Dana Property Law Outline

Cases = Underline Definitions = Bold Rules = Red Important Concepts = Blue
Property Law Outline 1.) First Principles/ Building Blocks Property rights are: 1. Injunctive rights 2. Contract rights 3. Help define the limits of tortuous behavior 4. Constitutional rights 5. About scarcity of resources (otherwise people wouldnt care) -Property is the rights and obligations of people in relation to objects, not the study of objects -Property has been justified as an embodiment of ones labor, on utilitarian or efficiency grounds, by custom, or by reference to a natural law Emmanuels: Property doctrine tries to serve 4 important values: 1. Reward productivity and foster efficiency 2. Create simple, easily enforceable rules 3. Create property rules that are consistent with societal habits and customs 4. Produce fairness in terms of prevailing cultural expectations of fairness Assignment One: Capture Pierson v. Post F: Post was chasing fox as part of a foxhunt and Pierson grabbed it H: Pierson gets to keep the fox, corporal possession of wild animals makes them ones property Majority Pros: Capture is easier rule to administer; harder to be undone Also encourages efficiency Con is that it may make people too opportunistic Dissent Pros: Ruling for Post would set a precedent of rewarding those who worked hard for the fox Con is that it may be rewarding inefficiency; harder to determine Ghen v. Rich F: Finder of a whale that Rich had killed violated custom and auctioned it to Ghen H: The court found the industry custom applicable and awarded Rich one whale value, because: 1. The community adhered to the standard 2. The standard had allowed the industry to grow 3. The custom rewards those whose efforts have been expended First in Time (First to see or pursue) or First Capture (Have it)

Keeble v. Hickeringill (England 1707) F: Man had a decoy pond in which he captured ducks; another man came twice and fired a gun, scaring off the ducks for the day H: The P had a valid action against D because it was malicious interference of a lawful trade livelihood Different Issue if: a.) the Defendant had his own decoy pond nearby and was shooting at ducks b.) Society did not want ducks to be killed
Assignment Two: Capture Continued Rights of Owning Property: Bundle of Sticks (1) alienate or transfer -sell OR give (2) Right to Exclude (Means you can tell someone to go away and not use your property, even if you aren't) (3) Use the resource (4) Some property has a right to destruction (book burning); some property law you cannot destroy or waste (Land or Water) (5) Right to not use or Conserve (Right to engage in conservation)- typically not a stick in the bundle in America Analogy can lead the law astray (Oil and water are not like wild animals) In a Capture Regime (Water), you have a right to alienate & use, but no right to exclude; You cannot claim water and exclude others Any systems of water law where you can exclude other people? (This may be problematic because people need wateryou're mad if water didn't come out when you turned on the shower) Prior Appropriation Doctrine: 1st person there gets to claim it; Difference is that you get the right to exclude No right to alienate Right to Use (Traditionally Under Prior Appropriation the resource must locally benefit; you also are stuck w/ your initial use, it is conservative) If you're trying to make money w/ a water start-up, then Texas is a better environment w/ the rule of capture, as opposed to Arizona w/ prior appropriation
Reasonable Use: What sticks do you own from the bundle? Right to reasonable use You basically own what the court says you own Water Conservation Districts (Made by State Govts. and State Law) set up, in effect, non-profit organizations

(Many water appropriation regimes use all 3) Sipriano - What do courts do when faced the question of institutional change? They often say that although the arguments and merits are right, it would likely be better done by the Legislature But, what could the court have done in Texas if they had decided Capture was such an awful rule? -They could apply a reasonable use test or outlaw capture, but the court cannot initiate a bureaucracy, they will encourage the legislature, or outlaw capture, which create a push for immediate legislation One argument is that we could create a market for water where farmers could sell to cities; other argument is creating a Communist ration system Oil: What is the downside of pulling out all the oil at once? It would take a while and cost money to refine -Enormous Storage Costs, where the underground makes for a pretty good storage tank already -Strips the land of its value -Too large of an increase in oil supply may diminish the price of oil The US tried unitization by contract, it did not work, and they now have unitization by regulation In Texas, the analogy between oil and foxes (Pierson) is dead
Assignment Three: Invention, Imitation, and Misappropriation International News Service (INS) v. AP (SC, 1918) Facts: Competitors in gathering news INS was taking news from APs bulletins before they were published and selling them Issue: Is News Property? H&R: The court held that news is common property, but has a unique quality in that its value is while it is still fresh; looked at the business of making news known The question is the parties rights between themselves, not the public Court reasoned that INS reaped where it had not sown
Cheney Bros. v. Doris Silk Corp. (2d Circ. 1930) Facts: D is copying the silks that succeed of the P's silks (only 20% typically sell and the season lasts 89 months) -The product had no copyright but the P asked for protection just during the season H&R: The court held that the law would not protect P Learned Hand interpreted the INS case as applying only to news

Competing Values: Inefficiency produced by a monopoly over creation (higher prices and less accessibility) VS. Sense of unfairness of allowing copycats to reap what they havent sown & creators may not create w/out protection E.I. Du Pont Neumours v Christopher, U.S. Ap 5th, 1970 -Plane flew over methane factory that was under construction and took pictures which it gave to a third party -Issue- Whether aerial photography of plant construction is an improper means of obtaining anothers trade secret -Holding- yes; it is ok to discover a trade secret through reverse engineering -but you can not avoid these labors by taking the process from the discoverer without his permission at a time when he is taking reasonable precautions to maintain secrecy -trade secret- only if 1. have property right if something is secret and valuable 2. have to take reasonable precaution to protect it 3. would have to be compromised by improper means -is a limited right to exclude -here point 2 and 3 in question -why should you have to take precautions to protect property right -is way for crts to filter what is really valuable by seeing what steps people will take to protect - there is a cost to a property dispute and crt doesnt want to get involved unless they have to -makes people assume cost to get property right -Why is flying plane improper means -if someone takes extreme measures to circumvent reasonable means
Assignment Four: Property and Personhood Moore v. Regents of the UofCal (SC CA 1990) Facts: P had his spleen removed because of leukemia, told just for research; D patented the Mo cell, which now earns them 100K and could earn much more o Moore sued for conversion, lack of IC, breach of fid. Duty, fraud and deceit, unjust enrichment, etc. Issue: Does Moore have property rights to his spleen now? Is this conversion by Regents? H&R: No, the court held that it was not conversion; they reasoned that "to establish a conversion, a plaintiff must establish an actual interference with his ownership or right of possession" Moore did not expect to retain possession of his cells following their removal, so to sue for their conversion he must have retained an ownership interest in them Majority's 3 reasons why it is inappropriate to impose liability for conversion: 1. A fair balancing of relevant policy considerations (One is protection of a competent patient's right to make autonomous med. decisions 2.) to avoid a chilling effect on med. Research)

2. These problems are better suited to legislatures 3. The tort of conversion is not necessary to protect his property rights Dissent says that above all, at the time of excision, Moore had the right to do with his body what the defendants did with it -They say they are allowing the defendants to profit off of exploiting someone's body (likened to slavery) and that the court should create a judicial remedy for this wrong -Also says this is unjust enrichment Market-Inalienability Article - Radin Author says that market inalienability in some things are good, and that theories of traditional liberalism and modern economic analysis does not explain why well enough Radin starts with an explanation of how property applies to how someone defines their identity (personal Property) Irony that you cant do with yourself what you can do with property even though it is most yourscomes from religion, psychology, morality How do people compare to something like a car? You can sell your car, but you cannot sell yourself entirely (Into slavery) You can destroy your car; you cannot legally commit suicide Different restrictions to rights to use: You cannot use a car to aid a crime; you cannot prostitute yourself Posner argument that we should look at pragmatic consequences from policies; selling people into slavery could have adverse social consequences w/ coercion etc. Surrogacy: You can say that it is bad because it is against natural law or human dignity- but at some level these arguments are about what you believe; the other tactic is to say that we want to encourage adoption Assignment Five: Finders Doctrine Armory v. Delamirie (King's Bench 1722) Facts A Chimney sweep's boy found a nice jewel and took it to a local goldsmith -The apprentice there tried to give him three pence, but the boy said he wanted it backthey gave it back to him without the stones in it H&R: The court held that the boy does not have absolute property or ownership; but does have property to keep it against all but the rightful owner -That damages were to assume the nicest jewels unless the D could prove that they weren't

Hannah v. Peel (King's Bench Division, 1945) Facts: P found a brooch in the D's house when he was boarding there during military service -P eventually turned it in, and it was given to D (Who had no knowledge of it), who sold it, P sued saying he is the rightful owner Who should be the rightful owner? H&R: The court held for the plaintiff -They cited Bridges v. Hawksworth in which the P found notes near a shopkeeper's door and the court awarded them to the P Also cited South Staffordshire Water Co. v. Sharman where a worker found rings in a pond/pool but the court ruled for the defendant The court here was influenced by the D never officially living on the premises, had no knowledge or prior possession of the brooch, and the P's turn in was commendable The court says that "a man possesses everything which is attached to or under his land; But, a man does not necessarily possess a thing which is lying unattached on the surface of his land -Consideration of attached to ground versus laying on ground -employee cannot have it even if owner didnt know it was there McAvoy v. Medina (Supreme Judicial Court of Mass. 1866) Facts: P was a customer in D's barbershop who found a pocketbook mislaid on a table Issue; Does it belong to finder or Barbershop owner? H&R: The court held that P had no right to it because it was found on the tableunlike Bridges where it was on the floor; Mislaid property = owner, lost property = finder A finder has no right to mislaid prop., has a right to all but the true owner of lost prop., and has property over abandoned prop. Difficult Rule relies on circumstantial evidence and can be unconvincing 2.) The Estates System Assignment Six: Life Estates Merill and Smith: Optimal Standardization in the Law of Property Extreme standardization frustrates purposes, while freedom of customization creates third party measurement and error costs and high administrative costs Life Estate - a possessory estate that expires upon the death of a person, at which it goes back to the original persons estate (a reverter) Fee Simple Absolute- Duration is perpetual

Intestate- when a person has died without a will or the property of a person who has died without a will Alienation- Conveyance or transfer of property to another White v. Brown (Tenn. 1977) Facts: Jessie Lide's will said " I wish Evelyn White to have my home to live in and not to be sold." Issue: Is Lide passing to White a Fee simple absolute or a life estate? H&R: A Fee Simple Absolute The court looked at three Tenn. statutes: 1. Every grant or devise of real estate shall pass the entire interest of the grantor or testator unless there is clear evidence to the contrary 2. Presumption that a will conveys the entire interest of the testator in the testator's real property unless there is a contrary intention in the will 3. Presumption against partial intestacy The court treated the "no sale" restriction as an invalid attempt to restrain alienation of a fee simple absolute rather than clear evidence of a life estate Objections to Alienation Restraints: 1. Make property unmarketable 2. Make it impossible for the owner to sell property 3. Discourage Improvementsan owner will not sink money into land he can't sell Baker v. Weedon (Miss, 1972) Facts: Oakland farm heir Anna wanted the remainderman grandchildren to sell the farm to help her situation, but they were not doing so.possibly expecting her to die soon Issue: Can Anna have part of the estate sold so that she can augment her income? H&R: Yes, the court decided on equity to sell a contingent of the land Life Estate + Remainder = Fee Simple
Emmanuels: 1.) Judicial responses to inflexibility of the legal life estate (Two principles the courts use sparingly to avoid the legal effects of the life estate) a. Construction: Courts try to implement the grantors intent, but if a grant is sufficiently ambiguous courts may interpret it to create a more flexible estate, such as a fee simple absolute b. Judicial sale: Courts sometimes order the sale of the life estate and the remainderman and either divide the sale proceeds between the life tenant and the remainderman or order the sale proceeds held in trust with the income payable to the life tenant and the trust corpus reserved for the remainderman. Rarely done; two situations when it is: Equitable Necessity Where it can be proved sale is in the best interests of all parties i. and is the only practical method to effectuate the grantors intention to provide material comfort for the life tenant and preservation of asset value for the remainderman, a court may invoke its equity powers and order sale of all or part of the property (Baker v. Weeden)

ii. Waste Avoidance Order sale when it is necessary to avoid the deterioration or destruction of the property
Assignment Seven: Defeasible Estates Fee Simple may be absolute, it cannot be divested nor will it end if any event happens in the future Defeasible Fee Simple - may last forever or may come to an end upon the happening of any event in the future Fee simple determinable- a fee so limited that it will end automatically when a stated event happens (everyone is accompanied by a future interesti.e. who the property goes to when that event happens) Fee simple subject to condition subsequent - may not be cut short automatically, but may be cut short or divested at the transferor's election when a stated condition happens Right of entry - future interest retained by the transferor to divest a fee simple subject to condition subsequent Reverter- the estate returns to the original owner after the heir dies Marenholz v. County Board of School Trustees (App. Ct. Ill 1981) Facts: The Hutton's gave 1.5 acres of their 40 to a school to use for school purposesif they did not the land would return to the Huttons o The Huttons died intestate but had given their land to someone who sold the land to the Plaintiffs o The Hutton's son Harry had given the school interest to the Ps; and two months later had relinquished his interest in the land to the school board If it is a fee simple determinable then as soon as classes stopped, technically, Harry re-owned the land; If it is a fee simple subject to condition subsequent, then the right can only be inherited, and is not alienable H&R: The court held that it is a fee simple determinable because of the word "only"
Remanded to determine who Harry gave rights to and whether storage is "school purposes" Waste Doctrinecomparison to sharing a refrigerator with your roommate Restraint on Alienability Doctrine- Adds social policy to trump private transactions Mountain Brow Lodge No. 82, Independent Order of Odd Fellows v. Toscano (App., CA 1968) Facts: Toscano gave the lot adjacent to its land to P with the stipulation that if P's land was transferred or sold, or if P was not using the lot, then it would revert to the owners "Said property is (1st Clause) restricted for the use and benefit of the second party, only; and in the event the same fails to be used by the second party or (2nd Clause) in the event of sale or transfer by the second party of all or any part of said lot, the same is to revert to the first parties herein, their successors, heirs, or assigns. The lower court ruled that the clause about transferring or selling was "an absolute restraint against alienation and is void."

Focused on the use condition; The court upheld the use restriction on the theory that because Toscano meant to convey a determinable fee to the Odd Fellows rather than merely restrict alienability the use restriction was valid So, concerns or disfavor with restrictions: 1. economic inefficiency (hard to sell), 2. fragmentation, 3. freedom or too much power for the dead Condition restrictions can be chilling because you dont want to lose the land; Counterargument is that writing them out creates a windfall Problems w/ Defeasible Fees: 1. Invalid Restraint on alienation (Mahrenholz) 2. Valuation of the Defeasible fee and the associated future interest Ink v. City of Canton (SC, Ohio 1965) Facts: Harry Ink gave 33 acres to D to build a park o Twenty years later the state appropriated the land and turned most of it into a highway o The state then owed those who had a property interest 130K Issue: Who gets the 130K? H&R: The court held that the city gets its money and the remaining land, and the P gets its right of entry to the land and the money in the event that the city does not use the remaining 6 acres as a park The court says maybe Fair market value minus park value goes to the family, and the park value goes to the city (Difficulty of measuring Park value) The family owns the possibility of reverter if the money is not used for a parkit is hard to place a value on this reverter
Assignment Eight: Executory Interests A Future Interest is not a mere expectancy; a person with a remainder can sell or give that remainder, can enjoin the person w/ the life estate from committing waste, and can sue 3rd parties injuring the land Future Interests recognized in our legal system: 1. Interests retained by the transferor, known as: a. Reversion (Example: O Conveys Blackacre to A for life; O has a reversion in fee simple that is certain to become possessory. At A's death, either O or O's successor in interest will be entitled to possession) b. Possibility of Reverter (Example: What the owner possesses when he gives a fee simple determinable) c. Right of Entry (Also known as Power of Termination) (Example: What the owner has when he gives a fee simple to condition subsequent) 2. Interest created in a transferee a. Vested Remainder b. Contingent Remainder c. Executory Interest

VESTED requires two things: (1) there has to be no condition (2) we know "who" is going to get it (If it just says "to grandchildren" but we don't know who those are yet, it is not vested) Example: If you say it goes to Joe's children Betty, Sue, and any others -That is a vested remainder subject to open because he could have more kids, creating more people who split the piebut Betty and Sue are already vested because they are alive and there are no conditions on them Difference between Executory Interest and Remainder A Remainder never cuts off a prior interest but merely awaits the prior interests natural termination. An Executory interest, on the other hand, is generally one which divests, or cuts off, a prior interest before the prior interests natural termination. Swanson v Swanson George left will containing two trusts in which his wife had a life estate with remainder in his children. Bennie, one of the children, died before Georges wife, and Bennies wife brought suit saying she was entitled to Bennies remainder interest. Court held that because Bennies remainder interests vested before his death and the conditions subsequent did not occur before the life beneficiary of the trusts died, Bennies vested remainder was not defeased and passed according to the terms of his will. To distinguish btw remainders and contingent remainders, ct must determine whether at the time the instrument takes effect there is "a person who in his own right, or as a part of his estate, would take all this prop if [the life estate] ended now." If yes, remainder is vested subject to partial or complete defeasance. If no, remainder is subject to condition precedent and is a contingent remainder
Assignment Nine: Rule Against Perpetuities Assignment Ten: Concurrent Tenancies Common Law Concurrent Interests: Tenants in Common- separate but undivided interests in the property; no survivorship rights between tenants in common Joint tenants the right of survivorship, when one dies their right is extinguished and the survivor has the sole interest 4 "unities" essential: o Time- interest acquired or vested at the same time o Title- must acquire title by the same instrument or a joint adverse possession o Interest- All must have equal undivided shares and identical interests measured by duration o Possession- each must have right to possession of the whole Tenancy by the Entirety - can be created only in husband and wifelike a joint tenancy plus marriage o Surviving tenant has right of survivorship o Husband and Wife considered to hold as one person at common law 2 separate advantages- if one spouse dies, it automatically goes to the other spouse; also a creditor protection device

Options for getting out of an unbearable concurrent tenancy situation Default Rules during tenancy 1. Perhaps the doctrine of waste which shows that his roommate is ruining his interest in the property 2. Ouster has a very high thresholdthe bad roommate/tenant is depriving you of your right to the property and they should pay rent (difficult to provethey have to lock the place or have gua rds, If Nate can show ouster, then he may be able to collect rent 3. With a company, you can show that one party is stealing; called Accounting Unwind Concurrent Tenancy 1. Sell your interest 2. Partition Delfino v. Vealencis (S-Ct. Conn. 1980) Facts: Defendant lived on a 20.5 acre estate that she had as a tenant in common with plaintiff; D operated a garbage rubbish business D owned 45/144 and P owned 99/144 of the estate P wanted to use the land for residential buildings and D did not P sued to have the land sold and the money splitthe trial court approved the sale Issue: Is it appropriate to partition the property by Sale? H&R: No, the court held that a partition in kind is favored in most circumstances and is available here A partition by sale should be ordered only when: 1.) the physical attributes of the land are such that a partition in kind is impracticable or inequitable 2.) the interests of the owners would be better promoted by a partition of sale The case says that partition in kind is the favored methodProfessor says this is not truesale is preferred, it is easier, fewer complications, and a court must be presented a compelling reason to use partition in kind How is a sale executed? A sheriff's sale or an auctiontypically some kind of aucti on At auction, the Vealencis probably cannot buy the whole thing; the Delfinos are probably there with the developers and can probably win the bid -Often auctions of property don't maximize the land valuea constrained marketplace The court does partition in kindhow do they do this? Courts typically hire some local "land expert" who appraises the property; difficult to measure, thus courts don't like it You want to measure which method of partition maximizes the value The Vealencis don't OWN that corner simply because they live therebut the court seems to think it does matterthe fact that the Vealencis live there makes the court give them a tie to it

Spiller v. Mackereth (S-Ct. Alabama 1976) Facts: Parties owned a building as tenants in common Lessee moved out and Spiller took over the building as a warehouse Mackereth demanded he move out of half or pay rent; he refused and the trial ct. made him pay rent Issue: Should Spiller have to pay rent for using the whole building for storage as a tenant in common? H&R: No, the court held that Mackereth had to prove an attempt to occupy the building which Spiller was preventing in order to prove ouster
Sawada v. Endo (S-Ct. Hawaii 1977) Facts: Defendant hit plaintiffs in auto accident and hurt them; they succeeded in court for 24K D was married and a tenant in the entirety of a property Issue: Is the interest of one spouse, held as a tenant in the entirety, subject to levy and execution by his or her creditors? H&R: No, the interest of a husband or wife in an estate by the entireties is not subject to the claims of his or her individual creditors during the joint lives of the spouses Reasons Hawaii decided this way: 1. Fiction of one person 2. Property could be pledged as extensions of credit 3. Dangerous consequences to the innocent spouse Nothing eliminates the survivorship interest of the living spouse; The NJ rule allows the creditor of the guilty spouse to put a lien on the survivorship interest of the living spouse; NJ goes farther and says that during the lifetime of the couple, the creditor can go into the shoes of the guilty spouse (Makes it like a tenancy in common) US v. Lincoln approach, you can put a lien on the guilty spouse's survivorship interest, but no rents Sawada approach is no lien and no rents; creditor gets no possessory rights and no rentsif there is a release from the creditor, then the property is much more sell-able
If you were advising the Endo'syou wouldn't want them to try to convey the property to their kidsyou would be encouraging- Ethics question in lawyou probably don't want the "give it a try approach" and you want to advise the clients whyyou may want to look to other states' laws and try to persuade the court U.S. v. 1500 Lincoln Avenue (3rd Cir. 1991 - Alito) Facts: Leonard Bernstien was convicted of selling drugs without prescriptions and ten years imprisonment; the pharmacy was an estate in entirety between he and his wife 21 USC Sec. 881 (a)(7) permits forfeiture of any real property used in drug offenses except for any interest of an innocent owner The government wanted the property but the claim was dismissed; the govt. amended their request saying they should retain any interest that was solely Mr. Bernstien's (survivorship, divorce, conveyance), relying on a recent 6th circuit opinion Issue: Is the govt. entitled to Mr. Bernstien's interest? H&R: Yes, the court held that the govt. was entitled to Bernstien's right of survivorship, divorce, and conveyance

Class: Tenancy by the entirety: must be a marriage, only lose it by death or divorce In the traditional sensetenancy by the entireties protected the wife because the husband can't sell the house or run up debts that leave the wife homeless Example w/ Chase bank, where if Alison wanted to offer her home as collateralif she owns the home in entirety w/ her husband, the conversation would end completely unless her husband shows up Other example is a tort creditoryou have an innocent spouse and an innocent victimthe law is deciding who should lose out; the law says not the tenant by the entirety
3.) Relations Among Neighbors Assignment Eleven: Adverse Possession Elements of Adverse Possession: 1. Actually enter and take exclusive possession that is 2. Open and Notorious 3. Adverse or Hostile to the true owner's interest and under a claim of right and (Your claim of right is what is hostile, just means no permission) 4. Continuous for the limitations period (Commonly 20 years) Ways to defeat: give permission or legally kick offif you kick off and fail it shows intent and hostile Rationales for Adverse Possession: 1. The slothful owner ought to bear the risk of losing his property if he does not care enough to assert his ownership; and adjudicating stale claims is very difficult 2. Earning Theory People who use land productively and beneficially for a long time ought to be rewarded 3. Stability Theory Adverse Possession enables disputes or doubts about land titles to be cleared expeditiously by delivering title to the person who has occupied the land Van Valkenberg v. Lutz (Ct. Appls. NY 1952) Facts: Beginning around 1920, Lutz (D) traveled across a triangular tract to reach his home on a nearby parcel, and also built a shed and kept a garden on the tract, but in 1947 Van Valkenburgh (P) purchased the tract at a tax sale, and when Van Valkenburgh (P) demanded that Lutz (D) vacate the land, Lutz (D) obtained a judgment that granted him a right of way by prescription over the tract and then in a judicial proceeding established title to the tract by adverse possession. ISSUE: May title to a parcel vest in an adverse possessor who occupies the parcel under claim of right, protects the parcel with an enclosure, improves or cultivates the parcel, and maintains that state of affairs for the statutory period? HOLDING AND DECISION: (Dye, J.) Yes. In this case there was no proof offered of any protection of the parcel by enclosure by Lutz (D), and the proof shows that he did not cultivate the entire premises claimed. Furthermore there was no improvement of the land because the shed thereon, the only structure of any kind involved here, was built by Lutz (D) with the conceded knowledge that he did not own the land under it. Title to a parcel may vest in an adverse possessor who occupies the parcel under claim of right, protects the

parcel with an enclosure, improves or cultivates the parcel, and maintains that state of affairs for the statutory period. In this case, the elements permitting taking title by adverse possession were not present. Reversed, judgment directed for Van Valkenburgh (P). DISSENT: (Fuld, J.) The weight of the evidence establishes Lutz' (D) right to the property in question by adverse possession. There was a "traveled way" across the property. Lutz (D) operated a truck farm there of substantial size. The fact that Lutz (D) knew he had no title to the tract is irrelevant so long as he intended to acquire title in himself, as he did. Lutz (D) actually occupied the property and title vested in him. So what do you have to have for a claim of title? Not, very clear, Holly says that all they make clear is that intent matters; The court sets up an impossible bar for the Lutz'sthe court is sort of saying, we don't like adverse possession and we don't like the Lutz's What about continuity? Actual entry is when the clock starts tickingeven if the true owner didn't know; a legal ejectment would stop the clockbut it could be restartedjust physically chasing him off wouldn't count
Mannillo v. Gorski (NJ Sup Ct. 1969) F: built steps that slightly encroached on neighbors property ISSUE: To claim title by adverse possession, must the possessor have been aware that the land in question was in fact owned by another? HOLDING AND DECISION: (Haneman, J.) No. To claim title by adverse possession, the possessor need not have been aware that the land in question was in fact owned by another. To hold to the contrary, i.e.,to require that the adverse possession claim must be accompanied by a knowing intentional hostility, is called the "Maine Rule" and has been the law of this state for many years, but is of questionable historical pedigree and leads to undesirable results. Specifically, it places a knowing wrongdoer in a better position than an innocent party, a result the law ought not to condone. Stare decisis is an important principle, but in cases where people do not frame their conduct in reliance thereon, it is of lesser vitality as a doctrine. With respect to adverse possession, it is unlikely that the state of the law in this regard will impact people's behavior in any manner, as adverse possession is more of an after-the-fact situation than one done through preplanning. However, no presumption of knowledge on the part of the true owner arises from a minor encroachment along a common boundary. In such a case, only where the true owner has actual knowledge thereof may the possession be said to be open and notorious. Howard v. Kunto -Continuous tacking is allowed Assignment 12: Easements Easement an interest in land that entitles the holder to use land owned or possessed by another person License - verbal permission to do something that makes it valid unless revoked; all it means is that when you go on the land you are not trespassing Easement Appurtenant Claim to a neighbors land Creation of Easements: Express/Grant

Easement by Estoppel (never want to plan to rely on itbased on facts and determined by courts) Easement by Prescription Like adverse possession for an easement; adverse use for a sufficient time Easement Implied from a Prior use (Land is split and one way out that has always been used) Easement by necessity Plot in the middle of something w/ no way out Willard v. First Church of Christ, Scientist (SC Cali 1972) Facts: P bought the deed to a lot across the street from the church, not knowing that the sellers had talked to the church and had an easement created to allow parking during church hours P sued to quiet the title (Get rid of the easement) Issue: Can the easement to the church be kept through the property's transfer to Willard? H&R: Yes, the court eschewed the common law restrictions and said that their main concern was the intent of the grantor Grantor can give an easement to a third party Holbrook v. Taylor (SC, Kentucky 1976) Facts: Holbrook permitted Taylor to use the road across his land for Taylor to reach his own property as Taylor built a residence on that propertyTaylor even improved the road In 1970 Taylor claims the Holbrooks wanted him to purchase the strip of land for $500the Holbrooks say they just wanted him to sign it for liability purposes in case any of his visitors were hurt on the road Eventually the Holbrooks placed a metal strip across the road and no trespassing signs The court held that the right to use the road had been established by estoppel for Taylor Van Sandt v. Royster (SC, Kansas 1938) Facts: Bailey had been the owner of three lots and built a sewer line running from the east most lot, where her house was, under the other two lots, to connect to a city sewer line The other two lots were sold, the owners built houses, and the owners connected to the sewer lines In March 1936, P found 6-8 inches of sewage in his basement, and sued Royster to stop using the line P claims there was never an easement for Royster to use the sewer line across his land D claims there was an easement created by implied reservation and by prescription The court upheld the trial court that an easement by implication was created under the facts "If land may be used without an easement, but cannot be used without disproportionate effort and expense, an easement may still be implied in favor of either the grantor or grantee on the basis of necessity alone."
Assignment 13: Public Easements/ Public Access Matthews v. Bay Head Improvement Association (S. Ct NJ 1984) The Public Advocate (P) argued that the Bay Head Improvement Ass'n (D), by restricting its membership to Bay Head residents only, denied the public its right, under the public trust doctrine, to use the dry sand beach. CONCISE RULE OF LAW: The public must be given both access to and use of privately owned dry sand areas of the beach as is reasonably necessary.

Modern doctrine holds that the public has a right to use the land below the mean average high water mark where the tide ebbs and flows. Historically, these rights included navigation and fishing but have been extended by case law to include recreational uses. In order to effectively exercise the rights guaranteed by the public trust doctrine, dry sand areas owned by a municipality must be accessible to the public just as the wet sand areas are.
Assignment 14: Covenants, Touch and Concern Easements are a property interestyou own a right in the property, and an easement appurtenenant is durable the same way a fee simple is, can be sold, etc. Covenants don't get litigated that often outside of the planned communitys realm, that is where most of the litigation occurs Covenants must be expressunlike easements which can be implied; negative easements cannot really be created; many more types of covenants can be created, negative, etc.so courts are very reluctant to imply covenants Covenants: (1) express in writing (2) runs w/ the land (usually want this to be express) (3) Horizontal Privity - covenant must come from a single transaction where land is divided; courts typically ignore the horizontal privity requirement What if the land had never been broken up, two people moved in and wanted to establish a covenant; they do a sham transaction that establishes a 3rd party owner of both that splits it back up and there is recordation BUT IT DOESN'T REALLY MATTER Vertical Privity- at common law you needed perfect vertical privitymeant you had to have the same interest as the original owner; now you can own less and still enforce a covenant using vertical privity All the rights of the subsequent parties came from somewhere (4) record w/ notice (5) Touch & Concern (most vague part, becomes catch all for all the things that lead a court to not want to enforce a covenant) this is where courts have leeway (and they use a lot more leeway than w/ easements) (6) Changed Circumstances (goes against hard core property rights doctrine) these can make a covenant invalid Hypo w/ Elana and her Cat She is looking for a house and all the condo's she is interested in have pet restrictions -Cat never does anythingcompletely unobjectionable; maintenance man sees it after ten years The landowner's board wants to enforce covenantwhat can she do? (OPTIONS) She can try to interpret the covenant as not applying to herwhat if that is not do-able? You can be released from a covenant, but you would have to get all the people who have a right to enforce the covenant to agree, all your neighbors would have to agree to cancel the covenant for you...if that doesn't happen? You probably can't argue privity, but you can argue Touch and Concern

You could argue that the benefits/burdens don't affect anyone else, Prof. could argue that anyone who wants to enforce it gets some benefit from it Elana can try to tell some story about why the only reason other parties are seeking to enforce the covenant is because they hate her; try to show irrational motives that are outside of the covenant ("spite fences") You can argue no "objective effect" this cat does nothingyou can show no economic effectprof says that this ties into the rationality argument If you lost in front of "Judge Epstien" what would he tell you: 1. You knew what you were getting into- the classic notice argument 2. The rational argument is trying to say that the judge can decide what is rational, he would say Why do judges get to decide what is rational?? [His whole point is that with property rights people want to be sure of what they have, reliabilityshe could have found a neighborhood that allowed cats] Cases like spelunking example are driven by physical metaphor interpretationsif it literally touching the land, then the courts won't entertain the arguments as often -But if it is a benefit or something not physically touching, then the courts are much more likely to interpret the meanings of the covenantsare they: -stupid, ridiculous, insane -anticompetitive, profit schemes for sellers -anti personal right/dignity -makes selling difficult Covenants promise to use or not use one's own land in a certain way; enforcement issues are contractual When damages are sought for enforcement of a covenant it is called a real covenant; when an injunction is sought it is called an equitable servitude In order for the benefit or burden of a real covenant to run to successors in interest the substance of the covenant must touch and concern the benefited or burdened land Important to know whether the burden or the benefit run Neponsit Property Owner's Association, Inc. v. Emigrant Industrial Savings Bank (Ct. appeals NY 1938) Facts: Covenant from P that every lot was subject to a $4 payment to a Homeowner's Association that would extend to follow on owners until 1940 -Court held that the charge ran w/ the land The P clearly intended for the covenant to run w/ the land, but it still must pass rules: 1. Grantor and grantee intended that the covenant should run w/ the land 2. Covenant is one "touching" or concerning the land 3. It must appear that there is "privity of estate" between the promisee or party claiming the benefit of the covenant and the right to enforce it, and the promisor or party who rests under the burden of the covenant One suggestion for how to determine what touches is that a covenant that runs with the land must affect the legal relations -the advantages and burdens- of the parties to the covenant

Caullett v. Stanley Stilwell & Sons, Inc. (Superior Ct. of NJ 1961) Facts: D was a developer that sold land to P; deed included a clause that the grantor reserved the right to build the first house/building Issue: Is the clause for a first right to build enforceable? H&R: NO, the court held that it was not "While restrictive covenants are to be construed realistically in the light of the circumstances under which they were createdcounter considerations, favorin g the free transferability of land have produced the rule that incursions on the use of property will not be enforced unless their meaning is clear and free from doubt This is at best a personal arrangement between the two parties, designed to ensure the defendant a profit on the erection of a building
Assignment Fifteen: Common Interest Communities Nahrstedt v. Lakeside Village Condominium Association, Inc. (SC-Cali. 1994) Facts: P sued to try to prevent a homeowner's association from enforcing a restriction against keeping any cats, dogs, and other animals in any unit of the condominium development (She had 3 cats) Rule: The P does not show the conduct of themselves specifically, but tries to show that the restriction imposes a burden that far outweighs the benefit, is clearly bad policy, or is very arbitrary The court ruled that the restriction was valid as it did not violate policy, arbitrariness, nor did the burden far outweigh the benefit Restrictions in CC & Rs regarding pet ownership are reasonable and therefore enforceable when they prohibit conduct which, while otherwise lawful, interferes with the rights of other condominium owners to the peaceful and quiet enjoyment of their property. Shelley v. Kraemer (1958) Two Sup. court-states had upheld racially restricted covenantsthe Court was trying to deal w/ segregation but didn't have any statutes yetand couldn't really use common law Made an argument that it's really never made again- They said, basically, that -Although it had been private lawwhen a judge overrules it and takes actionthen it becomes state action The Court really only talks abut the racial problems and how they wanted to change it -The ruling went against 150 years of precedentand the courts have very much re stricted the case to just that instancethey do their best to never make decisions based on it Once the legislation started to fill in, then the Court began to retreat; their decision bordered on legislation

Hypo: Las Vegas housing development [all properties are burdened and benefited from a covenantyou can only have single family houses on the land ***The most enforced covenants in the US probably] Begins much more commercial, highways and commercial things and one owner wants to selltries to sell to commercial and the owner's association sues -If you're the lawyer for the family that wants to sell, what do you argue? 1. Try to show that it is impossible to live there Flip Side is: 2. -Do the homeowners get any sort of benefittry to show they don't now - change of circumstances 3. Try to show the covenant is arbitrary and the enforcement is irrational, really because the other neighbors hate you If even one party wants to enforce covenant you're stuck; however, in practice, the courts have been more likely to allow change of circumstances when there are a lot of other people in the homeowner's association Courts are afraid of power hungry Homeowners Boards w/ excessive restrictions but they are balanced w/ the fact that they are covenants and should have freedom of contract California says that even if it is a valid covenant otherwise, they are subject to a reasonableness review; This is the equivalent of a Facial Challenge; Dissent thinks this tramples on freedom of covenant law But if the courts say they will review every single application of a housing covenant that creates a very inefficient, difficult rule for the courts to follow Prof. says that in NY, condo boards and co-op boards can do almost whatever they want because in the coops you buy shares in the corporation NY courts have allowed co-ops to be subject to the Business Judgment Rulebut they have gone on and allowed the same standard for condominiums, etc. NY is like Gillette; Alexander is like California Prof. says that he thinksif you're a state SC Justice you don't want to deal w/ these small struggles that clog the courts when someone can opt out, but at the trial court you may be swayed by someone whose had a cat for 20 years Part of Gillette's argument is that you have a lot of different self-sorting choices
Assignment Sixteen: Nuisance Morgan v. High Penn Oil Co. (SC, No. Car. 1953) Facts: The Morgans (P) sought to enjoin High Penn Oil Co. (D) from emitting gas and odors from its refinery, and to recover damages for past impairment of the use and enjoyment of their property due to refinery emissions. (Gases were making people sick) H&R: Lawful conduct which is non-negligent may constitute a nuisance if it is intentional and unreasonable under the circumstances. -Can be a nuisance per accidens if not per se

- A private nuisance exists whenever one uses one's own property in a way which substantially interferes with another's interest in the private use and enjoyment of that other's land NUISANCE PER ACCIDENS An action, occupation or building that becomes a nuisance due to its location or method of operation. NUISANCE PER SE An action, occupation or building that is a nuisance at any time and under any condition. PRIVATE NUISANCE An unlawful use of property interfering with the enjoyment of the private rights of an individual or a small number of persons.
Estancias Dallas Corp. v. Schultz (Ct. of Appeals, TX 1973) Facts: The Schultzes (P) sought to enjoin Estancias Dallas Corp. (D) from operating air conditioning equipment on the property adjoining the Schultzes' (P) residence. CONCISE RULE OF LAW: Even though a jury finds facts constituting a nuisance, equities must be balanced in order to determine if an injunction should be granted.
Boomer v. Atlantic Cement Co. (Ct. Appeals, NY, 1970) Facts: A group of land owners (P), complaining of injury to their property from dirt, smoke, and vibration emanating from a neighboring cement plant (D), brought an action to enjoin the continued operation of the plant and for damages. ISSUE: Where the issuance of an injunction to enjoin the maintenance of a business would shut down a business, may permanent damages be issued as an alternative? HOLDING AND DECISION: (Bergan, J.) Yes. Damages may be awarded as an alternative to an injunction in nuisance cases. Spurr Industries, Inc. v. Del E. Webb Development Co. - cattle feedlot that produces a lot of manureit was in the middle of nowhereand people start moving in Falls under the doctrine of "Coming to the Nuisance" -originally this doctrine said Too Badbut eventually they realized that this meant first in time always winswhich the courts don't want to be an absolute ruleyou have to balance value and benefitsetc. The court's remedy is to say that there is a nuisance and shut it downbut it the plaintiff is forced to pay for shutting it down and moving it Odd remedy of making the people who moved to the nuisance pay for it

Assignment Seventeen: Zoning Village of Euclid v. Ambler Realty Co. (Sup. Ct. 1926) Facts: Ambler Realty owned 68 acres in Village. Village instituted zoning ordinances placing use, height, and area restrictions. i.e. no apartment houses, hotels, churches, or other semi-public buildings for 620 ft from road. As a result, value of prop dropped. Ambler brought action to enjoin Village from enforcing ordinance on grounds that it violates 14th amdmt due process. ISSUE: Is a zoning ordinance unconstitutional as a deprivation of property without due process because it results in a diminution of value in the property zoned? HOLDING AND DECISION: (Sutherland, J.) No. A zoning ordinance, as a valid exercise of the police power, will only be declared unconstitutional where its provisions are clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare. Zoning ordinances, and all similar laws and regulations, must find their justification in some aspect of the police power, asserted for the public welfare.
Euclidian zoning a single-family homes get most protection. Every other use is excluded in that category; dominant until the 1980s
B. The Nonconforming Use PA Northwestern Distributors, Inc. v. Zoning Hearing Board (S. Ct PA 1991) Facts: Three weeks after PA Northwestern Distributors, Inc. (P) opened an adult book store in Moon Township, Pennsylvania, the Board of Supervisors adopted an ordinance restricting permissible locations for bookstores and allowing only 90 days for nonconforming uses to either comply or shut down. ISSUE: Is a zoning ordinance which requires the amortization and discontinuance of a lawful preexisting nonconforming use confiscatory and violative of the state constitution as a taking of property without just compensation? HOLDING AND DECISION: (Larsen, J.) Yes. A zoning ordinance which requires the amortization and discontinuance of a lawful preexisting nonconforming use is confiscatory and violative of the state constitution as a taking of property without just compensation. The usual presumption of a zoning ordinance's validity must be tempered by the fact that zoning involves governmental restrictions on a property owner's constitutionally guaranteed right to use his property, except where the use violates a law or creates a nuisance. Municipalities lack the power to compel a change in the nature of an existing lawful use of property. A lawful nonconforming use establishes in the property owner a vested property right which cannot be abrogated or destroyed. A "taking" under the Pennsylvania constitution is not limited to actual physical possession or seizure of property. If the effect of the zoning law is to deprive an owner of the lawful use of his property, it amounts to a taking for which he must be compensated. In this case, the amortization ordinance deprived PA Northwestern (P) of the lawful use of its property because it forced it to cease using its property as an adult book store within 90 days. Therefore, the amortization provision was unconstitutional on its face because it effected a taking of PA Northwestern's (P) property without just compensation.

What options does the city have? 1. Rahul says that the use has to continue"Complete grandfathering" 2. Ethan says that the town could exercise a takingcondemn the property and provide compensation ; they would need a public usebut this almost receives a rational basis standard 3. Common law Nuisance would not apply to a bookstore (there had been a moral nuisance category) These can be difficult to get rid of once grandfathered because there is lasting power without competition (4) Other Options: A reasonable amortization period; In the PA case they gave them 90 dayswhich is probably not enough time (Partial Grandfathering) Hypothetical with Lincoln Park changing their zoning to allow a lot less sq. ft. for your apartment complexbut you haven't begun building yetso the property value goes downyou have very few options for legal recourse...If you have not begun the "use" yet when the zoning changes Same hypo w/ a gas station but you have already started constructionyou are probably protectedeven if you would have been out a lot less money; -So there is an incentive to start building fastthe law rewards fast -constructorsmore likely to be grandfathered State v. City of Rochester (Sup. Ct of Minn 1978) Facts: Rochester Association of Neighborhoods (P) appealed from an order denying relief on their action challenging the validity of a zoning ordinance amendment rezoning a tract of land from single-family to high-density residential use. CONCISE RULE OF LAW: When a municipality adopts or amends a zoning ordinance, it acts in a legislative capacity under its police powers and the act must be upheld unless its opponents demonstrate there is no rational basis for the classification or it amounts to a taking without compensation. Southern Burlington County NAACP v. Township of Mt Laurel Facts: NAAP sued MT Laurel contending the municipalitys zoning scheme violated the NJ C by failing to provide for low income housing outside of depressed areas. Holding; Municipal land use regs must provide a realistic opportunity for low and moderate income housing. Since the zoning scheme which merely manifested an intent to abide by the original supreme court holding was insufficient to discharge Mt Laurel of its constitutional obligations. Didnt nullify ordinance; gave city 90 days to bring it into compliance with the opinion. Reasoning: Basically, land use is so restricted that poor people cannot reasonably live in Mt Laurel. Realistically only allows homes of middle income people and above. Must do more than attempt. Housing must be in direct proportion to the percentage of lower income residents in the city. Since state controls all land, cannot just put aside crappy land for poor housing and retain valuable land for the rich. This is not the rule, it is the exception in NJ Euclid doesn't apply when a fundamental/constitutional rights are violated; zoning can be interpreted as violating these What are the rights? -first amendment- speech

Freedom of association (There is a right to peaceably assemble)- this has been read into the penumbra in an intimate sense (Friends, roommates, significant others, etc.) - This is a very contested realm...what falls under intimate association? What couples does it mean? Is it for homosexuals, etc.? So often with zoning questions the answer to whether a constitutional right is violated will answer the decision on the zoning Privacy Religion - Mormon examples w/ high spires
Assignment Eighteen: Household Composition Zoning Emmanuel's Rule: Zoning laws that substantially interfere with the ability of unrelated persons (persons not related by blood, marriage, or adoption) to live together are presumed valid and subject only to minimal scrutiny Village of Belle Terre v. Boraas (SCOTUS, 1974- Douglas) Facts: Belle Terre, a 1x1 mile community in Long Island, forbade housing of more than two people who weren't married or family, and anything more than one family per house There were six students living in the house Boraas had a list of complaints (p. 1046) that basically amount to community discrimination H&R: The court held that the ordinance to not discriminate in any way; it proved no animosity towards unmarried couples and sympathized with the community's desire to limit noise and traffic Dissent - Marshall- Agrees that zoning is an important function of government but says that this ordinance impedes on freedom of association and violates Constitutionally guaranteed right to privacy; Marshall felt that the govt. should have to show that the ordinance protected some compelling governmental interest In these cases, the towns don't want vagrants/students, and sometimes they don't want non-nuclear familiesalso the issues of traffic, noise, overcrowding Belle Terre is upheld; Moore is struck down In Belle Terre there is a limit on unrelated people; in Moore there is a list of how many related people are allowedit defines family The association that is treated w/ more protection in these two cases is family association Moore says that this type of family comes from cultural and economicand is therefore protectedMoore is less radical than Baker City of Edmonds v. Oxford House, Inc. (1995- Ginsburg) Facts: The Fair Housing Act prohibited discrimination in housing against persons with handicaps; it also said this did not mean reasonable local or fed. Restrictions regarding the maximum number of occupants allowed in a dwelling Oxford House in Edmonds, WA opened a house for 10-12 recovering addicts in a single family residence zone and the owner was criminally cited Edmonds argued that its section that defined who was a family fell under the FHA exemption for maximum occupancy laws Issue: Is the Edmonds statute invalid under the FHA?

H&R: Yes, it does not qualify for exemption because it allows unlimited numbers of people with familial relationships to live together but only 5 unrelated; the SC interpreted the FHA to exempt only "total occupancy limits," and Edmonds did something different; therefore, it discriminated against the Oxford House
Moore v. City of East Cleveland, Ohio (1977 - Powell) Facts: East Cleveland limited housing units to those of a single family; Moore lived with her son, grandson, and another grandson (not brothers) after the second grandson's mother had died Issue: Is the Cleveland ordinance invalid/unconstitutional? H&R: Yes, the court applied a strict level of scrutiny and held that the ordinance interfered with extended families' rights to arrange their living composition The court said it would carefully examine government interests; and that this Cleveland regulation cut deeply into the institution of the family, including the extended family East Cleveland's goals of overcrowding, parking, traffic congestion, overburden on public schools was only marginally served by this ordinance, AND there was another ordinance on the books that dealt with overcrowding Distinguished from Belle Terre because that dealt with unrelated people Dissent- Burger Felt that because the city had established a board of building code appeals to consider variances and Moore had refused to use this appeal processthat the claim should not be heard by a court in replacement of another potential case in which there may not have been a remedy
State of NJ v. Baker (1979, NJ SC) Facts: Mr. and Mrs. Baker and their three kids and Mrs. Conitas and her three kids all lived together in a Plainfield NJ single family residence area that stated that more than 4 persons not related by blood may not live together Issue: Is the Plainfield regulation at odds with the NJ constitution? H&R: Yes, the court read the NJ constitution as protecting the rights of unrelated people to live together; the court does not base family on legal or biological relationships The court conceded a municipality's right to try to make areas for family living It said that Plainfield's goals were okay, but its means were not because "the fatal flaw in attempting to maintain a stable residential neighborhood through the use of criteria based upon biological or legal relationships is that such classifications operate to prohibit a plethora of uses which pose no threat to the accomplishment of the end sought to be achieved."

4.) Part Four: Property as a limit on Government Power - The Takings Clause Assignment Nineteen: Public Use Eminent Domain is the power of government to force transfers of property from owners to itself Two main questions: 1. Can the government take at all? 2. Public Use question is if there is any category of property which the government cannot take under Public Use; Prof. says that the just compensation rule is like a liability rule Most takings litigation has to do with when can the government do things that "change the rules of the game" or lower your property valuewithout taking your land, and not have to pay just compensation. Example, when they say you can't build something, order you to allow people on your beach, etc. This is called REGULATORY TAKINGS Nonconforming use falls under regulatory taking Eminent domain is typically not the first choice method
The courts have basically accepted that public use = public purpose; the other reading would be public use, as in used by everyone (parks, highways) Case before the two below was Berman; in which a department store in DC was taken as a part of the "blighted" area as a whole; the court said that removing this blight was a public purpose/use Hawaii Housing Authority v. Midkiff (1984 SCOTUS - O'Connor) Facts: By the mid 1960's, 96% of Hawaii's land was owned by the federal government or 72 private landowners; on Oahu, 22 landowners owned 72.5% of the land The legislature decided to break up the large landowners fee simples; the Act condemned the land and made the sale of it involuntary Groups of tenants would apply, the State would condemn the land, and then sell it to tenants The Act authorized HHA (Hawaii Housing Authority) to issue bonds and appropriate funds for acquisition, but HHA had not supplied any funds for condemned lots Issue: Does the public use clause of the 5th amendment prohibit the state of Hawaii from taking, with just compensation, title in real property from lessors and transferring it to lessees in order to reduce the concentration of ownership of fees simple in the State? H&R: No, the state of Hawaii was acting constitutionally in trying to reduce the perceived social and economic evils of a land oligopoly traceable to their monarchs (like the original 13 colonies); This is a justifiable act of state police power The court also finds the State's method for correcting the land oligopoly problem rational; "a comprehensive and rational approach" Standard for rejecting a legislative determination of public use: "Unless the use be palpably without reasonable foundation" The argument was that this wasn't very public, it was almost land transfer; the answer was that the redistribution served a public purpose O'Connor says that almost anything goes as far as the govt.'s intention as long as there is not corruption

Kelo v. City of New London (SCOTUS 2005, Stevens) Facts: The city sat at the junction of the Thames River and LI South; it purchased land along the waterfront as part of a project to revitalize its waterfront, creating jobs and increasing revenue; It planned to acquire the remaining land through eminent domain Suzette Kelo had owned her property, which was in good condition, since 1997 and valued its water view; another petitioner had lived there for 60 years9 petitioners had 15 properties in New Trumbull; condemned because they were in the development area SC of Ct. said that all takings were valid Issue: Is this a valid taking? (Broad or narrow view for public use?) H&R: Yes, Stevens says this case turns on whether the City's development plan serves a public purpose Relies on Berman v. parker in which Wash DC took a blighted area for redevelopmentsome was for parks, etc.; the other was private; They said the area "must be planned as a whole." The legislature's decision that the Fort Trumbull area "was sufficiently distressed to justify a program of economic rejuvenation is entitled to our deference." This project serves a public purpose; promoting economic development is a traditional function of government Stevens disagrees with the idea that the taking should eliminate some "harmful" use Petitioners want a rule that there should be a reasonable certainty that the expected public benefits will actually accrue; Stevens says that empirical debates over the wisdom of takings, when the legislature's purpose is legitimate and its means not irrational, are not to be carried out by the federal courts Dissent (O'Connor, Rehnquist, and Scalia): The dissent feels the decision washes out the phrase "for public use" from the 5th amendment; because the legislature is taking land from private parties and giving it to private parties whom they deem will provide an "upgrade" in accordance with the legislature's intent for the public Claims there have been traditionally been 3 categories of takings, none of which this case falls into: 1. Private property for public ownership like a hospital or a military base 2. Private property to common carriers 3. Takings that serve a public purpose Distinguishes Berman and Midkiff as instances in which the area afflicted affirmative harm on society; says that this is not the case here with New London's houses Says that the majority dangerously equates the police power and public use "Blighted" doesn't really fit to Kelo Poletown in 1981; Sat in Detroit, and was taken so that a General Motors fac tory could be installedthe condemnation actually cost Detroit a lot of money GM built a big plant that promised to almost double operationsit would preserve jobs Some criticism comes because Poletown was a somewhat successful urban neighborhood

City of Wayne v. Hathcock -2004- is Michigan reversing Poletown (before Kelo); Pinnacle Projects was ongoing, and it was going to be run by private entities; no argument that there was blight removal SC of Michigan said nothat they were wrong in Poletown So they say that Public use means literally public use or 1. the removal of something harmful (Blight) disingenuous; 2. exception language when you clearly need economic development and need the whole area, and 3. independent factors - very vague but Prof thinks it means when there is only one site to do something The federal govt. cannot trump a state constitutionunless it is something from the US constitution So Mich generally says that blight condemnations are okay, but economic development condemnations usually are not; this effect is occurring in many states, especially following Kelo
Assignment Twenty: Ad-hoc versus Categorical Approaches In between categorically yes and no.you have the balancing act WHICH DEPENDS ALL ON THE FACTS -That is what is understood by the Penn Central test -prof. says that in practice this test has come to be that the claimant is going to lose Loretto v. Teleprompter Manhattan CATV Corp. (SC, 1982 - Marshall) FACTS: Loretto (P) contended that a New York law requiring apartment house owners to allow for the installation of cable television equipment allowed a taking of property without just compensation. CONCISE RULE OF LAW: Any permanent physical occupation of an owner's property which is governmentally authorized constitutes a taking of property for which just compensation must be paid.
Hadacheck v. Sebastian (SC, 1915- McKenna) Facts: Plaintiff violated a city law that made it unlawful to operate a brick kiln, The P had a facility worth approx. 800K for brickmaking, and 60K for residence; also had excavated so as to hinder possible residence; P had purchased the land and bought machinery for brickmaking Issue: Is the ordinance prohibiting P from making brick discriminatory or arbitrary in light of the extreme value of the land for brick - making purposes? H&R: No, the court upheld the ruling that the ordinance was enacted in good faith and with purpose "It is to be remembered that we are dealing with one of the most essential powers of government, one that is the least limitable. It may seem harsh in its exercise and usually is on some individual, but the imperative necessity for its existence precludes any limitation upon it when not exerted arbitrarily." -Idea of curbing a public bad instead of expropriating a public good; difference between eminent domain and police power; eminent domain recognizes a right to just compensation, police power does not Controversy exists over why there cannot be compensation even when there is a nuisance

Pennsylvania Coal Co. v. Mahon (SC 1922 Holmes) Facts: Mahon (P) desired to prevent the exercise of the mineral rights which the Pennsylvania Coal Co. (D) reserved in a deed transferring certain surface property to Mahon (P). Issue: Is the Kohler Act valid? H&R: NO, the court held that the Act went too far and destroyed the economic viability of PA's coal property The court balanced the benefit vs. the harm done, and also looked at the value the land would have if the coal was left in place, as opposed to the diminution Holmes said that the Mahons only paid for the surface rights, a risk, and that risk does not allow them to get more than they bought Casebook: ISSUE: Will an exercise of the police power be upheld if it, in effect, provides for the destruction or appropriation of a private property right? HOLDING AND DECISION: (Holmes, J.) No. Private property may be regulated pursuant to the police power of the state to protect public health, safety or morals; but if such regulation goes so far as to destroy or appropriate a property right, it becomes a "taking" under the Fifth and Fourteenth Amendments, requiring just compensation therefore. It is well established, of course, that some property rights must yield to the public interest and the police power. Here, however, the limited public interest in protecting Mahon's (P) surface rights does not justify the total destruction of the mineral rights which the Coal Co. (D) reserved in its deed to Mahon (P). As such, the Kohler Act is unconstitutional insofar as it fails to provide for compensation for the taking of the Coal Co.'s (D) property rights. The decree which was based upon it is accordingly reversed. DISSENT: (Brandeis, J.) No taking occurred here. Rather, the state merely exercised the police power to prevent a noxious use of property. The property remains in the possession of the owners. (Becomes the majority in Penn Central)
Penn Central Transportation Company v. City of New York (1978- Brennan) Facts: Penn Central (P) contended that New York (D) had taken its property without just compensation when it declared its station an historical landmark. CONCISE RULE OF LAW: A city may place restrictions on the development of individual historic landmarks without effecting a taking requiring just compensation. ISSUE: May a city place restrictions on the development of individual historic landmarks without effecting a taking requiring just compensation? HOLDING AND DECISION: (Brennan, J.) Yes. In deciding whether a particular governmental action has effected a taking, the focus is both on the character of the action and on the nature and extent of the interference with rights in the parcel as a whole. It is true that the Landmarks Law has a more severe impact on some landowners than on others, but that in itself does not mean that the law effects a taking. Legislation designed to promote the general welfare commonly burdens some more than others. The Landmarks Law's effect is simply to prohibit Penn Central (P) or anyone else from occupying portions of the

air space above the Terminal, while permitting Penn Central (P) to use the remainder of the parcel in a gainful fashion. The New York City (D) law is not rendered invalid by its failure to provide just compensation whenever a landmark owner is restricted in the exploitation of property interests, such as air rights, to a greater extent than provided for under applicable zoning laws. The restrictions imposed are substantially related to the promotion of the general welfare and not only permit reasonable beneficial use of the landmark site but also affords Penn Central (P) opportunities further to enhance not only the Terminal site, but also other properties. Affirmed. DISSENT: (Rehnquist, J.) The City of New York (P) has imposed a substantial cost on less than one onetenth of one percent of the buildings in New York City for the general benefit of all its people. It is exactly this imposition of general costs on a few individuals at which the taking protection is directed. Factors: 1 the nature of the govt. reg. 2 the reasonable expectations of the property owner 3 the degree to which the regulation is designed to stop uses that cause substantial individualized harm 4 the degree to which the regulation enables the government actually to use the property for uniquely public functions
Assignment 21: A New Categorical Rule? Lucas v. South Carolina Coastal Council (SC, 1992 - Scalia) Facts: So. Car. had a Coastal Zone Management Act which required owners to obtain a permit prior to committing the land to a use when in the critical area Lucas paid almost $1 mil. for two lots off the coast in 1986, outside of the critical area; with the intent to build single family residences The Beachfront Management Act was passed in 1988 which barred Lucas from building any habitable structures on his lot South Carolina SC ruled against Lucas, saying it was not a taking, that it was designed to prevent serious public harm; Police Powers Issue: Is this a categorical, per se taking? H&R: Yes, When the owner of real property has been called upon to sacrifice all economically beneficial uses in the name of the common good, that is, to leave his property economically idle, he has suffered a taking Scalia thinks the SC sup. Ct. was too quick to conclude that the noxious use principle decides the case Scalia says that "harm-preventing" and "benefit-conferring" regulation is often in the eye of the beholderand that the noxious use was the old way of saying "advances a legitimate state i nterest" Says that noxious-use logic cannot serve as a touchstone to distinguish regulatory takings; Call situations like this confiscatory regulations (prohibit all economically viable use of the land) and says that they should be treated like permanent physical occupations (Loretta) Dissent Blackmun Feels that the idea that the land becomes valueless is implausible; also thinks that the decision is inconsistent with prior opinions

Dissent Stevens (Thought whether something was a complete loss of value was too arbitrary- doesnt like rule) Lucas has not had much impact because state courts still get to decide whether the economic result makes the land useless First Eng. Evangelical Lutheran Church of Glendale v. County of Los Angeles (SC 1987 - Rehnquist) Facts: The church had a large lot bought in '57 for religious activities A forest fire made the land vulnerable to flooding, which happened in 1978, ruining much of their property The county adopted an ordinance that said no one could construct or reconstruct any buildings within the set area of the mill creek Issue: Should the church be compensated for ordinance that was eventually ruled a regulatory taking, even if it was only temporary? H&R: Yes, government action that works a taking of property rights necessarily implicates the "constitutional obligation to pay just compensation" -The fact that it is a temporary taking does not matter When the government has worked a taking, no subsequent action by the govt. can relieve it of its duty to provide compensation for the period during which the taking was effective. Palazzolo v. Rhode Island (SC, 2001-Concurrence) Facts: Petitioner was sole owner of SGI along Rhode Island's beach front; owned 80 lots and submitted a few building projects in the 60's which were rejected Rhode Island passed wetlands regulations designating all of petitioner's land as "coastal wetlands" and rejecting two more of his applications Finally, petitioner sued stating that the Wetlands regulation had worked a taking citing Lucas The Rhode Island SC affirmed the decision for the state Issue: Can the petitioner challenge regulations pre-dating his ownership? Is this a regulatory taking? H&R: Yes and No, the court held that not allowing Palozzolo to challenge the earlier regulations would immunize extreme and unreasonable regulations to further attack, and favor older landowners The court held however that it was not a per se taking which denied all economic use of the land because the P could build a substantial residence on the land The court remanded for examination under the Penn Central test
Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency (SC - Stevens) Stevens (Majority) development. Seems like Lucas. Prop owners bought before reg in place, now reg has reduced value at least for period cant build, value feels like zero. Not permanent. Seems like T ahoe should come out like Lucas total wipeout at least for period of time. Wasnt common law nuisance to build home at time of purchase. SO how does this case come out this way limiting Lucas quite a lot. In Lucas, trying to protect erosion of land. Lucas depicts land regulators as using a lot of lying. Picking on prop owners who havent built yet not to be trusted. The story in Tahoe is diff real problem with lake, everyone concerned, importance of good management, regulators treated as doing

something good. Majority takes regulators at their word rational review, in Lucas closer to strict scrutiny. Both cases had arguable inequity problem. Aside maybe OConnor and Stevens had more friends with homes in Tahoe. Politics. Rehnquist, Scalia, Thomas (dissent) What is the rule about regulatory takings? NO RULE. There are some tests. Use reasoning from cases. Distinguish cases on broader questions. Think of cases as set of resources to help you answer questions.
Tahoe is a reaffirmation of Penn Centralmoves away from categories (Limits Lucas to the case when a total wipeout is a total, permanent wipeout - moves away from First English - First English says that they will be flexible w/ time based on a permit processTahoe runs with that time flexibilityScalia 's dissent says no, temporary taking should still be compensated)
Nollan v. California Coastal Commission (SC, 1987 - Scalia) Nollan's had a run down one story bungalow; when the Nollan's buy it they know there are some big houses, but they also know that it is hard to build, and that the Coastal Commission can say no, or put conditions -At least constructively they knew that the condition that the Commission often used was public easements -The Nollan's want a bigger housesimilar to the other houses in the neighborhood The Commission could have said no and it would not have been a taking But the commission says, yes, if you allow a public easement (lateral) to the beach California and NJ have public trust doctrines w/ wet sand It is intuitive that if the govt can say no, they can put a condition on when they say yes Nate says the Commission is almost extorting a property right from themProf says is this extortion or negotiation? -extortion is rhetoric often used in these cases But the court says that the right to say no is not related to a public easement Caridas says this ruling might be encouraging the Commission to say no The majority says that the govt. is trying to get something that it isn't entitled to and isn't related to what it gives A lateral easement is not related to beach use because people are already on the beach Rational Basis Review- Scalia and the majority says that this kind of deference to regulators may be too much; almost heightening the scrutiny somewhat from Euclid What is the test going to be after Nollan? There must be a nexus between the condition and the legitimate public purpose (And it is a legit. Public purpose because the commn. Could have said no) But here there is no Nexus
What can the Commn do after Nollan? 1.) Document a nexus (Data about coming to the beach when you see people walk by) 2.) If it is a means-ends testyou could broaden the end"We want as many people as possible to enjoy the people as possible (Then the means will fall within that) - Heidi asks if then do you run into an overbreadth issue? No, because land use isn't perceived to bring up critical liberty issues 3.) You could deny the permits from now on - but there is a sort of political-cultural constraint to denying all kinds of permits, when others have built or are building 4.) You could require an easement going the other way; But the Prof says this isnt what they were concerned with; they wanted people to be able to walk along the beach on the dry sand 5.) They can use eminent domain for easements and pay; but this would be expensive Ask what Josh's question was: If you have a right not to self incriminate Prof. says you can think of Takings problems as following two lines: You have a prop. Owner complainingand the state says NO; the other possibility is the govt. says YES, BUT, this takings angle is open now because of Nollan; So when you have a Nollan case, there is always a Lucas or penn question., but not vice versa

Dana Property Law Outline

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Dana Property Law Outline

Uploaded by

Copyright:

Available Formats

Cases = Underline Definitions = Bold Rules = Red Important Concepts = Blue

Cases = Underline Definitions = Bold Rules = Red Important Concepts = Blue

Cases = Underline Definitions = Bold Rules = Red Important Concepts = Blue

Cases = Underline Definitions = Bold Rules = Red Important Concepts = Blue

Cases = Underline Definitions = Bold Rules = Red Important Concepts = Blue

Cases = Underline Definitions = Bold Rules = Red Important Concepts = Blue

Cases = Underline Definitions = Bold Rules = Red Important Concepts = Blue

Cases = Underline Definitions = Bold Rules = Red Important Concepts = Blue

Cases = Underline Definitions = Bold Rules = Red Important Concepts = Blue

Cases = Underline Definitions = Bold Rules = Red Important Concepts = Blue

Cases = Underline Definitions = Bold Rules = Red Important Concepts = Blue

Cases = Underline Definitions = Bold Rules = Red Important Concepts = Blue

Cases = Underline Definitions = Bold Rules = Red Important Concepts = Blue

Cases = Underline Definitions = Bold Rules = Red Important Concepts = Blue

Cases = Underline Definitions = Bold Rules = Red Important Concepts = Blue

Cases = Underline Definitions = Bold Rules = Red Important Concepts = Blue

Cases = Underline Definitions = Bold Rules = Red Important Concepts = Blue

Cases = Underline Definitions = Bold Rules = Red Important Concepts = Blue

Cases = Underline Definitions = Bold Rules = Red Important Concepts = Blue

Cases = Underline Definitions = Bold Rules = Red Important Concepts = Blue

Cases = Underline Definitions = Bold Rules = Red Important Concepts = Blue

Cases = Underline Definitions = Bold Rules = Red Important Concepts = Blue

Cases = Underline Definitions = Bold Rules = Red Important Concepts = Blue

Cases = Underline Definitions = Bold Rules = Red Important Concepts = Blue

Cases = Underline Definitions = Bold Rules = Red Important Concepts = Blue

Cases = Underline Definitions = Bold Rules = Red Important Concepts = Blue

Cases = Underline Definitions = Bold Rules = Red Important Concepts = Blue

Cases = Underline Definitions = Bold Rules = Red Important Concepts = Blue

Cases = Underline Definitions = Bold Rules = Red Important Concepts = Blue

Cases = Underline Definitions = Bold Rules = Red Important Concepts = Blue

Cases = Underline Definitions = Bold Rules = Red Important Concepts = Blue

Cases = Underline Definitions = Bold Rules = Red Important Concepts = Blue

You might also like