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PROPERTY CAPTURE, FINDERS, & GIFT .................................................................................... 3 EXCLUSION AND ACCESS ........................................................................................ 4 ADVERSE POSSESSION ....

....................................................................................... 4 EASEMENTS ........................................................................................................... 5 COVENANTS ........................................................................................................... 8 ESTATES AND FUTURE INTERESTS ........................................................................ 11 RULE AGAINST PERPETUITIES ............................................................................... 14 E&FI RULES OF INTERPRETATION ......................................................................... 14 CONCURRENT INTERESTS..................................................................................... 16 LEASEHOLDS ........................................................................................................ 18 REAL ESTATE TRANSACTIONS............................................................................... 22 INTELLECTUAL PROPERTY .................................................................................... 26 TAKINGS............................................................................................................... 27

ARGUMENTS Doctrine: blackletter law Policy: better for society Theory: better reflects a general conceptual approach THEORIES OWNERSHIP  Right of O to control P  Sticks (exclude, transfer, possess, use) bundled SOCIAL RELATIONS (SINGER)  P as “system” that distributes resources  Effectuates “relations” and “values” through law  Os and non-Os may have entitlements  Sticks can be unbundled  Property is a system of rights & duties, distributing valuable resources among members of society, owners & non-owners, expressing human values and shaping human relations LAW & ECONOMICS (Wealth maximization)  P should promote wealth maximization  Title to party that “values” it most to minimize transaction costs  Liability v. P rules PERSONHOOD (RADIN)  P exists in a hierarchy of fungibility  P that constitutes self not commensurable by money  Ownership should be regulated to promote human flourishing  Market v. inalienability LABOR THEORY (LOCKE)  We own our labor/extension of ourselves  When we mix our labor with something it becomes ours  Take things from nature, take from the common RIGHTS Mainly exclude, transfer, and use Sell Give Rent Develop Keep (forever) Will ACQUISITION Buy Receive Find Create Take Inherent rights from God/Nature Hide Divide Recreation Extract Sustenance Invest Conserve Destroy


e. True Owner: TO prevails unless abandoned F v. F cannot claim title Mislaid: intentionally left. STROUP (168) (Civil War papers) Chain of title murky but policy in favor of party in possession Stability: encourages improvements and avoids disruption. public already had access to papers through USC’s archive GIFT Must have: 1) Intent to transfer 2) Delivery. uncertainty. O forgets where. Premise Owner: F prevails unless trespassing WILLCOX v. must establish possession.JOHNSON v. extinguishable through conquest or purchase No recognition of transactions between NA and individual citizens CAPTURE. & GIFT CAPTURE PIERSON v. no transfer). not sales) and informed medical decisions 3 . or relative possession Majority: possession is capture which is mortal wounding or actual control Dissent: rights from a reasonable prospect of taking POPOV v. F cannot claim title Abandoned: intent to relinquish ownership. POST (152) (Fox hunting) To acquire rights over P in nature. Third Parties: F prevails unless wrongdoing F v. M’INTOSH (98) US: government has exclusive right to title through doctrine of discovery NA: right of occupancy (use and exclude. REGENTS (231) (Mo cell line) Patients have no P interest in removed tissues after signing consent Doctors have fiduciary duty to disclose future uses of tissue (informed consent) Policy: encourage scientific innovations (using donations. F can claim Possession is 9/10s of law F v. HAYASHI (156) (Baseball) Gray’s rule: “actor must retain control of the ball after incidental contact with people and things” Pre-possessory interest where significant but incomplete effort interrupted by unlawful acts of others FINDERS Lost: accidentally misplaced.. i. physical or constructive 3) Acceptance Possible conditions attached to engagement rings. and litigation Personal interest in family papers Plus. marriage Statutory exceptions: prenuptial agreements WHAT CAN BE OWNED MOORE v. FINDERS.

nor abandoned EXCLUSION AND ACCESS TRESPASS 1) Intentional intrusion: objective standard. neither lost. STEENBURG HOMES (28) (Delivering mobile home) Right to exclude is sina qua non of property Punitive: reprehensibility of crime. expression. SHACK (3) (Migrant workers) Privileged consent when providing access to available government services Providers must have reasonable access Social relations: right to exclude limited by duty to prevent more serious harm RIGHT TO EXCLUDE Innkeepers/common carriers have none Private/public facilities: reasonable exclusion/access To what extent is P open to public? What interests underlie desire to access/exclude? Security. potential harm. discrimination? Private facilities: so long as not violating anti-discrimination laws Civil Rights Act 1964: no gender Minority: non-owners have right of reasonable access to P opened to public (USTON) USTON (16) (Card counter) All private businesses open to public must have reasonable right of access (minority rule) Majority rule: absolute right to exclude unless innkeeper/common carrier COLORADO Statute arresting any person able to work and support himself for loitering Voided for vagueness and denial of due process and equal protection ADVERSE POSSESSION Circumstances where non-permissive possession ripens into legal title 4 . being on P 2) Property 3) Owned by someone else 4) Not privileged Privileged when: Consent of Owner Necessary to prevent more serious harms to persons or P Encouraged by public policy JACQUE v. BELL (171) (Indian burial items) Finders’ law does not include claims to burial items.CHARRIER v. mislaid. comparable rewards in similar cases Deterrence needs to be great or company will violate again ACCESS STATE v.

exclusive. GOBBLE (281) (2 feet strip) AP continuous through tacking. previous Os had used land as theirs NOME 2000 v. and payment of taxes for uninterrupted 7 years (good faith) ROMERO v. sufficiency of evidence must be clear and convincing COLORADO: actual. hostile. irrevocable right 2) to use or enter land 3) in writing 5 . GARCIA (287) (Widow’s marriage gift) Void deed: missing signature of member of community (signed by father in law. AP counterclaims with action to quiet title based on AP 2) AP brings affirmative claim to quiet title based on AP. but not MIL) But deed clear enough to establish boundaries and R paid P taxes EASEMENTS Servitude: general term for non-possessory right/obligation that runs with land Easement: 1) permanent. uninterrupted for 18 years Preponderance of the evidence standard -> clear and convincing for affirmative claims BROWN v. FAGERSTROM (289) (Squatters) F on land since time immemorial but divested of title by TEE-HIT-TON and AK Native Claims Settlement AP is objective: not what Fs believed or intended but whether possession was hostile Claim limited to land actually used in a way to put a reasonable O on notice McLEAN v. adverse. under claim of right. must be in good faith Burden of proof on claimant.1) O sues to eject based on trespass. O defends with title No AP against government (including COLORADO) Split on whether AP transfers subsurface mineral rights CLAIM OF RIGHT 1) Adverse/hostile 2) Actual 3) Open and notorious 4) Exclusive 5) Continuous 6) Statutory period: must prove all elements for duration Some jurisdictions. KIRLIN (COLORADO) Lead to changes in law: Clear and convincing standard for affirmative claims Must have reasonable good faith belief that claimant was true O Discretionary damages (market value of lost P + taxes with interest) Preponderance of evidence standard for defensive claims COLOR OF TITLE 1) (Defective) title 2) Possession 3) Payment of taxes for statutory period COLORADO: color of title. possession.

exception to Statute of Frauds  Estoppel  Implication/previous use  Necessity  Prescriptive easement  Constructive trust  Public trust BY ESTOPPEL Transforming a license into an easement by estoppel Equitable remedy preventing O from denying access to licensee who reasonably relied to detriment Test: where licensee shows reasonable detrimental reliance on the terms of a license Usually. if anything in deed indicates intention to be appurtenant Held appurtenant and assignable to future Os. only individual with right to enforce benefit o Historically: neither benefit nor burden ran with the land o Modern: depends on language of grant (plain language and intent) GREEN v. even after land subdivided Burdened/servient: right to restrictions that do not unreasonably interfere with contemplated use COX v. CABLEVISION (468) (Telephone plus cable lines) Non-exclusive right: grantor retains rights over land use. LUPO (458) (Motorcycles) WA: strong presumption for appurtenant. TAYLOR (427) (Built house) Haul road on H’s P permissibly used by T to build a house. grantee has permission to do specific thing Grantee cannot give permission to third parties Here. GLENBROOK (463) (Golf course) Benefited/dominant: right to improvements in spirit of original easement (appurtenant language) Easement is apportionable but cannot be widened past original intent or undue burden on servient HENLEY v. by conduct.AFFIRMATIVE Common and not restricted by subject matter EXPRESS In writing. necessary for use/enjoyment  Appurtenant: dominant and servient estates. then H revoked permission Permission to use road may not be revoked 6 . expended money with O’s knowledge/approval Remedy: servient must allow ongoing access HOLBROOK v. benefited and burdened parcels o Benefit runs with the land by definition o Burden runs with land unless no notice  In gross: only servient estate. intended. exclusive right: easement exclusive to grantee and apportionable to third parties Grantee can expand scope of easement to include uses consistent with original intent NON-EXPRESS Not in writing.

WILLIAMS (446) (Donut hole land) Where O conveys parcel with no outlet except over O’s or strangers’ land. BAY HEAD IMPROVEMENT ASSOCIATION Public has right to land covered by tide -> public has right of access over dry sand owned by quasi-public 7 . uninterrupted (by tacking). no other options except over previously joined land Do not have to show prior use Policy: effectuate intent (no enforcement if parties intended to be landlocked) Promote efficient utilization (petition to public official and compensation to O) FINN v. halfway remedy RASE (429) (Lake cabins) Promising right of occupancy during purchase then evicting after is constructive fraud Cabin Os get 13 years possession or can accept payment for buyout BY IMPLICATION/PREVIOUS USE Previous common ownership of tracts Previous use in a visible and continuous manner Use reasonably necessary for enjoyment of dominant estate Burden higher when grantor is claimant GRANITE PROPERTIES (439) (Grocery store delivery) No easements in title but survey would have found consistent use of driveway. not preventing use) No negative PEs to stop neighbors from blocking access.CONSTRUCTIVE TRUST Equitable remedy imposing on O a burden on P for benefit of wrongfully deprived party Stopgap measure when other easements don’t work. O must grant way Right of way can lie dormant through several transfers as long as there was once unity of title PRESCRIPTIVE EASEMENT 1) Open 2) Notorious 3) Adverse 4) Continuous for statutory period 5) Acquiescence by person against (passive. necessary to operation BY NECESSITY Previous common ownership of tracts After sale of one parcel. O had not denied permission until after statutory period tolled PUBLIC TRUST Public interests in government-owned lands Powers to exclude must be reasonably and lawfully exercised Test: whether means of access ensures reasonably satisfactory public use of public lands MATTHEWS V. only positive to allow access Growing exceptions to no PE/AP against government or by the public COMMUNITY FEED (311) (Gravel driveway) PE granted: general outlines with reasonable certainty. open and notorious.

historic preservation. “heirs and assigns. previous owner. and duration.Still has right to exclude if reasonably and lawfully exercised in furtherance of public welfare NEGATIVE Uncommon and restricted by subject matter Modern statute: protects conservation. 4) writing. i. area. if intended by conduct of easement holder Adverse possession Marketable title acts: easement has to be renewed periodically in record COVENANTS Contractual promise regarding land use binding original parties. record. sale  Relaxed: would allow landlord-tenant  Modern: non-hostile nexus with a future possessor  Damages or injunction. notice. 8) changed circumstances 8 . easements  Modern: instantaneous at buy-sell o Vertical privity*: between successors in interest of original contracting parties  Strict: requires total alienation. mortgagor-mortgagee. not servitude TERMINATION Agreement Own terms Merger Abandonment. 5) reasonableness in time. 7) interference with public interest.” presumed if touches and concerns  Notice (burden side)  Privity: a relationship between two parties o Horizontal*: between original contracting parties  Mutual: simultaneous. 2) original consideration/value of covenant. usually revocable grant to use or enter. market value  Intent: express..e. landlord-tenant. i. KOTSEAS (481) (CVS) Relaxed vertical privity: sued both landlord and tenant for violation Previous O on claimant side cannot sue Benefits in gross: held by person without a direct interest in land.. 6) unreasonable restraints. from law courts  *Standards vary WHITINSVILLE PLAZA v. no writing. solar Now. temporary.e. restricted subject matter goes into covenants LICENSE Informal. 3) express restrictions. monopoly. not enforced Reasonable non-compete agreements touch and concern the land 1) intent and original purpose. personal. may run with land (servitude) REAL COVENANT SPENCER’S CASE  Writing  Touch and concern*: use and enjoyment of land.

EQUITABLE SERVITUDE TULK v. non-compete intended and touches and concerns Burdened lessee would had constructive notice from nationwide practice and previous dealings IMPLIED RECIPROCAL NEGATIVE SERVITUDES May be enforceable if: Common scheme/general plan  Restriction in all or most deeds to P in the area  Recorded plat showing restriction  Restriction in the last deed  Observance of restriction by residence  Language (runs with the land. MOXHAY (created equitable servitudes) (Town Square => private individual. cannot enforce even with actual notice of restrictions TERMINATION OR NON-ENFORCEMENT Common law 9 . BEAR CREEK (506) (Snow tunnel) O given actual notice but deed contained no restrictions. McLEAN (506) (Gas station) Inferred intent and constructive/inquiry notice from residential restriction on 53/91 lots RILEY v. DOLGENCORP (477) (Grocery store & dollar store) In writing. not just subdivision plat ABRIL MEADOWS Did not comply with CCIA. not bound by architectural control committee COLORADO COMMON INTEREST OWNERSHIP ACT P ownership with mandatory assessments. not all residential subdivisions Declaration must be recorded and signed by grantor. covenant survived even though no privity) Writing Touch and concern Intent Notice (burden side) Injunction only (and discretionary). intended to be mutually enforceable) Intended beneficiaries  Who enforces/benefits Statute: developers must record a declaration with common scheme and intended beneficiaries EVANS v. from equity courts WINN-DIXIE STORES V. POLLOCK (502) (Marina) Common scheme can apply to parts of a subdivision for IRNS IRNS in lakefront subdivision with single-family residence restriction but not on hill with unsold lots SANBORN v.

acquiescence/abandonment by change in zoning (allowing commercial) => change in intended character of neighborhood that renders benefits underlying the restriction incapable of enjoyment Unreasonable and inequitable to enforce restriction on alcohol sales BLAKELY v. brown-bagging). BETHANY BEACH (519) (Dry town) Fundamental change in conditions (liquor sold nearby. $ damages Statute: enforceable only when providing an actual and substantial benefit. • Prescription. Open and notorious violation of the covenant w/out permission for the statutory period may terminate the covenant (SOL). Kramer) • Language in instrument: Many subdivisions or condominium associations are subject to covenants that terminate w/in a stated number of years if not periodically renewed. • Laches: if covenant has been ignored/ breached from substantial period of time (less time than prescriptive E) the court may find that unexcused delay in enforcing covenant prompted investment in reliance • Marketable title acts: as w/ E many states have marketable title statues that terminate restrictive covenants if they are not re-recorded after a specific time • Merger: if burdened/benefitted estates come under common ownership the covenants will terminate • Release: all parties affected may agree in writing to terminate • Prescription: open and notorious violation of the covenant w/o permission for the statutory period may terminate the covenants by operation of the statue of limitations • Expiration in instrument (if covenant expires naturally) • Violates law or public policy (includes racially based covenants—Shelley v. not if harm is greater than benefit by a considerable magnitude Cite to changing character of area to invalidate covenant preserving light and air Only damages for loss of light and air COLORADO STATUTES Voids unreasonable solar restrictions Nothing based on race or religion Supreme Court voids modifications of covenants Prevents use of P for hazardous waste storage HOMEOWNERS ASSOCIATION Created by declaration filed by developer prior to sale of first lot 10 . EL DI v. specific circumstances • Acquiescence: complaining party has tolerated pervious violation of the covenant • Abandonment: complaining party has tolerated violations of the covenants by owners of other restricted parcels in the neighborhood covered by the covenant • Unclean hands: complaining party has violated the covenant himself • Estoppel: Owner of servient estate changes his position in reliance on the oral statement of dominant estate owner saying they won’t enforce the covenant.Fundamental change in conditions (=> no substantial benefit to dominant) Relative hardship: harm to servient greater by a considerable magnitude than benefit to dominant Statute: codifies some common law. GORIN (527) (Ritz-Carlton) Relative hardship analysis (“best use” law and economics policy analysis) Covenant impeding use of property in order to protect light and air = unreasonable.

family members) have right to vote CONDOS Created by a declaration with local office or registry of deeds Ownership interests/voting determined by size of unit COOPERATIVES Corporation owns building. Damages: Compensatory + punitive (Intentional infliction of emotional distress?) Dual goals of discouraging discrimination and encouraging integration not met. (3) rule against forfeitures. ABNEY (Racially restrictive park) Trust failed of essential purpose (whites only). c) If yes. what is the remedy? Strike the title. has the triggering event occurred? 11 . 4) If yes. CRITICAL RACE THEORY (CUMMINGS) 1) Racism is so pervasive so as to be nearly unrecognizable Need to expose racism where it exists 2) Challenge experience of white European Americans as normative standards Change storytelling and narrative 3) Attack liberalism and interest convergence theory Not enough for whites to tolerate minority advancement where it serves their own self-interest 4) Expose flaws in color-blind view of society Justice only from recognizing and changing societal willingness to tolerate racism ESTATES AND FUTURE INTERESTS STEPS 1) Classify present possessory estate. permissibly closed park Cy pres would have allowed the state to keep the park open to meet “general purpose” of the gift (charitable). b) Does the RAP potentially apply? FI cannot be executory interest that is uncertain to happen. religion. KRAEMER (Racially restrictive covenants) EPC claim: courts enforcing a racially restrictive covenant = state action under 14th Parties had already willing contracted for sale EVANS v. 2) Is there a future interest? 3) Is the future interest enforceable? a) State the title. color. but found to not apply FAIR HOUSING ACT OF 1968: Bans discrimination on grounds of race. is the RAP violated? Must be vested and closed for no longer than lifetime + 21 years.Creates power to sue breaches of covenants Only owners (not tenants. (2) cy pres. or national origin in sale or rental of housing. reverted to heirs. d) If yes. individuals buy shares of corporation and lease individual units RACIALLY RESTRICTVE COVENANTS Generally deal w/ them by (1) statute. (4) or allow to fail. Exception for single family and owned occupied buildings of 4 or less units. SHELLEY v.

then to B. contemporary circumstances Consolidation v. but if B gets married. until. during Before punctuation mark ending description of A’s estate Condition subsequent: interrupted if grantor takes action. Term of years: O to A for __ years. LIMITATION Determinable: ends early by own terms.THEMES Ownership v. dispersal Feudalism to market capitalism NATURE Purchase: O to A. then to B Vested subject to open: O to A for life. so long as. provided. modern: O to A Life estate: O to A for life. then to B’s children (B has one child) Vested subject to total divestment: O to A for life. while. becomes vested remainder FS determinable: executory interest Shifting: title goes from grantee to grantee. Springing: title goes from grantor to grantee. but if. then to C Condition precedent: condition other than prior estate ending that must be met Contingent remainder: unascertained person or subject to condition precedent If condition is fulfilled and person born and identified. societal values Dead hand control v. on condition. Limitation: and _____ Fee simple absolute: O to A and heirs. term of years: reversion (waits patient for natural end) FS determinable: possibility of reverter (waits for event to occur) FS condition subsequent: right of entry (right to interrupt if condition occurs) GRANTEE FUTURE INTEREST FT. O to A if and when A reaches 30. FS subject to executory limitation: executory interest REGULATORY RULES 1) Rule prohibiting creation of new estates 2) Rule against unreasonable restraints on alienation 3) Rule against perpetuities 4) Interpretive rule prohibiting waste of present estate 5) Prohibition on invalid racial conditions 12 . life estate. ToY to A (inherently limited estate) then to B: remainder Vested remainder: ascertained person (born and identified) and not subject to condition precedent Absolutely vested: O to A for life. LE. O to A for life. then to B. however After punctuation mark ending description of A’s estate GRANTOR FUTURE INTEREST Fee simple: no future interest Fee tail.

AND a remainder that that grantee’s heirs => conveyance to grantees heirs is read as a conveyance to the grantee Common law: LE in grantee with remainder to grantee’s heirs becomes FSA in grantee 13 . then to B and heirs Title: A has PPE in FSSEL. O gets reversion to FSA Modern: O gets reversion then becomes O to B if B reaches 35. B has nothing VESTING OF CONTINGENT REMAINDER O to A for life. then to A’s first child if A graduated from law school. then to B for life. but if A divorces. B has PPE in FSA A dies without divorcing -> A’s estate has FSA. B still has VR in LE 2. then to B for life if B has reached 21. conveys a LE to grantee. CR destroyed. C has FSA CONTINGENT REMAINDER DESTRUCTION Common law: if condition not met by end of preceding. 1st has VR in FSA ALIENABILITY Reversion/remainder can be sold to someone else MERGER Common law: same person owns LE and next vested interest but with CR in between Vested interests merge. B has VR in LE. B has shifting EI in FSA A divorces -> A divested. moves onto next vested estate subject to condition being met O to A for life. 1st has CR in FSA A graduates and has a child -> A has PPE in LE. B has VR in LE. O to A for life. O has reversion A dies when B is 19 Common law: B’s CR destroyed. O to A for life. then to C A conveys LE to C -> B’s CR and LE destroyed. Title: A has PPE in LE. 1st has CR in FSA A graduates -> A has PPE in LE. C has VR in FSA C dies before A and B -> A has PPE in LE. CR destroyed 1. then to C. Title: A has PPE in LE. C has VR in FSA B dies before A -> A has PPE in LE. B has shifting contingent EI in FSA. O has FSSEL.6) Rule against unreasonable restraints on marriage DEATH O to A for life. At conveyance. goes to next vested estate Modern: no destruction. then to B for life. C’s estate has VR in FSA REMOVING CONDITIONS O to A and heirs. then to B if B reaches 35. C has VR in FSA A dies after conveyance -> B gets PPE. not in law school and no children Title: A has PPE in LE. then to C A conveys LE to C -> no CR. B has springing EI in FSA SHELLEY’S CASE Same document.

right of entry* May be limited by statute Vested remainders except class gifts (subject to open) STEPS 1) State the title. then to A’s grandchildren (A has one grandchild) Executory interest: O to A while A serves in the army. however if B marries. reduce to 21 IF it would vest interest Uniform statutory RAP: must vest within 90 years after date of creation Only gifts or wills. possibility of reverter and right of entry void after 30 years of creation E&FI RULES OF INTERPRETATION 1) Is conveyance ambiguous? 14 . then to B O to A and heirs. while preserving O’s intent and liberty RULE 1) Future interest is void 2) unless it is certain to vest (or fail) 3) within 21 years after the death of some life in being 4) at the creation of the interest COVERED FIs Contingent remainders: O to A for life. grantee’s heirs have CR O to A for life. is the RAP violated? 4) If yes. then to O’s heirs (O is still alive) Title: A has LE. then to A’s heirs Common law: A has FSA Modern: A has LE. no CR O to A for life. not commercial transactions *Cut-off: some jurisdictions.Modern: abolished. promote alienability (transferability). then to B if B has gotten married Vested remainders subject to open: class gifts where some interests are vested and others are not O to A for life. NOT COVERED FIs Future interests in grantor: reversion. possibility of reverter*. then to B. 2) Does RAP potentially apply? 3) If yes. O has reversion Can be trumped with express language RULE AGAINST PERPETUITIES To limit dead hand control. what is the remedy? Not whether the interest might vest and close but whether there is any possibility it might not REFORMS Wait and see doctrine: court will wait out perpetuities period to see if interest vests Cy pres: if conveyance has limitation greater than 21. heirs have CR DOCTRINE OF WORTHIER TITLE Where inter vivos conveyance creates FI in grantor’s heirs.

other than normal wear and tear NEW ESTATES JOHNSON v. must fit into existing category. but no reverter ` (Creditor prevention) Life estates can be conveyed by implication or explicit language as long as there is intent Limiting conditions on fee simple absolute void. plain meaning governs. unless granted to corporations Goes to unconditional right to alienate WASTE Voluntary: active trashing Permissive: neglect Ameliorative: increase value MOORE v. Grantor’s intent Presumption against forfeiture Others Not absolute rules Use policy rationales: protect owner’s rights and security. facilitate market AMBIGUOUS CONVEYANCES WOOD v. GARDEN CITY (619) Presumption for fee simple absolute even in charitable cases Court still found right of entry. heirs on the father’s side -> fee simple MA: one of few to allow FT but must be drafted consistent with rules ALIENATION Balancing utility/harm for restraints on alienation FSA: no restraint. PHILLIPS (650) (Gma not taking care of property) Life tenant also has duty to not waste. FREMONT COUNTY (616) (Hospital) Presumption for fee simple absolute in favor of stability and alienability Insufficient evidence of grantor’s intent of FSD or FSSCS Limitations must use plain language and convey grantor’s intent to create FSD or FSSCS CATHEDRAL v.If no. repugnant to fee Lesser estates & charities: more readily restrained Term of years: T cannot sublet CATHEDRAL: found FSSCS interruptible with right of entry HORSE POND FISH & GAME Rule against unreasonable restraints on alienation (619) 15 . 2) Apply interpretive rules. protect possessor. WHITON (626) (Heirs on father’s side) Rule against creation of new estates If ambiguous.

Factors include: duration. partition. and mortgage (in title theory states. surviving JT gets ownership without lease 16 . number of people affected. intent not formalities Right of survivorship: if JT dies. TAYLOR (COLORADO) Individual can convey to himself and others as JTs without straw man. and possession 1) Created at same moment in same written conveyance 2) Each has right to possess whole 3) Must possess equal fractions 4) Inter vivos transfer leads to severance and TC 5) Not descendible or devisable (JT has right of survivorship) CANTERBURY v. DEKING (TC) (674) (Farmland) One T has right to possess whole. why restraint was imposed Covenants for gifts and charitable organizations cannot be dissolved even if conditions unreasonable MARRIAGE Donative transfer to prevent any first marriage: invalid Donative transfer to prevent some first marriage: valid unless unreasonable Donative transfer to prevent remarriage: valid if by 1st spouse and reasonable CONCURRENT INTERESTS Ownership shared simultaneously among more than one person/entity TENANCY IN COMMON Where two or more people simultaneously own P with no right of survivorship 1) Creation in writing: “O to A and B as tenants in common” 2) Each has right to possess whole 3) May have different fractional interests 4) May have inter vivos transfers 5) Descendible and devisable (other TC has no right of survivorship) OLIVAS v. CO is lien) TENHET v. OLIVAS (TC) (671) (Girlfriend) Only duty to pay rent to T not in possession if there is actual or constructive ouster Constructive ouster: joint occupation is impossible or impractical Voluntarily moving out is not ouster. can rent entire P without other T’s permission Other T has to accept terms of lease. interest. remaining T has no duty to pay rent to leaving T CARR v. agreement. even after death of lessor TC JOINT TENANCY Where two or more people own P with a right of survivorship Must be united in: time. BOSWELL (JT) (675) (Leased JT) One JT leases P without consent of second JT then dies Lease does not sever JT but ends upon death of lessor JT. tenancy/title. therefore. interest transfers to other JTs in equal fractions Severance: JT severed if one JT transfers interest during lifetime By SPAM: sale.

equitable distribution Prenups determining separate or community must have fundamental fairness Death: right to dispose of separate P and half of community PRE-NUPTIAL AGREEMENTS Enforceable unless: Lack of voluntariness Unconscionable Insufficient disclosure of information (not fair and reasonable) Substantial injustice 17 . maintenance and repair If only one co-owner in possession: Rent to others? Generally.RULE OF INTERPRETATION If ambiguous. no duty to pay Ouster? If actual or constructive. pay rent TENANCY BY THE ENTIRETY Historic marital P: H had legal power to act for entirety. devise is separate. without other’s consent ROS cannot be destroyed by unilateral conveyance Creditors cannot attach P to satisfy debts of only one spouse w/o consent SEPARATE PROPERTY During: each separately owns and manages P acquired before and during marriage Subject only to choice to intermingle and duty of support Divorce: equitable distribution of both Ps to achieve fair result based on multiple factors Including increase in value of separately owned P and debts incurred during marriage Death: dispose by will or if intestacy forced share depending on other descendants COLORADO: excludes P individually acquired by gift/inheritance and excluded by prenup Intestacy: get 50-100% depending on other descendants COMMUNITY PROPERTY During: P acquired individually during or after by gift. etc. all other community Both have to consent to alienation/mortgage. prenups and trusts to protect W’s P rights Dower: W had LE in 1/3 of H’s estate Curtesy: H had LE in all of W’s estate Old common law: marriage was “feme couvert” (from “feme sole”). interpret as tenancy in common OBLIGATIONS AND RIGHTS Co-owners must share expenses. CO has recently abolished Elements: Legally married Partition only by divorce Interest of one cannot be sold. fiduciary duty to “community”/other spouse Divorce: get own separate P plus half of community P. H had full control Married Women’s Property Acts: married women get same right to K and hold P TE: marital entity still controlled by H but W has right of survivorship About 20 states still have it.

WA) On Death A spouse may dispose of her separate P and ½ of the community P by will. ENDO (682) (post Married Women’s Property Acts) Group 1: TE same. creditors cannot reach interest or ROS Group 4: unilateral conveyances and creditors can reach interest and ROS Majority: group 3 so long as non-fraudulent. Each gets separate property + ½ community (CA) Equitable distribution (AZ. rehabilitation. is community P and is owned equally by both spouses. and sometimes fault (gives trial judge great discretion). A spouse may dispose of her P by will. contributions of the parties. and vice versa. no fault jurisdiction. status.HOMESTEAD LAWS Protection for primary residence from debts of decedent spouse so long as survivor lives Can stay in home Limits in equity and law [CRS 38-41-201] KRESHA v. including earnings. except homesteads Group 3: no unilateral conveyances. Analogous to a partnership [Most states allow spouses to change or “transmute” their property from separate to community P. effectively allowing the widow or widower to override the will and receive a stated portion (usually one-third to one-half) of the estate. contributions of the parties. On Death CO revised statues: “Marital property” subject to equitable division. subject to ROS. Intestacy (amount inherited at death): 50%-100% depending on whether other descendants Community Property – During marriage All P acquired during the marriage. subject to H’s creditors and W's ROS Group 2: interest of debtor spouse subject to creditors. status. and sometimes fault (gives trial judge great discretion). rehabilitation. During marriage Each spouse separately owns and manages property acquired before and during marriage. mortgage On Divorce Equitable distribution is subject to a wide range of factors such as economic need. LEASEHOLDS TYPE OF LEASEHOLDS 18 . TX. Both have to consent to alienation. H may convey entire estate. Many states provide for a statutory forced share of the decedent’s estate. KRESHA (679) (Lease to son) Non-consented lease to son survives after W granted entire parcel in dissolution proceedings Similar to H leasing fee simple interest and W holding remainder SAWADA v. Subject only to (1) choice to intermingle (2) duty of support On Divorce Equitable distribution is subject to a wide range of factors such as economic need. by written agreement]. dissent: group 4 Separate Property – Adopted by CO.

The death of either party does not terminate the tenancy. short in duration. . A tenant rightfully in possession who wrongfully stays after the leasehold has terminated . nuisance. termination set in lease Renews automatically at specified periods unless either the landlord or the tenant chooses to end the relationship. short in duration → until L accepts rent or evicts Term of years: must comply with SOF. . NO waste = don’t remove fixtures] Obey other covenants or “material terms” of the lease [subletting. month.e. death of either L or T terminates tenancy at will. L either accepts rent or evicts Tenants and Landlord’s Duties/Rights Tenant Pay rent Repair [general upkeep + report problems to L. etc] Relinquish possession → L’s reversionary interest → conflicts about occupancy Landlord Right = Evict but w/ [summary] process Relet/find new tenant Duties = Mitigation (Sommer) . etc] Obey law [noise.Traditionally.Holdover T.g. 10 days TENANTS’ DUTIES Repair: based on common law obligation of life tenant not to commit waste Basic repair and upkeep No removal of fixtures. termination set by statute Unspecified duration.Even if T is breaching party Laws on rent acceleration clauses and security deposits [781] COLORADO TERMINATION Tenancy may be terminated by notice to quit in writing: 1 year or longer tenancy. in theory terminate w/o notice but most jurisdictions require 1 month . 3 months notice 6 months – 1 year tenancy. termination set by statute Tenancy at will: unspecified duration.comply w/ SOF. special repairs. 1 month notice 1 – 6 months tenancy.Term of years Periodic Tenancy Tenancy at Will Tenancy at Sufferance Lasts for a specified period of time determined by the parties—set in lease. in theory terminate at will but most require 1 month notice Tenancy at sufferance: holdover tenant. what can’t be removed without substantial harm to P Contract/express agreement controls on repairs and fixtures Pay rent: for failure to pay L’s recourse depends on if T stays or goes If T defaults and stays: 1) Sue for back rent (and possession) 2) Summary process (judicial process) No self-help (even in CO) 19 . termination set in lease Periodic tenancy: renews at specific period.

at least in commercial leases Uses mitigation in calculating damages OCCUPANCY CONFLICTS T’s right to assign or sublet: if lease silent.If T defaults and goes: 1) Accept surrender: look for new T Sue for back rent + damages (agreed – fair market) + reasonable costs of finding new T No future liability for T 2) Refuse surrender and re-let on T’s account: look for new T Sue for back rent + (agreed – new (reasonable) rent) + reasonable costs of finding new T Original T liable if new T fails to pay 3) Ignore. use commercial reasonableness Commercial Reasonableness: financial responsibility of assignee. suitability of P for use Args: Unreasonable rest. secondary liability T1 and T2 also have “privity of K” *May be different if there are express terms Sublet (term portion): T2 pays rent to T1 who is still liable to L L and T2 have neither privity of estate nor K L and T1 still have “privity of K”. against alienation. and sue: don’t look for new T Wait to end of term then sue for full amount. qualified by duty to mitigate Obey other covenants or materials terms of lease Obey law (nuisance. burden on L to prove reasonable mitigation COLORADO MITIGATION L has duty to mitigate. duty of good faith and fair dealing SLAVIN v. wait. L may get injunction to pay rent KENDALL v. L may withhold consent arbitrarily Args: Freedom of ownership. RENT CONTROL (763) No requirement of reasonable for L to withhold consent to assign/sublet in residential leases Later extended to commercial leases COLORADO Current trend to reasonableness. noise. KRIDEL (774) L has duty to mitigate damages from defaulting T. unless L negotiates for absolute right to withhold 20 . primary liability T1 and T2 also have “privity of K”.) SOMMER v. L has right to increased market value Minority (CO): L can’t withhold consent unreasonably. primary liability L and T1 still have “privity of K”. freely bargained for K. stare decisis. T has right Assignment (entire term): T2 assumes T1’s duty to pay rent to L L and T2 have “privity of estate”. PESTANA (758) (Assignment restrictions) Majority: where lease requires L’s consent for assignment. etc. liability between *May be different if L2 expressly promises to pay L. legality of use.

statutes. no need to vacate: Move out and terminate lease (rescission) Repair and deduct (if allowed by statute) Reduce rent or withhold until court determines fair rental value (separate account) Injunctive relief Remain in possession. not third parties Blackett rule (adopted by R2): L liable for third parties whose conduct L could legally control Probably not limited to only Ts or extended to all Ts Other third parties: only 2. chronic problem Notice: T must give L notice and reasonable opportunity to fix Go: if L fails to fix after reasonable time following notice. injunction Constructive eviction: SING Substantial Interference with quiet enjoyment by L’s actions or failure to act. duty not to permit nuisances and duty to control common areas IMPLIED WARRANTY OF HABITABILITY T has four options after breach. regulations. leases Implied warrant of habitability (CO) COVENANT OF QUIET ENJOYMENT T has right of possession. except for latent defects Majority: “implied warranty” and L’s breach may affect T’s duty to pay De minimus v. and sue for money damages Administrative penalties Criminal penalties Traditional: “caveat lessee”. damages.LANDLORD DUTIES Provide possession Common law and leases Includes covenant of quiet enjoyment Provide P that meets minimum standards of habitability Emerging in common law. pay rent. L has no implied duty and T must pay regardless. T must vacate Partial constructive eviction: deprived use and enjoyment of portion of P (MINJAK) R2: deprived use and enjoyment by L or someone in L’s control (BLACKETT) MINJAK (782) (Dust and elevator shaft) T’s defense to not paying rent: unable to use 2/3 of loft due to L’s renovation and disruptive neighbors Court finds constructive eviction and grants rent abatement (still using 1/3 of loft) BLACKETT (785) (Cocktail lounge) Traditional: constructive eviction only when L interferes. not to be disturbed during tenancy L cannot deprive T of P during leasehold “Dependant” covenant: T’s duty to pay rent contingent on L not breaching covenant Implied term in every state by statute or common law Actual eviction: physical exclusion from possession Traditional: Entire rate abatement for actual eviction R2: partial rent abatement for partial actual eviction T sues L for termination. “material” defect (what is habitable?) 1) Seriousness of defect and impact on habitability 2) Length of time 21 .

purchase price. and regulatory arguments BLACKWELL v. negotiations and offer Pre Sale Agreement signed Executory period: inspections. equitable defense to nonpayment Historical. deed delivered Post-closing: warranties of title. environment hazards (adverse material facts Buyer’s: B may employ several. document preparation Closing. uses brokers. appraisal and credit check. expiration date. title insurance issued. contract. closing date 22 . responsibility only to deal itself Exercise reasonable skill and care. deed and mortgage recorded OFFER Precursor to Pre Sale Agreement. sp enforcmt). listing with broker. account for all money received. mortgage financing and loan application. disfavored compared to PSA Contains: P description. disclose all adverse material facts.g.3) L’s notice 4) T’s conduct 5) Can P be made habitable? No retaliatory eviction: Ts who report housing code violations cannot be penalized by L Satisfied by positive law (e. DEL BOSCO (COLORADO) No IWH based on stare decisis 2008 CO adopted IWH after municipal codes unenforced REAL ESTATE TRANSACTIONS Three step process: Pre-K stage: decision to sell. title examination. assist in complying with contracts and closing PURCHASE & SALE AGREEMENT In writing Material terms: P description. intent to sell. price. damages. physical condition of P. have no enforceable duties to S CO transaction brokers: represents neither side. signed by buyer May be enforceable but doesn’t offer either B or S legal protections of PSA Trend to be enforceable (if “essential terms” included): in writing. local housing code) or independent judicial conclusion Commercial leases have no implied warranty Landlord must be given notice and reasonable time to fix it Non-waivable and no assumption of risk in most states even through express terms Defect after lease commences subject to materiality inquiry CO allows T to bring private actn based on housing code (poss injnction. Ks should be binding BROKERS Common law duties: fiduciary duty to represented party and none to other party except to disclose adverse material facts CO statutory duty for seller’s: includes title. JAVINS (792) (1500 housing code violations) Court held IWH in housing code regulations..

accurate description. take possession of P.Promises: convey good title. lien on P JOHNSON v. rescission. reliance to promisee’s detriment. no loan = brothers want P back Only oral agreement but part performance overcomes SOF to allow in parol evidence HICKEY V. known to be false. fraudulent nondisclosure o S’s false statement of material fact. no material defects Signed Generally deed takes place of PSA after signing ORAL K ENFORCEMENT Part performance: partial payment of purchase price. damages. causes damage o Latent/patent defects  Reasonable efforts to obtain financing (B) o Warranty of habitability (builder of new home) Remedies: specific enforcement. inspection. justice requires enforcement Constructive trust: fraud BURNS V. fraudulent suppression. little duty to disclose Current: no false statements (misfeasance) but not liability for nondisclosure (nonfeasance) Here: liability for nondisclosure of latent material defects. GREEN (852) (Dirty double dealer) Oral promise to sell land plus deposit check and sale of current house requires estoppel BREACH OF PSA (what constitutes a breach)  Provide marketable title (S) o “Unencumbered fee simple. MCCORMICK (850) (Old guy asks for care in exchange for house) Housekeeping and support are not part performance. reasonably relied on by B. RECORDING SYSTEM. free from reasonable doubt” o No encumbrances or mortgages o Not based on claim of adverse possession o Not violating a zoning ordinance o Can be waived  Refrain from any false statement of material fact about P (S) o Caveat emptor except: misrepresentation. fraudulent concealment DEEDS. make improvements Estoppel: reasonably reliable promise. DAVIS (859) (Liability for nondisclosure. Bs discover gushing water after signing PSA Old common law: caveat emptor. & TITLE PROTECTION DEED Resolves disputes between B and S after closing Contents 23 . no enforcement of oral promise GARDNER V. GARDENER (854) (Black sheep brother tries to keep full title despite not getting loan) Land conveyed to brother as security for loan. fraudulent concealment) S claims to have fixed ceiling stains.

then again O to B. servitudes other than those disclosed Future: not breached. no defects prior to that General warranty deed: S conveys seisin. not violating a zoning ordinance BFP = bona fide purchaser is someone who paid money value and had no notice of the previous purchase of the same property [usually substantial pecuniary value. until B is disturbed in possession Warranty (embodied in deed): will defend B if sued by someone with title Further assurances: will cure defects Quiet enjoyment: won’t be disturbed by someone with legitimate claim of title MARKETABLE TITLE: “unencumbered fee simple. not based on claim of AP (majority view). RECORDING SYSTEM Resolves disputes between 2 Bs after closing Purpose: state statutes to settle disputes between two subsequent purchasers Common law (first in time. no guaranty that it is good Special warranty deed: S conveys own title since acquired. further assurances Present: breached. if at all. right to convey. dirty double dealer) Race statute (rare): whoever records first wins Notice statute (1/2 states): B must be Bona Fide Purchaser (paid value and had no notice) to win over A Actual: B directly informed of A’s purchase Inquiry: B could have ascertained by inspecting P Record/constructive: if A’s deed was properly recorded Race-notice statute (1/2 states including CO): B must be Bona Fide Purchaser and record first to win over A (must have no notice of A’s purchase) Applications Wild deed: deed null if entered on the records by grantor unconnected to chain of title Estoppel by deed: grantor without interest cannot deny validity if later acquires interest Shelter: BFP can convey. it does not have to be fair market value]. no encumbrances or mortgages. if at all. with notice of an earlier transaction 24 . at delivery Seisin: own interest purporting to convey Right to convey: no restraints on alienation Encumbrances: no mortgages. first in right) inequitable Types (O to A. QE. even to third party. free from reasonable doubt”.Parties P description Statement of grantor’s intent to convey Grantor’s signature Cannot fail for lack of consideration Delivery “Actual” delivery typical but mere “possession” is not enough Present intent to transfer title + acknowledgement (notarized declaration)(generally) “Constructive delivery” also rests on intent CO: acknowledged and recorded deed is evidence of delivery Types Quitclaim: S conveys title. encumbrances.

Try to encourage negotiations b/w owner/bank (can occur before or after foreclosure) . bank power of sale (others) 5) Statutory right of redemption (for some period before foreclosure) 6) Negotiation between owner and bank FREMONT INVESTMENT & LOAN (84) AG brings injunction in quest to slow foreclosures and protect individual homeowners Bank practices must be affirmatively permitted by statute. lender has “lien” in P. has no assurance it will ever be able to possess the P. incontestable (high cost. borrower has “equity of redemption”. CURRENT FORECLOSURE PRACTICES 1) Borrower has right to bid 2) Public notice 3) Prohibition of deficiency judgments by bank against borrower (some states) 4) Judicially supervised sale (some states) v. waiver (right. usually requires judicial foreclosure Bank’s rights: foreclosure cuts off equity of redemption OR transfers title permanently Sell P to recover value of loan and can sue to recover difference (now often prohibited) Statutory right of redemption = allows the mortgagor to buy back the property for the price bid at the foreclosure sale for a designated period (often a year) after foreclosure.Torrens system quasi judicial proceeding to determine title. not silently allowed => unfairness standard was not retroactively applied 25 . . pay P taxes. LOVE (889) (Fraudulently procured deed for mineral rights) Forged deed is void Deed procured through fraud is voidable Unless it has subsequently passed to a BFP. maintain homeowner’s insurance. both recorded S wins. detriment). pledge P as collateral to secure repayment Title theory: lender holds title. in fact. L to H would not be in chain before L received patent This is weird because of deed by estoppel by which if one transfers property that one doesn’t own and then come into ownership of that property it automatically transfers ZURISTRASSEN V. reliance. knowledge. then to S after receiving patent. STONIER (Brother forged deed) Forged deed = void ad initio Possible arguments: estoppel (representation. then too late to void MORTGAGES Promissory note: promise from borrower to repay lender principal plus interest Mortgage: additional promises from borrower (attached to P) Pay note. must follow chain of title BLM to L to S. not mandatory) SABO (880) (Dirty double dealer) Race-notice L conveys to H before receiving patent from BLM. ratification (full knowledge + intent) McCOY v.Many states do not do this b/c it decreases the market value of the P at the time of the foreclosure sale since the buyer cannot possess the P immediately and. non-judicial foreclosures Lien theory: borrower holds title. intent).

symbol.Subprime loans are considered unfair practices in violation of Consumer Protections Act and in violation of Massachusetts Predatory Home Loan Practices Act. or combination thereof Common law: mark had acquired secondary meaning Functionality limitations: prevents others from using features essential to product use/purpose COPYRIGHT Owners of original works of authorship fixed in a tangible medium of expression have exclusive right to: Copy. name. D’s profits. make derivative works Life of the author plus 70 years. non-owners’ rights. particular good or service in a particular area To protect consumers from confusion of different companies using same/similar names To promote competition by protecting a firm’s reputation Distinctive under common law: relationship between mark and product considering: a) 1) Arbitrary or fanciful (Kodak) 2) Suggestive (Coppertone) 3) Descriptive (Holiday Inn) 4) Generic (computer) b) Protection turns on if mark has acquired secondary meaning (source identifying) Sources of law: Common law origins with many state remedies still available Common law: as long as use of TM continues. 8. costs of action. or display. publish. perform. then federal statutes extending state protection (Lanham Act) 10 years. or type of packaging that indicates the the source of goods or services Owners have exclusive right to use. damages only if willfully traded on the P’s goodwill in using the mark State cause of action: exclusive right but no independent cause of action Claim under state unfair competition law Passing off and misappropriation of a distinctive mark QUALITEX (189) (Dry cleaning pad) Lanham Act: any word. treble damages for bad faith Dilution: blurring or tarnishment of famous marks Injunction. states: terms vary Loss by: abandonment. Cl. restraints on marketability. An Injunction against foreclosing on these loans serves public interest. damages sustained by P. change over time Departures from RP: how to own an idea? How to exclude others from something intangible? TRADEMARK Name. symbol. I. § 8. renewable so long as used in commerce Federal causes of action: Infringement: likelihood of consumer confusion Injunction. device. federal substantially preempts state FEIST (195) (Phonebook) 26 . corporate: 120 years after creation or 95 years after publication Then enters public domain Federal law: Constitution. distribute. Art. genericity Commerce Clause. INTELLECTUAL PROPERTY Connections to RP: bundle of rights. improper licensing or assignment.

territories. or composition of matter. method. extensions may be available Effective only within US.Facts not copyright-able. differs from TM and copyright Federal. composition 2) Novel 3) Non-obvious 4) Useful 20 years from date application was filed. REGENTS (from earlier) Patients have no P interest in removed tissues after signing consent Doctors have fiduciary duty to disclose future uses of tissue (informed consent) Policy: encourage scientific innovations (using donations. or any new and useful improvement thereof 2) Design: who invents a new. but compilations can be if sequence is original Functionality limitations: only so many compilation sequences can be original SUNTRUST BANK V. and ornamental design for an article of manufacture 3) Plant: who invents or discovers and asexually reproduces any distinct and new variety of plant MOORE v. HOUGHTON MIFFLIN CO. machine. article of manufacture. exclusive right for: 1) Machine. and possessions Types: 1) Utility: who invents or discovers any new and useful process. original. not sales) and informed medical decisions TAKINGS Principle: bar government for forcing some individuals to bear whole society’s burdens Fifth: private P cannot be taken for public use without just compensation Fourteenth: state cannot deprive any person of P without due process Questions: Who is a person (for Fifth protection)? What is private P? What does it mean for P to be taken? What counts as public use? What is just compensation and when is it due? Types: Eminent domain: Fifth power to take private P for public use with just compensation Direct condemnation: government sues individual to take P Inverse condemnation: individual sues government for taking without just compensation 27 . GWTW TWDG Parody = fair use? Balancing between property rights and speech rights Promote the progress of science and the useful arts Purpose and character of the right Nature of the copyrighted work Amount and substantiality of the portion used Effect of the use upon the market/value of the original work PATENT Grant of a property right to inventor.

seems forced Taking from a to give to b? INDIAN TAKINGS Property under the 5th amendment recognized title is compensable under the 5th amendment could be recognized through treaty/statute/executive order aboriginal title must pass through federal gov't first (must be sanctioned by federal gov't) => without government recognition nobody can obtain title recognized by the 5th amendment TEE-HIT-TON (109) (Alaska timber) Indian “right of occupancy” non-compensable under Fifth. use by public. etc TELEPROPTER MANHATTAN CATV CORP.. public good Physical invasion => taking => requires compensation Comparison to mailbox. Alaska Native Claims Settlement Act (1971) → $1B to extinguish aboriginal title in AK SIOUX NATION (114) (Black Hills subsistence rations) 28 .g. taking home to build highway Regulatory takings: not intended but has same/similar effect. reasonable Character of action: physical. Economic impact: minimal. e. etc. preserves spirit of neighborhood.Government taking types: Government condemnation: explicit takings. i. only airspace b) Public good? Yes. not private P Especially since tribe had not been specially recognized by Congress Remedy needs to be political solution through Congress Mere possession does not constitute ownership for purposes of the 5th A..e. statute preventing coastal development or diminution of economic value of P Remedies: compensation or terminate regulation and pay for damages while in effect Arguably not a taking when advances legitimate government interest and owner retains some viable use Low “rationally related” standard of review KELO (1074) (Blighted area) Intersection of public and private interests but economic development can be a public use KENNEDY: only if public benefits outweigh private use O’CONNOR: only if P’s nature justifies taking (blight) and no alternatives THOMAS: only if fully public ownership. or common carrier PENN CENTRAL (1108) (Historical landmark) Ad hoc test for regulatory takings: 1) Economic impact of the regulation a) Reasonable interference with investment backed expectations? Only after historical landmark declaration b) Remaining uses/diminution of value? Still maintain current functions 2) Character of the government action a) Physical invasion? No.

was a taking without just compensation Indians = extraconstitutional entities 29 .As trustee of Indian lands under Treaty of 1851. US must make good faith effort to award fair equivalent of recognized title Did not.