348 U. S., at 30. \xe2\x86\xa9\nNor do our cases support JUSTICE O\xe2\x80\x99CONNOR\xe2\x80\x99s novel theory that the government may\nonly take property and transfer it to private parties when the initial taking eliminates some \xe2\x80\x9charmful\nproperty use.\xe2\x80\x9d Post, at 501 (dissenting opinion). There was nothing \xe2\x80\x9charmful\xe2\x80\x9d about the nonblighted\ndepartment store at issue in Berman, 348 U. S. 26; see also n. 13, supra; nothing \xe2\x80\x9charmful\xe2\x80\x9d about the\nlands at issue in the mining and agriculture cases, see, e. g., Strickley, 200 U. S. 527; see also nn. 9, 11,\nsupra; and certainly nothing \xe2\x80\x9charmful\xe2\x80\x9d about the trade secrets owned by the pesticide manufacturers\nin Monsanto, 467 U. S. 986. In each case, the public purpose we upheld depended on a private party\xe2\x80\x99s\nfuture use of the concededly nonharmful property that was taken. By focusing on a property\xe2\x80\x99s future\nuse, as opposed to its past use, our cases are faithful to the text of the Takings Clause. See U. S.\nConst., Amdt. 5 (\xe2\x80\x9c[N]or shall private property be taken for public use, without just compensation\xe2\x80\x9d).\nJUSTICE O\xe2\x80\x99CONNOR\xe2\x80\x99s intimation that a \xe2\x80\x9cpublic purpose\xe2\x80\x9d may not be achieved by the action of\nprivate parties, see post, at 500-501, confuses the purpose of a taking with its mechanics, a mistake we\nwarned of in Midkiff, 467 U. S., at 244. See also Berman, 348 U. S., at 33-34 (\xe2\x80\x9cThe public end may be\nas well or better served through an agency of private enterprise than through a department of\ngovernment\xe2\x80\x9d). \xe2\x86\xa9\nCourts have viewed such aberrations with a skeptical eye. See, e. g., 99 Cents Only Stores v.\nLancaster Redevelopment Agency, 237 F. Supp. 2d 1123 (CD Cal. 2001); cf. Cincinnati v. Vester, 281 U. S.\n439, 448 (1930) (taking invalid under state eminent domain statute for lack of a reasoned\nexplanation). These types of takings may also implicate other constitutional guarantees. See Village of\nWillowbrook v. Olech, 528 U. S. 562 (2000) (per curiam) \xe2\x86\xa9\nCf. Panhandle Oil Co. v. Mississippi ex rel. Knox, 277 U. S. 218, 223 (1928) (Holmes, J.,\ndissenting) (\xe2\x80\x9cThe power to tax is not the power to destroy while this Court sits\xe2\x80\x9d). \xe2\x86\xa9\nA parade of horribles is especially unpersuasive in this context, since the Takings Clause\nlargely \xe2\x80\x9coperates as a conditional limitation, permitting the government to do what it wants so long\nas it pays the charge.\xe2\x80\x9d Eastern Enterprises v. Apfel, 524 U. S. 498, 545 (1998) (Kennedy, J., concurring\nin judgment and dissenting in part). Speaking of the takings power, Justice Iredell observed that \xe2\x80\x9c[i]t\nis not sufficient to urge, that the power may be abused, for, such is the nature of all power,\xe2\x80\x93such is\nthe tendency of every human institution: and, it might as fairly be said, that the power of taxation,\nwhich is only circumscribed by the discretion of the Body, in which it is vested, ought not to be\ngranted, because the Legislature, disregarding its true objects, might, for visionary and useless\nprojects, impose a tax to the amount of nineteen shillings in the pound. We must be content to limit\npower where we can, and where we cannot, consistently with its use, we must be content to repose a\nsalutory confidence.\xe2\x80\x9d Calder, 3 Dall., at 400 (opinion concurring in result). \xe2\x86\xa9\nSee also Boston & Maine Corp., 503 U. S., at 422-423(\xe2\x80\x9c[W]e need not make a specific factual\ndetermination whether the condemnation will accomplish its objectives\xe2\x80\x9d); Monsanto, 467 U. S., at\n1015, n. 18 (\xe2\x80\x9cMonsanto argues that EPA and, by implication, Congress, misapprehended the true\n\xe2\x80\x98barriers to entry\xe2\x80\x99 in the pesticide industry and that the challenged provisions of the law create, rather\nthan reduce, barriers to entry\xe2\x80\xa6 . Such economic arguments are better directed to Congress. The\nproper inquiry before this Court is not whether the provisions in fact will accomplish their stated\n496\n\n\x0cobjectives. Our review is limited to determining that the purpose is legitimate and that Congress\nrationally could have believed that the provisions would promote that objective\xe2\x80\x9d). \xe2\x86\xa9\nThe amici raise questions about the fairness of the measure of just compensation. See, e. g.,\nBrief for American Planning Association et al. as Amici Curiae 26-30. While important, these\nquestions are not before us in this litigation. \xe2\x86\xa9\nSee, e. g., County of Wayne v. Hathcock, 471 Mich. 445, 684 N. W. 2d 765 (2004). \xe2\x86\xa9\nUnder California law, for instance, a city may only take land for economic development\npurposes in blighted areas. Cal. Health & Safety Code Ann. \xc2\xa7\xc2\xa733030-33037 (West 1999). See, e. g.,\nRedevelopment Agency of Chula Vista v. Rados Bros., 95 Cal. App. 4th 309, 115 Cal. Rptr. 2d 234 (2002).\n\xe2\x86\xa9\nFor example, some argue that the need for eminent domain has been greatly exaggerated\nbecause private developers can use numerous techniques, including secret negotiations or\nprecommitment strategies, to overcome holdout problems and assemble lands for genuinely\nprofitable projects. See Brief for Jane Jacobs as Amicus Curiae 13-15; see also Brief for John Norquist\nas Amicus Curiae. Others argue to the contrary, urging that the need for eminent domain is especially\ngreat with regard to older, small cities like New London, where centuries of development have\ncreated an extreme overdivision of land and thus a real market impediment to land assembly. See\nBrief for Connecticut Conference of Municipalities et al. as Amici Curiae 13, 21; see also Brief for\nNational League of Cities et al. as Amici Curiae. \xe2\x86\xa9\nSome state constitutions at the time of the founding lacked just compensation clauses and\ntook property even without providing compensation. See Lucas v. South Carolina Coastal Council, 505\nU. S. 1003, 1056-1057 (1992) (Blackmun, J., dissenting). The Framers of the Fifth Amendment\napparently disagreed, for they expressly prohibited uncompensated takings, and the Fifth\nAmendment was not incorporated against the States until much later. See id., at 1028, n. 15. \xe2\x86\xa9\nCompare ante, at 479, and n. 8 (majority opinion) (noting that some state courts upheld the\nvalidity of applying the Mill Acts to private purposes and arguing that the \xe2\x80\x9c\xe2\x80\x98use by the public\xe2\x80\x99 test\xe2\x80\x9d\n\xe2\x80\x9ceroded over time\xe2\x80\x9d), with, e. g., Ryerson v. Brown, 35 Mich. 333, 338-339 (1877) (holding it \xe2\x80\x9cessential\xe2\x80\x9d\nto the constitutionality of a Mill Act \xe2\x80\x9cthat the statute should require the use to be public in fact; in\nother words, that it should contain provisions entitling the public to accommodations\xe2\x80\x9d); Gaylord v.\nSanitary Dist. of Chicago, 204 Ill. 576, 581-584, 68 N. E. 522, 524 (1903) (same); Tyler v. Beacher, 44 Vt.\n648, 652-656 (1871) (same); Sadler v. Langham, 34 Ala. 311, 332-334 (1859) (striking down taking for\npurely private road and grist mill); Varner v. Martin, 21 W. Va. 534, 546-548, 556-557, 566-567 (1883)\n(grist mill and private road had to be open to public for them to constitute public use); Harding v.\nGoodlett, 3 Yer. 41, 53 (Tenn. 1832); Jacobs v. Clearview Water Supply Co., 220 Pa. 388, 393-395, 69 A.\n870, 872 (1908) (endorsing actual public use standard); Minnesota Canal & Power Co. v. Koochiching Co.,\n97 Minn. 429, 449-451, 107 N. W. 405, 413 (1906) (same); Chesapeake Stone Co. v. Moreland, 126 Ky.\n656, 663-667, 104 S. W. 762, 765 (Ct. App. 1907) (same); Note, Public Use in Eminent Domain, 21\nN. Y. U. L. Q. Rev. 285, 286, and n. 11 (1946) (calling the actual public use standard the \xe2\x80\x9cmajority\nview\xe2\x80\x9d and citing other cases). \xe2\x86\xa9\nSome States also promoted the alienability of property by abolishing the feudal \xe2\x80\x9cquit rent\xe2\x80\x9d\nsystem, i. e., long-term leases under which the proprietor reserved to himself the right to perpetual\npayment of rents from his tenant. See Vance, The Quest for Tenure in the United States, 33 Yale L.\nJ. 248, 256-257, 260-263 (1923). In Hawaii Housing Authority v. Midkiff, 467 U. S. 229 (1984), the\nCourt cited those state policies favoring the alienability of land as evidence that the government\xe2\x80\x99s\neminent domain power was similarly expansive, see id., at 241-242, and n. 5. But they were uses of\nthe States\xe2\x80\x99 regulatory power, not the takings power, and therefore were irrelevant to the issue in\nMidkiff. This mismatch underscores the error of conflating a State\xe2\x80\x99s regulatory power with its takings\n497\n\n\x0cpower. \xe2\x86\xa9\n\n498\n\n\x0c7.4.2. Regulatory Takings\n7.4.2.1. Ad hoc Takings\nPennsylvania Coal Company v. Mahon,\n260 U.S. 393 (1922)\n\nMr. Justice Holmes delivered the opinion of the Court.\nThis is a bill in equity brought by the defendants in error to prevent the Pennsylvania Coal\nCompany from mining under their property in such way as to remove the supports and cause a\nsubsidence of the surface and of their house. The bill sets out a deed executed by the Coal Company\nin 1878, under which the plaintiffs claim. The deed conveys the surface, but in express terms\nreserves the right to remove all the coal under the same, and the grantee takes the premises with the\nrisk, and waives all claim for damages that may arise from mining out the coal. But the plaintiffs say\nthat whatever may have been the Coal Company\xe2\x80\x99s rights, they were taken away by an Act of\nPennsylvania, approved May 27, 1921, P.L. 1198, commonly known there as the Kohler Act. The\nCourt of Common Pleas found that if not restrained the defendant would cause the damage to\nprevent which the bill was brought, but denied an injunction, holding that the statute if applied to\nthis case would be unconstitutional. On appeal the Supreme Court of the State agreed that the\ndefendant had contract and property rights protected by the Constitution of the United States, but\nheld that the statute was a legitimate exercise of the police power and directed a decree for the\nplaintiffs. A writ of error was granted bringing the case to this Court.\nThe statute forbids the mining of anthracite coal in such way as to cause the subsidence of,\namong other things, any structure used as a human habitation, with certain exceptions, including\namong them land where the surface is owned by the owner of the underlying coal and is distant\nmore than one hundred and fifty feet from any improved property belonging to any other person.\nAs applied to this case the statute is admitted to destroy previously existing rights of property and\ncontract. The question is whether the police power can be stretched so far.\nGovernment hardly could go on if to some extent values incident to property could not be\ndiminished without paying for every such change in the general law. As long recognized, some\nvalues are enjoyed under an implied limitation and must yield to the police power. But obviously the\nimplied limitation must have its limits, or the contract and due process clauses are gone. One fact\nfor consideration in determining such limits is the extent of the diminution. When it reaches a\ncertain magnitude, in most if not in all cases there must be an exercise of eminent domain and\ncompensation to sustain the act. So the question depends upon the particular facts. The greatest\nweight is given to the judgment of the legislature, but it always is open to interested parties to\ncontend that the legislature has gone beyond its constitutional power.\nThis is the case of a single private house. No doubt there is a public interest even in this, as\nthere is in every purchase and sale and in all that happens within the commonwealth. Some existing\nrights may be modified even in such a case. Rideout v. Knox, 148 Mass. 368. But usually in ordinary\n499\n\n\x0cprivate affairs the public interest does not warrant much of this kind of interference. A source of\ndamage to such a house is not a public nuisance even if similar damage is inflicted on others in\ndifferent places. The damage is not common or public. Wesson v. Washburn Iron Co., 13 Allen, 95,\n103. The extent of the public interest is shown by the statute to be limited, since the statute\nordinarily does not apply to land when the surface is owned by the owner of the coal. Furthermore,\nit is not justified as a protection of personal safety. That could be provided for by notice. Indeed the\nvery foundation of this bill is that the defendant gave timely notice of its intent to mine under the\nhouse. On the other hand the extent of the taking is great. It purports to abolish what is recognized\nin Pennsylvania as an estate in land \xe2\x80\x93 a very valuable estate \xe2\x80\x93 and what is declared by the Court\nbelow to be a contract hitherto binding the plaintiffs. If we were called upon to deal with the\nplaintiffs\xe2\x80\x99 position alone, we should think it clear that the statute does not disclose a public interest\nsufficient to warrant so extensive a destruction of the defendant\xe2\x80\x99s constitutionally protected rights.\nBut the case has been treated as one in which the general validity of the act should be\ndiscussed. The Attorney General of the State, the City of Scranton, and the representatives of other\nextensive interests were allowed to take part in the argument below and have submitted their\ncontentions here. It seems, therefore, to be our duty to go farther in the statement of our opinion, in\norder that it may be known at once, and that further suits should not be brought in vain.\nIt is our opinion that the act cannot be sustained as an exercise of the police power, so far as\nit affects the mining of coal under streets or cities in places where the right to mine such coal has\nbeen reserved. As said in a Pennsylvania case, \xe2\x80\x9cFor practical purposes, the right to coal consists in\nthe right to mine it.\xe2\x80\x9d Commonwealth v. Clearview Coal Co., 256 Pa. St. 328, 331. What makes the right to\nmine coal valuable is that it can be exercised with profit. To make it commercially impracticable to\nmine certain coal has very nearly the same effect for constitutional purposes as appropriating or\ndestroying it. This we think that we are warranted in assuming that the statute does.\nIt is true that in Plymouth Coal Co. v. Pennsylvania, 232 U.S. 531, it was held competent for the\nlegislature to require a pillar of coal to be left along the line of adjoining property, that, with the\npillar on the other side of the line, would be a barrier sufficient for the safety of the employees of\neither mine in case the other should be abandoned and allowed to fill with water. But that was a\nrequirement for the safety of employees invited into the mine, and secured an average reciprocity of\nadvantage that has been recognized as a justification of various laws.\nThe rights of the public in a street purchased or laid out by eminent domain are those that it\nhas paid for. If in any case its representatives have been so short sighted as to acquire only surface\nrights without the right of support, we see no more authority for supplying the latter without\ncompensation than there was for taking the right of way in the first place and refusing to pay for it\nbecause the public wanted it very much. The protection of private property in the Fifth Amendment\npresupposes that it is wanted for public use, but provides that it shall not be taken for such use\nwithout compensation. A similar assumption is made in the decisions upon the Fourteenth\nAmendment. Hairston v. Danville & Western Ry. Co., 208 U.S. 598, 605. When this seemingly absolute\nprotection is found to be qualified by the police power, the natural tendency of human nature is to\nextend the qualification more and more until at last private property disappears. But that cannot be\naccomplished in this way under the Constitution of the United States.\nThe general rule at least is, that while property may be regulated to a certain extent, if\nregulation goes too far it will be recognized as a taking. It may be doubted how far exceptional cases,\nlike the blowing up of a house to stop a conflagration, go \xe2\x80\x93 and if they go beyond the general rule,\nwhether they do not stand as much upon tradition as upon principle. Bowditch v. Boston, 101 U.S. 16.\nIn general it is not plain that a man\xe2\x80\x99s misfortunes or necessities will justify his shifting the damages\nto his neighbor\xe2\x80\x99s shoulders. Spade v. Lynn & Boston R.R. Co., 172 Mass. 488, 489. We are in danger of\nforgetting that a strong public desire to improve the public condition is not enough to warrant\n500\n\n\x0cachieving the desire by a shorter cut than the constitutional way of paying for the change. As we\nalready have said, this is a question of degree \xe2\x80\x93 and therefore cannot be disposed of by general\npropositions. But we regard this as going beyond any of the cases decided by this Court. The late\ndecisions upon laws dealing with the congestion of Washington and New York, caused by the war,\ndealt with laws intended to meet a temporary emergency and providing for compensation\ndetermined to be reasonable by an impartial board. They went to the verge of the law but fell far\nshort of the present act. Block v. Hirsh, 256 U.S. 135. Marcus Brown Holding Co. v. Feldman, 256 U.S.\n170. Levy Leasing Co. v. Siegel, 258 U.S. 242.\nWe assume, of course, that the statute was passed upon the conviction that an exigency\nexisted that would warrant it, and we assume that an exigency exists that would warrant the exercise\nof eminent domain. But the question at bottom is upon whom the loss of the changes desired\nshould fall. So far as private persons or communities have seen fit to take the risk of acquiring only\nsurface rights, we cannot see that the fact that their risk has become a danger warrants the giving to\nthem greater rights than they bought.\nDecree reversed.\nMr Justice Brandeis, dissenting. (multiple citations omitted)\nThe Kohler Act prohibits, under certain conditions, the mining of anthracite coal within the\nlimits of a city in such a manner or to such an extent \xe2\x80\x9cas to cause the \xe2\x80\xa6 subsidence of any dwelling\nor other structure used as a human habitation, or any factory, store, or other industrial or mercantile\nestablishment in which human labor is employed.\xe2\x80\x9d Coal in place is land; and the right of the owner\nto use his land is not absolute. He may not so use it as to create a public nuisance; and uses, once\nharmless, may, owing to changed conditions, seriously threaten the public welfare. Whenever they\ndo, the legislature has power to prohibit such uses without paying compensation; and the power to\nprohibit extends alike to the manner, the character and the purpose of the use. Are we justified in\ndeclaring that the Legislature of Pennsylvania has, in restricting the right to mine anthracite,\nexercised this power so arbitrarily as to violate the Fourteenth Amendment?\nEvery restriction upon the use of property imposed in the exercise of the police power\ndeprives the owner of some right theretofore enjoyed, and is, in that sense, an abridgment by the\nState of rights in property without making compensation. But restriction imposed to protect the\npublic health, safety or morals from dangers threatened is not a taking. The restriction here in\nquestion is merely the prohibition of a noxious use. The property so restricted remains in the\npossession of its owner. The State does not appropriate it or make any use of it. The State merely\nprevents the owner from making a use which interferes with paramount rights of the public.\nWhenever the use prohibited ceases to be noxious \xe2\x80\x93 as it may because of further change in local or\nsocial conditions, \xe2\x80\x93 the restriction will have to be removed and the owner will again be free to enjoy\nhis property as heretofore.\nThe restriction upon the use of this property can not, of course, be lawfully imposed, unless\nits purpose is to protect the public. But the purpose of a restriction does not cease to be public,\nbecause incidentally some private persons may thereby receive gratuitously valuable special\nbenefits\xe2\x80\xa6 . . If by mining anthracite coal the owner would necessarily unloose poisonous gasses, I\nsuppose no one would doubt the power of the State to prevent the mining, without buying his coal\nfields. And why may not the State, likewise, without paying compensation, prohibit one from\ndigging so deep or excavating so near the surface, as to expose the community to like dangers? In\nthe latter case, as in the former, carrying on the business would be a public nuisance.\n501\n\n\x0cIt is said that one fact for consideration in determining whether the limits of the police\npower have been exceeded is the extent of the resulting diminution in value; and that here the\nrestriction destroys existing rights of property and contract. But values are relative. If we are to\nconsider the value of the coal kept in place by the restriction, we should compare it with the value of\nall other parts of the land. That is, with the value not of the coal alone, but with the value of the\nwhole property. The rights of an owner as against the public are not increased by dividing the\ninterests in his property into surface and subsoil. The sum of the rights in the parts can not be\ngreater than the rights in the whole. The estate of an owner in land is grandiloquently described as\nextending ab orco usque ad coelum. But I suppose no one would contend that by selling his interest\nabove one hundred feet from the surface he could prevent the State from limiting, by the police\npower, the height of structures in a city. And why should a sale of underground rights bar the State\xe2\x80\x99s\npower? For aught that appears the value of the coal kept in place by the restriction may be negligible\nas compared with the value of the whole property, or even as compared with that part of it which is\nrepresented by the coal remaining in place and which may be extracted despite the statute.\nOrdinarily a police regulation, general in operation, will not be held void as to a particular property,\nalthough proof is offered that owing to conditions peculiar to it the restriction could not reasonably\nbe applied\xe2\x80\xa6 . . Where the surface and the coal belong to the same person, self-interest would\nordinarily prevent mining to such an extent as to cause a subsidence. It was, doubtless, for this\nreason that the legislature, estimating the degrees of danger, deemed statutory restriction\nunnecessary for the public safety under such conditions.\n\xe2\x80\xa6.\nThe [majority\xe2\x80\x99s] conclusion seems to rest upon the assumption that in order to justify such\nexercise of the police power there must be \xe2\x80\x9can average reciprocity of advantage\xe2\x80\x9d as between the\nowner of the property restricted and the rest of the community; and that here such reciprocity is\nabsent. Reciprocity of advantage is an important consideration, and may even be an essential, where\nthe State\xe2\x80\x99s power is exercised for the purpose of conferring benefits upon the property of a\nneighborhood, as in drainage projects, or upon adjoining owners, as by party wall provisions. But\nwhere the police power is exercised, not to confer benefits upon property owners, but to protect the\npublic from detriment and danger, there is, in my opinion, no room for considering reciprocity of\nadvantage. There was no reciprocal advantage to the owner prohibited from using his oil tanks in\n248 U.S. 498; his brickyard, in 239 U.S. 394; his livery stable, in 237 U.S. 171; his billiard hall, in 225\nU.S. 623; his oleomargarine factory, in 127 U.S. 678; his brewery, in 123 U.S. 623; unless it be the\nadvantage of living and doing business in a civilized community. That reciprocal advantage is given\nby the act to the coal operators.\n\n502\n\n\x0cPenn Central Transportation Co. v. New York City,\n438 U.S. 104 (1978)\n\nDaniel M. Gribbon argued the cause for appellants. With him on the briefs were John R.\nBolton and Carl Helmetag, Jr.\nLeonard Koerner argued the cause for appellees. With him on the brief were Allen G.\nSchwartz, L. Kevin Sheridan, and Dorothy Miner.\nAssistant Attorney General Wald argued the cause for the United States as amicus curiae\nurging affirmance. On the brief were Solicitor General McCree, Assistant Attorney General\nMoorman, Peter R. Steenland, Jr., and Carl Strass.1\nBriefs of amici curiae were filed by Evelle J. Younger, Attorney General, E. Clement Shute, Jr.,\nand Robert H. Connett, Assistant Attorneys General, and Richard C. Jacobs, Deputy Attorney\nGeneral, for the State of California; and by Eugene J. Morris for the Real Estate Board of New\nYork, Inc.\nMr. Justice Brennan delivered the opinion of the Court.\nThe question presented is whether a city may, as part of a comprehensive program to\npreserve historic landmarks and historic districts, place restrictions on the development of individual\nhistoric landmarks\xe2\x80\x93in addition to those imposed by applicable zoning ordinances\xe2\x80\x93without effecting\na \xe2\x80\x9ctaking\xe2\x80\x9d requiring the payment of \xe2\x80\x9cjust compensation.\xe2\x80\x9d Specifically, we must decide whether the\napplication of New York City\xe2\x80\x99s Landmarks Preservation Law to the parcel of land occupied by\nGrand Central Terminal has \xe2\x80\x9ctaken\xe2\x80\x9d its owners\xe2\x80\x99 property in violation of the Fifth and Fourteenth\nAmendments.\n\nI\n\nA\n\nOver the past 50 years, all 50 States and over 500 municipalities have enacted laws to\nencourage or require the preservation of buildings and areas with historic or aesthetic importance.2\nThese nationwide legislative efforts have been precipitated by two concerns. The first is recognition\nthat, in recent years, large numbers of historic structures, landmarks, and areas have been destroyed3\nwithout adequate consideration of either the values represented therein or the possibility of\npreserving the destroyed properties for use in economically productive ways.4 The second is a widely\n503\n\n\x0cshared belief that structures with special historic, cultural, or architectural significance enhance the\nquality of life for all. Not only do these buildings and their workmanship represent the lessons of the\npast and embody precious features of our heritage, they serve as examples of quality for today.\n\xe2\x80\x9c[H]istoric conservation is but one aspect of the much larger problem, basically an environmental\none, of enhancing\xe2\x80\x93or perhaps developing for the first time\xe2\x80\x93the quality of life for people.\xe2\x80\x9d5\nNew York City, responding to similar concerns and acting pursuant to a New York State\nenabling Act,6 adopted its Landmarks Preservation Law in 1965. See N. Y. C. Admin. Code, ch. 8-A,\n\xc2\xa7 205-1.0 et seq. (1976). The city acted from the conviction that \xe2\x80\x9cthe standing of [New York City] as\na world-wide tourist center and world capital of business, culture and government\xe2\x80\x9d would be\nthreatened if legislation were not enacted to protect historic landmarks and neighborhoods from\nprecipitate decisions to destroy or fundamentally alter their character. \xc2\xa7 205-1.0 (a). The city believed\nthat comprehensive measures to safeguard desirable features of the existing urban fabric would\nbenefit its citizens in a variety of ways: e. g., fostering \xe2\x80\x9ccivic pride in the beauty and noble\naccomplishments of the past\xe2\x80\x9d; protecting and enhancing \xe2\x80\x9cthe city\xe2\x80\x99s attractions to tourists and\nvisitors\xe2\x80\x9d; \xe2\x80\x9csupport[ing] and stimul[ating] business and industry\xe2\x80\x9d; \xe2\x80\x9cstrengthen[ing] the economy of\nthe city\xe2\x80\x9d; and promoting \xe2\x80\x9cthe use of historic districts, landmarks, interior landmarks and scenic\nlandmarks for the education, pleasure and welfare of the people of the city.\xe2\x80\x9d \xc2\xa7 205-1.0 (b).\nThe New York City law is typical of many urban landmark laws in that its primary method\nof achieving its goals is not by acquisitions of historic properties,7 but rather by involving public\nentities in land-use decisions affecting these properties and providing services, standards, controls,\nand incentives that will encourage preservation by private owners and users.8 While the law does\nplace special restrictions on landmark properties as a necessary feature to the attainment of its larger\nobjectives, the major theme of the law is to ensure the owners of any such properties both a\n\xe2\x80\x9creasonable return\xe2\x80\x9d on their investments and maximum latitude to use their parcels for purposes not\ninconsistent with the preservation goals.\n\xe2\x80\xa6.\n\nB\n\nThis case involves the application of New York City\xe2\x80\x99s Landmarks Preservation Law to\nGrand Central Terminal (Terminal). The Terminal, which is owned by the Penn Central\nTransportation Co. and its affiliates (Penn Central), is one of New York City\xe2\x80\x99s most famous\nbuildings. Opened in 1913, it is regarded not only as providing an ingenious engineering solution to\nthe problems presented by urban railroad stations, but also as a magnificent example of the French\nbeaux-arts style.\n\xe2\x80\xa6.\nOn August 2, 1967, following a public hearing, the Commission designated the Terminal a\n\xe2\x80\x9clandmark\xe2\x80\x9d and designated the \xe2\x80\x9ccity tax block\xe2\x80\x9d it occupies a \xe2\x80\x9clandmark site.\xe2\x80\x9d9 The Board of\nEstimate confirmed this action on September 21, 1967. Although appellant Penn Central had\nopposed the designation before the Commission, it did not seek judicial review of the final\ndesignation decision.\nOn January 22, 1968, appellant Penn Central, to increase its income, entered into a\nrenewable 50-year lease and sublease agreement with appellant UGP Properties, Inc. (UGP), a\n504\n\n\x0cwholly owned subsidiary of Union General Properties, Ltd., a United Kingdom corporation. Under\nthe terms of the agreement, UGP was to construct a multistory office building above the Terminal.\nUGP promised to pay Penn Central $1 million annually during construction and at least $3 million\nannually thereafter. The rentals would be offset in part by a loss of some $700,000 to $1 million in\nnet rentals presently received from concessionaires displaced by the new building.\nAppellants UGP and Penn Central then applied to the Commission for permission to\nconstruct an office building atop the Terminal. Two separate plans, both designed by architect\nMarcel Breuer and both apparently satisfying the terms of the applicable zoning ordinance, were\nsubmitted to the Commission for approval. The first, Breuer I, provided for the construction of a\n55-story office building, to be cantilevered above the existing facade and to rest on the roof of the\nTerminal. The second, Breuer II Revised,10 called for tearing down a portion of the Terminal that\nincluded the 42d Street facade, stripping off some of the remaining features of the Terminal\xe2\x80\x99s\nfacade, and constructing a 53-story office building. The Commission denied a certificate of no\nexterior effect on September 20, 1968. Appellants then applied for a certificate of \xe2\x80\x9cappropriateness\xe2\x80\x9d\nas to both proposals. After four days of hearings at which over 80 witnesses testified, the\nCommission denied this application as to both proposals.\nThe Commission\xe2\x80\x99s reasons for rejecting certificates respecting Breuer II Revised are\nsummarized in the following statement: \xe2\x80\x9cTo protect a Landmark, one does not tear it down. To\nperpetuate its architectural features, one does not strip them off.\xe2\x80\x9d Record 2255. Breuer I, which\nwould have preserved the existing vertical facades of the present structure, received more\nsympathetic consideration\xe2\x80\xa6 . . In conclusion, the Commission stated:\n\xe2\x80\x9c[We have] no fixed rule against making additions to designated buildings\xe2\x80\x93it all depends on\nhow they are done \xe2\x80\xa6 . But to balance a 55-story office tower above a flamboyant Beaux-Arts facade\nseems nothing more than an aesthetic joke. Quite simply, the tower would overwhelm the Terminal\nby its sheer mass. The \xe2\x80\x98addition\xe2\x80\x99 would be four times as high as the existing structure and would\nreduce the Landmark itself to the status of a curiosity.\n\xe2\x80\x9cLandmarks cannot be divorced from their settings\xe2\x80\x93 particularly when the setting is a\ndramatic and integral part of the original concept. The Terminal, in its setting, is a great example of\nurban design. Such examples are not so plentiful in New York City that we can afford to lose any of\nthe few we have. And we must preserve them in a meaningful way\xe2\x80\x93with alterations and additions of\nsuch character, scale, materials and mass as will protect, enhance and perpetuate the original design\nrather than overwhelm it.\xe2\x80\x9d\nId., at 2251.11\n\xe2\x80\xa6.\nThe New York Court of Appeals \xe2\x80\xa6 summarily rejected any claim that the Landmarks Law\nhad \xe2\x80\x9ctaken\xe2\x80\x9d property without \xe2\x80\x9cjust compensation,\xe2\x80\x9d id., at 329, 366 N. E. 2d, at 1274, indicating that\nthere could be no \xe2\x80\x9ctaking\xe2\x80\x9d since the law had not transferred control of the property to the city, but\nonly restricted appellants\xe2\x80\x99 exploitation of it\xe2\x80\xa6 . .\n\nII\n\nThe issues presented by appellants are (1) whether the restrictions imposed by New York\nCity\xe2\x80\x99s law upon appellants\xe2\x80\x99 exploitation of the Terminal site effect a \xe2\x80\x9ctaking\xe2\x80\x9d of appellants\xe2\x80\x99 property\n505\n\n\x0cfor a public use within the meaning of the Fifth Amendment, which of course is made applicable to\nthe States through the Fourteenth Amendment, see Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226,\n239 (1897),\n\n506\n\n\x0c7.4.2.2. Per se Takings\nLucas v. South Carolina Coastal Council,\n505 U.S. 1003 (1992)\n\nA. Camden Lewis argued the cause for petitioner. With him on the briefs were Gerald M.\nFinkel and David J. Bederman.\nC. C. Harness III argued the cause for respondent. With him on the brief were T. Travis\nMedlock, Attorney General of South Carolina, Kenneth P. Woodington, Senior Assistant Attorney\nGeneral, and Richard J. Lazarus.1\nJustice Scalia, delivered the opinion of the Court.\nIn 1986, petitioner David H. Lucas paid $975,000 for two residential lots on the Isle of\nPalms in Charleston County, South Carolina, on which he intended to build singlefamily homes. In\n1988, however, the South Carolina Legislature enacted the Beachfront Management Act, S. C. Code\nAnn. \xc2\xa7 48-39-250 et seq. (Supp. 1990), which had the direct effect of barring petitioner from erecting\nany permanent habitable structures on his two parcels. See \xc2\xa7 48-39-290(A). A state trial court found\nthat this prohibition rendered Lucas\xe2\x80\x99s parcels \xe2\x80\x9cvalueless.\xe2\x80\x9d App. to Pet. for Cert. 37. This case\nrequires us to decide whether the Act\xe2\x80\x99s dramatic effect on the economic value of Lucas\xe2\x80\x99s lots\naccomplished a taking of private property under the Fifth and Fourteenth Amendments requiring\nthe payment of \xe2\x80\x9cjust compensation.\xe2\x80\x9d U. S. Const., Amdt. 5.\n\nI\n\nA\n\nSouth Carolina\xe2\x80\x99s expressed interest in intensively managing development activities in the socalled \xe2\x80\x9ccoastal zone\xe2\x80\x9d dates from 1977 when, in the aftermath of Congress\xe2\x80\x99s passage of the federal\nCoastal Zone Management Act of 1972, 86 Stat. 1280, as amended, 16 U. S. C. \xc2\xa7 1451 et seq., the\nlegislature enacted a Coastal Zone Management Act of its own. See S. C. Code Ann. \xc2\xa7 48-39-10 et\nseq. (1987). In its original form, the South Carolina Act required owners of coastal zone land that\nqualified as a \xe2\x80\x9ccritical area\xe2\x80\x9d (defined in the legislation to include beaches and immediately adjacent\nsand dunes, \xc2\xa7 48-39-10(J)) to obtain a permit from the newly created South Carolina Coastal Council\n(Council) (respondent here) prior to committing the land to a \xe2\x80\x9cuse other than the use the critical\narea was devoted to on [September 28, 1977].\xe2\x80\x9d \xc2\xa7 48-39-130(A).\nIn the late 1970\xe2\x80\x99s, Lucas and others began extensive residential development of the Isle of\n507\n\n\x0cPalms, a barrier island situated eastward of the city of Charleston. Toward the close of the\ndevelopment cycle for one residential subdivision known as \xe2\x80\x9cBeachwood East,\xe2\x80\x9d Lucas in 1986\npurchased the two lots at issue in this litigation for his own account. No portion of the lots, which\nwere located approximately 300 feet from the beach, qualified as a \xe2\x80\x9ccritical area\xe2\x80\x9d under the 1977\nAct; accordingly, at the time Lucas acquired these parcels, he was not legally obliged to obtain a\npermit from the Council in advance of any development activity. His intention with respect to the\nlots was to do what the owners of the immediately adjacent parcels had already done: erect\nsinglefamily residences. He commissioned architectural drawings for this purpose.\nThe Beachfront Management Act brought Lucas\xe2\x80\x99s plans to an abrupt end. Under that 1988\nlegislation, the Council was directed to establish a \xe2\x80\x9cbaseline\xe2\x80\x9d connecting the landwardmost \xe2\x80\x9cpoint[s]\nof erosion \xe2\x80\xa6 during the past forty years\xe2\x80\x9d in the region of the Isle of Palms that includes Lucas\xe2\x80\x99s\nlots. S. C. Code Ann. \xc2\xa7 48-39-280(A)(2) (Supp. 1988).2 In action not challenged here, the Council\nfixed this baseline landward of Lucas\xe2\x80\x99s parcels. That was significant, for under the Act construction\nof occupable improvements3 was flatly prohibited seaward of a line drawn 20 feet landward of, and\nparallel to, the baseline. \xc2\xa7 48-39-290(A). The Act provided no exceptions.\n\nB\n\nLucas promptly filed suit in the South Carolina Court of Common Pleas, contending that the\nBeachfront Management Act\xe2\x80\x99s construction bar effected a taking of his property without just\ncompensation. Lucas did not take issue with the validity of the Act as a lawful exercise of South\nCarolina\xe2\x80\x99s police power, but contended that the Act\xe2\x80\x99s complete extinguishment of his property\xe2\x80\x99s\nvalue entitled him to compensation regardless of whether the legislature had acted in furtherance of\nlegitimate police power objectives. Following a bench trial, the court agreed. Among its factual\ndeterminations was the finding that \xe2\x80\x9cat the time Lucas purchased the two lots, both were zoned for\nsinglefamily residential construction and \xe2\x80\xa6 there were no restrictions imposed upon such use of the\nproperty by either the State of South Carolina, the County of Charleston, or the Town of the Isle of\nPalms.\xe2\x80\x9d App. to Pet. for Cert. 36. The trial court further found that the Beachfront Management Act\ndecreed a permanent ban on construction insofar as Lucas\xe2\x80\x99s lots were concerned, and that this\nprohibition \xe2\x80\x9cdeprive[d] Lucas of any reasonable economic use of the lots, \xe2\x80\xa6 eliminated the\nunrestricted right of use, and render[ed] them valueless.\xe2\x80\x9d Id., at 37. The court thus concluded that\nLucas\xe2\x80\x99s properties had been \xe2\x80\x9ctaken\xe2\x80\x9d by operation of the Act, and it ordered respondent to pay \xe2\x80\x9cjust\ncompensation\xe2\x80\x9d in the amount of $1,232,387.50. Id., at 40.\nThe Supreme Court of South Carolina reversed. It found dispositive what it described as\nLucas\xe2\x80\x99s concession \xe2\x80\x9cthat the Beachfront Management Act [was] properly and validly designed to\npreserve \xe2\x80\xa6 South Carolina\xe2\x80\x99s beaches.\xe2\x80\x9d 304 S. C. 376, 379, 404 S. E. 2d 895, 896 (1991). Failing an\nattack on the validity of the statute as such, the court believed itself bound to accept the\n\xe2\x80\x9cuncontested \xe2\x80\xa6 findings\xe2\x80\x9d of the South Carolina Legislature that new construction in the coastal\nzone\xe2\x80\x93such as petitioner intended\xe2\x80\x93threatened this public resource. Id., at 383, 404 S. E. 2d, at 898.\nThe court ruled that when a regulation respecting the use of property is designed \xe2\x80\x9cto prevent serious\npublic harm,\xe2\x80\x9d id., at 383, 404 S. E. 2d, at 899 (citing, inter alia, Mugler v. Kansas, 123 U. S. 623 (1887)),\nno compensation is owing under the Takings Clause regardless of the regulation\xe2\x80\x99s effect on the\nproperty\xe2\x80\x99s value.\n508\n\n\x0cTwo justices dissented. They acknowledged that our Mugler line of cases recognizes\ngovernmental power to prohibit \xe2\x80\x9cnoxious\xe2\x80\x9d uses of property\xe2\x80\x93i. e., uses of property akin to \xe2\x80\x9cpublic\nnuisances\xe2\x80\x9d\xe2\x80\x93without having to pay compensation. But they would not have characterized the\nBeachfront Management Act\xe2\x80\x99s \xe2\x80\x9dprimary purpose [as] the prevention of a nuisance.\xe2\x80\x9d 304 S. C., at 395,\n404 S. E. 2d, at 906 (Harwell, J., dissenting). To the dissenters, the chief purposes of the legislation,\namong them the promotion of tourism and the creation of a \xe2\x80\x9chabitat for indigenous flora and\nfauna,\xe2\x80\x9d could not fairly be compared to nuisance abatement. Id., at 396, 404 S. E. 2d, at 906. As a\nconsequence, they would have affirmed the trial court\xe2\x80\x99s conclusion that the Act\xe2\x80\x99s obliteration of the\nvalue of petitioner\xe2\x80\x99s lots accomplished a taking.\nWe granted certiorari. 502 U. S. 966 (1991).\n\xe2\x80\xa6.\n\nIII\nA\n\nPrior to Justice Holmes\xe2\x80\x99s exposition in Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 (1922), it\nwas generally thought that the Takings Clause reached only a \xe2\x80\x9cdirect appropriation\xe2\x80\x9d of property,\nLegal Tender Cases, 12 Wall. 457, 551 (1871), or the functional equivalent of a \xe2\x80\x9cpractical ouster of [the\nowner\xe2\x80\x99s] possession,\xe2\x80\x9d Transportation Co. v. Chicago, 99 U. S. 635, 642 (1879). See also Gibson v. United\nStates, 166 U. S. 269, 275-276 (1897). Justice Holmes recognized in Mahon, however, that if the\nprotection against physical appropriations of private property was to be meaningfully enforced, the\ngovernment\xe2\x80\x99s power to redefine the range of interests included in the ownership of property was\nnecessarily constrained by constitutional limits. 260 U. S., at 414-415. If, instead, the uses of private\nproperty were subject to unbridled, uncompensated qualification under the police power, \xe2\x80\x9cthe\nnatural tendency of human nature [would be] to extend the qualification more and more until at last\nprivate property disappear[ed].\xe2\x80\x9d Id., at 415. These considerations gave birth in that case to the oftcited maxim that, \xe2\x80\x9cwhile property may be regulated to a certain extent, if regulation goes too far it\nwill be recognized as a taking.\xe2\x80\x9d Ibid.\nNevertheless, our decision in Mahon offered little insight into when, and under what\ncircumstances, a given regulation would be seen as going \xe2\x80\x9ctoo far\xe2\x80\x9d for purposes of the Fifth\nAmendment. In 70-odd years of succeeding \xe2\x80\x9cregulatory takings\xe2\x80\x9d jurisprudence, we have generally\neschewed any \xe2\x80\x9c\xe2\x80\x98set formula\xe2\x80\x99 \xe2\x80\x9d for determining how far is too far, preferring to \xe2\x80\x9cengag[e] in \xe2\x80\xa6\nessentially ad hoc, factual inquiries.\xe2\x80\x9d Penn Central Transportation Co. v. New York City, 438 U. S. 104,\n124 (1978) (quoting Goldblatt v. Hempstead, 369 U. S. 590, 594 (1962)). See Epstein, Takings: Descent\nand Resurrection, 1987 S. Ct. Rev. 1, 4. We have, however, described at least two discrete categories\nof regulatory action as compensable without case-specific inquiry into the public interest advanced\nin support of the restraint. The first encompasses regulations that compel the property owner to\nsuffer a physical \xe2\x80\x9cinvasion\xe2\x80\x9d of his property. In general (at least with regard to permanent invasions),\nno matter how minute the intrusion, and no matter how weighty the public purpose behind it, we\nhave required compensation. For example, in Loretto v. eleprompter Manhattan CATV Corp., 458 U. S.\n419 (1982), we determined that New York\xe2\x80\x99s law requiring landlords to allow television cable\ncompanies to emplace cable facilities in their apartment buildings constituted a taking, id., at 435440, even though the facilities occupied at most only 1 12 cubic feet of the landlords\xe2\x80\x99 property, see\n509\n\n\x0cid., at 438, n. 16. See also United States v. Causby, 328 U. S. 256, 265, and n. 10 (1946) (physical\ninvasions of airspace); cf. Kaiser Aetna v. United States, 444 U. S. 164 (1979) (imposition of\nnavigational servitude upon private marina).\nThe second situation in which we have found categorical treatment appropriate is where\nregulation denies all economically beneficial or productive use of land. See Agins, 447 U. S., at 260;\nsee also Nollan v. California Coastal Comm\xe2\x80\x99n, 483 U. S. 825, 834 (1987); Keystone Bituminous Coal Assn. v.\nDeBenedictis, 480 U. S. 470, 495 (1987); Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.\nS. 264, 295-296 (1981).4 As we have said on numerous occasions, the Fifth Amendment is violated\nwhen land-use regulation \xe2\x80\x9cdoes not substantially advance legitimate state interests or denies an owner\neconomically viable use of his land. \xe2\x80\x9d Agins, supra, at 260 (citations omitted) (emphasis added).5\nWe have never set forth the justification for this rule. Perhaps it is simply, as Justice Brennan\nsuggested, that total deprivation of beneficial use is, from the landowner\xe2\x80\x99s point of view, the\nequivalent of a physical appropriation. See San Diego Gas & Electric Co. v. San Diego, 450 U. S., at 652\n(dissenting opinion). \xe2\x80\x9c[F]or what is the land but the profits thereof[?]\xe2\x80\x9d 1 E. Coke, Institutes, ch. 1, \xc2\xa7\n1 (1st Am. ed. 1812). Surely, at least, in the extraordinary circumstance when no productive or\neconomically beneficial use of land is permitted, it is less realistic to indulge our usual assumption\nthat the legislature is simply \xe2\x80\x9cadjusting the benefits and burdens of economic life,\xe2\x80\x9d Penn Central\nTransportation Co., 438 U. S., at 124, in a manner that secures an \xe2\x80\x9caverage reciprocity of advantage\xe2\x80\x9d to\neveryone concerned, Pennsylvania Coal Co. v. Mahon, 260 U. S., at 415. And the functional basis for\npermitting the government, by regulation, to affect property values without compensation\xe2\x80\x93that\n\xe2\x80\x9cGovernment hardly could go on if to some extent values incident to property could not be\ndiminished without paying for every such change in the general law,\xe2\x80\x9d id., at 413\xe2\x80\x93does not apply to\nthe relatively rare situations where the government has deprived a landowner of all economically\nbeneficial uses.\nOn the other side of the balance, affirmatively supporting a compensation requirement, is\nthe fact that regulations that leave the owner of land without economically beneficial or productive\noptions for its use\xe2\x80\x93typically, as here, by requiring land to be left substantially in its natural state\xe2\x80\x93\ncarry with them a heightened risk that private property is being pressed into some form of public\nservice under the guise of mitigating serious public harm. See, e. g., Annicelli v. South Kingstown, 463 A.\n2d 133, 140-141 (R. I. 1983) (prohibition on construction adjacent to beach justified on twin\ngrounds of safety and \xe2\x80\x9cconservation of open space\xe2\x80\x9d); Morris County Land Improvement Co. v. ParsippanyTroy Hills Township, 40 N. J.539, 552-553, 193 A. 2d 232, 240 (1963) (prohibition on filling\nmarshlands imposed in order to preserve region as water detention basin and create wildlife refuge).\nAs Justice Brennan explained: \xe2\x80\x9cFrom the government\xe2\x80\x99s point of view, the benefits flowing to the\npublic from preservation of open space through regulation may be equally great as from creating a\nwildlife refuge through formal condemnation or increasing electricity production through a dam\nproject that floods private property.\xe2\x80\x9d San Diego Gas & Elec. Co., supra, at 652 (dissenting opinion).\nThe many statutes on the books, both state and federal, that provide for the use of eminent domain\nto impose servitudes on private scenic lands preventing developmental uses, or to acquire such lands\naltogether, suggest the practical equivalence in this setting of negative regulation and appropriation.\nSee, e. g., 16 U. S. C. \xc2\xa7 410ff-1(a) (authorizing acquisition of \xe2\x80\x9clands, waters, or interests [within\nChannel Islands National Park] (including but not limited to scenic easements)\xe2\x80\x9d); \xc2\xa7 460aa-2(a)\n(authorizing acquisition of \xe2\x80\x9cany lands, or lesser interests therein, including mineral interests and\nscenic easements\xe2\x80\x9d within Sawtooth National Recreation Area); \xc2\xa7\xc2\xa7 3921-3923 (authorizing acquisition\nof wetlands); N. C. Gen. Stat. \xc2\xa7 113A-38 (1990) (authorizing acquisition of, inter alia, \xe2\x80\x9c\xe2\x80\x98scenic\neasements\xe2\x80\x99 \xe2\x80\x9d within the North Carolina natural and scenic rivers system); Tenn. Code Ann. \xc2\xa7\xc2\xa7 1115-101 to XX-XX-XXX (1987) (authorizing acquisition of \xe2\x80\x9cprotective easements\xe2\x80\x9d and other rights\nin real property adjacent to State\xe2\x80\x99s historic, architectural, archaeological, or cultural resources).\n510\n\n\x0cWe think, in short, that there are good reasons for our frequently expressed belief that when\nthe owner of real property has been called upon to sacrifice all economically beneficial uses in the\nname of the common good, that is, to leave his property economically idle, he has suffered a taking.6\n\nB\n\nThe trial court found Lucas\xe2\x80\x99s two beachfront lots to have been rendered valueless by\nrespondent\xe2\x80\x99s enforcement of the coastal-zone construction ban.7 Under Lucas\xe2\x80\x99s theory of the case,\nwhich rested upon our \xe2\x80\x9cno economically viable use\xe2\x80\x9d statements, that finding entitled him to\ncompensation. Lucas believed it unnecessary to take issue with either the purposes behind the\nBeachfront Management Act, or the means chosen by the South Carolina Legislature to effectuate\nthose purposes. The South Carolina Supreme Court, however, thought otherwise. In its view, the\nBeachfront Management Act was no ordinary enactment, but involved an exercise of South\nCarolina\xe2\x80\x99s \xe2\x80\x9cpolice powers\xe2\x80\x9d to mitigate the harm to the public interest that petitioner\xe2\x80\x99s use of his land\nmight occasion. 304 S. C., at 384, 404 S. E. 2d, at 899. By neglecting to dispute the findings\nenumerated in the Act8 or otherwise to challenge the legislature\xe2\x80\x99s purposes, petitioner \xe2\x80\x9cconcede[d]\nthat the beach/dune area of South Carolina\xe2\x80\x99s shores is an extremely valuable public resource; that\nthe erection of new construction, inter alia, contributes to the erosion and destruction of this public\nresource; and that discouraging new construction in close proximity to the beach/dune area is\nnecessary to prevent a great public harm.\xe2\x80\x9d Id., at 382-383, 404 S. E. 2d, at 898. In the court\xe2\x80\x99s view,\nthese concessions brought petitioner\xe2\x80\x99s challenge within a long line of this Court\xe2\x80\x99s cases sustaining\nagainst Due Process and Takings Clause challenges the State\xe2\x80\x99s use of its \xe2\x80\x9cpolice powers\xe2\x80\x9d to enjoin a\nproperty owner from activities akin to public nuisances. See Mugler v. Kansas, 123 U. S. 623 (1887)\n(law prohibiting manufacture of alcoholic beverages); Hadacheck v. Sebastian, 239 U. S. 394 (1915)\n(law barring operation of brick mill in residential area); Miller v. Schoene, 276 U. S. 272 (1928) (order\nto destroy diseased cedar trees to prevent infection of nearby orchards); Goldblatt v. Hempstead, 369\nU. S. 590 (1962) (law effectively preventing continued operation of quarry in residential area).\nIt is correct that many of our prior opinions have suggested that \xe2\x80\x9charmful or noxious uses\xe2\x80\x9d\nof property may be proscribed by government regulation without the requirement of compensation.\nFor a number of reasons, however, we think the South Carolina Supreme Court was too quick to\nconclude that that principle decides the present case. The \xe2\x80\x9charmful or noxious uses\xe2\x80\x9d principle was\nthe Court\xe2\x80\x99s early attempt to describe in theoretical terms why government may, consistent with the\nTakings Clause, affect property values by regulation without incurring an obligation to compensate\xe2\x80\x93\na reality we nowadays acknowledge explicitly with respect to the full scope of the State\xe2\x80\x99s police\npower. See, e. g., Penn Central Transportation Co., 438 U. S., at 125 (where State \xe2\x80\x9creasonably conclude[s]\nthat \xe2\x80\x98the health, safety, morals, or general welfare\xe2\x80\x99 would be promoted by prohibiting particular\ncontemplated uses of land,\xe2\x80\x9d compensation need not accompany prohibition); see also Nollan v.\nCalifornia Coastal Comm\xe2\x80\x99n, 483 U. S., at 834-835 (\xe2\x80\x9cOur cases have not elaborated on the standards for\ndetermining what constitutes a \xe2\x80\x98legitimate state interest[,]\xe2\x80\x99 [but] [t]hey have made clear \xe2\x80\xa6 that a\nbroad range of governmental purposes and regulations satisfy these requirements\xe2\x80\x9d). We made this\nvery point in Penn Central Transportation Co., where, in the course of sustaining New York City\xe2\x80\x99s\nlandmarks preservation program against a takings challenge, we rejected the petitioner\xe2\x80\x99s suggestion\nthat Mugler and the cases following it were premised on, and thus limited by, some objective\n511\n\n\x0cconception of \xe2\x80\x9cnoxiousness\xe2\x80\x9d:\n\xe2\x80\x9c[T]he uses in issue in Hadacheck, Miller, and Goldblatt were perfectly lawful in themselves.\nThey involved no \xe2\x80\x98blameworthiness, \xe2\x80\xa6 moral wrongdoing or conscious act of dangerous risk-taking\nwhich induce[d society] to shift the cost to a pa[rt]icular individual.\xe2\x80\x99 Sax, Takings and the Police\nPower, 74 Yale L. J. 36, 50 (1964). These cases are better understood as resting not on any supposed\n\xe2\x80\x98noxious\xe2\x80\x99 quality of the prohibited uses but rather on the ground that the restrictions were\nreasonably related to the implementation of a policy\xe2\x80\x93not unlike historic preservation\xe2\x80\x93expected to\nproduce a widespread public benefit and applicable to all similarly situated property.\xe2\x80\x9d 438 U. S., at\n133-134, n. 30.\n\xe2\x80\x9cHarmful or noxious use\xe2\x80\x9d analysis was, in other words, simply the progenitor of our more\ncontemporary statements that \xe2\x80\x9cland-use regulation does not effect a taking if it \xe2\x80\x98substantially\nadvance[s] legitimate state interests\xe2\x80\x99 . .. .\xe2\x80\x9d Nollan, supra, at 834 (quoting Agins v. Tiburon, 447 U. S., at\n260); see also Penn Central Transportation Co., supra, at 127; Euclid v. Ambler Realty Co., 272 U. S. 365,\n387-388 (1926).\nThe transition from our early focus on control of \xe2\x80\x9cnoxious\xe2\x80\x9d uses to our contemporary\nunderstanding of the broad realm within which government may regulate without compensation was\nan easy one, since the distinction between \xe2\x80\x9charmpreventing\xe2\x80\x9d and \xe2\x80\x9cbenefitconferring\xe2\x80\x9d regulation is\noften in the eye of the beholder. It is quite possible, for example, to describe in either fashion the\necological, economic, and esthetic concerns that inspired the South Carolina Legislature in the\npresent case. One could say that imposing a servitude on Lucas\xe2\x80\x99s land is necessary in order to\nprevent his use of it from \xe2\x80\x9charming\xe2\x80\x9d South Carolina\xe2\x80\x99s ecological resources; or, instead, in order to\nachieve the \xe2\x80\x9cbenefits\xe2\x80\x9d of an ecological preserve.9 Compare, e. g., Claridge v. New Hampshire Wetlands\nBoard, 125 N. H. 745, 752, 485 A. 2d 287, 292 (1984) (owner may, without compensation, be barred\nfrom filling wetlands because landfilling would deprive adjacent coastal habitats and marine fisheries\nof ecological support), with, e. g., Bartlett v. Zoning Comm\xe2\x80\x99n of Old Lyme, 161 Conn. 24, 30, 282 A. 2d\n907, 910 (1971) (owner barred from filling tidal marshland must be compensated, despite\nmunicipality\xe2\x80\x99s \xe2\x80\x9claudable\xe2\x80\x9d goal of \xe2\x80\x9cpreserv[ing] marshlands from encroachment or destruction\xe2\x80\x9d).\nWhether one or the other of the competing characterizations will come to one\xe2\x80\x99s lips in a particular\ncase depends primarily upon one\xe2\x80\x99s evaluation of the worth of competing uses of real estate. See\nRestatement (Second) of Torts \xc2\xa7 822, Comment g, p. 112 (1979) (\xe2\x80\x9cPractically all human activities\nunless carried on in a wilderness interfere to some extent with others or involve some risk of\ninterference\xe2\x80\x9d). A given restraint will be seen as mitigating \xe2\x80\x9charm\xe2\x80\x9d to the adjacent parcels or securing\na \xe2\x80\x9cbenefit\xe2\x80\x9d for them, depending upon the observer\xe2\x80\x99s evaluation of the relative importance of the use\nthat the restraint favors. See Sax, Takings and the Police Power, 74 Yale L. J. 36, 49 (1964) (\xe2\x80\x9c[T]he\nproblem [in this area] is not one of noxiousness or harm-creating activity at all; rather it is a problem\nof inconsistency between perfectly innocent and independently desirable uses\xe2\x80\x9d). Whether Lucas\xe2\x80\x99s\nconstruction of singlefamily residences on his parcels should be described as bringing \xe2\x80\x9charm\xe2\x80\x9d to\nSouth Carolina\xe2\x80\x99s adjacent ecological resources thus depends principally upon whether the describer\nbelieves that the State\xe2\x80\x99s use interest in nurturing those resources is so important that any competing\nadjacent use must yield.10\nWhen it is understood that \xe2\x80\x9cprevention of harmful use\xe2\x80\x9d was merely our early formulation of\nthe police power justification necessary to sustain (without compensation) any regulatory diminution\nin value; and that the distinction between regulation that \xe2\x80\x9cprevents harmful use\xe2\x80\x9d and that which\n\xe2\x80\x9cconfers benefits\xe2\x80\x9d is difficult, if not impossible, to discern on an objective, value-free basis; it\nbecomes self-evident that noxious-use logic cannot serve as a touchstone to distinguish regulatory\n\xe2\x80\x9ctakings\xe2\x80\x9d \xe2\x80\x93 which require compensation \xe2\x80\x93 from regulatory deprivations that do not require\ncompensation. A fortiori the legislature\xe2\x80\x99s recitation of a noxious-use justification cannot be the basis\nfor departing from our categorical rule that total regulatory takings must be compensated. If it were,\n512\n\n\x0cdeparture would virtually always be allowed. The South Carolina Supreme Court\xe2\x80\x99s approach would\nessentially nullify Mahon \xe2\x80\x98s affirmation of limits to the noncompensable exercise of the police power.\nOur cases provide no support for this: None of them that employed the logic of \xe2\x80\x9charmful use\xe2\x80\x9d\nprevention to sustain a regulation involved an allegation that the regulation wholly eliminated the\nvalue of the claimant\xe2\x80\x99s land. See Keystone Bituminous Coal Assn., 480 U. S., at 513-514 (Rehnquist, C. J.,\ndissenting).11\nWhere the State seeks to sustain regulation that deprives land of all economically beneficial\nuse, we think it may resist compensation only if the logically antecedent inquiry into the nature of\nthe owner\xe2\x80\x99s estate shows that the proscribed use interests were not part of his title to begin with.12\nThis accords, we think, with our \xe2\x80\x9ctakings\xe2\x80\x9d jurisprudence, which has traditionally been guided by the\nunderstandings of our citizens regarding the content of, and the State\xe2\x80\x99s power over, the \xe2\x80\x9cbundle of\nrights\xe2\x80\x9d that they acquire when they obtain title to property. It seems to us that the property owner\nnecessarily expects the uses of his property to be restricted, from time to time, by various measures\nnewly enacted by the State in legitimate exercise of its police powers; \xe2\x80\x9c[a]s long recognized, some\nvalues are enjoyed under an implied limitation and must yield to the police power.\xe2\x80\x9d Pennsylvania Coal\nCo. v. Mahon, 260 U. S., at 413. And in the case of personal property, by reason of the State\xe2\x80\x99s\ntraditionally high degree of control over commercial dealings, he ought to be aware of the possibility\nthat new regulation might even render his property economically worthless (at least if the property\xe2\x80\x99s\nonly economically productive use is sale or manufacture for sale). See Andrus v. Allard, 444 U. S. 51,\n66-67 (1979) (prohibition on sale of eagle feathers). In the case of land, however, we think the\nnotion pressed by the Council that title is somehow held subject to the \xe2\x80\x9cimplied limitation\xe2\x80\x9d that the\nState may subsequently eliminate all economically valuable use is inconsistent with the historical\ncompact recorded in the Takings Clause that has become part of our constitutional culture.13\nWhere \xe2\x80\x9cpermanent physical occupation\xe2\x80\x9d of land is concerned, we have refused to allow the\ngovernment to decree it anew (without compensation), no matter how weighty the asserted \xe2\x80\x9cpublic\ninterests\xe2\x80\x9d involved, Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S., at 426 \xe2\x80\x93 though we\nassuredly would permit the government to assert a permanent easement that was a pre-existing\nlimitation upon the landowner\xe2\x80\x99s title. Compare Scranton v. Wheeler, 179 U. S. 141, 163 (1900)\n(interests of \xe2\x80\x9criparian owner in the submerged lands \xe2\x80\xa6 bordering on a public navigable water\xe2\x80\x9d held\nsubject to Government\xe2\x80\x99s navigational servitude), with Kaiser Aetna v. United States, 444 U. S., at 178180 (imposition of navigational servitude on marina created and rendered navigable at private\nexpense held to constitute a taking). We believe similar treatment must be accorded confiscatory\nregulations, i. e., regulations that prohibit all economically beneficial use of land: Any limitation so\nsevere cannot be newly legislated or decreed (without compensation), but must inhere in the title\nitself, in the restrictions that background principles of the State\xe2\x80\x99s law of property and nuisance\nalready place upon land ownership. A law or decree with such an effect must, in other words, do no\nmore than duplicate the result that could have been achieved in the courts \xe2\x80\x93 by adjacent landowners\n(or other uniquely affected persons) under the State\xe2\x80\x99s law of private nuisance, or by the State under\nits complementary power to abate nuisances that affect the public generally, or otherwise.14\nOn this analysis, the owner of a lake bed, for example, would not be entitled to\ncompensation when he is denied the requisite permit to engage in a land filling operation that would\nhave the effect of flooding others\xe2\x80\x99 land. Nor the corporate owner of a nuclear generating plant,\nwhen it is directed to remove all improvements from its land upon discovery that the plant sits\nastride an earthquake fault. Such regulatory action may well have the effect of eliminating the land\xe2\x80\x99s\nonly economically productive use, but it does not proscribe a productive use that was previously\npermissible under relevant property and nuisance principles. The use of these properties for what\nare now expressly prohibited purposes was always unlawful, and (subject to other constitutional\nlimitations) it was open to the State at any point to make the implication of those background\n513\n\n\x0cprinciples of nuisance and property law explicit. See Michelman, Property, Utility, and Fairness,\nComments on the Ethical Foundations of \xe2\x80\x9cJust Compensation\xe2\x80\x9d Law, 80 Harv. L. Rev. 1165, 1239 \xe2\x80\x93\n1241 (1967). In light of our traditional resort to \xe2\x80\x9cexisting rules or understandings that stem from an\nindependent source such as state law\xe2\x80\x9d to define the range of interests that qualify for protection as\n\xe2\x80\x9cproperty\xe2\x80\x9d under the Fifth and Fourteenth Amendments, Board of Regents of State Colleges v. Roth, 408\nU. S. 564, 577 (1972); see, e. g., Ruckelshaus v. Monsanto Co., 467 U. S. 986, 1011-1012 (1984); Hughes v.\nWashington, 389 U. S. 290, 295 (1967) (Stewart, J., concurring), this recognition that the Takings\nClause does not require compensation when an owner is barred from putting land to a use that is\nproscribed by those \xe2\x80\x9cexisting rules or understandings\xe2\x80\x9d is surely unexceptional. When, however, a\nregulation that declares \xe2\x80\x9coff-limits\xe2\x80\x9d all economically productive or beneficial uses of land goes\nbeyond what the relevant background principles would dictate, compensation must be paid to\nsustain it.15\nThe \xe2\x80\x9ctotal taking\xe2\x80\x9d inquiry we require today will ordinarily entail (as the application of state\nnuisance law ordinarily entails) analysis of, among other things, the degree of harm to public lands\nand resources, or adjacent private property, posed by the claimant\xe2\x80\x99s proposed activities, see, e. g.,\nRestatement (Second) of Torts \xc2\xa7\xc2\xa7 826, 827, the social value of the claimant\xe2\x80\x99s activities and their\nsuitability to the locality in question, see, e. g., id., \xc2\xa7\xc2\xa7 828(a) and (b), 831, and the relative ease with\nwhich the alleged harm can be avoided through measures taken by the claimant and the government\n(or adjacent private landowners) alike, see, e. g., id., \xc2\xa7\xc2\xa7 827(e), 828(c), 830. The fact that a particular\nuse has long been engaged in by similarly situated owners ordinarily imports a lack of any\ncommonlaw prohibition (though changed circumstances or new knowledge may make what was\npreviously permissible no longer so, see id., \xc2\xa7 827, Comment g. So also does the fact that other\nlandowners, similarly situated, are permitted to continue the use denied to the claimant.\nIt seems unlikely that commonlaw principles would have prevented the erection of any\nhabitable or productive improvements on petitioner\xe2\x80\x99s land; they rarely support prohibition of the\n\xe2\x80\x9cessential use\xe2\x80\x9d of land, Curtin v. Benson, 222 U. S. 78, 86 (1911). The question, however, is one of\nstate law to be dealt with on remand. We emphasize that to win its case South Carolina must do\nmore than proffer the legislature\xe2\x80\x99s declaration that the uses Lucas desires are inconsistent with the\npublic interest, or the conclusory assertion that they violate a commonlaw maxim such as sic utere tuo\nut alienum non laedas. As we have said, a \xe2\x80\x9cState, by ipse dixit, may not transform private property into\npublic property without compensation \xe2\x80\xa6 .\xe2\x80\x9d Webb\xe2\x80\x99s Fabulous Pharmacies, Inc. v. Beckwith, 449 U. S. 155,\n164 (1980). Instead, as it would be required to do if it sought to restrain Lucas in a commonlaw\naction for public nuisance, South Carolina must identify background principles of nuisance and\nproperty law that prohibit the uses he now intends in the circumstances in which the property is\npresently found. Only on this showing can the State fairly claim that, in proscribing all such\nbeneficial uses, the Beach front Management Act is taking nothing.16\n*\nThe judgment is reversed, and the case is remanded for proceedings not inconsistent with\nthis opinion.\nSo ordered.\nJustice Kennedy, concurring in the judgment.\n514\n\n\x0cThe case comes to the Court in an unusual posture, as all my colleagues observe. Ante, at\n1010-1011; post, at 1041 (Blackmun, J., dissenting); post, at 1061-1062 (Stevens, J., dissenting); post, at\n1076-1077 (statement of Souter, J.). After the suit was initiated but before it reached us, South\nCarolina amended its Beach front Management Act to authorize the issuance of special permits at\nvariance with the Act\xe2\x80\x99s general limitations. See S. C. Code Ann. \xc2\xa7 48-39-290(D)(1) (Supp. 1991).\nPetitioner has not applied for a special permit but may still do so. The availability of this alternative,\nif it can be invoked, may dispose of petitioner\xe2\x80\x99s claim of a permanent taking. As I read the Court\xe2\x80\x99s\nopinion, it does not decide the permanent taking claim, but neither does it foreclose the Supreme\nCourt of South Carolina from considering the claim or requiring petitioner to pursue an\nadministrative alternative not previously available.\nThe potential for future relief does not control our disposition, because whatever may occur\nin the future cannot undo what has occurred in the past. The Beach front Management Act was\nenacted in 1988. S. C. Code Ann. \xc2\xa7 48-39-250 et seq. (Supp. 1990). It may have deprived petitioner of\nthe use of his land in an interim period. \xc2\xa7 48-39-290(A). If this deprivation amounts to a taking, its\nlimited duration will not bar constitutional relief. It is well established that temporary takings are as\nprotected by the Constitution as are permanent ones. First English Evangelical Lutheran Church of\nGlendale v. County of Los Angeles, 482 U. S. 304, 318 (1987).\nThe issues presented in the case are ready for our decision. The Supreme Court of South\nCarolina decided the case on constitutional grounds, and its rulings are now before us. There exists\nno jurisdictional bar to our disposition, and prudential considerations ought not to militate against it.\nThe State cannot complain of the manner in which the issues arose. Any uncertainty in this regard is\nattributable to the State, as a consequence of its amendment to the Beach front Management Act. If\nthe Takings Clause is to protect against temporary deprivations, as well as permanent ones, its\nenforcement must not be frustrated by a shifting background of state law.\nAlthough we establish a framework for remand, moreover, we do not decide the ultimate\nquestion whether a temporary taking has occurred in this case. The facts necessary to the\ndetermination have not been developed in the record. Among the matters to be considered on\nremand must be whether petitioner had the intent and capacity to develop the property and failed to\ndo so in the interim period because the State prevented him. Any failure by petitioner to comply\nwith relevant administrative requirements will be part of that analysis.\nThe South Carolina Court of Common Pleas found that petitioner\xe2\x80\x99s real property has been\nrendered valueless by the State\xe2\x80\x99s regulation. App. to Pet. for Cert. 37. The finding appears to\npresume that the property has no significant market value or resale potential. This is a curious\nfinding, and I share the reservations of some of my colleagues about a finding that a beach front lot\nloses all value because of a development restriction. Post, at 1043-1045 (Blackmun, J., dissenting);\npost, at 1065, n. 3 (Stevens, J., dissenting); post, at 1076 (statement of Souter, J.). While the Supreme\nCourt of South Carolina on remand need not consider the case subject to this constraint, we must\naccept the finding as entered below. See Oklahoma City v. Tuttle, 471 U. S. 808, 816 (1985). Accepting\nthe finding as entered, it follows that petitioner is entitled to invoke the line of cases discussing\nregulations that deprive real property of all economic value. See Agins v. City of Tiburon, 447 U. S.\n255, 260 (1980).\nThe finding of no value must be considered under the Takings Clause by reference to the\nowner\xe2\x80\x99s reasonable, investmentbacked expectations. Kaiser Aetna v. United States, 444 U. S. 164, 175\n(1979); Penn Central Transportation Co. v. New York City, 438 U. S. 104, 124 (1978); see also W. B.\nWorthen Co. v. Kavanaugh, 295 U. S. 56 (1935). The Takings Clause, while conferring substantial\nprotection on property owners, does not eliminate the police power of the State to enact limitations\non the use of their property.Mugler v. Kansas, 123 U. S. 623, 669 (1887). The rights conferred by the\n515\n\n\x0cTakings Clause and the police power of the State may coexist without conflict. Property is bought\nand sold, investments are made, subject to the State\xe2\x80\x99s power to regulate. Where a taking is alleged\nfrom regulations which deprive the property of all value, the test must be whether the deprivation is\ncontrary to reasonable, investmentbacked expectations.\nThere is an inherent tendency towards circularity in this synthesis, of course; for if the\nowner\xe2\x80\x99s reasonable expectations are shaped by what courts allow as a proper exercise of\ngovernmental authority, property tends to become what courts say it is. Some circularity must be\ntolerated in these matters, however, as it is in other spheres. E. g., Katz v. United States, 389 U. S. 347\n(1967) (Fourth Amendment protections defined by reasonable expectations of privacy). The\ndefinition, moreover, is not circular in its entirety. The expectations protected by the Constitution\nare based on objective rules and customs that can be understood as reasonable by all parties\ninvolved.\nIn my view, reasonable expectations must be understood in light of the whole of our legal\ntradition. The common law of nuisance is too narrow a confine for the exercise of regulatory power\nin a complex and interdependent society. Goldblatt v. Hempstead, 369 U. S. 590, 593 (1962). The State\nshould not be prevented from enacting new regulatory initiatives in response to changing conditions,\nand courts must consider all reasonable expectations whatever their source. The Takings Clause\ndoes not require a static body of state property law; it protects private expectations to ensure private\ninvestment. I agree with the Court that nuisance prevention accords with the most common\nexpectations of property owners who face regulation, but I do not believe this can be the sole source\nof state authority to impose severe restrictions. Coastal property may present such unique concerns\nfor a fragile land system that the State can go further in regulating its development and use than the\ncommon law of nuisance might otherwise permit.\nThe Supreme Court of South Carolina erred, in my view, by reciting the general purposes for\nwhich the state regulations were enacted without a determination that they were in accord with the\nowner\xe2\x80\x99s reasonable expectations and therefore sufficient to support a severe restriction on specific\nparcels of property. See 304 S. C. 376, 383, 404 S. E. 2d 895, 899 (1991). The promotion of tourism,\nfor instance, ought not to suffice to deprive specific property of all value without a corresponding\nduty to compensate. Furthermore, the means, as well as the ends, of regulation must accord with the\nowner\xe2\x80\x99s reasonable expectations. Here, the State did not act until after the property had been zoned\nfor individual lot development and most other parcels had been improved, throwing the whole\nburden of the regulation on the remaining lots. This too must be measured in the balance. See\nPennsylvania Coal Co. v. Mahon, 260 U. S. 393, 416 (1922).\nWith these observations, I concur in the judgment of the Court.\nJustice Blackmun, dissenting.\nToday the Court launches a missile to kill a mouse.\nThe State of South Carolina prohibited petitioner Lucas from building a permanent structure\non his property from 1988 to 1990. Relying on an unreviewed (and implausible) state trial court\nfinding that this restriction left Lucas\xe2\x80\x99 property valueless, this Court granted review to determine\nwhether compensation must be paid in cases where the State prohibits all economic use of real\nestate. According to the Court, such an occasion never has arisen in any of our prior cases, and the\nCourt imagines that it will arise \xe2\x80\x9crelatively rarely\xe2\x80\x9d or only in \xe2\x80\x9cextraordinary circumstances.\xe2\x80\x9d Almost\ncertainly it did not happen in this case.\nNonetheless, the Court presses on to decide the issue, and as it does, it ignores its\n516\n\n\x0cjurisdictional limits, remakes its traditional rules of review, and creates simultaneously a new\ncategorical rule and an exception (neither of which is rooted in our prior case law, common law, or\ncommon sense). I protest not only the Court\xe2\x80\x99s decision, but each step taken to reach it. More\nfundamentally, I question the Court\xe2\x80\x99s wisdom in issuing sweeping new rules to decide such a narrow\ncase. Surely, as Justice Kennedy demonstrates, the Court could have reached the result it wanted\nwithout inflicting this damage upon our Takings Clause jurisprudence.\nMy fear is that the Court\xe2\x80\x99s new policies will spread beyond the narrow confines of the\npresent case. For that reason, I, like the Court, will give far greater attention to this case than its\nnarrow scope suggests \xe2\x80\x93 not because I can intercept the Court\xe2\x80\x99s missile, or save the targeted mouse,\nbut because I hope perhaps to limit the collateral damage.\n\xe2\x80\xa6.\nStatement of Justice Souter.\nI would dismiss the writ of certiorari in this case as having been granted improvidently. After\nbriefing and argument it is abundantly clear that an unreviewable assumption on which this case\ncomes to us is both questionable as a conclusion of Fifth Amendment law and sufficient to frustrate\nthe Court\xe2\x80\x99s ability to render certain the legal premises on which its holding rests.\nThe petition for review was granted on the assumption that the State by regulation had\ndeprived the owner of his entire economic interest in the subject property. Such was the state trial\ncourt\xe2\x80\x99s conclusion, which the State Supreme Court did not review. It is apparent now that in light of\nour prior cases, see, e. g., Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U. S. 470, 493-502 (1987);\nAndrus v. Allard, 444 U. S. 51, 65-66 (1979); Penn Central Transportation Corp. v. New York City, 438 U.\nS. 104, 130-131 (1978), the trial court\xe2\x80\x99s conclusion is highly questionable. While the respondent now\nwishes to contest the point, see Brief for Respondent 45-50, the Court is certainly right to refuse to\ntake up the issue, which is not fairly included within the question presented, and has received only\nthe most superficial and one-sided treatment before us.\nBecause the questionable conclusion of total deprivation cannot be reviewed, the Court is\nprecluded from attempting to clarify the concept of total (and, in the Court\xe2\x80\x99s view, categorically\ncompensable) taking on which it rests, a concept which the Court describes, see ante, at 1016-1017,\nn. 6, as so uncertain under existing law as to have fostered inconsistent pronouncements by the\nCourt itself. Because that concept is left uncertain, so is the significance of the exceptions to the\ncompensation requirement that the Court proceeds to recognize. This alone is enough to show that\nthere is little utility in attempting to deal with this case on the merits.\n\xe2\x80\xa6.\nBriefs of amici curiae urging reversal were filed for the United States by Solicitor General Starr,\nActing Assistant Attorney General Hartman, Deputy Solicitor General Wallace, Deputy Assistant Attorney\nGeneral Clegg, Acting Deputy Assistant Attorney General Cohen, Edwin S. Kneedler, Peter R. Steenland, James\nE. Brookshire, John A. Bryson, and Martin W. Matzen; for United States Senator Steve Symms et al. by\nPeter D. Dickson, Howard E. Shapiro, and D. Eric Hultman; for the American Farm Bureau Federation\net al. by James D. Holzhauer, Clifford M. Sloan, Timothy S. Bishop, John J. Rademacher, and Richard L.\nKrause; for the American Mining Congress et al. by George W. Miller, Walter A. Smith, Jr., Stuart A.\nSanderson, William E. Hynan, and Robert A. Kirshner; for the Chamber of Commerce of the United\nStates of America by Stephen A. Bokat, Robin S. Conrad, Herbert L. Fenster, and Tami Lyn Azorsky; for\nDefenders of Property Rights et al. by Nancy G. Marzulla; for the Fire Island Association, Inc., by\nBernard S. Meyer; for the Institute for Justice by Richard A. Epstein, William H. Mellor III, Clint Bolick,\n517\n\n\x0cand Jonathan W. Emord; for the Long Beach Island Oceanfront Homeowners Association et al. by\nTheodore J. Carlson; for the Mountain States Legal Foundation et al. by William Perry Pendley; for the\nNational Association of Home Builders et al. by Michael M. Berger and William H. Ethier; for the\nNemours Foundation, Inc., by John J. Mullenholz; for the Northern Virginia Chapter of the National\nAssociation of Industrial and Office Parks et al. by John Holland Foote and John F. Cahill; for the\nPacific Legal Foundation by Ronald A. Zumbrun, Edward J. Connor, Jr., and R. S. Radford; and for the\nSouth Carolina Policy Council Education Foundation et al. by G. Stephen Parker. Briefs of amici curiae\nurging affirmance were filed for the State of California by Daniel E. Lungren, Attorney General,\nRoderick E. Walston, Chief Assistant Attorney General, Jan S. Stevens, Assistant Attorney General,\nRichard M. Frank and Craig C. Thompson, Supervising Deputy Attorneys General, and Maria Dante\nBrown and Virna L. Santos, Deputy Attorneys General; for the State of Florida et al. by Robert A.\nButterworth, Attorney General of Florida, and Lewis F. Hubener, Assistant Attorney General, James H.\nEvans, Attorney General of Alabama, Richard Blumenthal, Attorney General of Connecticut, Charles M.\nOberly III, Attorney General of Delaware, Michael J. Bowers, Attorney General of Georgia, Elizabeth\nBarrett-Anderson, Attorney General of Guam, Warren Price, Attorney General of Hawaii, Bonnie J.\nCampbell, Attorney General of Iowa, Michael E. Carpenter, Attorney General of Maine, J. Joseph Curran,\nJr., Attorney General of Maryland, Scott Harshbarger, Attorney General of Massachusetts, Frank J.\nKelley, Attorney General of Michigan, Hubert H. Humphrey III, Attorney General of Minnesota,\nFrankie Sue Del Papa, Attorney General of Nevada, Robert J. Del Tufo, Attorney General of New\nJersey, John P. Arnold, Attorney General of New Hampshire, Tom Udall, Attorney General of New\nMexico, Robert Abrams, Attorney General of New York, and Jerry Boone, Solicitor General, Lacy H.\nThornburg, Attorney General of North Carolina, Charles S. Crookham, Attorney General of Oregon,\nErnest D. Preate, Jr., Attorney General of Pennsylvania, Jorges Perez-Diaz, Attorney General of Puerto\nRico, James E. O\xe2\x80\x99Neil, Attorney General of Rhode Island, Paul Van Dam, Attorney General of Utah,\nJeffrey L. Amestoy, Attorney General of Vermont, James E. Doyle, Attorney General of Wisconsin, Dan\nMorales, Attorney General of Texas, and Brian A. Goldman ; for Broward County et al. by John J.\nCopelan, Jr., Herbert W. A. Thiele, and H. Hamilton Rice, Jr.; for California Cities and Counties by Robin\nD. Faisant, Gary T. Ragghianti, Manuela Albuquerque, F. Thomas Caporael, William Camil, Scott H. Howard,\nRoger Picquet, Joseph Barron, David J. Erwin, Charles J. Williams, John Calhoun, Robert K. Booth, Jr., Anthony\nS. Alperin, Leland H. Jordan, John L. Cook, Jayne Williams, Gary L. Gillig, Dave Larsen, Don G. Kircher,\nJean Leonard Harris, Michael F. Dean, John W. Witt, C. Alan Sumption, Joan Gallo, George Rios, Daniel S.\nHentschke, Joseph Lawrence, Peter Bulens, and Thomas Haas; for Nueces County, Texas, et al. by Peter A.\nA. Berle, Glenn P. Sugameli, Ann Powers, and Zygmunt J. B. Plater; for the American Planning\nAssociation et al. by H. Bissell Carey III and Gary A. Owen; for Members of the National Growth\nManagement Leadership Project by John A. Humbach; for the Municipal Art Society of New York,\nInc., by William E. Hegarty, Michael S. Gruen, Philip K. Howard, Norman Marcus, andPhilip Weinberg; for\nthe National Trust for Historic Preservation in the United States by Lloyd N. Cutler, Louis R. Cohen,\nDavid R. Johnson, Peter B. Hutt II, Jerold S. Kayden, David A. Doheny, and Elizabeth S. Merritt; for the\nSierra Club et al. by Lawrence N. Minch, Laurens H. Silver, and Charles M. Chambers; and for the U. S.\nConference of Mayors et al.by Richard Ruda, Michael G. Dzialo, and Barbara Etkind. Briefs of amici\ncuriae were filed for the National Association of Realtors by Ralph W. Holmen; and for the\nWashington Legal Foundation by Daniel J. Popeo and Paul D. Kamenar. \xe2\x86\xa9\nThis specialized historical method of determining the baseline applied because the\nBeachwood East subdivision is located adjacent to a so-called \xe2\x80\x9cinlet erosion zone\xe2\x80\x9d (defined in the\nAct to mean \xe2\x80\x9ca segment of shoreline along or adjacent to tidal inlets which are directly influenced by\nthe inlet and its associated shoals,\xe2\x80\x9dS. C. Code Ann. \xc2\xa7 48-39-270(7) (Supp.1988)) that is\xe2\x80\x9dnot stabilized\nby jetties,terminal groins, or other structures,\xe2\x80\x9d \xc2\xa7 48-39-280(A)(2).For areas other than these\n518\n\n\x0cunstabilized inlet erosion zones, the statute directs that the baseline be established along \xe2\x80\x9cthe crest\nof an ideal primary oceanfront sand dune.\xe2\x80\x9d\xc2\xa7 48-39-280(A)(1). \xe2\x86\xa9\nThe Act did allow the construction of certain nonhabitable improvements, e. g., \xe2\x80\x9cwooden\nwalkways no larger in width than six feet,\xe2\x80\x9d and \xe2\x80\x9csmall wooden decks no larger than one hundred\nforty-four square feet.\xe2\x80\x9d \xc2\xa7\xc2\xa7 48-39-290(A)(1) and (2). \xe2\x86\xa9\nWe will not attempt to respond to all of Justice Blackmun\xe2\x80\x99s mistaken citation of case\nprecedent. Characteristic of its nature is his assertion that the cases we discuss here stand merely for\nthe proposition \xe2\x80\x9cthat proof that a regulation does not deny an owner economic use of his property is\nsufficient to defeat a facial takings challenge\xe2\x80\x9d and not for the point that \xe2\x80\x9ddenial of such use is\nsufficient to establish a takings claim regardless of any other consideration.\xe2\x80\x9d Post, at 1050, n. 11. The\ncases say, repeatedly and unmistakably, that \xe2\x80\x9d\xe2\x80\x99[t]he test to be applied in considering [a] facial\n[takings] challenge is fairly straightforward. A statute regulating the uses that can be made of\nproperty effects a taking if it \xe2\x80\x9cdenies an owner economically viable use of his land. \xe2\x80\x9d\xe2\x80\x99 \xe2\x80\x9d Keystone, 480 U. S., at 495\n(quoting Hodel, 452 U. S., at 295-296 (quoting Agins, 447 U. S., at 260)) (emphasis added). Justice\nBlackmun describes that rule (which we do not invent but merely apply today) as \xe2\x80\x9calter[ing] the\nlong-settled rules of review\xe2\x80\x9d by foisting on the State \xe2\x80\x9cthe burden of showing [its]regulation is not a\ntaking.\xe2\x80\x9d Post, at 1045, 1046. This is of course wrong. Lucas had to do more than simply file a lawsuit\nto establish his constitutional entitlement; he had to show that the Beachfront Management Act\ndenied him economically beneficial use of his land. Our analysis presumes the unconstitutionality of\nstate land-use regulation only in the sense that any rule with exceptions presumes the invalidity of a\nlaw that violates it\xe2\x80\x93for example, the rule generally prohibiting content-based restrictions on speech.\nSee, e. g., em>Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105,\n115 (1991) (\xe2\x80\x9cA statute is presumptively inconsistent with the First Amendment if it imposes a\nfinancial burden on speakers because of the content of their speech\xe2\x80\x9d). Justice Blackmun\xe2\x80\x99s real\nquarrel is with the substantive standard of liability we apply in this case, a longestablished standard\nwe see no need to repudiate. \xe2\x86\xa9\nRegrettably, the rhetorical force of our \xe2\x80\x9cdeprivation of all economically feasible use\xe2\x80\x9d rule is\ngreater than its precision, since the rule does not make clear the \xe2\x80\x9cproperty interest\xe2\x80\x9d against which\nthe loss of value is to be measured. When, for example, a regulation requires a developer to leave\n90% of a rural tract in its natural state, it is unclear whether we would analyze the situation as one in\nwhich the owner has been deprived of all economically beneficial use of the burdened portion of the\ntract, or as one in which the owner has suffered a mere diminution in value of the tract as a whole.\n(For an extreme\xe2\x80\x93and, we think, unsupportable\xe2\x80\x93view of the relevant calculus, see Penn Central\nTransportation Co. v. New York City, 42 N. Y. 2d 324, 333-334, 366 N. E. 2d 1271, 1276-1277 (1977),\naff\xe2\x80\x99d, 438 U. S. 104 (1978), where the state court examined the diminution in a particular parcel\xe2\x80\x99s\nvalue produced by a municipal ordinance in light of total value of the takings claimant\xe2\x80\x99s other\nholdings in the vicinity.) Unsurprisingly, this uncertainty regarding the composition of the\ndenominator in our \xe2\x80\x9cdeprivation\xe2\x80\x9d fraction has produced inconsistent pronouncements by the Court.\nCompare Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 414 (1922) (law restricting subsurface\nextraction of coal held to effect a taking), with Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U. S.\n470, 497-502 (1987) (nearly identical law held not to effect a taking); see also id., at 515-520\n(Rehnquist, C. J., dissenting); Rose, Mahon Reconstructed: Why the Takings Issue is Still a Muddle,\n57 S. Cal. L. Rev. 561, 566-569 (1984). The answer to this difficult question may lie in how the\nowner\xe2\x80\x99s reasonable expectations have been shaped by the State\xe2\x80\x99s law of property\xe2\x80\x93i. e., whether and\nto what degree the State\xe2\x80\x99s law has accorded legal recognition and protection to the particular interest\nin land with respect to which the takings claimant alleges a diminution in (or elimination of) value.\nIn any event, we avoid this difficulty in the present case, since the \xe2\x80\x9cinterest in land\xe2\x80\x9d that Lucas has\n519\n\n\x0cpleaded (a fee simple interest) is an estate with a rich tradition of protection at common law, and\nsince the South Carolina Court of Common Pleas found that the Beachfront Management Act left\neach of Lucas\xe2\x80\x99s beachfront lots without economic value. \xe2\x86\xa9\nJustice Stevens criticizes the \xe2\x80\x9cdeprivation of all economically beneficial use\xe2\x80\x9d rule as \xe2\x80\x9cwholly\narbitrary,\xe2\x80\x9d in that \xe2\x80\x9c[the] landowner whose property is diminished in value 95% recovers nothing,\xe2\x80\x9d\nwhile the landowner who suffers a complete elimination of value \xe2\x80\x9crecovers the land\xe2\x80\x99s full value.\xe2\x80\x9d\nPost, at 1064. This analysis errs in its assumption that the landowner whose deprivation is one step\nshort of complete is not entitled to compensation. Such an owner might not be able to claim the\nbenefit of our categorical formulation, but, as we have acknowledged time and again, \xe2\x80\x9c[t]he\neconomic impact of the regulation on the claimant and \xe2\x80\xa6the extent to which the regulation has\ninterfered with distinct investmentbacked expectations\xe2\x80\x9d are keenly relevant to takings analysis\ngenerally. Penn Central Transportation Co. v. New York City, 438 U. S. 104, 124 (1978). It is true that in\nat least some cases the landowner with 95% loss will get nothing, while the landowner with total loss\nwill recover in full. But that occasional result is no more strange than the gross disparity between the\nlandowner whose premises are taken for a highway (who recovers in full) and the landowner whose\nproperty is reduced to 5% of its former value by the highway (who recovers nothing). Takings law is\nfull of these \xe2\x80\x9callor-nothing\xe2\x80\x9d situations. Justice Stevens similarly misinterprets our focus on\n\xe2\x80\x9cdevelopmental\xe2\x80\x9d uses of property (the uses proscribed by the Beachfront Management Act) as\nbetraying an \xe2\x80\x9cassumption that the only uses of property cognizable under the Constitution are\ndevelopmental uses.\xe2\x80\x9d Post, at 1065, n. 3. We make no such assumption. Though our prior takings cases\nevince an abiding concern for the productive use of, and economic investment in, land, there are\nplainly a number of noneconomic interests in land whose impairment will invite exceedingly close\nscrutiny under the Takings Clause. See, e. g., Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S.\n419, 436 (1982) (interest in excluding strangers from one\xe2\x80\x99s land). \xe2\x86\xa9\nThis finding was the premise of the petition for certiorari, and since it was not challenged in\nthe brief in opposition we decline to entertain the argument in respondent\xe2\x80\x99s brief on the merits, see\nBrief for Respondent 45-50, that the finding was erroneous. Instead, we decide the question\npresented under the same factual assumptions as did the Supreme Court of South Carolina. See\nOklahoma City v. Tuttle, 471 U. S. 808, 816 (1985). \xe2\x86\xa9\nThe legislature\xe2\x80\x99s express findings include the following: \xe2\x80\x9cThe General Assembly finds that:\n\xe2\x80\x9c(1) The beach/dune system along the coast of South Carolina is extremely important to the people\nof this State and serves the following functions: \xe2\x80\x9c(a) protects life and property by serving as a storm\nbarrier which dissipates wave energy and contributes to shoreline stability in an economical and\neffective manner; \xe2\x80\x9c(b) provides the basis for a tourism industry that generates approximately twothirds of South Carolina\xe2\x80\x99s annual tourism industry revenue which constitutes a significant portion of\nthe state\xe2\x80\x99s economy. The tourists who come to the South Carolina coast to enjoy the ocean and dry\nsand beach contribute significantly to state and local tax revenues; \xe2\x80\x9c(c) provides habitat for\nnumerous species of plants and animals, several of which are threatened or endangered. Waters\nadjacent to the beach/ dune system also provide habitat for many other marine species; \xe2\x80\x9c(d)\nprovides a natural health environment for the citizens of South Carolina to spend leisure time which\nserves their physical and mental wellbeing. \xe2\x80\x9c(2) Beach/dune system vegetation is unique and\nextremely important to the vitality and preservation of the system. \xe2\x80\x9c(3) Many miles of South\nCarolina\xe2\x80\x99s beaches have been identified as critically eroding. \xe2\x80\x9c(4) \xe2\x80\xa6 [D]evelopment unwisely has\nbeen sited too close to the [beach/ dune] system. This type of development has jeopardized the\nstability of the beach/dune system, accelerated erosion, and endangered adjacent property. It is in\nboth the public and private interests to protect the system from this unwise development. \xe2\x80\x9c(5) The\nuse of armoring in the form of hard erosion control devices such as seawalls, bulkheads, and rip-rap\n520\n\n\x0cto protect erosion-threatened structures adjacent to the beach has not proven effective. These\narmoring devices have given a falsesense of security to beachfront property owners. In reality, these\nhard structures, in many instances, have increased the vulnerability of beachfront property to\ndamage from wind and waves while contributing to the deterioration and loss of the dry sand beach\nwhich is so important to the tourism industry. \xe2\x80\x9c(6) Erosion is a natural process which becomes a\nsignificant problem for man only when structures are erected in close proximity to the beach/ dune\nsystem. It is in both the public and private interests to afford the beach/dune system space to\naccrete and erode in its natural cycle. This space can be provided only by discouraging new\nconstruction in close proximity to the beach/dune system and encouraging those who have erected\nstructures too close to the system to retreat from it. \xe2\x80\xa6 . . \xe2\x80\x9c(8) It is in the state\xe2\x80\x99s best interest to\nprotect and to promote increased public access to South Carolina\xe2\x80\x99s beaches for out-of-state tourists\nand South Carolina residents alike.\xe2\x80\x9d S. C. Code Ann. \xc2\xa7 48-39-250 (Supp. 1991). \xe2\x86\xa9\nIn the present case, in fact, some of the \xe2\x80\x9c[South Carolina] legislature\xe2\x80\x99s \xe2\x80\x98findings\xe2\x80\x99 \xe2\x80\x9d to which\nthe South Carolina Supreme Court purported to defer in characterizing the purpose of the Act as\n\xe2\x80\x9charmpreventing,\xe2\x80\x9d 304 S. C. 376, 385, 404 S. E. 2d 895, 900 (1991), seem to us phrased in\n\xe2\x80\x9cbenefitconferring\xe2\x80\x9d language instead. For example, they describe the importance of a construction\nban in enhancing \xe2\x80\x9cSouth Carolina\xe2\x80\x99s annual tourism industry revenue,\xe2\x80\x9d S. C. Code Ann. \xc2\xa7 48-39250(1)(b) (Supp. 1991), in \xe2\x80\x9cprovid[ing] habitat for numerous species of plants and animals, several of\nwhich are threatened or endangered,\xe2\x80\x9d \xc2\xa7 48-39-250(1)(c), and in \xe2\x80\x9cprovid[ing] a natural healthy\nenvironment for the citizens of South Carolina to spend leisure time which serves their physical and\nmental wellbeing,\xe2\x80\x9d \xc2\xa7 48-39-250(1)(d). It would be pointless to make the outcome of this case hang\nupon this terminology, since the same interests could readily be described in \xe2\x80\x9charmpreventing\xe2\x80\x9d\nfashion. Justice Blackmun, however, apparently insists that we must make the outcome hinge\n(exclusively) upon the South Carolina Legislature\xe2\x80\x99s other, \xe2\x80\x9charmpreventing\xe2\x80\x9d characterizations,\nfocusing on the declaration that \xe2\x80\x9cprohibitions on building in front of the setback line are necessary\nto protect people and property from storms, high tides, and beach erosion.\xe2\x80\x9d Post, at 1040. He says\n\xe2\x80\x9c[n]othing in the record undermines [this] assessment,\xe2\x80\x9d ibid., apparently seeing no significance in the\nfact that the statute permits owners of existing structures to remain (and even to rebuild if their\nstructures are not \xe2\x80\x9cdestroyed beyond repair,\xe2\x80\x9d S. C. Code Ann. \xc2\xa7 48-39-290(B) (Supp. 1988)), and in\nthe fact that the 1990 amendment authorizes the Council to issue permits for new construction in\nviolation of the uniform prohibition, see S. C. Code Ann. \xc2\xa7 48-39-290(D)(1) (Supp. 1991). \xe2\x86\xa9\nIn Justice Blackmun\xe2\x80\x99s view, even with respect to regulations that deprive an owner of all\ndevelopmental or economically beneficial land uses, the test for required compensation is whether\nthe legislature has recited a harmpreventing justification for its action. See post, at 1039, 1040-1041,\n1047-1051. Since such a justification can be formulated in practically every case, this amounts to a\ntest of whether the legislature has a stupid staff. We think the Takings Clause requires courts to do\nmore than insist upon artful harmpreventing characterizations. \xe2\x86\xa9\nE. g., Mugler v. Kansas, 123 U. S. 623 (1887) (prohibition upon use of a building as a brewery;\nother uses permitted); Plymouth Coal Co. v. Pennsylvania, 232 U. S. 531 (1914) (requirement that\n\xe2\x80\x9cpillar\xe2\x80\x9d of coal be left in ground to safeguard mine workers; mineral rights could otherwise be\nexploited); Reinman v.Little Rock, 237 U. S. 171 (1915) (declaration that livery stable constituted a\npublic nuisance; other uses of the property permitted); Hadacheck v. Sebastian, 239 U. S. 394 (1915)\n(prohibition of brick manufacturing in residential area; other uses permitted); Goldblatt v. Hempstead,\n369 U. S. 590 (1962) (prohibition on excavation; other uses permitted). \xe2\x86\xa9\nDrawing on our First Amendment jurisprudence, see, e. g., Employment Div., Dept. of Human\nResources of Ore. v. Smith, 494 U. S. 872, 878-879 (1990), Justice Stevens would \xe2\x80\x9cloo[k] to the generality\nof a regulation of property\xe2\x80\x9d to determine whether compensation is owing. Post, at 1072. The Beach\n521\n\n\x0cfront Management Act is general, in his view, because it \xe2\x80\x9cregulates the use of the coastline of the\nentire State.\xe2\x80\x9d Post, at 1074. There may be some validity to the principle Justice Stevens proposes, but\nit does not properly apply to the present case. The equivalent of a law of general application that\ninhibits the practice of religion without being aimed at religion, see Oregon v. Smith, supra, is a law that\ndestroys the value of land without being aimed at land. Perhaps such a law \xe2\x80\x93 the generally applicable\ncriminal prohibition on the manufacturing of alcoholic beverages challenged in Mugler comes to\nmind \xe2\x80\x93 cannot constitute a compensable taking. See 123 U. S., at 655-656. But a regulation specifically\ndirected to land use no more acquires immunity by plundering landowners generally than does a law\nspecifically directed at religious practice acquire immunity by prohibiting all religions. Justice\nStevens\xe2\x80\x99s approach renders the Takings Clause little more than a particularized restatement of the\nEqual Protection Clause. \xe2\x86\xa9\nAfter accusing us of \xe2\x80\x9claunch[ing] a missile to kill a mouse,\xe2\x80\x9d post, at 1036, Justice Blackmun\nexpends a good deal of throw-weight of his own upon a noncombatant, arguing that our description\nof the \xe2\x80\x9cunderstanding\xe2\x80\x9d of land ownership that informs the Takings Clause is not supported by early\nAmerican experience. That is largely true, but entirely irrelevant. The practices of the States prior to\nincorporation of the Takings and Just Compensation Clauses, see Chicago, B. & Q. R. Co. v. Chicago,\n166 U. S. 226 (1897) \xe2\x80\x93 which, as Justice Blackmun acknowledges, occasionally included outright\nphysical appropriation of land without compensation, see post, at 1056 \xe2\x80\x93 were out of accord with any\nplausible interpretation of those provisions. Justice Blackmun is correct that early constitutional\ntheorists did not believe the Takings Clause embraced regulations of property at all, see post, at 10571058, and n. 23, but even he does not suggest (explicitly, at least) that we renounce the Court\xe2\x80\x99s\ncontrary conclusion in Mahon. Since the text of the Clause can be read to encompass regulatory as\nwell as physical deprivations (in contrast to the text originally proposed by Madison, see Speech\nProposing Bill of Rights (June 8, 1789), in 12 J. Madison, The Papers of James Madison 201 (C.\nHobson, R. Rutland, W. Rachal, & J. Sisson ed. 1979) (\xe2\x80\x9cNo person shall be \xe2\x80\xa6 obliged to relinquish\nhis property, where it may be necessary for public use, without a just compensation\xe2\x80\x9d), we decline to\ndo so as well. \xe2\x86\xa9\nThe principal \xe2\x80\x9cotherwise\xe2\x80\x9d that we have in mind is litigation absolving the State (or private\nparties) of liability for the destruction of \xe2\x80\x9creal and personal property, in cases of actual necessity, to\nprevent the spreading of a fire\xe2\x80\x9d or to forestall other grave threats to the lives and property of others.\nBowditch v. Boston, 101 U. S. 16, 18-19 (1880); see United States v. Pacific R. Co., 120 U. S. 227, 238-239\n(1887). \xe2\x86\xa9\nOf course, the State may elect to rescind its regulation and thereby avoid having to pay\ncompensation for a permanent deprivation. See First English Evangelical Lutheran Church, 482 U. S., at\n321. But \xe2\x80\x9cwhere the [regulation has] already worked a taking of all use of property, no subsequent\naction by the government can relieve it of the duty to provide compensation for the period during\nwhich the taking was effective.\xe2\x80\x9d Ibid. \xe2\x86\xa9\nJustice Blackmun decries our reliance on background nuisance principles at least in part\nbecause he believes those principles to be as manipulable as we find the \xe2\x80\x9charm prevention\xe2\x80\x9d/\xe2\x80\x9dbenefit\nconferral\xe2\x80\x9d dichotomy, see post, at 1054-1055. There is no doubt some leeway in a court\xe2\x80\x99s\ninterpretation of what existing state law permits \xe2\x80\x93 but not remotely as much, we think, as in a\nlegislative crafting of the reasons for its confiscatory regulation. We stress that an affirmative decree\neliminating all economically beneficial uses may be defended only if an objectively reasonable application\nof relevant precedents would exclude those beneficial uses in the circumstances in which the land is\npresently found. \xe2\x86\xa9\n\n522\n\n\x0cTahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency,\n535 U.S. 302 (2002)\n\nMichael M. Berger argued the cause for petitioners. With him on the briefs were Gideon\nKannerand Lawrence L. Hoffman.\nJohn G. Roberts, Jr., argued the cause for respondents. With him on the brief were Frankie\nSue Del Papa, Attorney General of Nevada, and William J. Frey, Deputy Attorney General, Bill\nLockyer, Attorney General of California, Richard M. Frank, Chief Assistant Attorney General,\nMatthew Rodriquez, Senior Assistant Attorney General, and Daniel L. Siegel, Supervising Deputy\nAttorney General, E. Clement Shute, Jr., Fran M. Layton, Ellison Folk, John L. Marshall, and\nRichard J. Lazarus.\nSolicitor General Olson argued the cause for the United States as amicus curiae urging\naffirmance. With him on the brief were Acting Assistant Attorney General Cruden, Deputy Solicitor\nGeneral Kneedler, and Malcolm L. Stewart.\nJustice Stevens delivered the opinion of the Court.\nThe question presented is whether a moratorium on development imposed during the\nprocess of devising a comprehensive landuse plan constitutes a per se taking of property requiring\ncompensation under the Takings Clause of the United States Constitution.1 This case actually\ninvolves two moratoria ordered by respondent Tahoe Regional Planning Agency (TRPA) to\nmaintain the status quo while studying the impact of development on Lake Tahoe and designing a\nstrategy for environmentally sound growth. The first, Ordinance 81-5, was effective from August 24,\n1981, until August 26, 1983, whereas the second more restrictive Resolution 83-21 was in effect\nfrom August 27, 1983, until April 25, 1984. As a result of these two directives, virtually all\ndevelopment on a substantial portion of the property subject to TRPA\xe2\x80\x99s jurisdiction was prohibited\nfor a period of 32 months. Although the question we decide relates only to that 32-month period, a\nbrief description of the events leading up to the moratoria and a comment on the two permanent\nplans that TRPA adopted thereafter will clarify the narrow scope of our holding.\n\nI\n\nThe relevant facts are undisputed. The Court of Appeals, while reversing the District Court\non a question of law, accepted all of its findings of fact, and no party challenges those findings. All\nagree that Lake Tahoe is \xe2\x80\x9cuniquely beautiful,\xe2\x80\x9d 34 F. Supp. 2d 1226, 1230 (Nev. 1999), that President\nClinton was right to call it a \xe2\x80\x9c\xe2\x80\x98national treasure that must be protected and preserved,\xe2\x80\x99 \xe2\x80\x9d ibid., and\nthat Mark Twain aptly described the clarity of its waters as \xe2\x80\x9c\xe2\x80\x98not merely transparent, but dazzlingly,\nbrilliantly so,\xe2\x80\x99 \xe2\x80\x9d ibid. (emphasis added) (quoting M. Twain, Roughing It 174-175 (1872)).\n523\n\n\x0cLake Tahoe\xe2\x80\x99s exceptional clarity is attributed to the absence of algae that obscures the waters\nof most other lakes. Historically, the lack of nitrogen and phosphorous, which nourish the growth of\nalgae, has ensured the transparency of its waters.2 Unfortunately, the lake\xe2\x80\x99s pristine state has\ndeteriorated rapidly over the past 40 years; increased land development in the Lake Tahoe Basin\n(Basin) has threatened the \xe2\x80\x9c\xe2\x80\x98noble sheet of blue water\xe2\x80\x99 \xe2\x80\x9d beloved by Twain and countless others. 34\nF. Supp. 2d, at 1230. As the District Court found, \xe2\x80\x9c[d]ramatic decreases in clarity first began to be\nnoted in the late 1950\xe2\x80\x99s/early 1960\xe2\x80\x99s, shortly after development at the lake began in earnest.\xe2\x80\x9d Id., at\n1231. The lake\xe2\x80\x99s unsurpassed beauty, it seems, is the wellspring of its undoing.\nThe upsurge of development in the area has caused \xe2\x80\x9cincreased nutrient loading of the lake\nlargely because of the increase in impervious coverage of land in the Basin resulting from that\ndevelopment.\xe2\x80\x9d Ibid.\n[The Court recounts the history of inter-governmental cooperation and land use regulations\nsince the 1960s that have attempted to solve the water quality problems. A three-year moratorium\nwas imposed while TRPA developed a regional water quality plan. When that plan was complete,\nCalifornia sued, alleging the plan was inadequate to protect Lake Tahoe. The federal court entered\nan injunction that essentially continued the moratorium for another three years, until 1987 when a\nnew regional plan was completed. Around the same time that California filed suit, Petitioners \xe2\x80\x93- a\ntotal of around 2,400 landowners -\xe2\x80\x93 also filed their suit, seeking compensation for the moratorium\nthat had been in effect from 1981-1984. That litigation became protracted \xe2\x80\x9cproduc[ing] four\nopinions by the Court of Appeals for the Ninth Circuit and several published District Court\nopinions.\xe2\x80\x9d The majority in this case held that only the 1981 moratorium, not the additional delay\ncaused by the federal injunction was before it. It also characterized Petitioners as mounting only a\nfacial challenge to the moratorium. \xe2\x80\x9cFor petitioners, it is enough that a regulation imposes a\ntemporary deprivation\xe2\x80\x93no matter how brief\xe2\x80\x93of all economically viable use to trigger a per se rule\nthat a taking has occurred.\xe2\x80\x9d]\n\nIV\n\nThe text of the Fifth Amendment itself provides a basis for drawing a distinction between\nphysical takings and regulatory takings. Its plain language requires the payment of compensation\nwhenever the government acquires private property for a public purpose, whether the acquisition is\nthe result of a condemnation proceeding or a physical appropriation. But the Constitution contains\nno comparable reference to regulations that prohibit a property owner from making certain uses of\nher private property.3 Our jurisprudence involving condemnations and physical takings is as old as\nthe Republic and, for the most part, involves the straightforward application of per se rules. Our\nregulatory takings jurisprudence, in contrast, is of more recent vintage and is characterized by\n\xe2\x80\x9cessentially ad hoc, factual inquiries,\xe2\x80\x9d Penn Central, 438 U. S., at 124, designed to allow \xe2\x80\x9ccareful\nexamination and weighing of all the relevant circumstances.\xe2\x80\x9d Palazzolo, 533 U. S., at 636 (O\xe2\x80\x99Connor,\nJ., concurring).\nWhen the government physically takes possession of an interest in property for some public\npurpose, it has a categorical duty to compensate the former owner, United States v. Pewee Coal Co., 341\nU. S. 114, 115 (1951), regardless of whether the interest that is taken constitutes an entire parcel or\nmerely a part thereof. Thus, compensation is mandated when a leasehold is taken and the\n524\n\n\x0cgovernment occupies the property for its own purposes, even though that use is temporary. United\nStates v. General Motors Corp., 323 U. S. 373 (1945); United States v. Petty Motor Co., 327 U. S. 372 (1946).\nSimilarly, when the government appropriates part of a roof top in order to provide cable TV access\nfor apartment tenants, Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419 (1982); or when\nits planes use private airspace to approach a government airport, United States v. Causby, 328 U. S. 256\n(1946), it is required to pay for that share no matter how small. But a government regulation that\nmerely prohibits landlords from evicting tenants unwilling to pay a higher rent, Block v. Hirsh, 256 U.\nS. 135 (1921); that bans certain private uses of a portion of an owner\xe2\x80\x99s property, Village of Euclid v.\nAmbler Realty Co., 272 U. S. 365 (1926); Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U. S. 470\n(1987); or that forbids the private use of certain airspace, Penn Central Transp. Co. v. New York City,\n438 U. S. 104 (1978), does not constitute a categorical taking. \xe2\x80\x9cThe first category of cases requires\ncourts to apply a clear rule; the second necessarily entails complex factual assessments of the\npurposes and economic effects of government actions.\xe2\x80\x9d Yee v. Escondido, 503 U. S. 519, 523 (1992).\nSee also Loretto, 458 U. S., at 440; Keystone, 480 U. S., at 489, n. 18.\nThis longstanding distinction between acquisitions of property for public use, on the one\nhand, and regulations prohibiting private uses, on the other, makes it inappropriate to treat cases\ninvolving physical takings as controlling precedents for the evaluation of a claim that there has been\na \xe2\x80\x9cregulatory taking,\xe2\x80\x9d4 and vice versa. For the same reason that we do not ask whether a physical\nappropriation advances a substantial government interest or whether it deprives the owner of all\neconomically valuable use, we do not apply our precedent from the physical takings context to\nregulatory takings claims. Landuse regulations are ubiquitous and most of them impact property\nvalues in some tangential way\xe2\x80\x93often in completely unanticipated ways. Treating them all as per se\ntakings would transform government regulation into a luxury few governments could afford. By\ncontrast, physical appropriations are relatively rare, easily identified, and usually represent a greater\naffront to individual property rights.5 \xe2\x80\x9cThis case does not present the \xe2\x80\x98classi[c] taking\xe2\x80\x99 in which the\ngovernment directly appropriates private property for its own use,\xe2\x80\x9dEastern Enterprises v. Apfel, 524 U.\nS. 498, 522 (1998); instead the interference with property rights \xe2\x80\x9carises from some public program\nadjusting the benefits and burdens of economic life to promote the common good,\xe2\x80\x9d Penn Central,\n438 U. S., at 124.\nPerhaps recognizing this fundamental distinction, petitioners wisely do not place all their\nemphasis on analogies to physical takings cases. Instead, they rely principally on our decision in\nLucas v. South Carolina Coastal Council, 505 U. S. 1003 (1992)\xe2\x80\x93a regulatory takings case that,\nnevertheless, applied a categorical rule\xe2\x80\x93to argue that the Penn Central framework is inapplicable here.\nA brief review of some of the cases that led to our decision in Lucas, however, will help to explain\nwhy the holding in that case does not answer the question presented here.\nAs we noted in Lucas, it was Justice Holmes\xe2\x80\x99 opinion in Pennsylvania Coal Co. v. Mahon, 260 U.\nS. 393 (1922),6 that gave birth to our regulatory takings jurisprudence.7 In subsequent opinions we\nhave repeatedly and consistently endorsed Holmes\xe2\x80\x99 observation that \xe2\x80\x9cif regulation goes too far it will\nbe recognized as a taking.\xe2\x80\x9d Id., at 415. Justice Holmes did not provide a standard for determining\nwhen a regulation goes \xe2\x80\x9ctoo far,\xe2\x80\x9d but he did reject the view expressed in Justice Brandeis\xe2\x80\x99 dissent\nthat there could not be a taking because the property remained in the possession of the owner and\nhad not been appropriated or used by the public.8 After Mahon, neither a physical appropriation nor\na public use has ever been a necessary component of a \xe2\x80\x9cregulatory taking.\xe2\x80\x9d\nIn the decades following that decision, we have \xe2\x80\x9cgenerally eschewed\xe2\x80\x9d any set formula for\ndetermining how far is too far, choosing instead to engage in \xe2\x80\x9c\xe2\x80\x98essentially ad hoc, factual inquiries.\xe2\x80\x99 \xe2\x80\x9d\nLucas, 505 U. S., at 1015 (quoting Penn Central, 438 U. S., at 124). Indeed, we still resist the\ntemptation to adopt per se rules in our cases involving partial regulatory takings, preferring to\nexamine \xe2\x80\x9ca number of factors\xe2\x80\x9d rather than a simple \xe2\x80\x9cmathematically precise\xe2\x80\x9d formula.9 Justice\n525\n\n\x0cBrennan\xe2\x80\x99s opinion for the Court in Penn Central did, however, make it clear that even though\nmultiple factors are relevant in the analysis of regulatory takings claims, in such cases we must focus\non \xe2\x80\x9cthe parcel as a whole\xe2\x80\x9d:\n\xe2\x80\x9c\xe2\x80\x98Taking\xe2\x80\x99 jurisprudence does not divide a single parcel into discrete segments and attempt to\ndetermine whether rights in a particular segment have been entirely abrogated. In deciding whether a\nparticular governmental action has effected a taking, this Court focuses rather both on the character\nof the action and on the nature and extent of the interference with rights in the parcel as a whole\xe2\x80\x93\nhere, the city tax block designated as the \xe2\x80\x98landmark site.\xe2\x80\x99 \xe2\x80\x9d Id., at 130-131.\nThis requirement that \xe2\x80\x9cthe aggregate must be viewed in its entirety\xe2\x80\x9d explains why, for\nexample, a regulation that prohibited commercial transactions in eagle feathers, but did not bar other\nuses or impose any physical invasion or restraint upon them, was not a taking. Andrus v. Allard, 444\nU. S. 51, 66 (1979). It also clarifies why restrictions on the use of only limited portions of the parcel,\nsuch as setback ordinances, Gorieb v. Fox, 274 U. S. 603 (1927), or a requirement that coal pillars be\nleft in place to prevent mine subsidence, Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U. S., at\n498, were not considered regulatory takings. In each of these cases, we affirmed that \xe2\x80\x9cwhere an\nowner possesses a full \xe2\x80\x98bundle\xe2\x80\x99 of property rights, the destruction of one \xe2\x80\x98strand\xe2\x80\x99 of the bundle is not\na taking.\xe2\x80\x9d Andrus, 444 U. S., at 65-66.\nWhile the foregoing cases considered whether particular regulations had \xe2\x80\x9cgone too far\xe2\x80\x9d and\nwere therefore invalid, none of them addressed the separate remedial question of how compensation\nis measured once a regulatory taking is established. In his dissenting opinion in San Diego Gas & Elec.\nCo. v. San Diego, 450 U. S. 621, 636 (1981), Justice Brennan identified that question and explained\nhow he would answer it:\n\xe2\x80\x9cThe constitutional rule I propose requires that, once a court finds that a police power\nregulation has effected a \xe2\x80\x98taking,\xe2\x80\x99 the government entity must pay just compensation for the period\ncommencing on the date the regulation first effected the \xe2\x80\x98taking,\xe2\x80\x99 and ending on the date the\ngovernment entity chooses to rescind or otherwise amend the regulation.\xe2\x80\x9d Id., at 658.\nJustice Brennan\xe2\x80\x99s proposed rule was subsequently endorsed by the Court in First English, 482\nU. S., at 315, 318, 321. First English was certainly a significant decision, and nothing that we say today\nqualifies its holding. Nonetheless, it is important to recognize that we did not address in that case\nthe quite different and logically prior question whether the temporary regulation at issue had in fact\nconstituted a taking.\nIn First English, the Court unambiguously and repeatedly characterized the issue to be\ndecided as a \xe2\x80\x9ccompensation question\xe2\x80\x9d or a \xe2\x80\x9cremedial question.\xe2\x80\x9d Id., at 311 (\xe2\x80\x9cThe disposition of the\ncase on these grounds isolates the remedial question for our consideration\xe2\x80\x9d); see also id., at 313, 318.\nAnd the Court\xe2\x80\x99s statement of its holding was equally unambiguous: \xe2\x80\x9cWe merely hold that where the\ngovernment\xe2\x80\x99s activities have already worked a taking of all use of property, no subsequent action by the\ngovernment can relieve it of the duty to provide compensation for the period during which the\ntaking was effective.\xe2\x80\x9d Id., at 321 (emphasis added). In fact, First English expressly disavowed any\nruling on the merits of the takings issue because the California courts had decided the remedial\nquestion on the assumption that a taking had been alleged. Id., at 312-313 (\xe2\x80\x9cWe reject appellee\xe2\x80\x99s\nsuggestion that \xe2\x80\xa6 we must independently evaluate the adequacy of the complaint and resolve the\ntakings claim on the merits before we can reach the remedial question\xe2\x80\x9d). After our remand, the\nCalifornia courts concluded that there had not been a taking, First English Evangelical Church of\nGlendale v. County of Los Angeles, 210 Cal. App. 3d 1353, 258 Cal. Rptr. 893 (1989), and we declined\nreview of that decision, 493 U. S. 1056 (1990).\nTo the extent that the Court in First English referenced the antecedent takings question, we\nidentified two reasons why a regulation temporarily denying an owner all use of her property might\nnot constitute a taking. First, we recognized that \xe2\x80\x9cthe county might avoid the conclusion that a\n526\n\n\x0ccompensable taking had occurred by establishing that the denial of all use was insulated as a part of\nthe State\xe2\x80\x99s authority to enact safety regulations.\xe2\x80\x9d 82 U. S., at 313. Second, we limited our holding \xe2\x80\x9cto\nthe facts presented\xe2\x80\x9d and recognized \xe2\x80\x9cthe quite different questions that would arise in the case of\nnormal delays in obtaining building permits, changes in zoning ordinances, variances, and the like\nwhich [were] not before us.\xe2\x80\x9d Id., at 321. Thus, our decision in First English surely did not approve,\nand implicitly rejected, the categorical submission that petitioners are now advocating.\nSimilarly, our decision in Lucas is not dispositive of the question presented. Although Lucas\nendorsed and applied a categorical rule, it was not the one that petitioners propose. Lucas purchased\ntwo residential lots in 1988 for $975,000. These lots were rendered \xe2\x80\x9cvalueless\xe2\x80\x9d by a statute enacted\ntwo years later. The trial court found that a taking had occurred and ordered compensation of\n$1,232,387.50, representing the value of the fee simple estate, plus interest. As the statute read at the\ntime of the trial, it effected a taking that \xe2\x80\x9cwas unconditional and permanent.\xe2\x80\x9d 505 U. S., at 1012.\nWhile the State\xe2\x80\x99s appeal was pending, the statute was amended to authorize exceptions that might\nhave allowed Lucas to obtain a building permit. Despite the fact that the amendment gave the State\nSupreme Court the opportunity to dispose of the appeal on ripeness grounds, it resolved the merits\nof the permanent takings claim and reversed. Since \xe2\x80\x9cLucas had no reason to proceed on a\n\xe2\x80\x98temporary taking\xe2\x80\x99 theory at trial,\xe2\x80\x9d we decided the case on the permanent taking theory that both the\ntrial court and the State Supreme Court had addressed. Ibid.\nThe categorical rule that we applied in Lucas states that compensation is required when a\nregulation deprives an owner of \xe2\x80\x9dall economically beneficial uses\xe2\x80\x9d of his land. Id., at 1019. Under\nthat rule, a statute that \xe2\x80\x9cwholly eliminated the value\xe2\x80\x9d of Lucas\xe2\x80\x99 fee simple title clearly qualified as a\ntaking. But our holding was limited to \xe2\x80\x9cthe extraordinary circumstance when no productive or\neconomically beneficial use of land is permitted.\xe2\x80\x9d Id., at 1017. The emphasis on the word \xe2\x80\x9cno\xe2\x80\x9d in the\ntext of the opinion was, in effect, reiterated in a footnote explaining that the categorical rule would\nnot apply if the diminution in value were 95% instead of 100%. Id., at 1019, n. 8.10 Anything less\nthan a \xe2\x80\x9ccomplete elimination of value,\xe2\x80\x9d or a \xe2\x80\x9ctotal loss,\xe2\x80\x9d the Court acknowledged, would require the\nkind of analysis applied in Penn Central. Lucas, 505 U. S., at 1019-1020, n. 8.11\nCertainly, our holding that the permanent \xe2\x80\x9cobliteration of the value\xe2\x80\x9d of a fee simple estate\nconstitutes a categorical taking does not answer the question whether a regulation prohibiting any\neconomic use of land for a 32-month period has the same legal effect. Petitioners seek to bring this\ncase under the rule announced in Lucas by arguing that we can effectively sever a 32-month segment\nfrom the remainder of each landowner\xe2\x80\x99s fee simple estate, and then ask whether that segment has\nbeen taken in its entirety by the moratoria. Of course, defining the property interest taken in terms\nof the very regulation being challenged is circular. With property so divided, every delay would\nbecome a total ban; the moratorium and the normal permit process alike would constitute\ncategorical takings. Petitioners\xe2\x80\x99 \xe2\x80\x9cconceptual severance\xe2\x80\x9d argument is unavailing because it ignores\nPenn Central \xe2\x80\x98s admonition that in regulatory takings cases we must focus on \xe2\x80\x9cthe parcel as a whole.\xe2\x80\x9d\n438 U. S., at 130\xe2\x80\x93 131. We have consistently rejected such an approach to the \xe2\x80\x9cdenominator\xe2\x80\x9d\nquestion. See Keystone, 480 U. S., at 497. See also Concrete Pipe & Products of Cal., Inc. v. Construction\nLaborers Pension Trust for Southern Cal., 508 U. S. 602, 644 (1993) (\xe2\x80\x9cTo the extent that any portion of\nproperty is taken, that portion is always taken in its entirety; the relevant question, however, is\nwhether the property taken is all, or only a portion of, the parcel in question\xe2\x80\x9d). Thus, the District\nCourt erred when it disaggregated petitioners\xe2\x80\x99 property into temporal segments corresponding to the\nregulations at issue and then analyzed whether petitioners were deprived of all economically viable\nuse during each period. 34 F. Supp. 2d, at 1242-1245. The starting point for the court\xe2\x80\x99s analysis\nshould have been to ask whether there was a total taking of the entire parcel; if not, then Penn Central\nwas the proper framework.12\nAn interest in real property is defined by the metes and bounds that describe its geographic\n527\n\n\x0cdimensions and the term of years that describes the temporal aspect of the owner\xe2\x80\x99s interest. See\nRestatement of Property \xc2\xa7\xc2\xa7 7-9 (1936). Both dimensions must be considered if the interest is to be\nviewed in its entirety. Hence, a permanent deprivation of the owner\xe2\x80\x99s use of the entire area is a\ntaking of \xe2\x80\x9cthe parcel as a whole,\xe2\x80\x9d whereas a temporary restriction that merely causes a diminution in\nvalue is not. Logically, a fee simple estate cannot be rendered valueless by a temporary prohibition\non economic use, because the property will recover value as soon as the prohibition is lifted. Cf.\nAgins v. City of Tiburon, 447 U. S., at 263, n. 9 (\xe2\x80\x9cEven if the appellants\xe2\x80\x99 ability to sell their property\nwas limited during the pendency of the condemnation proceeding, the appellants were free to sell or\ndevelop their property when the proceedings ended. Mere fluctuations in value during the process of\ngovernmental decisionmaking, absent extraordinary delay, are \xe2\x80\x98incidents of ownership. They cannot\nbe considered as a \xe2\x80\x9ctaking\xe2\x80\x9d in the constitutional sense\xe2\x80\x99 \xe2\x80\x9d (quoting Danforth v. United States, 308 U. S.\n271, 285 (1939))).\nNeither Lucas, nor First English, nor any of our other regulatory takings cases compels us to\naccept petitioners\xe2\x80\x99 categorical submission. In fact, these cases make clear that the categorical rule in\nLucas was carved out for the \xe2\x80\x9cextraordinary case\xe2\x80\x9d in which a regulation permanently deprives\nproperty of all value; the default rule remains that, in the regulatory taking context, we require a\nmore fact specific inquiry. Nevertheless, we will consider whether the interest in protecting\nindividual property owners from bearing public burdens \xe2\x80\x9cwhich, in all fairness and justice, should be\nborne by the public as a whole,\xe2\x80\x9d Armstrong v. United States, 364 U. S., at 49, justifies creating a new\nrule for these circumstances.13\n\nV\n\nConsiderations of \xe2\x80\x9cfairness and justice\xe2\x80\x9d arguably could support the conclusion that TRPA\xe2\x80\x99s\nmoratoria were takings of petitioners\xe2\x80\x99 property based on any of seven different theories. First, even\nthough we have not previously done so, we might now announce acategorical rule that, in the\ninterest of fairness and justice, compensation is required whenever government temporarily deprives\nan owner of all economically viable use of her property. Second, we could craft a narrower rule that\nwould cover all temporary landuse restrictions except those \xe2\x80\x9cnormal delays in obtaining building\npermits, changes in zoning ordinances, variances, and the like\xe2\x80\x9d which were put to one side in our\nopinion in First English, 482 U. S., at 321. Third, we could adopt a rule like the one suggested by an\namicus supporting petitioners that would \xe2\x80\x9callow a short fixed period for deliberations to take place\nwithout compensation\xe2\x80\x93say maximum one year\xe2\x80\x93after which the just compensation requirements\xe2\x80\x9d\nwould \xe2\x80\x9ckick in.\xe2\x80\x9d14 Fourth, with the benefit of hindsight, we might characterize the successive actions\nof TRPA as a \xe2\x80\x9cseries of rolling moratoria\xe2\x80\x9d that were the functional equivalent of a permanent\ntaking.15 Fifth, were it not for the findings of the District Court that TRPA acted diligently and in\ngood faith, we might have concluded that the agency was stalling in order to avoid promulgating the\nenvironmental threshold carrying capacities and regional plan mandated by the 1980 Compact. Cf.\nMonterey v. Del Monte Dunes at Monterey, Ltd., 526 U. S. 687, 698 (1999). Sixth, apart from the District\nCourt\xe2\x80\x99s finding that TRPA\xe2\x80\x99s actions represented a proportional response to a serious risk of harm to\nthe lake, petitioners might have argued that the moratoria did not substantially advance a legitimate\nstate interest, see Agins and Monterey. Finally, if petitioners had challenged the application of the\nmoratoria to their individual parcels, instead of making a facial challenge, some of them might have\n528\n\n\x0cprevailed under a Penn Central analysis.\nAs the case comes to us, however, none of the last four theories is available. The \xe2\x80\x9crolling\nmoratoria\xe2\x80\x9d theory was presented in the petition for certiorari, but our order granting review did not\nencompass that issue, 533 U. S. 948 (2001); the case was tried in the District Court and reviewed in\nthe Court of Appeals on the theory that each of the two moratoria was a separate taking, one for a\n2-year period and the other for an 8-month period. 216 F. 3d, at 769. And, as we have already noted,\nrecovery on either a bad faith theory or a theory that the state interests were insubstantial is\nforeclosed by the District Court\xe2\x80\x99s unchallenged findings of fact. Recovery under a Penn Central\nanalysis is also foreclosed both because petitioners expressly disavowed that theory, and because\nthey did not appeal from the District Court\xe2\x80\x99s conclusion that the evidence would not support it.\nNonetheless, each of the three per se theories is fairly encompassed within the question that we\ndecided to answer.\nWith respect to these theories, the ultimate constitutional question is whether the concepts\nof \xe2\x80\x9cfairness and justice\xe2\x80\x9d that underlie the Takings Clause will be better served by one of these\ncategorical rules or by a Penn Central inquiry into all of the relevant circumstances in particular cases.\nFrom that perspective, the extreme categorical rule that any deprivation of all economic use, no\nmatter how brief, constitutes a compensable taking surely cannot be sustained. Petitioners\xe2\x80\x99 broad\nsubmission would apply to numerous \xe2\x80\x9cnormal delays in obtaining building permits, changes in\nzoning ordinances, variances, and the like,\xe2\x80\x9d 482 U. S., at 321, as well as to orders temporarily\nprohibiting access to crime scenes, businesses that violate health codes, fire-damaged buildings, or\nother areas that we cannot now foresee. Such a rule would undoubtedly require changes in\nnumerous practices that have long been considered permissible exercises of the police power. As\nJustice Holmes warned in Mahon, \xe2\x80\x9c[g]overnment hardly could go on if to some extent values\nincident to property could not be diminished without paying for every such change in the general\nlaw.\xe2\x80\x9d 260 U. S., at 413. A rule that required compensation for every delay in the use of property\nwould render routine government processes prohibitively expensive or encourage hasty\ndecisionmaking. Such an important change in the law should be the product of legislative\nrulemaking rather than adjudication.16\nMore importantly, for reasons set out at some length by Justice O\xe2\x80\x99Connor in her concurring\nopinion in Palazzolo v. Rhode Island, 533 U. S., at 636, we are persuaded that the better approach to\nclaims that a regulation has effected a temporary taking \xe2\x80\x9crequires careful examination and weighing\nof all the relevant circumstances.\xe2\x80\x9d In that opinion, Justice O\xe2\x80\x99Connor specifically considered the role\nthat the \xe2\x80\x9ctemporal relationship between regulatory enactment and title acquisition\xe2\x80\x9d should play in\nthe analysis of a takings claim. Id., at 632. We have no occasion to address that particular issue in this\ncase, because it involves a different temporal relationship\xe2\x80\x93the distinction between a temporary\nrestriction and one that is permanent. Her comments on the \xe2\x80\x9cfairness and justice\xe2\x80\x9d inquiry are,\nnevertheless, instructive:\n\xe2\x80\x9cToday\xe2\x80\x99s holding does not mean that the timing of the regulation\xe2\x80\x99s enactment relative to the\nacquisition of title is immaterial to the Penn Central analysis. Indeed, it would be just as much error to\nexpunge this consideration from the takings inquiry as it would be to accord it exclusive significance.\nOur polestar instead remains the principles set forth in Penn Central itself and our other cases that\ngovern partial regulatory takings. Under these cases, interference with investment-backed\nexpectations is one of a number of factors that a court must examine\xe2\x80\xa6 .\n\xe2\x80\x9cThe Fifth Amendment forbids the taking of private property for public use without just\ncompensation. We have recognized that this constitutional guarantee is \xe2\x80\x99 \xe2\x80\x9cdesigned to bar\nGovernment from forcing some people alone to bear public burdens which, in all fairness and\njustice, should be borne by the public as a whole.\xe2\x80\x9d\xe2\x80\x99 Penn Central, [438 U. S.], at 123-124 (quoting\nArmstrong v. United States, 364 U. S. 40, 49 (1960)). The concepts of \xe2\x80\x98fairness and justice\xe2\x80\x99 that underlie\n529\n\n\x0cthe Takings Clause, of course, are less than fully determinate. Accordingly, we have eschewed \xe2\x80\x98any\n\xe2\x80\x9cset formula\xe2\x80\x9d for determining when \xe2\x80\x9cjustice and fairness\xe2\x80\x9d require that economic injuries caused by\npublic action be compensated by the government, rather than remain disproportionately\nconcentrated on a few persons.\xe2\x80\x99 Penn Central, supra, at 124 (quoting Goldblatt v. Hempstead, 369 U. S.\n590, 594 (1962)). The outcome instead \xe2\x80\x98depends largely \xe2\x80\x9cupon the particular circumstances [in that]\ncase.\xe2\x80\x9d\xe2\x80\x99 Penn Central, supra, at 124 (quoting United States v. Central Eureka Mining Co., 357 U. S. 155, 168\n(1958)).\xe2\x80\x9d Id., at 633.\nIn rejecting petitioners\xe2\x80\x99 per se rule, we do not hold that the temporary nature of a landuse\nrestriction precludes finding that it effects a taking; we simply recognize that it should not be given\nexclusive significance one way or the other.\nA narrower rule that excluded the normal delays associated with processing permits, or that\ncovered only delays of more than a year, would certainly have a less severe impact on prevailing\npractices, but it would still impose serious financial constraints on the planning process.17 Unlike the\n\xe2\x80\x9cextraordinary circumstance\xe2\x80\x9d in which the government deprives a property owner of all economic\nuse, Lucas, 505 U. S., at 1017, moratoria like Ordinance 81-5 and Resolution 83\xe2\x80\x93 21 are used widely\namong landuse planners to preserve the status quo while formulating a more permanent\ndevelopment strategy.18 In fact, the consensus in the planning community appears to be that\nmoratoria, or \xe2\x80\x9cinterim development controls\xe2\x80\x9d as they are often called, are an essential tool of\nsuccessful development.19 Yet even the weak version of petitioners\xe2\x80\x99 categorical rule would treat these\ninterim measures as takings regardless of the good faith of the planners, the reasonable expectations\nof the landowners, or the actual impact of the moratorium on property values.20\nThe interest in facilitating informed decisionmaking by regulatory agencies counsels against\nadopting a per se rule that would impose such severe costs on their deliberations. Otherwise, the\nfinancial constraints of compensating property owners during a moratorium may force officials to\nrush through the planning process or to abandon the practice altogether. To the extent that\ncommunities are forced to abandon using moratoria, landowners will have incentives to develop\ntheir property quickly before a comprehensive plan can be enacted, thereby fostering inefficient and\nill-conceived growth. A finding in the 1980 Compact itself, which presumably was endorsed by all\nthree legislative bodies that participated in its enactment, attests to the importance of that concern.\n94 Stat. 3243 (\xe2\x80\x9cThe legislatures of the States of California and Nevada find that in order to make\neffective the regional plan as revised by the agency, it is necessary to halt temporarily works of\ndevelopment in the region which might otherwise absorb the entire capability of the region for\nfurther development or direct it out of harmony with the ultimate plan\xe2\x80\x9d).\n\xe2\x80\xa6.\nWe would create a perverse system of incentives were we to hold that landowners must wait\nfor a takings claim to ripen so that planners can make well-reasoned decisions while, at the same\ntime, holding that those planners must compensate landowners for the delay.\nIndeed, the interest in protecting the decisional process is even stronger when an agency is\ndeveloping a regional plan than when it is considering a permit for a single parcel. In the\nproceedings involving the Lake Tahoe Basin, for example, the moratoria enabled TRPA to obtain\nthe benefit of comments and criticisms from interested parties, such as the petitioners, during its\ndeliberations.21 Since a categorical rule tied to the length of deliberations would likely create added\npressure on decisionmakers to reach a quick resolution of landuse questions, it would only serve to\ndisadvantage those landowners and interest groups who are not as organized or familiar with the\nplanning process. Moreover, with a temporary ban on development there is a lesser risk that\nindividual landowners will be \xe2\x80\x9csingled out\xe2\x80\x9d to bear a special burden that should be shared by the\npublic as a whole. Nollan v. California Coastal Comm\xe2\x80\x99n, 483 U. S. 825, 835 (1987). At least with a\nmoratorium there is a clear \xe2\x80\x9creciprocity of advantage,\xe2\x80\x9d Mahon, 260 U. S., at 415, because it protects\n530\n\n\x0cthe interests of all affected landowners against immediate construction that might be inconsistent\nwith the provisions of the plan that is ultimately adopted. \xe2\x80\x9cWhile each of us is burdened somewhat\nby such restrictions, we, in turn, benefit greatly from the restrictions that are placed on others.\xe2\x80\x9d\nKeystone, 480 U. S., at 491. In fact, there is reason to believe property values often will continue to\nincrease despite a moratorium. See, e. g., Growth Properties, Inc. v. Klingbeil Holding Co., 419 F. Supp.\n212, 218 (Md. 1976) (noting that land values could be expected to increase 20% during a 5-year\nmoratorium on development). Cf. Forest Properties, Inc. v. United States, 177 F. 3d 1360, 1367 (CA Fed.\n1999) (record showed that market value of the entire parcel increased despite denial of permit to fill\nand develop lake-bottom property). Such an increase makes sense in this context because property\nvalues throughout the Basin can be expected to reflect the added assurance that Lake Tahoe will\nremain in its pristine state. Since in some cases a 1-year moratorium may not impose a burden at all,\nwe should not adopt a rule that assumes moratoria always force individuals to bear a special burden\nthat should be shared by the public as a whole.\nIt may well be true that any moratorium that lasts for more than one year should be viewed\nwith special skepticism. But given the fact that the District Court found that the 32 months required\nby TRPA to formulate the 1984 Regional Plan was not unreasonable, we could not possibly\nconclude that every delay of over one year is constitutionally unacceptable.22 Formulating a general\nrule of this kind is a s
[cell cut: 2063757 characters, first 2000000 kept]