Professional Documents
Culture Documents
Philosophical Perspectives......................................................................................................................................................8
Ownership Theories ................................................................................................................................................................8
Lockean Labor Theory ...................................................................................................................................................................... 8
Personhood Theory............................................................................................................................................................................ 8
Ab Infimis Usque ad Coelum ............................................................................................................................................................ 8
Indian Ownership Structures from Changes in Land Cronon ........................................................................................................ 8
Commons .................................................................................................................................................................................9
How to Manage the Commons .........................................................................................................................................9
Tragedy of the Commons .................................................................................................................................................................. 9
Community Property Theory Demsetz......................................................................................................................................... 10
Wild Animals....................................................................................................................................................................11
Pierson v. Post ................................................................................................................................................................................. 11
Keeble v. Hickeringill ..................................................................................................................................................................... 12
Water ................................................................................................................................................................................12
Ground Water .................................................................................................................................................................................. 12
Types of Groundwater Law ........................................................................................................................................................ 12
Surface Water .................................................................................................................................................................................. 13
English Rule ............................................................................................................................................................................... 13
Riparian Regime (East): Evans v. Merriweather........................................................................................................................ 13
Prior Appropriation Regime (West): Coffin v. Left Hand Ditch ............................................................................................... 13
Doctrine of Waste ....................................................................................................................................................................... 13
Ways to Lose Water Right.......................................................................................................................................................... 13
Property
Policy Goals................................................................................................................................................................................ 14
Practical Problem with Chattel ................................................................................................................................................... 14
Gifts ................................................................................................................................................................................................. 14
Discovery ..........................................................................................................................................................................15
Johnson v. MIntosh ........................................................................................................................................................................ 15
Accession...........................................................................................................................................................................15
Increase............................................................................................................................................................................................ 15
True Accession ................................................................................................................................................................................ 15
Does original owner get value of resource or finished product? ................................................................................................ 15
Accretion ......................................................................................................................................................................................... 15
Avulsion .......................................................................................................................................................................................... 16
Intellectual Property..............................................................................................................................................................18
Types of Intellectual Property ........................................................................................................................................18
Goals With IP Rules ........................................................................................................................................................18
Theories to Create IP Rules ............................................................................................................................................18
Copyright of Ideas ...........................................................................................................................................................18
Adapting to Technological Innovation............................................................................................................................................ 18
INS v. AP ........................................................................................................................................................................................ 18
Downey v. General Foods ............................................................................................................................................................... 19
Baseball Stats .................................................................................................................................................................................. 19
Copyright Act .................................................................................................................................................................................. 19
106 - Exclusive Rights............................................................................................................................................................. 19
107 Fair Use.......................................................................................................................................................................... 19
Campbell v. Acuff-Rose ............................................................................................................................................................. 19
Perfect 10 v. Google ................................................................................................................................................................... 20
Photocopying Copyrighted Materials.............................................................................................................................................. 20
Williams & Wilkins v. US.......................................................................................................................................................... 20
American Geophysical Union v. Texaco.................................................................................................................................... 20
Patents...............................................................................................................................................................................20
Requirements for a Patent from PTO .............................................................................................................................................. 20
Cases................................................................................................................................................................................................ 20
Lear v. Adkins (1969)................................................................................................................................................................. 20
Blonder Tongue v. IL (1971)...................................................................................................................................................... 21
Brenner v. Manson (1966).......................................................................................................................................................... 21
Labcorp v. Metabolite (2006) ..................................................................................................................................................... 21
Fashion ............................................................................................................................................................................................ 21
Property in Person.................................................................................................................................................................21
2
Property
Defeasible Estates.............................................................................................................................................................26
Types of Defeasible Estates............................................................................................................................................................. 26
Fee Simple Determinable ........................................................................................................................................................... 26
Fee Simple Subject to a Condition Subsequent.......................................................................................................................... 26
Fee Simple Subject to an Executory Limitation ......................................................................................................................... 26
Rules of Construction for Defeasible Estate ................................................................................................................................... 26
General Rules ............................................................................................................................................................................. 26
Fitzgerald v. Modoc Condition or Covenant? ......................................................................................................................... 26
Property
Vested Remainder....................................................................................................................................................................... 27
Executory Interest....................................................................................................................................................................... 28
Difference Between Vested Remainder Subject to Divestment and Contingent Remainder..................................................... 28
Practice of Disclaimer ................................................................................................................................................................ 28
Rule Against Perpetuities ................................................................................................................................................................ 28
Basic RAP................................................................................................................................................................................... 28
C/L RAP What Might Happen ................................................................................................................................................ 28
Statutory RAP Wait and See ................................................................................................................................................... 29
Remedy for RAP Violation ........................................................................................................................................................ 29
Rubric for RAP Problem ............................................................................................................................................................ 29
Trusts ................................................................................................................................................................................29
Basics............................................................................................................................................................................................... 29
Reasons to Setup Trust ............................................................................................................................................................... 29
Leaseholds .............................................................................................................................................................................34
Types of Leaseholds.........................................................................................................................................................34
Term of Years.................................................................................................................................................................................. 34
Periodic Tenancy ............................................................................................................................................................................. 34
Tenancy At Will .............................................................................................................................................................................. 34
Property
Statute of Frauds.............................................................................................................................................................................. 34
Property
Basics............................................................................................................................................................................................... 41
Types of Public Trust Cases ............................................................................................................................................................ 41
Alienation of Trust Resources (Illinois Central) ........................................................................................................................ 41
Diversion of Resources............................................................................................................................................................... 41
Access (Matthews v. Bay Head Assn) ...................................................................................................................................... 41
Covenants .........................................................................................................................................................................42
Basics............................................................................................................................................................................................... 42
Elements of a Real Covenant .......................................................................................................................................................... 42
When original owner burdens lots, he benefits the lots he still owned on that date. Lots already sold DO NOT BENEFIT.
42
Criteria for Burden of Real Covenant to Run With Land........................................................................................................... 42
Criteria for Benefit to Run With Land........................................................................................................................................ 42
Neponsit v. Emigrant Bank Vertical Privity Issue .................................................................................................................. 43
Remedy for Breach.......................................................................................................................................................................... 43
Termination of Real Covenants....................................................................................................................................................... 43
Doctrine of Unclean Hands ........................................................................................................................................................ 43
Eagle Enterprises v. Gross.......................................................................................................................................................... 43
Equitable Servitudes........................................................................................................................................................43
Basics............................................................................................................................................................................................... 43
Elements of Equitable Servitudes.................................................................................................................................................... 44
Criteria for Burden to Run With Land........................................................................................................................................ 44
Criteria for Benefit to Run With Land........................................................................................................................................ 44
Similarities/Differences Between Real Covenants and Equitable Servitudes............................................................................ 44
Sanborn v. McLean..................................................................................................................................................................... 44
Remedies ......................................................................................................................................................................................... 44
Bolotin v. Ridge.......................................................................................................................................................................... 44
Shelley v. Kraemer ..................................................................................................................................................................... 45
Rubric for R.C./E.S. Problems: ....................................................................................................................................................... 45
Recording Acts Determine Who Owns the Land ......................................................................................................................... 45
Race Statute ................................................................................................................................................................................ 45
Race/Notice Statute .................................................................................................................................................................... 45
Notice Statute ............................................................................................................................................................................. 45
Property
Anti-S/L Reasons........................................................................................................................................................................ 48
Trespass ............................................................................................................................................................................48
General C/L Rule............................................................................................................................................................................. 48
Pile v. Pedrick............................................................................................................................................................................. 48
Geragosian v. Union Realty........................................................................................................................................................ 48
Raab v. Casper ............................................................................................................................................................................ 49
Limits on Trespass........................................................................................................................................................................... 49
State v. Shack ............................................................................................................................................................................. 49
PruneYard v. Robbins (1980) ..................................................................................................................................................... 49
Justifications for Modifying Right to Exclude ........................................................................................................................... 49
Takings ..................................................................................................................................................................................49
Penn Coal v. Mahon ................................................................................................................................................................... 50
Problem With Takings................................................................................................................................................................ 50
How to Evaluate Takings Claims .................................................................................................................................................... 50
Exactions...........................................................................................................................................................................51
Nollan .............................................................................................................................................................................................. 51
Dolan v. Tigard................................................................................................................................................................................ 51
Basic Exaction Analysis .................................................................................................................................................................. 51
Zoning....................................................................................................................................................................................53
Fundamentals of Zoning .................................................................................................................................................53
Types of Zoning .............................................................................................................................................................................. 53
Use Zoning ................................................................................................................................................................................. 53
Area Zoning ................................................................................................................................................................................ 53
Cluster Zoning ............................................................................................................................................................................ 53
Planned Unit Developments ....................................................................................................................................................... 53
Comprehensive Plan ................................................................................................................................................................... 53
Zoning Ordinances ..................................................................................................................................................................... 53
Ways to Get out of a Zoning Requirement...................................................................................................................................... 53
Benefits of Zoning........................................................................................................................................................................... 54
Disadvantages of Zoning ............................................................................................................................................................ 54
Cases .................................................................................................................................................................................54
Euclid v. Ambler Realty .................................................................................................................................................................. 54
Ladue v. Gilleo ................................................................................................................................................................................ 54
Renton v. Playtime Theatres............................................................................................................................................................ 54
Take Aways ..................................................................................................................................................................................... 55
Property
Philosophical Perspectives
Ownership Theories
Lockean Labor Theory
Ownership derives from labor. Whatever man labors over, then he takes it out of Nature and makes it
his. Labor removes from the commons
o Underlying premise is that the only thing one truly owns is labor
Very important when it comes to unclaimed resources.
o Presupposes an endless supply of land, so private appropriation of commons harms no one
Influential for IP.
Personhood Theory
Thing which you have used and enjoyed as your own for a long time, becomes a part of you and
becomes your property.
Can contradict Lockean Labor Theory. Even if transformative labor is put into your property, if it
remains so personal to you, then the ownership rights cannot be changed.
Classic theory that your property rights extend from earth to the sky
Individual Ownership. Village inhabitants view of property relative within village. Owned what one
produced. Ownership did not have a sense of permanence
Collective Sovereignty. Territorial claims defined relative to other villages. Sachem vested with
village territorial rights, but needed to consult elders.
Purchase and Sale of Land. Land transactions as diplomatic exchange not economic purchases.
o Usufructory Rights (right to use anothers property without damaging or diminishing it, not
absolute title transfer)
o Indians transacted only in usufructory rights, not in fee simple.
o Indians owned things on the land, not the land itself.
Colonists viewed land as a commodity. Land rights were for fixed parcels to be bought or sold.
o Fences and livestock were pivotal elements in English rationale for taking Indian lands.
Why are property right systems different between Indians and Colonists?
o Nature of important resources. Foraging society vs. agricultural.
o What are you trying to maximize? Settled agriculture requires strong, fixed property rights.
Fundamental Issues/Questions
Creating Rules
Property
State Enforcement
Customary enforcement all share in common norms and follow the rules
Institutions
Private Norms/Customs
Public legal roles
Markets (trade, contracts, etc.)
Political institutions (legislature, zoning boards)
Remedies
Property Rule:
Get Property
Liability Rule:
Pay
P (Owner)
Chattel
D (Improver)
Chattel
Gets chattel,
but pays P
for property
value
Notes 4 possible outcomes using Property or Liability Rules
Hohfeldian Reasoning
o
o
o
o
Property isnt absolute ownership. Think of property in terms of what others can and cannot
do with the property.
Property Right: Claim, enforceable by the state, that others act or refrain acting in a certain
manner in relation to rightholder. Ex. Right to Exclude
Duty: For every right, there is a corresponding duty. Ex. With Right to Exclude is Duty not
to Trespass
Privilege: Right to act in a certain manner towards property. For every privilege, there is no
duty.
Commons
How to Manage the Commons
Tragedy of the Commons
When you have open access commons, individual economic incentives (to use more for yourself) lead
to ruin
Certain Assumptions in Tragedy of Commons:
9
Property
Property rights over commons develop as community acknowledges and adapts to external situations
to which old property rights are poorly attuned
o Market changes drive private property rights
Ex. New market emerges (European fur traders to Indians)
o Economic incentives make it worthwhile to maintain private property
Types of Property Rights:
o Communal Ownership: right exercised by all members of the community
Disadvantage in that full costs are not borne by actor. High costs of negotiating
o Private Ownership: Community recognizes right of owner to exclude others from exercising
owners private rights
Pro: Incentivizes efficient utilization of resources. Lower negotiation costs
Con: No direct incentive to account for effects on neighbors
o State Ownership: State owns land and can exclude anyone from use of right as long as state
follows accepted political procedures
Examples of Commons
Whaling
True open access commons. Close-knit whaling communities. Developed their own set of industry
property rules, which were applied in the courts.
o Parties respected rules because of shared norms and customs
Ex. Fast-fish versus loose-fish to determine possession
o Rights go with possession
Oysters
Scarce resource is the oyster habitat- cultch (bed where oysters grow)
2 Industry Property Structures:
o Private Right Based on Leaseholds. Internalizes cost of harvesters actions. Enables
producer to get greater proportion of benefit for efforts (ie. sustaining cultch)
o Common Right System. Cost of ones actions not fully borne by him. No incentive to invest
in cultch or oysters.
Problem b/c cultch requires a lot of work to make productive
Private rights would make a big different in labor productivity and investment in resource
Lobster Gangs
Gangs, established by harbor, control entry to industry. Gang territories are long-standing, unofficial
reality
o Escalating enforcement regime (warning, then destruction of traps)
o Enforcement within the community. Outsiders warned off by threats of violence
10
Property
Acquisition of Property
Title Basics
Wild Animals
Pierson v. Post
2 men chase fox on deserted beach. 1 steps in at last minute and kills it
11
Property
Formalistic Holding: Pursuit alone does not equal possession. Intent to possess by wounding an
animal deprives it of natural liberty. Brings it under partys control and possession.
Custom Argument: Follow a community standard of sportsmen. Create a reasonable prospect of
capture standard.
Keeble v. Hickeringill
Keeble owned duck decoy pond. Hick tried to move ducks to his pond by shooting a gun.
Rule: Cause of action whenever violent or malicious act to an occupation
o Court wants to encourage fair and not destructive competition for resources
Keeble can sue.
Rule of Capture
o
One who has the oil in his hands is one who owns. Owning land is not necessary to possess oil
underneath
Pros: Incentivizes exploration and investment. Simple to adjudicate. Certainty.
Cons: Race to extract. Inefficient extraction. Oversupply (concerned like Keeble with nature
of competition?)
Overcoming Rule of Capture Problems:
Trading Market. Set rights on how much can be extracted
Unitization. Force integration of competing interests over a resource area. Force communal
ownership
Rationing.
Well-spacing. Min. distance between well and property line, and max. number of wells.
Water
Ground Water
o
o
Property
Surface Water
English Rule
Take as much as you want just cant divert stream from its source
Riparian Regime (East): Evans v. Merriweather
Riparian property in water is usufructuary. Use right in the flow of the water (not the water
itself)
Must be reasonable use of common streams. Test of reasonableness is whether it harms
other proprietors or not
o Natural Use: Absolutely necessary uses. Drinking water for man and cattle
o Artificial Use: Irrigation for agriculture, manufacturing.
o New Rule: 1) Each riparian proprietor can use as much water as necessary for natural
wants. 2) But, if use is for artificial need, and others below have natural needs, then
must allow enough for others. 3) If all have artificial needs, then must only use a just
amount
Above new rule is result of technological change (rise of water-powered mills)
Prior Appropriation Regime (West): Coffin v. Left Hand Ditch
First appropriator of water from a stream for a beneficial purpose has prior right to extent of
the appropriation.
o Incentivizes parties to quickly settle lands and divert water for agriculture.
o Justified on a Lockean basis. First people put in labor to irrigate. Dont want to
destroy value of those lands by successive parties
Pro: Efficiency. Assumes first use is most efficient
Con: No necessary link between first in time and efficient use. Encourages waste and
overuse of water.
Doctrine of Waste
Lose your right if you waste your water. Determine waste of appropriated water by look at
some level of implied efficiency.
Ways to Lose Water Right
Waste
Stop using it
Stop putting it to a beneficial use.
Finder of Property acquires no rights in mislaid property, is entitled to possession of lost property
against all but True Owner, or is entitled to abandoned property against all
o Key distinction between abandoned, lost and mislaid property
Relative Strength of Title: Closer you get to original owner, stronger your relative claim.
Lost Property
Found in a place where the true owner likely did not intend to set it down, and where it is not
likely to be found by the true owner.
13
Property
Rule: Finder of a lost item could claim the right to possess the item against any
person except the true owner or any previous possessors
Finder prevails against all but true, rightful owner. Armory (chimney sweep)
o
Mislaid Property
o True owner unintentionally relinquishes it.
Rule: Property becomes that of owner of the premises where it was found.
o McAvoy: Customer finds pocketbook in shop, gives it to store owner to find true owner.
True owner never found, became property of shopowner rather than customer.
Abandoned Property
o Found in a place where the true owner likely intended to leave it, but is in such a condition
that it is apparent that the true owner has no intention of returning to claim the item.
Rule: Abandoned property generally becomes the property of whoever should find it
and take possession of it first
o Hannah v. Peel: Soldier finds brooch in house owned by absentee landlord; true owner long
gone. Finder gets brooch.
Holds: Man does not necessarily possess a thing lying unattached on surface of land
even though unowned by someone else.
Landowners Rights
o Landowner generally entitled against finder to property found on land, but landowner must
have intent to exercise control over property. If property found by agents of landowner, then
as if landowner himself found property. South Staffordshire Water Co. (finds rings)
Policy Goals
o Return goods to True Owner
o Find lost goods
o Productive use of goods
o Discourage trespassing
o Encourage Honesty
Practical Problem with Chattel
o No good records system to prove ownership. Presumes possession is rightful unless proven
otherwise. Cannot protect interests of BFP and True Owner rule favors True Owner
(always get property back from BFP)
Gifts
14
Property
Discovery
Johnson v. MIntosh
Accession
Common feature is ownership of a contested resource or an unclaimed resource is assigned to the owner of
another resource b/c of some relationship between known/unknown resources.
o NO VOLUNTARY CONVEYANCES
Increase
o
True Accession
Take someone elses property (conversion), put your own labor into it (Lockean theory) and it
becomes yours.
o Depends on the amount of labor and the addition in value
o MUST pay restitution to original owner.
Does original owner get value of resource or finished product?
o Wetherbee v. Green: Cut down timber and made hoops. Original owner gets value of timber
or value of hoops?
Owner may reclaim property if there has been no substantial change in value of
property (despite addition of labor)
If property made into an entirely new thing, then product belongs to laborer and only
damages are for original value of converted property
Critical Factors:
Mental state of improver (good faith?)
Degree of transformation (big increase in value?)
Amount of labor it took to transform
o Edward v. Sims: Man found cave, explored it, built it into entertainment attraction. Neighbor
claims some of the cave under his land.
Majority favors ad coelum argument (own everything under your land)
Dissent argues for Accession. Own nothing which cannot be subject to your
dominion.
Lockean approach based on labor and conquest.
Accretion
Gradual deposit by water of a solid material producing dry land that before was covered by water.
NE v. IA
Boundary between riparian owners changes with the stream.
o Rationale that every riparian proprietor could gain or lose at whim of stream
15
Property
Avulsion
Boundary stream suddenly creates new channel and abandons old one. Change must be visible and
violent. NE v. IA
Boundary remains fixed as it was in center of old channel.
o Rationale is that there is no correlative detachment of earth from one side and addition to
other
Adverse Possession
Means by which a trespasser, over a fixed period of time, gains title to someone elses land through deliberate
or inadvertent occupancy
o Statute of Limitations enjoins True Owner from bringing suit against occupier
Adverse Possessor stakes out rights against True Owner when he first starts on the land Assumes AP
against FSA owner
AP Against Life Estate
Adverse Possessor takes True Owner as he finds her. Stakes out claim against holder of the
life estate NOT against the remainderman
Necessary Elements
Actual Possession
Adverse Possessor must physically possess the land.
Goal to award title to occupier only if he has been productive with land
EXCEPTION: Doctrine of Constructive Possession (unknowing holder of a color
of title deed gains title to all land in deed, not just actual possession)
o Rule: When both have color of title, first in time first in right.
Hostile
Must occupy land without express or implied permission of True Owner
Some states require a good faith claim to land. Most require only a claim of
ownership regardless if false or mistake
Presumed or Implied Permissive Use Courts will presume permission in a range of
circumstances (ex. if possession originally began with True Owners permission)
Maine Doctrine: Adverse possessor needs to show intent to trespass. No successful claim if
occupy land through ignorance or mistaken belief you owned it
Goal is to get people to claim virgin land
Problem b/c creates incentive to lie about intent
CT Doctrine: Nature of act (entry and possession) is assertion of one title to denial of all
others. Doesnt matter if mistaken
Open and Notorious
Must occupy land openly without any attempt to hide or disguise use Gives True Owner
chance to detect adverse possessors
16
Property
Exclusive Possession
Use must be exclusive of the True Owner.
If True Owner exercises ownership rights to the land during statutory period, then use not
exclusive
To exercise rights, TO must file and successfully prosecute suit for ejectment or quiet
title
Continuous for Statutory Period
Possession must be continuous
Continuous Need be continuous but need not be constant. Simply use land as
normal occupant.
o Ex. Howard v. Kunto property regularly used as a summer home, need only
be occupied every summer to be continuous
Tacking Successive occupiers can take their periods of occupancy together for
statutory period if there is privity between them
o Ex. Howard v. Kunto need some reasonable connection between successive
occupants of real property
Statutory Period Most eastern states have 15-30 years. West is 10 years or less (in
west, need to pay taxes)
Tolling Statutory Period is tolled if True Owner is incapacitated when claimant first
takes possession. Disabilities arising after possession mostly do not toll
o No tacking of disability claims. (Ex. 1 disabled person transfers to another;
clock starts to run)
Gets Property
Liability Rule
Gets Prop.,
pays FMV to D
D (good faith
improver)
Adv.
Possession
Gets Prop.,
pays FMV to P
Misc. Doctrines
Doctrine of Dedication
o State may claim title to private roadway in 2 ways:
Owner explicitly offers it to govt or offer inferred by letting public use it
Court may find public road if road has been openly and continuously used
17
Property
Intellectual Property
IP is non-excludable, non-rival (people can enjoy others IP); need IP to make other IP
Copyright: Unique manner of expression. Less protection for copyrights than for patents.
o Fair Use Exception
Patents: Covers processes, machines, substances
Trademark: Limited protection for a word, logo
Trade Secrets: May not be original but are commercial useful
Innovation
Dissemination/Use
Incentives to Innovate
Discourage Free Riders
Copyright of Ideas
Applies to literary, artistic and visual works that can be reduced to tangible form
Easy to appropriate an idea; hard to put a fence around it. Cheap to reproduce an idea. Want ideas to
be shared.
INS v. AP
o
Property
o
o
o
o
Baseball Stats
1st Amendment Freedom of Speech; Right to Publicity protection for stats. Cannot copyright player
names and stats.
Copyright Act
106 - Exclusive Rights
o Copyright holder has exclusive rights to:
Reproduce copyrighted work in copies
Prepare derivative works
Distribute copies to the public by sale, transfer, rental, lease
Perform copyrighted work publicly
Display copyrighted work publicly
Perform copyrighted work by means of digital audio
107 Fair Use
o Fair use of copyrighted permitted, including photocopies, for purposes of criticism, comment,
news reporting, teaching (incl. multiple classroom copies), scholarship or research
o Factors to determine whether Fair Use situation:
Purpose and character of the use, incl. whether commercial or nonprofit purpose
Nature of copyrighted work
Amount and substantiality of portion used in relation to whole copyrighted work
Effect of use on potential market for or value of copyrighted work
Campbell v. Acuff-Rose
o Rap parody of Pretty Woman. Must have case-by-case analysis of factors. Consider factors
as a whole
o Purpose and Character of the Use
Whether and to what extent new work is transformative (adds something new). Goal
of copyright is to support transformative works
Parody, like other comment or criticism, has transformative properties
o Amount and substantiality of part used in relation to whole
Parody requires substantial copying b/c people need to recognize original
Doesnt become excessive just b/c chorus was copied
o Effect upon market for original work
Market harm easy to determine in cases of duplication.
Must distinguish between critical review that suppresses demand and infringement
which usurps it
19
Property
Need to also consider effects upon derivative works market. Licensing of derivatives
by original owners is important source of revenue.
Perfect 10 v. Google
o Whether search engine thumbnails are copyright infringements. Issue about right to display
o Finds that Google facilitates access to original; no direct infringement.
o Applies Fair Use Doctrine Factors as well
Search engine use of thumbnails is highly transformative. Makes it reference tool
Google promotes purpose of copyright and serves public interest.
Perfect 10 already took right of publication and put work out there
Reasonable to have whole thumbnail of image for viewers to recognize
No market harm b/c no one really wants thumbnails. They want full image
Patents
Patent doesnt give you an affirmative right to do anything. Only gives you the Right to Exclude others.
Your patent may be dominated by other, earlier patents.
Cases
Lear v. Adkins (1969)
Eliminated doctrine of license estoppel. Licensees can challenge patents.
20
Property
Fashion
Copyrights not generally given to apparel. Clothing considered useful object not a work of art.
o Copyright does protect the aesthetic elements of the useful article (ex. logo, design)
Fashion has weak IP protection. But, still is big money industry
o Undercut arguments for vigorous protection of music and arts?
o Fashion has unique market structure where copying increases prestige of original?
Property in Person
Ownership of Your Body
Moore v. Regents
Man overproduces lymphocytes, tricked by doctors to give them over 7 years his cells
o Tort Action: Breach of Duty of Informed Consent
o Tort and Property: Conversion
Regents Argument:
o Body parts are not property
o Accession: Cells are like trees and cell lines are barrel hoops. Property is so mixed together
that you cant distinguish the old right
o Abandonment: cells abandoned once removed from Moore
o Public Policy: Fear curtailment of medical research if researchers afraid of suits, issue for
legislature to decide, allow property remedy then you create market for body parts
Finds for Regents.
Property
Taboo Markets
Martial Property
Martial Property Schemes
Rights During Marriage
Tenancy By the Entirety
Joint ownership. Cotenants have right of survivorship.
Right extinguished only as result of joint action to dissolve the marriage.
Can disadvantage creditors by requiring conveyances of joint property to be made jointly
Tenancy in Common
Allows creditor of one spouse to reach jointly held property
Property
Disposition on Divorce
Issues about property pre-dating the marriage, whether spouse put in labor
C/L Property & Equitable Distribution
General Rule: Each marital partner owns separate property. Property is owned by the party
who paid for it, inherited it, earned it.
Equitable Distribution: Applies in C/L after alimony and expenses divided. Distributes
property after court considers variety of factors
o Ex. duration of marriage, health, education, earning potential, custody of kids
o Key Issue: What things are property eligible for distribution? PAGE 224 FACTORS
Painter v. Painter: Property acquired during marriage eligible for distribution
Gifts/inheritance received by one spouse during marriage are
included in pot regardless of donors intent
Property owned individually at time of marriage remains separate
property of spouse, as does its increase in value
Courts have fact specific inquiry into what is/is not subject to
equitable distribution
Doesnt consider fault of parties
o Goal of keeping litigation/contentious divorces down, incentivize end of dead
marriages
Community Property (French, Spanish Settled States)
Spouses create a community and contribute to it equally. Each spouse owns of the
community
Community consists of earnings of either spouse during marriage and things bought during
marriage
o Excludes property acquired prior to marriage, gifts/inheritance
Quasi-Community Property
Out-of-state land owned by community property couple in an equitable distribution state.
Presumption is for property to be divided in half.
Professional Training as Martial Property
Divorced women have lower earning potential than men. Alimony and child support usually
insufficient to address inequities in earning potential
Spouse may have sacrificed and supported other spouse as they worked on education and
training to achieve higher earning potential
Problem that court needs to make an assumption about career trajectory
Ex. In re Marriage of Graham
CO finds that MBA is not fungible (not exchangeable, no market value, pure intellectual
achievement). Very formalistic view of fungibility.
o Dissent notes that in Tort law, value placed on lost earning potential of
professionals all the time.
Premarital Agreements
Value lies in avoiding complicated Equitable Distribution and Community Property
decisions
Should prenup be presumptively valid or invalid?
o Valid: Treat as regular K. Arms-length biz transaction of autonomous
individuals.
o Invalid: Paternalism about not respecting individual choices. Forces parties to
consult counsel.
23
Property
Estates in Land
o
o
o
Allocate land use rights over time. Ex. impose easements on the land
Estate is: 1) an interest in land that, 2) is or may become possessory and 3) has a time dimension,
including a permanent option.
When you transfer an estate, you give a present or a future interest in land.
Transfer of a Possessory Interest is present interest in land.
Future interest exists in the present (may be sold, transferred) but it cannot be exercised until a
future time. Ex. A gets land for life and then to B. B has future interest.
Tension Between the interests of Present Owners and Future Owners
Present owners need to use the land as they wish, but as some point the rights of future interests
are infringed upon
Property
Life estateholder can possess land, use land and may even be able to sell land (but sale only
lasts for life of estateholder).
On death of life estate holder, property reverts back to original owner or goes to a 3rd party
remainderman
Remainder
Future interest which becomes a present interest upon someones death, condition occurring
o Ex. To A for life, remainder to B
Defeasible Estates Basic
Present interest terminations at the occurrence of an event other than the death of the life
estateholder
3 Factors to Consider:
o Who gets it upon occurrence of event? Reversion to original owner or to
remainderman?
o Does future interest take possession automatically? Or does future interest holder
need to assert rights?
o What is the condition of a breach? Is it a covenant?
Waste
Permissible Waste
Neglect property, dont maintain it, dont pay taxes. Remaindermen may pay taxes and then
impose a lien on property.
Active Waste
Life tenant intentionally causes a large change to property and future interest holder wants to
prevent it.
Ameliorative Waste
May actually increase value of property and still be prevented by remaindermen
Brokaw v. Fairchild Blocking Ameliorative Waste
Son wants to engage in ameliorative waste, tear down mansion and build apartment bldg.
Heirs seeking to prevent it. As remainderman, claim right to change/modify property
reserved to them
Conflicting Property Theories:
o Efficiency (son) tear down to max out the value of the land
o Personhood (heirs) want family mansion for themselves
Personhood theory wins. Cannot build apartment building, it would be an act of waste to tear
down perfectly good mansion.
Melms v. Pabst Brewing Allows Ameliorative Waste
Allows that in unique circumstance different from Brokaw where property has become totally
useless given a change in neighborhood, it can be torn down.
Once value destroyed through no fault of life estateholder, then no need to turn over 0 value
o Extreme inefficiency can override Waste Doctrine
25
Property
Defeasible Estates
Types of Defeasible Estates
Fee Simple Determinable
Future interest reverts automatically to grantor (possibility of reverter)
o Ex. To A so long as property not used as a farm.
Key Words: so long as, until, while used as
If estate holder breaches condition, then grantor doesnt need to know condition was
breached or do anything to get land back
Fee Simple Subject to a Condition Subsequent
Future interest must be affirmatively asserted to regain property (right of entry exercised)
o Ex. To A on condition that land not used as a farm, and if used as a farm right of
entry to grantor
o To get property back, grantor will have to do something to exercise right.
Key Words: on condition that, provided that, but if
Only restriction on the grantee is not violating the stated condition, otherwise same rights as
FSA
Fee Simple Subject to an Executory Limitation
Akin to Fee Simple Determinable. However, if condition breached, goes to a 3rd party, does
not revert to original owner
o Ex. To A, but if A uses land as a farm, then to B
Similar to possibility of reverter. B automatically becomes present interest holder
26
Property
Property
Vested Remainder Subject to Open: Grants to a class that can potentially expand in number,
such as class of grantors kids.
o Ex. To A for life, then to As siblings. As parents could still be alive and have more
children.
o At some point the class closes:
Naturally when no new class members could be created. (As parents die)
Rule of Convenience: Previous estate terminated, at least 1 class member is
eligible to take possession of share of property, then gift can be distributed
Exceptions to Rule of Convenience: Member of class has been
conceived, but not yet born, can still become member; and, if at time
of distribution, no class members yet in existence
Vested Remainder Subject to Complete Divestment: When grant contains a condition
subsequent that could divest remainderman of entire interest.
o Ex. To A for life and then to B, but if B uses alcohol then to C
Executory Interest
Springing Executory Interest: Divests grantor of his reverter interest
Shifting Executory Interest: Cuts off 3rd party interest (corresponds to FSSEL)
Interest in a 3rd party that follows meeting a condition other than natural expiration
o Ex. To A as long as A abstains from alcohol and, if alcohol used, to B
Difference Between Vested Remainder Subject to Divestment and Contingent Remainder
Vested Remainder has No Rule Against Perpetuities; Contingent Remainder has Rule Against
Perpetuities
With Contingent Remainder, property may never vest
Practice of Disclaimer
Applies to real property only, not chattels. Potential recipient can refuse property. Must be
clear and unequivocal expression. If you accept any benefit in the property, foreclose
disclaimer
Purpose is to limit the dead hand problem and free up land for transactions
RAP applies to: Contingent remainders, vested remainder subject to open and executory
limitations
When Apply RAP need to know:
o Nature of the Interest
o Under what conditions does it vest
o Who are the lives in being
o When is the interest created
Basic RAP
o No future interest in a transferee (contingent remainder, vested remainder subject to open,
executory limitation) is valid unless it must vest, if it ever does vest, not later than 21
years after death of some life in being at the creation of the interest.
o If you can think of a situation where a grant vests 21 years after a life in being, then grant can
be stricken down
o If you can show that grant will vest within 21 years, or that it never will vest, or that it must
vest, then its valid
C/L RAP What Might Happen
o Look at the facts at the time the contingent interest created in grant. Tests with all sorts of
hypos no matter how improbable
28
Property
o
o
o
If interest created via will, interest created at time of death not signing of will
Unlike waste, courts dont try to save RAP grants
Jee v. Audley Strikes down grant b/c it is theoretically possible 70-year-old couple
could have more children. Example of strike down grant even in remotest possibility
Trusts
Basics
o
o
o
o
o
Restraints on Alienability
Rule Against Restraints on Alienation
Property
Concurrent Interests
Tenancy in Common
Creation
Property
Termination
Rights of Co-Tenants
Each tenant has a common right to possess entire parcel, use entire parcel, not allowed to exclude
other tenants
Right is transferable, inheritable and can be accessed by creditors
Joint Tenancy
Purposes
Poor mans will. Right of Survivorship upon death, interest transfers to other tenants
Defeats claims of creditors of the deceased co-tenant
Time: All Joint Tenants must take their interest at the same time
Title: All Joint Tenants must acquire interest from same instrument
Interest: Must have equal, identical interests (type, amount, duration of estate)
Possession: Equal rights of access and use. No right to exclude other Joint Tenants
Courts will not assume Joint Tenancy. Instrument must be explicit about it.
Create Irrevocable Joint Tenancy:
Severance
Relates to unilateral act of a joint tenant. If mortgage conveys property interest to a 3rd party,
then tenancy is severed.
Depends on whether mortgage is in a lien theory (Majority) or title theory (Minority) state
Lien Theory
No severance in a lien theory.
o Ex. People v. Nogarr Mortgage just gives mortgage holder a lien on property. No
actual property interest is transferred.
o Creditor may sue to foreclose on property if lien not paid. Force sale of all Joint
Tenants
Title Theory
Severance in a title theory.
o Ex. Property actually transferred to mortgage holder, and then is purchased back by
mortgagee.
Implication: Creditors require all Joint Tenants to sign on to mortgage in a Lien Theory state,
so if one person dies, the creditors position survives
31
Property
Strawman Severance
Riddle v. Harmon: Joint Tenant can now unilaterally sever Tenancy and give interest to himself as
sole owner.
No longer need to go abide by old C/L procedure and use an intermediary
Creation
o
o
Severance
Judicial procedure to end a Tenancy in Common or Joint Tenancy when the co-tenants no longer
agree on the management or disposition of the property
Types of Partition
In Kind: physical division of property
In principle favored by law
By Sale: Property is sold and proceeds divided in proportion to co-tenants fractional interest
In practice, favored
By Appraisal: Permitting one co-tenant to buy out others at appraisal price
Possession
Contribution
Co-tenant may demand contribution from other co-tenants for certain expenditures:
o Payment of Taxes
32
Property
o Mortgage
o Insurance
o Necessary repairs
May not demand compensation for managing the property
No requirement for contribution for improvements
When partition in kind, court will try to give part of the property that has been improved upon to
the improver
Fiduciary Obligations
Co-tenants have fiduciary relationship with each other if they receive interests in same will, grant or
at same time by inheritance
Accounting
Rents
o Co-tenant out of possession may demand an accounting (or compensation at partition) for his
share of net rents collected from 3rd parties who have leased the property
Depletion
o One co-tenant is engaged in a productive activity that by its very nature injures or devalues the
land
Ex. cutting timber, drilling for oil, mining
o Akin to claim to waste made by remainderman against life estate holder
Normal remedy for waste is net profits award.
Depletion of Homogenous Resources Kirby v. Temple Lumber
o Uniform resource in timber. More timber had been cut than co-tenants share. Issue of
whether damage recovery was stumpage value or manufactured value
Court held that stumpage value was recovery. Noted that timber was uniform and could
easily be subject to partition
Depletion of Heterogeneous Resources White v. Smyth
o White holds 1/9 interest as co-tenant in land. Mines and makes asphalt
o Use Argument:
White says he was just taking out his 1/9 interest in materials.
Court holds that White cant pick out any 1/9 and take it.
o Resource is heterogeneous unlike Kirby timber. Rock is not all easily accessible.
o White didnt apply use right fairly by extracting the easiest resources and leaving
the rest for other co-tenants
o Accounting Argument:
What is the proper value of the material?
o Raw extracted rock? Or Finished ready for sale asphalt product?
o Same conceptually as Accession (timber or barrel hoops?)
Since heterogeneous resource, ordered Net Profits from sale of asphalt to be accounted.
o Rejected Labor Theory argument of White and Dissent that White takes raw
materials and by a lot of work in manufacturing he gives it value
33
Property
Leaseholds
Types of Leaseholds
Term of Years
Written (satisfy Statute of Frauds) and created for any fixed term (need not be a year).
Ends when lease ends
Periodic Tenancy
Renewed automatically at end of use unless there is notice. Tenant notice must be very explicit.
Tenancy At Will
Statute of Frauds
Any lease lasting for more than a year must be in writing and signed by the party to be charged.
o If statute not satisfied, then lease is void.
Courts may use part performance or equitable estoppel to avoid hardship
Terminating Leases
Mutual Agreement
Destruction of Premises
o Tradition C/L said this was not enough b/c real value was the land and not in any bldg
Death
o Doesnt terminate term of years K
o Always terminates periodic and At Will
Eminent Domain
Eviction. No more liability for lease
Landlords Rights
Remedies for Tenant Breach and for Holding Over
Forcible Entry and Forcible Detainer
Self-help remedy by landlord.
Generally illegal
Jordan v. Talbot
Traynor has overarching concern about landlord self-help remedies. Pretty much moots
landlord self-help capabilities
o Need an orderly procedure, keep the peace in tense situation
Judicial process is only way
Forcible Entry Issue: Key fact is by lack of tenant consent. Implied violence.
o Linked to removal of property.
Forcible Detainer Issue: Uses the threat of force
MODIFIED in many states to allow Peaceable Entry by Landlord
Unlawful Detainer Action
Summary proceeding for eviction used by many states to allow landlords to promptly regain
possession when tenant breaches lease provisions
34
Property
Distrain
Some states allow landlord to seize tenants belongings when tenant is in default. Types of
goods that can be seized are limited.
Normative Questions
How paternalistic should we be in not allowing parties to K away or around rights?
o Result of Jordan is much higher security deposit
What is level of bargaining power? How much do we weigh inequities?
Holding Over
Lease has expired and tenant still there
Landlord can either:
o Terminate lease and regain possession, or
o Hold tenant for a new lease
Existence of negotiations between tenant and lessor is not enough for tenant to avoid liability
of holdover
When landlord notifies tenant of changes to lease terms, silence by tenant is acquiescence
Every lease has implied covenant that landlord will deliver possession at beginning of lease term
35
Property
Neither landlord, someone with paramount title (mortgagee), nor someone acting with landlords
consent will disrupt tenants enjoyment of premises
Usually raised by tenants as a defense to landlords suit for rent
In most states, does not cover disruptive behavior of third parties, like neighbors
o CHANGING general rule in some states to hold landlord responsible for activities of other
tenants
Eviction
o Most obvious type of breach of covenant when landlord physically ousts tenant from entire
premises
Constructive Eviction
o Landlord does something or fails to perform obligation under the lease or a statute that
substantially interferes with tenants use of premises
Ex. rendering premises uninhabitable or unsuitable for intended use
o May be used by tenant as a basis to terminate lease AND raise breach of implied covenant as
a defense to suit for rent
OR tenant may remain in possession and sue for breach of K damages
Old C/L put burden on lessee to inspect leasehold before agreeing to lease. Changed due to rise of
large urban apartment buildings and shift of leaseholds away from land to a dwelling
Implied warranty of habitability read in by courts due to ineffective housing codes
Javins v. First National Realty
o Applies modern K law principles in urban leasing
o Holds by singing lease, landlord undertakes continuing obligation to tenant to maintain
premises in accordance with all applicable law
Reads in all housing codes into leases
o Tenants obligation to pay rent is dependent upon landlords performance of his obligations,
including warranty of inhabitability
36
Property
Anti-discrimination, rent-control statutes prohibit landlords from refusing to renew for certain
purposes
Doctrine Against Retaliatory Eviction necessary to avoid undermining housing codes. Dont want
tenants to be evicted for reporting violations. Edwards v. Habib
Applied to commercial and residential leases both
Elements
o Tenant Undertook protected activity
o Landlord subsequently declined to renew lease (or took other action, ie. raise rent) for
retaliatory reasons
Remedies
o Tenants usually invoke protections as defense in unlawful detainer action
o Also allowed as a private cause of action for damages
Gives holder the right to use or restrict use of another persons land
Owner of servient estate may not revoke easement at will or interfere with easement holders use of
property
Easement holder may protect his rights from interference by 3d parties
Servient Estate
o Land that is burdened by the easement
Dominant Estate
o Land that is benefited by the easement
37
Property
Types of Easements
Affirmative Easement
o Privileges holder of the easement to use of anothers land
Ex. A has right of way across Bs land
Negative Easement
o Hold has right to prevent servient possessor from using servient estate in otherwise lawful
manner
Ex. A has negative light easement can enjoin B from constructing bldg that would
block light from As land
o Only 4 Negative Easements:
Light
Air
Lateral support
Flow of an artificial stream
o Hard to get b/c they stunt development
Easement Appurtenant
o Easement passes with possession of the dominant estate.
o Not personal to original holder.
o Successor to servient estate takes possession of the interest subject to easement
Easement in Gross
o Easement personal to holder, independent of land possession.
Ex. Easement to lay utility lines
o Non-commercial, and non-exclusive gross easements are non apportionable
Ex. If you have a fishing right, cannot then let lots of others go fishing on your behalf
Non-exclusive means landowner retains right to give easement to others
o Only Commercial Easements in Gross are assignable.
Ex. If Duke Energy sells NC power biz to Con Ed, may sell easements too
Repairs
Terms of grant creating easement set duty to maintain and repair an easement
Default is that owner of dominant estate must maintain and repair easement
Creation of Easements
Express Easements
o Created by an instrument or another writing.
Must comply with statute of frauds
Created by reservation in instrument.
Ex. A conveyed fee simple to B, but reserved right-of-way across land
Created by positive grant in instrument.
Ex. A conveys right-of-way to B
o Scope: Determined largely by terms of writing.
Where language is ambiguous, courts will look to parties contemporaneous
treatment of easement
o Doctrine of Stranger to the Deed: Cannot have an express easement for a party that is not a
party to grant
38
Property
Property
o
o
o
o
o
Termination of Easements
By Expiration
o Easements created for life of holder or for a term of years expire at end of designated pd.
o Defeasible easements end on occurrence of the stated event
o Easements by necessity end when necessity ends
o Easement relying on a structure on the servient estate (ex. passageway through bldg) expires
if structure destroyed.
Does not revive if structure rebuilt
By Easement Holder
o Release: When easement holder transfers interest in the easement to the owner of the servient
estate. MUST BE IN WRITING
o Abandonment: easement created in a grant may be abandoned and terminated when:
Easement holder stops using easement
Independently manifests an intent to abandon easement
Intent may be shown by oral statements or actions
o Estoppel: Terminate by estoppel if following criteria met:
Easement holders words or conduct indicate he will no longer use easement
Servient owners reasonable reliance of representations
Servient owners material change in position
o Excessive Use: Small number of states all termination if easement excessively used
Excessive use could be remedied through damages and injunctive relief
By Owner of Servient Estate
o Merger: Owner of servient estate can terminate easement by acquiring dominant estate (or
when dominant estate owner buys servient estate)
Easement permanently terminated
o Sale to a BFP: Sale of servient estate to a BFP terminates easement if grantee meets
requirements of recording act
Excludes Prescriptive Easements, Easement by Necessity, and Easement by
Implication
o Prescription: Owner of servient estate may acquire easement by prescription block
easement holder from using the easement or otherwise demonstrate exclusive control over the
land for the prescriptive period
By Third Parties
o Condemnation: When govt takes servient estate by condemnation/eminent domain, then
easement terminated
Under Takings Clause, owner of easement is entitled to compensation
o Tax Sale: Some states not majority
o Mortgage Foreclosure:
40
Property
Majority Rule: Easements that exist before execution of the mortgage are not
terminated by foreclosure, but easements created after execution of mortgage are
terminated
Conservation Easements
Govt holds air, water, sea, and seashore rights in trust for the public.
Doctrine sets limit on private property and takes away some sticks from govt (right to sell, exclude)
C/L Doctrine
Often acts like an implied easement
Doesnt prevent sale of lands critical question is: What is status of public use rights before and after
sale?
41
Property
Covenants
Basics
Covenant is a promise to do or refrain from doing something. Real covenant is one connected to land
Attempt to impose private zoning by contract.
o Very common way to regulate the way people live
Affirmative real covenant is a promise to do an affirmative act
o Ex. Tenants covenant to pay rent, homeowner maintains a fence
Negative real covenant is agreement to refrain from some action on land which owner is legally
allowed to do.
o Ex. Covenant with HOA not to paint house purple
Covenents vs. Equitable Servitudes
o Equitable Servitude easier to establish, enforce and get an injunction
o Covenants are Ks were the remedies are damages.
Questions: To what extent can you bind the successor in interest? Do covenants run with the land? If
not, why not?
When original owner burdens lots, he benefits the lots he still owned on that date. Lots
already sold DO NOT BENEFIT.
o Previous purchasers are Strangers to the Deed
Property
Equitable Servitudes
Basics
43
Property
Remedies
Injunctive Relief
Defense of Changed Conditions: circumstances changed so much, no longer possible to fulfill
original parties intent
Bolotin v. Ridge
o Trying to argue for changed circumstances. Utilitarian argument that the plot could be better
used as a commercial property.
o Holds that if original purpose of the covenant can be realized, it should be enforced even if it
hurts the current property owners.
44
Property
Shelley v. Kraemer
o Courts refuse to enforce private covenants that violate constitutional protection, ex. racially
restrictive covenants or restrictive of free speech
Property
Subdivisions: Own dwelling and land in fee simple. Tenants in common in common spaces.
Usually have non-profit HOA to own and manage common areas
Benefits of CICs
Key aspect of nuisance is that there are certain harms with economic activity.
o Tension between Economic Development and Collective Rights vs. Individual Rights
o How do you deal with reciprocal harm? Nuisance suit infringes on polluters economic rights
Elements
Private Nuisance - Restatement
o Definition: Civil wrong based on conduct on Ds land that substantially interferes with Ps
use and enjoyment of his land
o Elements:
Intentional and unreasonable; OR unintentional and R or N
Substantially interfering with or disturbing
Interference could be Physical; or factor that decreases property FMV
Use and Enjoyment of Land
o Prerequisite: Ownership of a property interest in land
46
Property
Application of Nuisance
Waschak v. Moffat
o Culm banks (coal mining byproduct) are emitting noxious gas that is peeling paint and
causing health problems
o Majority says that release of gas is unintentional; and even it intentional, it arose from normal
and customary use of land so no negligence
Coming to the Nuisance: Ps bear some blame by moving into the town and near culm
bank
o Dissent notes that the entire town smells like rotten eggs all the time, huge culm banks
hundreds of feet long and serious health problems.
No reason why company couldnt move the culm outside of town
Need a better balance of the equities (yes, company needs to operate but in this
specific way?)
Boomer v. Atlantic Cement
o Ps live close to cement plant, alleging smoke and noise nuisance
o Court adopts Property and Liability Rule
Plant has option to make one payment for all past and future damage (incentivizes
plants to develop new technologies)
If no payment made, then Ps get an injunction
o Doesnt allow individual hold-outs to force factory to shut down. Lower transaction costs
since they must remedy option is left up to plant
Remedies
Compensation/Money Damages
o Individual compensation paid, but need to limit amount paid out so that economic
development can continue
47
Property
Fundamental Problem of trying to monetize non-market harms like listening to noise all the
time
Injunction
o Cease nuisance causing activity
Do Nothing
Payment from P to D to stop Nuisance
o Addresses Coming to the Nuisance Problem.
o Acknowledges changing conditions and recognizes entitlement of Ds pre-existing use.
Ex. Suburban sprawl surrounds pre-existing cattle stockyard which stinks.
Subdivision pays stockyard.
Trespass
Property
Main holding is that landowner entitled to an injunction for removal of trespassing structures
o Cost of removal doesnt really matter
Raab v. Casper
CA has a Good Faith Improver Statute: One who makes an improvement on anothers land in
good faith and based on a mistaken belief becomes owner of that property BUT must pay
damages
o Degree of negligence calculation. Cant just be willfully mistaken; really need good
faith.
o Practical Effects of Good Faith Improve Statute:
Allows courts to make more equitable considerations rather than harsh C/L
May raise litigation costs as more people willing to take it to court
Holding: In weighing relief, court should consider any interim warning, the character and
relative cost of the improvements made before and after the warning, and the unitary or
separable character of the improvements
o Here, improver refused to make a land survey, and still finished building cabin after
he was warned he was on someone elses land
Limits on Trespass
State v. Shack
Court balancing between landowners right to exclude and the public policy of providing
essential (medical, legal, etc.) services to the poor
o Here, court finds that an employer may not deny a tenant worker a visitor or privacy
when meeting essential service provider
o Compelling reason is Congressional statute funding legal services to migrant poor
In order to have access and weaken right to exclude, it must involve a fundamental right or
have a compelling public interest
PruneYard v. Robbins (1980)
Kids wanted to use private property (shopping mall open to public) to pass out flyers and
shopping center sought to exclude them.
o CA had free speech protections in the state CON
Holds:
o Right to Exclude: Not absolute given state CON protections which are valid.
PruneYard can regulate Time, Manner and Place
o Takings Inquiry: character of the government action; its economic impact; and its
interference with reasonable investment-backed expectations
No evidence that right to exclude is so essential to use or value of property,
so no taking.
Justifications for Modifying Right to Exclude
Rights of Property are held against the Rights of Others
Economic Efficiency
Fair Use Doctrine property can be used in certain circs by others
Personhood probably cuts against this
Takings
Takings Clause in CON ensures protection for property rights. Nor shall private property be taken for public
use without just compensation
Two Broad Types of Takings Cases:
o Physical Occupation/Actual Taking: Physically taking the property from owners and reallocate its
use.
49
Property
Physical Occupation
Loretto v. Teleprompter CATV (1982)
o NY law prevented landlords from stopping cable company from laying cable and set payment at $1.
o Test for a Taking:
o Economic Impact
o Interference with Investment-backed expectations
o Character of government action
o Court applies factors:
o Little economic impact.
o Little interference with investment
o But, character of government action is a Physical Invasion and Permanent not temporary.
Distinguish from PruneYard where right to exclude was temporarily curtailed
Strong Personhood argument a stranger (cable co.) is invading and occupying the
property.
o Holding: When govt action is a permanent physical occupation of property, then it is a taking to
extent of occupation regardless of the public benefit or minimal economic impact on owner
o Policy Issues:
o What if landlord was required to install cable for access to civic education? Landlord might be
reqd to do the same thing and not have it a taking.
o Problem with Loretto Bright Line Rule is that it doesnt admit nuance. 3rd Party/Stranger
distinction is key to opinion.
Is that really the case?
50
Property
Limits on PPOs
o Health and welfare reg not seen as PPO. Neither are % set asides for land.
Exactions
o Something required by the government to offset the burdens of development.
o Ex. If you build a subdivision, you also need put in the streets and build a school
Nollan
o Beachfront house. Wants to get a permit to knock it down and rebuild house.
o Permit made conditional on grant of an easement to provide public access to the each. Concern
with new home blocking public view of beach.
o Holds: There must be an essential nexus between the legitimate public purpose and the exaction.
o Here, giving easement to access beach is irrelevant to view of beach from road (just say 1 story
house)
o Condition needs to address the problem
Dolan v. Tigard
o To get permit to expand biz, city requires giving land to city as flood plain and to set aside land for
bike path.
o Finds: Nollan essential nexus test is satisfied.
o Holds: Adopts the Rough Proportionality Test. City must make an individualized determination that
the required dedicated is related in nature and extent of impact of the proposed development.
o RE flood plain: why does the city need to own it? Why not just say owner cant build on it?
o RE bike path: No evidence that traffic will really increase and bikers will abound.
Regulatory Takings
Development of Regulatory Takings
Hadachek
Brick biz in LA. City then set limits on biz activities, destroying 90% of biz value.
Upheld as valid exercise of police power by CA SC Nuisance control does not result in
taking even if diminution in value.
Schoene
Trees were infected with bugs. State cut down trees to prevent harm to other species of tree.
No taking; valid exercise of police power.
PA Coal
PA statute prohibits coal mining from causing a structure to subside.
SCOTUS says this is a taking.
o If reg goes too far, it will be recognized as taking. No clear standard.
Denominator Problem
What is the area youre looking at to see the effect of the regulation?
o Ex. Is it your right to have these trees on your land, or is a broad right to use your
land? Narrower the right, then the stronger the effect.
51
Property
Big Issue
Should a public benefit be borne by a small number of property owners? Rather than paid for
by the public?
Penn Central RR v. NY
Under new coastal rules in place after home bought, man would be unable to build his home on
beachfront property.
Holding: Total loss of value in property due to a govt regulation is a taking.
o If less then a total wipeout, no clear rule.
If say 90% of land becomes unavailable for use, then Penn Central applies.
o Nuisance Exception: If C/L nuisance doctrine would have deprived landowner of that use (would
have prohibited use at purchase), then there is no taking b/c property owner never had the stick in
the first place.
Court assumes that legislature is up to no good w/ these land use regulations. Dismissed legislative
findings of harm. More faith in legislatures.
Public Use
In eminent domain, property owner gets compensated AND lessee to extent of leasehold
Poletown (1984)
Detroit condemns and displaces 4200 ppl to make way for GM plant.
MI SC holds that economic development is a legitimate public use.
Property
Different from Lucas b/c Lucas wasnt getting paid whereas HHA is paying for the land
Maybe different b/c a land oligopoly is such a unique situation
Zoning
Fundamentals of Zoning
Types of Zoning
Use Zoning
Divide municipality into districts. Allocate a use or uses (Residential, commercial, etc.).
Generally cumulative zoning. Zoned up to a certain use (ie. Industrial Zoning includes
commercial and residential)
Area Zoning
Regulates the size of lots, height of bldgs, setback requirements
Cluster Zoning
Closely lump together residential uses and free up land for parks
Planned Unit Developments
Put residential and commercial zones together
Comprehensive Plan
Municipalities required to create them to have formal guidance for future zoning. Changes to
zoning must comply with the general place forces cities to engage in long-range planning
Zoning Ordinances
Regulations that implement the Zoning Act.
Enforcement and Promulgation of ordinances is up to the Zoning Board.
o Usually a final appeal to the City Council
Property
Must show:
Undue Hardship would result by compliance
Variance wouldnt be detrimental to the area
o Neighbors can challenge a variance
Exception. Contained in the ordinance itself. Not as common.
Ordinance cannot be arbitrary, capricious or discriminatory
o
Benefits of Zoning
Cases
Euclid v. Ambler Realty
Ambler claims that after a rezoning, the land has lost 75% of its value.
o Makes a facial challenge to ordinance. Not as applied.
Holds: Zoning ordinance must be clearly arbitrary and unreasonable and have no substantial
relation to valid police power. Rational Basis Review lot of deference to legislature
o Court analogies zoning to nuisance police power. Land Uses can readily become nuisances
depending on the circumstances.
After Euclid, almost never see facial challenges to ordinances. All as applied
Ladue v. Gilleo
Gilleo wants to put up a protest sign; denied a variance. City revises ordinance and enumerates the
nuisances it wants to prevent
2 Analytical Approaches to Challenge Sign/Speech Ordinances:
o Ordinance restricts too little speech b/c its exemptions discriminate on the basis of the signs
message (underinclusive)
o Ordinance prohibits too much protected speech (overinclusive)
KEY ISSUE: Content-based versus content-neutral regulations
Holds: It is possible for states to ban some signs, but this ban is UNCON, too restrictive.
o Ladue can still regulate Time, Manner and Place of signs.
o Need to balance the Right to Use (Gilleo) and the Right to Exclude (Shack), but cases come
out differently Overriding public interest is what determines the day
Zoning Ordinance written to prevent Nuisances: crime and economic blight from adult theaters.
Doesnt regulate content of activities, just location of theaters.
Holds: Test is whether the evidence could reasonably be believed to support the ordinance
Rational Basis Review.
o Here, it can. City relied on actual evidence to decide how best to regulate land use for adult
theaters. Much deference to individual policy choices.
If ordinance makes it commercially difficult to build an adult theater, thats too bad.
o City can zone based on Use; or Time, Manner and Place
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Property
Take Aways
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