PROPERTY ATTACK OUTLINE: EXAM ID: E24059575

CORE PROPERTY RIGHTS CORE FUNCTIONS OF PROPERTY

Possess Security: Create personal territory Form/Define Identity: Use property
Use
and safety to define yourself
Control: Give individuals ability to Establish Privacy: Give owners
Exclude Enjoy Fruits of Profit
self-govern exclusive domain
Respect: Property used to be a Confer Power/Status: Dominion over
Alienate Destroy
function of authority personal space
PRINCIPLES OF ALLOCATION
First in Time: Whoever gets there Conquest and Government Grant: Capture/Labor-Dessert Theory: Give Custom and Mutual Consent: Pass
first is the owner. The strongest takes, holds distributes people who put the most into things down in families and
property at will something ownership over it. communities
Seniority and Status: Give to those that society deems the most deserving
Fairness and Morality—how should Efficiency—does this maximize the Social Welfare—maximize people’s Distributional Effects—what are the
property be divided among a group? value of all available property? well-being? outcomes of a means of allocation?
USE & EXCLUSION: RIGHT TO EXCLUDE: TRESPASS
Purpose & Rationale: Creates a broad zone of discretion for owners to do what  Unprivileged: Without consent of  Intrusion: Occurs the moment
they choose with their property and put it to its most productive use, sends a the owner non-owner steps on another’s
clear message to those who do not own the property and helps others navigate  Intentional:  entry must be a property.
a world of privately owned property without violating the rights of others. voluntary act, but intent to  On Property Possessed by
trespass is unnecessary. Another
Justifications for Limitations:
Remedies:
 Rights to exclude are broad, not absolute.
 Injunctions are used to either end or prevent repetition (preferred)
 Fundamental rights will trump property rights
 Compensatory Damages can be awarded
 Law will place restrictions on rights to exclude for public welfare
 Punitive Damages can be awarded in extreme/exemplary cases
 Necessity
Necessity Exception: Entry can be privileged if it comes with consent, it is Induced Reliance Exception: comes when people have a reasonable
justified by necessity or otherwise encouraged by public policy. This is assessed expectation of access that is later/suddenly revoked. In these cases, courts may
from the position of a reasonable person at the time of emergency. grant an easement to convert trespass into lawful access rights for the former
 Clear and imminent danger trespasser.
 Reasonable expectation of abatement via trespass Policy:
 No legal alternative  There is a systemic benefit to having clear rules for possession; creates
 No legislative preclusion of the defense efficiency
Where  can prove this successfully, burden shifts to π to prove that it does not  Injunctions>Damages b/c this is a fundamental right; don’t want to raise the
apply. cost of trespass as much as we want to end it entirely
USE & EXCLUSION: LIMITS ON RIGHT TO EXCLUDE: PUBLIC ACCOMMODATIONS AND DISCRIMINATION
Common Law: right of reasonable Civil Rts. Act of 1866, §1982 Civil Rts. Act of 1964, Title II
access to all businesses that are  Guaranteed equal rights under the law  More limited, focuses on private estabs.
considered public accommodations.  Focused on property rts, rt. To inherit property,  Prohibits disc. or segregation and full & equal access to
Private clubs have slightly more purchase, lease, sell, hold, convey, and enjoyment of goods, services, facilities, privileges,
leeway to exclude, provided exclusion enter/enforce Ks advantages & accommodations
is not based on a statutorily  Only damages, no injunctions  Only injunctions, no damages
protected category.  No exceptions for private assns.  (places/businesses covered in outline)
 Applies to retail & serv. estabs.  Exceptions for private clubs that are selective in
membership and limits # of members
Majority: Owners of most Federal regulations govern access Majority: “Right to make Ks” is narrow, patrons need to be denied the right to
establishments that aren’t common and rights to engage in commercial contract, not just “deterred” from it
carriers have a broad right to exclude activity, but splits on how people can
absent conflict w/ anti-disc. statutes be treated once they’re on premises Minority: Deterrence from making Ks, like discriminatory surveillance in retail
(fed/state) does violate right to contract under the CRA of 1866.
Minority: Owners need a reasonable, For state/local laws, anti-disc. Key Cases: Dale v. Boy Scouts of
State statutes that conflict w/ fed.
legitimate excuse to exclude a patron, statutes & regs can be more America (NY); Heart of Atlanta Motel
regs. will usually be pre-empted by
guest, member of public from protective, but can’t erode federally v. United States; Katzenbach v.
fed. law
premises protected categories. McClung
USE & EXCLUSION: ADVERSE POSSESSION
Purpose & Rationale: Trespass can lead to a change in ownership. Usually  Actual  Continuous
arises in the case of border disputes with neighbors and reflects  Open & Notorious  Hostile/Adverse
errors/discrepancies in conveyance. Can also apply to chattel/personal  Exclusive  For Duration of Stat. Period
property. Title doesn’t transfer unless all of the conditions are met: (optional: Color of Title; paid property
taxes)
Justifications: We want owners to defend/assert their property rights What is “Hostile”?
 Quieting title lowers costs of establishing claims by favoring recency>claims Lack of Permission (Objective) Claim of Right (Subjective)
in the distant past Without permission, possessor’s state Don’t need to know what possessor
 Prevents resources from sitting idle/in speculation, puts land in highest value of mind is immaterial was thinking, just has to act as a true
users’ hands owner would (Color of Title would
 Repose—we want owners to feel secure in their ownership apply here)
 Allows for justice to fill gaps in property law
Color of Title: Concerns defective documents of conveyance, usually defined Intentional Dispossession Good Faith (Subjective)
contextually. Where this exists, courts may be more favorable to adverse (Subjective) Only innocent mistakes are forgiven
possessor in equity. Possessors have to know they are by transferring title. States will
Constructive Possession: Where CoT exists, possessors don’t need to own the occupying someone else’s land & sometimes shorten the SOL in these
entire tract in question. If it’s within the description of an invalid deed and intend to dispossess them. Usu cases.
possessor has a part of it, they are presumed to own the whole thing, unless limited to boundary disputes. Might
the actual owner has possession of that part reward wrongdoers.
Majority: Clear and convincing evidence needed to bring a claim / defense of adverse possession, reflecting the
Burden of Proof to Establish a Claim privileged place that property rights occupy in US law
or Defense Minority: Preponderance of the evidence, analogous to any other civil case, with no recognition of the special status of
property rights in US law
Tacking: Succeeding periods of ownership can be added together when in Tolling: Clock on statutory period can stop to recognize temporary periods of
privity with one another, marked by voluntary transfer of title—does not apply incapacity. States will then toll SoL, either by starting it when incapacity ends,
in cases of forcible dispossession or by shortening/lengthening the period.
Claims can be brought by adverse possessors themselves in a suit against the AP as a defense to trespass or ejectment: record owner would move for either
record owner to quiet title. Can also be raised as a defense against an action of these two, while adverse possessor would claim that they had actually
from a record owner. acquired title via adverse possession.
Relationship to TENANCIES: Where one co-owner seeks to claim total Relationship to SERVITUDES: Adverse possessors will assume any/all pre-
ownership, that co-owner must make an explicit attempt to assume total existing liens, easements, or covenants on the land that they assume
ownership via adverse possession ownership of.
USE & EXCLUSION: RIGHT TO EXCLUDE: PRESCRIPTIVE EASEMENTS
Purpose & Rationale: Mirrors adverse possession but focuses on use rather  Actual USE  Continuous
than ownership. Courts may be more inclined to grant an easement by  Open & Notorious  Hostile/Adverse
prescription than transfer title. Compromises btwn owners’ property rights and  Exclusive  For Duration of Stat. Period
user’s reasonable expectations. (optional: owner acquiesces)
Owner’s Acquiescence: Rooted in presumption that there was once an initially Burden of Proof (split)
permissive use granted. Split on how it’s established: Clear and convincing evidence Preponderance of the evidence
 Established when an owner fails to assert right to exclude Result: Successful claims grant right to continue to use that persisted
 Landowner must have known of the use and passively allowed it throughout the statutory period. This will be limited based on the nature of the
 Owner could/should have known of the use use and the jurisdiction.
Presumptions about Permission (split) Prescription and CoT (split)
Majority: Presume use that satisfies (Significant) Minority: Presume that a Some courts have held that the use Restatement Third distinguishes:
other elements of prescription is non- use is permissive, provided that of property under a defective (1) Uses that are adverse to owners of
permissive community custom allows uses or conveyance is not permissive, but the land and
owners could not reasonably know of adverse. (2) Uses that conform to an intention
passings but imperfect servitude
(2) doesn’t HAVE to be adverse
Older trend: Public couldn’t acquire easements by prescription—too hard to determine continuity of use, difficulties of
Acquisitions by the Public—
actual exclusion.
traditional vs. modern trends in
Modern trend: Public can do this, presumes that public access to private land is permissive in the absence of evidence to
adjudication
the contrary.
USE & EXCLUSION: RIGHT TO EXCLUDE: INFORMAL TRANSFERS OF PROPERTY, ENCROACHMENTS, AND THE RELATIVE HARDSHIP DOCTRINE
IMPROVING TRESPASSER: RELATIVE HARDSHIP DOCTRINE GRID OF REMEDIAL OPTIONS IN CASES OF IMPROVEMENT
 The encroachment is innocent/in  The interference in the true
good faith (an honest mistake) owner’s property interest is small,
 The harm is minimal  The cost of removal is substantial
Where these criteria ARE met: Where there criteria are NOT met: Removal of the Structure
 Order improver to pay damages to  Order removal Injunction for Owner
the land owner  Only applies for de minimis Ordered Land Transfer
 Order a forced sale to the improver encroachments Injunction for Builder
Majority: Relative Hardship test to Minority: property owner has an Transfer from Owner to Builder +
determine the remedy where a absolute right to an injunction Damages for Owner compensation
trespasser builds on another property ordering an encroaching structure
in a good faith mistake that the land removed no matter the cost or extent Damages for Builder Transfer from Builder to Owner +
was actually theirs and removal is of the encroachment – usually for compensation
expensive or difficult. This is fence, driveway, etc.– landowner can
necessarily a judgment in equity. force the other party to take it down
no matter what it is
 UNJUST ENRICHMENT THROUGH IMPROVEMENT MISTAKE
Courts are unlikely to be as sympathetic to large scale improvements as they Where a builder mistakenly constructs an entire structure on land belonging to
are to de minimis encroachments. This can be seen as an owner’s failure to another, courts generally hold that they are the owner of that structure, but
assert their property rights while another invests in their land. are split on how to adjudicate
Majority: Courts can grant good-faith Minority: Where the landowner is not
builder ownership over the land, at fault, he is not required to do
provided they compensate the anything. Builder should not be free
Some hold that innocent trespasser Some hold that trespassing improvers
original owner—he who seeks equity to interfere or be allowed to pay a
that improves the property has a right aren’t entitled to anything in these
must do equity. If owner is unwilling premium in order to do so. Where
to compensation settings.
to sell, court can order the owner to landowner refuses to sell, builder
compensate the builder for value of must remove the structure; Where
the structure SoL has run out, this would be AP.
BOUNDARY SETTLEMENTS DEDICATION
Oral Agreement: Courts can enforce Acquiescence: Courts may recognize Majority: Needs to be an offer by a Minority: failing to keep the public
these where neighbors set this to determine a common private owner indicating their intent excluded from a property may be
boundaries if: boundary if: to give it to the public (in writing, oral enough to transfer title in certain
 Adjoining owners expression, or by conduct expressing situations. This is assessed in context,
 Both parties are uncertain  Who occupy respective tracts up to intent) and an acceptance by formal and is highly fact-specific.
about/genuinely dispute where the a clear and certain line (like a resolution in local government OR an
true boundary lies fence) assumption of management of the
 Parties can prove the existence of  Which is mutually recognized and property by the public/cessation of
an agreement setting the boundary accepted as the dividing line taxation on the property
 Parties take/relinquish possession between properties
at the agreed-upon property line  For a long period of time (shorter
than Statute of Limitations,
otherwise, this is just adverse
possession)
Estoppel: Willful misrepresentation Laches: Where an owner unjustifiably Riparian Ownership
by an owner may prevent that owner and unreasonably delays asserting  Accretion: Slow buildup of silt/sand/soil that gradually enlarges a property
from asserting that the true boundary their property rights, they can lose becomes part of a property
is different from what they said them. This case is strengthened  Avulsion: Sudden earthquake, flooding or rapid changes in the borders of a
 Look for reliance + deliberate where another party is prejudiced property are not held to permanently change them
misrepresentation due to this delay, but can still be  Erosion: Where property gradually deteriorates over time due to water
 Can be inferred from an owner’s made where an owner delays for a damage, the property lines shrink.
silence despite their knowledge to “sufficiently” long time.
the contrary “Use it or lose it” rule
Demand Rule: Clock on statute of limitations does not start until an owner demands their property and the possessor
refuses its return, after discovery; more friendly to true owners, keeps burden of investigating provenance on buyers
Adverse Possession of Personal
Discovery Rule: Where owners search for their missing property with necessary due diligence, the clock on the statute of
Property – When does SoL start?
limitations does not start until the missing property is discovered or should have been discovered.
Conversion
UCC Entrusting Exception: Entrusting possession of goods to a merchant that typically deals in that type of good gives
merchant power to convey good title in the ordinary course of business to a bona fide purchaser
CONFLICTS OVER RIGHTS TO USE: NUISANCE
Purpose & Rationale: Where zoning seeks to pre-empt conflicts due to Courts will balance:  Economic/Social Value of
incompatible uses on a policy level, nuisance gives owners a means of seeking  Extent of Harm Conflicting Activities
individualized, post-hoc remedies for conduct that causes substantial,  Character of Harm  Ability to Avoid Conflict,
intentional/negligent and unreasonable harm to their right to use/enjoy prop.  Suitability of Activities Practicability
Justifications: We want owners to defend/assert their property rights REMEDIES
 Quieting title lowers costs of establishing claims by favoring recency>claims π Entitlement  Entitlement
in the distant past  π can get an injunction   may have a legal right to
 Resources don’t sitting idle/in speculation, land goes to highest value users against  to stop harmful commit the harm w/o liability
 Repose—we want owners to feel secure in their ownership Property conduct or fault
 Allows for justice to fill gaps in property law Rule  If  wants to continue, they  If π wants to prevent harm, π
When to Sue: need to offer π enough $ to needs to offer  enough $ to
 Anticipatory: When a nuisance is virtually certain to occur, owners can move surrender the injunction. make them stop
for an injunction to pre-empt it. Removal & associated costs factor into Liability  π can get damages from   π can stop  conduct if π is
courts’ decision-making here, so pre-emption may be valuable. Rule for committing harm willing to pay to compensate
 Statute of Limitations: Temporary nuisances occur intermittently, SoL begins   is free to commit harm if  This is known as a “purchased
anew each time; Permanent nuisances are indefinite, so SoL begins as soon  is willing to pay for it injunction”
as the nuisance is established.
Defenses: Temporal Priority / “Coming to the Nuisance”: favors harmful activity that predates the offended party. This is not a complete defense as conditions
can change that may render formally permissive activities a nuisance after they are already well-established. Overlaps with pre-existing non-conforming uses in
zoning (below). Courts can sometimes enjoin the offending activity on the condition that the offended party pays costs for removal or cessation.
Nuisance per se: Activities so disfavored that location is irrelevant. (Criminal Aesthetic Nuisance: Generally not going to be recognized by a court as a valid
activity, grossly incongruous uses, “Pig in a Parlor” problems. May sometimes nuisance w/o an accompanying physically perceptible element, unless spite or
include ultrahazardous activities, which carry a strict liability standard. actual malice is readily apparent.
Intentional Nuisance: Focuses on the result of the conduct > conduct itself. Public Nuisance: Unreasonable interferences with a right common to the
Measure is whether general public. Burden of proof is higher, scope of injunctive relief is broader.
 The interference suffered is reasonable, AND Usually brought by the government.
 Whether an owner is substantially harmed Page County Rule: Liability can be attributed to any actor that materially
participates in creating the nuisance, but owners w/ unusual sensitivity are
not protected.
 CONFLICTS OVER RIGHTS TO USE: ZONING
(see Constitutional Property for disparate impact/zoning tests)
Purpose & Rationale: Meant to regulate private and public land use ex-ante in Authority: State governments have ultimate police power to pass/reject
order to proactively limit harms of incompatible use. ordinances, and regs are expected to advance public interest. This is limited by
 Prospectively limits harms that can arise from incompatible uses regs against exclusionary zoning and state/federal anti-disc. statutes
 Allows local governments to influence the composition of their communities Deference: Courts will generally defer to state/local judgment provided it is
 Allows local governments to control their tax ratables and prospectively reasonable. Where zoning is arbitrary or unreasonable, bearing no relevance
budget more effectively to the public interest, they can be struck down as unconstitutional deprivation.
Euclidian Zoning: Divides a municipality in use zones and area zones. Use zones Subdivision Regulation: Local govts are free to step in to force a developer to
dedicate specific plots to certain uses with a pyramidal structure; Area zones demonstrate (1) how infrastructure will accommodate dev. (2) Where
dictate lots sizes, building heights, set-back reqs. This is the foundation of the transportation will be located (3) how subdivision will conform to zoning regs
modern principles of zoning that remain in place today. Site Plan Review: Large scale development, even where subdivision isn’t in
play, will usually require a rigorous review process.
Case foreshadows takings clause—zoning was declared valid, even though it Housing and Building Codes: Set a floor for what a municipality has to provide
reduced value of a certain plot of land due to changes in zoning restrictions to make housing habitable. Non-conforming structures are subject to fine.
Challenging Zoning: Can be constitutional or statutory. Owners can sue the Owner vs. Legislature: Courts will Statute of Limitations: This is an
municipality to challenge ordinances, or individual owners. Both require defer to the legislature absent ongoing problem (like nuisance), but
sufficient standing: unreasonable/arbitrary regulations SoL never runs out.
 There is an injury Zoning pre-empts common law, but Nuisance vs. Zoning: Even where
 The injury is connected to government action not the Constitution. Reasonable properly zoned, you can be sued for
 There is a remedy sought to rectify the injury regulations that are not a direct nuisance if behavior is substantially
infringement are totally valid. harmful to neighboring plots
Pre-Existing Property Lines: Municipalities enacting zoning regs will generally follow existing land use patterns to the extent possible—to do otherwise is
impractical, and could lead to more litigation. Zoning may require some users to phase out/change existing uses over a reasonable period or impose new rules on
owners. Prior Non-Conforming Use and Vested Rights doctrines govern two approaches to changes in land use regulation for owners.
Prior Non-Conforming Use: Where land is rezoned post-dev, some courts will Vested Rights: Where owners have invested substantially in a property in good
allow that use to continue, exempt from new regs for a period of time faith reliance on existing zoning regulations/ordinances, courts may grant
/permanently. Can give owners a limited monopoly in a given area. Usu. limited exemptions to new regulations enacted after purchase/investment to protect
to the time that owners continue the non-conforming use—changes to that use that owner’s interests under prior zoning regulations. Courts are divided on
to something substantially different can lead to revocation of the exemption. what constitutes a substantial investment, or when those rights can be estd.
SPLIT: Some courts will allow owners PNCUs can be terminated when: Majority: Require owners to have a Minority: “Substantial costs” in
to expand PNCUs as the market  Abandoned (close up shop) valid building permit or other reasonable reliance on existing law
dictates; others will not  Destroyed (fire, flood) regulatory approval to begin the can be enough, even in the absence
 Changed (restaurant to disco) project to assert vested rights of any valid permit.
Amortization: Courts generally disfavor PNCUs, and will look to phase them out Substantial Investment: Several tests Early Vesting: Grant rights based on
over time. This gives owners a reasonable time to recoup investments. Courts apply to determine when an owner is valid/complete building permit;
are split on how to manage this process: permitted to assert that they have others will grant based on preliminary
Some adjudicate on a case-by-case Some have tables that govern this made sufficient investments to lock in plans prior to that, like application for
basis, and may terminate PNCU when process, and are generally enforced their rights. site-specific approval
owner has a “reasonable return” unless unreasonable/arbitrary.
Reliance & Substantiality: 2 Tests Ratio of expenses incurred:: total cost
Good Faith: “Sticks in the ground” of the development project
Black & White: clear dividing line
when an owner has vested rights
Federal law requires demonstration of disc. intent for equal protected/due process violations; disparate impact may
Exclusionary Zoning: Where zoning
also apply here, but that is generally regulated by state law.
conflicts with fundamental rights,
SCOTUS has given local govts latitude in the absence of intentional disc. FHA, RLUIPA can provide protections where that
along with procedural/substantive
disc. is apparent and can be corrective actions against exclusionary zoning.
due process concerns, zoning may be
Majority: Euclidian Zoning is valid at a local level, and applying zoning w/ an interest in promoting tax revenue is valid
unconstitutional or invalid
Minority: Mt. Laurel allows states to override zoning ordinances in the interest of regional welfare (aff. housing)
CONFLICTS OVER RIGHTS TO USE: SERVITUDES
Servitudes: Means of forming private, Easements: Positive/affirmative Covenants: Negative servitudes that Major Questions:
voluntary agreements between servitudes (right of way, rights to restrict or obligate one owner to  Creation
owners to resolve land disputes. air/light) granted by one owner to an another or prohibit certain  Interpretation
Involve both dominant/servient adjacent owner. behaviors/activities on related  Development over time
owners properties.  Modifications & Termination
CONFLICTS OVER RIGHTS TO USE: SERVITUDES: EASEMENTS
CREATION BY EXPRESS AGREEMENT
Non-possessory rights to use another’s land that can run w/ the land. These Can be a result of a private Needs to be SoF compliant in writing:
give the holder the right to use land for limited purposes and do not need to agreement btwn two concurrent  Signed by grantor
apply specifically to a definite portion of that land. Not a lease, not a license. landowners or created in a deed in a  Describes the easement & grantee
land conveyance.  Recitation of Consideration
WHEN EASEMENTS RUN W/ THE LAND LIMITS ON NEGATIVE EASEMENTS
DOMINANT ESTATE SERVIENT ESTATE Right to lateral support of one’s bldg. Everything else -- > Covenants
 Is the easement in writing and SoF  Is the subsequent purchaser of the Right to prevent blockage of light/air Need to have both a dominant & a
compliant? servient estate on notice? due to construction on neighbor. land servient estate, no exceptions
 Did the original grantor intend for  Actual Notice (knowledge) Right to prevent interference w/ an Common Negative Easements:
the easement to run with the land,  Constructive Notice (recorded) artificial stream Conservation; Historic preservation;
and is that evident in the writing?  Inquiry Notice (should’ve realized) Solar
*Refer to chart for app. v. in gross
INTERPRETATION OF AMBIGUOUS Refer to Parol REFER TO LANGUAGE OF THE WRITING TO DETERMINE INTENT
 PRESUME APPURTENANT PRESUME IN GROSS
Evidence—
 Describes specific land or areas  Mentions Individual or entity
what is
 If benefit would usu. benefit land or an estate  If benefit would usu. benefit a person or entity
available to
 Courts generally favor appurtenant—  Where too ambiguous, courts presume against
confirm or
increases value of land; limits # of people w/ easements in gross
deny?
easements; increases certainty in title
Subdivision: Can only be subdivided
EASEMENTS Transferability: Appurtenant w/in the bounds of the original
Need to balance dominant estate’s Severability: Appurtenant easements easements are transferred dominant estate; easements do not
interests in land use vs. servient can’t be severed from land; are part automatically w/ land. In gross grow w/ the parcel or extend to
estate’s interest in avoiding of the nature of the interest easements can be transferred, newly annexed land, but easements
unnecessary burdens depending on nature of use that exist on subdivided land will
extend to each subdivided portion.
Apportionability: Where easements in gross are subdivided, they are apportioned.
 Non-Exclusive: grantor & grantee both retain rights to use. Can’t be apportioned, but can be transferred if it doesn’t
interfere w/ grantor’s use.
 Exclusive: only grantee can use. These can be apportioned & transferred (burden of proof is on the original owner)
 Restatement Third: In gross can be apportioned if (1) not contrary to original intent (2) doesn’t create unreasonable
burden on servient estate. This tends to apply more to exclusive uses.
SCOPE AND APPORTIONMENT OF Old Rule: Easements can be used for any reasonable purpose; where purpose is specified, courts will look to whether or
EASEMENTS HELD IN GROSS Grantors not disputed use is substantially the same as the original purpose
retain whatever rights they don’t Modern Rule: Allows nature and character of use to change w/ technology; ie “for phone lines” will not prohibit “for
surrender. Absent clear evidence of fiberoptic internet”
intent, courts will find that manner of Factors to consider where the owner of an easement is overstepping the scope of the original easement:
use can change over time provided it  Whether the use is of a kind contemplated by grantor
doesn’t place unreasonable burden  Whether new use constitutes an unreasonable burden on the servient estate beyond the grantor’s contemplation
on servient estate (degree, intensity)  Whether the easement can be subdivided
CHANGING LOCATION OF AN EASEMENT EXTENDING AN EASEMENT
Traditional Rule: Can only be done by Modern Rule - Restatement Third: Servient estate can make reasonable
mutual consent of servient & modifications to an easement provided that: Cannot be extended to access
dominant estates  Don’t lessen its utility another plot of land on the other side
 Increase burden on owner of easement AND of the servient estate unless there is
 Doesn’t frustrate the purpose of the easement evidence that the original agreement
When Relocating an Easement: Courts will allow servient states to do it, but require them to pay damages to dominant intended for this possibility
estate; others will allow servient estates to move them only after a court ratifies it; others reject Rest. Third approach.
EASEMENTS BY IMPLICATION
Courts recognize four ways that Easements by Estoppel: Easements Implied by Prior Use Easements by Necessity: “donut
easements can be created w/o being  Permission from owner to use land  Two parcels once owned by hole” cases
SoF compliant writings:  Foreseeable & reasonable reliance common grantor  Formerly one unified parcel AND
 Easements by Estoppel  Changed position by claimant  One parcel was prev. used for  Dominant estate is landlocked
 Easements Implied by Prior Use  Necessary to prevent injustice benefit of the other in an apparent by/at time of severance
 Easement by Prescription (above) Usu. seen w/ non-compliant writings, & continuous manner AND
 Easements by Necessity reasonable reliance on continued  Use is reasonably
consent that is revoked, cases of necessary/convenient for
fraud or misrepresentation enjoyment of dominant estate
Easements Implied by Prior Use: Restatement Third Considerations for Intent: Easement Implied by Prior Use: Easements by Necessity: Notes:
 Whether party claiming easement is conveyor or conveyee Illinois Test  Treat these like mistakes
 Terms of the conveyance  Common ownership of dom/serv  Primary goals in finding these:
 Consideration was given for the parcel estates o Promote efficient use of
 Whether claim is made against simultaneous conveyee  Subsequent severance of unified property
 How necessary the easement is for the claimant parcel o When these two conflict, defer
 Whether division & transfer of the parcel was mutually beneficial for both  Prior to severance, owner used one to intent of the parties
 The way the land was used prior to the division and conveyance for the benefit of the other
 Extent to which the way it was used prior to conveyance was known to both  Claimed easement nec. For
enjoyment of dominant parcel

HOW EASEMENTS END

 Agreement/Release: Mutual  Merger of dom/serv estates into a  Marketable Title Acts: Owners fail  Lack of Notice: Usu. happens on a
decision to let it go unified parcel to record the easement, it expires subsequent conveyance. Won’t be
by statute enforced against subseq. owners.
 Expiration on its Terms: Something  Abandonment: Proven that  Adverse Possession/Prescription:  Frustration of Purpose: Liberal
in the writing indicates an dominant estate indicated an Serv. estate owner can just…take it application of abandonment
expiration date intent to abandon the easement back, provided dom estate owner principle. Rest. Third says courts
doesn’t do anything about it. should modify in these cases.
CONFLICTS OVER RIGHTS TO USE: SERVITUDES: COVENANTS
Purpose & Rationale: Privately directed land use by owners against other Agreements will bind future successors in interest if the agreement is:
owners. Allows for self-directed communities bound by common interests and  In writing compliant with SoF
obligations to exist.  Intended to be binding on future tenants/successors in interest
Restrictive Covenants: Impose constraints on other owners  Touches and Concerns land (both benefit & burden must effect the land use)
Affirmative Covenants: Impose obligations on other owners  Has Privity of Estate
UNDERSTANDING PRIVITY
Old Rule – Strict Vertical Privity: To be entitled to Majority Rule – Vertical Privity: Courts will allow a Modern/Rest. Third Rule – Relaxed Vertical Privity:
benefit of a covenant, owner must succeed entire party to enforce a covenant provided they succeed Need to have an interest in land that would be
interest in property. Only covers buyers. an interest at all. Tenants can enforce landlords’ reasonably benefitted by the covenant. Includes
covenants, buyers can enforce sellers’ tenants and buyers
English Rule – Simultaneous Privity of Estate: Both parties have to have a American Rule – Instantaneous Privity of Estate: Legal fiction that creates a
common interest in the same plot at the same time. This limited it to landlord- moment of simultaneous ownership in the act of transferring land. This widens
tenant relationships. scope to include buyer-seller relationship.
COVENANTS DEVELOPING OVER TIME
refer to annotated chart in outline for more detail if needed
REAL COVENANTS – DAMAGES EQUITABLE SERVITUDES – INJUNCTIVE RELIEF REST. THIRD
Writing compliant w/ SoF Writing compliant w/ SoF Writing compliant w/ SoF
Intent to run w/ the land presumed if appurtenant Intent to run w/ the land presumed if appurtenant Intent to run w/ the land presumed if appurtenant
Privity matters, need to have: Notice to servient estate matters, replaces privity Notice to servient estate matters, replaces privity
Horizontal: Covenant created during transfer of requirements (actual, inquiry, or constructive); requirements (actual, inquiry, or constructive);
either estate; OR parties are landlord-tenant; OR intended beneficiary is the valid enforcer intended beneficiary is the valid enforcer.
they own mutual easements For affirmative obligations, burden only runs if it
Vertical: Current owners obtained land via legal makes more sense for the tenant to perform,
transfer from original covenantors though covenant can be enforced by either party
Touch and Concern test for validity—needs to Touch and Concern test for validity—needs to have Enforceable unless its unreasonable. They can’t be
have a direct effect on land on use of both dom a direct effect on land on use of both dom and serv arbitrary, unreasonable, or contrary to
and serv estates to be enforceable. estates to be enforceable. constitutional. Can’t restrain trade or alienation;
Benefits in gross won’t run against owners of serv can’t violate public policy. Run as long as the benefit
estates unless held by govts or non-profits Same as Real Covenants holder has a legitimate interest and is identifiable.
PRIVITY VS. NOTICE PRESUMPTIONS IN CASES OF AMBIGUITY
Real Covenants: Enforce a covenant vs. buyer only if there is privity of estate Traditional Rule: Interpret in a way Modern Trend (Rest. Third): Further
Equitable Servitudes: Enforce vs. buyer if there is notice, privity unimportant least burdensome to the serv. estate the intent and purpose of the parties,
Modern/Rest. Third: Requires notice for real covenants avoid violating public policy
COVENANTS HELD IN GROSS BY DEFINITION DO NOT PASS T&C TEST
Generally, once land is sold, covenant Can work under Rest. Third if
Trends
in gross can’t be enforced btwn seller benefitted party:
Informality: Courts generally relaxing formal reqs where they can to make
and new buyer, since the covenant is  Has legit. interest in the covenant
them more fair and equitable.
Agency Theory: Developers can continue to enforce covenants even after they
inherently personal to the individual  Interest is identifiable
have sold property (lose privity/T&C) by appointing a board/HoA to enforce
and not the land.  Purchaser of burdened estate has
notice AND
 Burden is not unreasonable
Implied Covenants: When these aren’t in writing, courts can imply them only if Ambiguity: In Gross or Appurtenant? Same presumption for appurtenant
there is some fraudulent misrepresentation by the grantor, and in reliance, covenants—increases predictability, stability. These will run w/ the land unless
grantee substantially changes their position to their detriment. Parallel to there is evidence that it wasn’t supposed to.
easements by estoppel RECORDING ACTS
Reasonableness, Public Policy: Modern rule departs from T&C to focus on Minority: You’re on constructive Majority: You’re on constructive
these two factors. notice only for covenants that are notice for any covenant agreed to &
 Where covenants are unreasonable, they can be invalidated agreed to by the predecessor in title recorded by original owner, even on
 Where they are inconvenient to the public, they can be unenforceable that appear in the chain of title for properties surrounding your parcel,
 These common law defaults can be changed by statute the servient estate. where a title search would confirm.

REMEDIES CREATION OF COVENANTS: Either through traditional reqs or through Rest. Third reqs
 Damages are typically inadequate—
Covenantor Covenantee
location and use are not inherently (Burden Side) Horizontal privity (Benefit Side)
compensable (relation btwn original covenanting
Servient Estate Dominant Estate
 Injunctions are more discretionary parties)
 Courts are less likely to grant Sale with covenant horizontal privity
injunctions for affirmative covenants present
Vertical privity
 Courts can get damages wrong—should (relation btwn conventee and assignee)
facilitate bargaining Transfer of ownership = strict vertical
Injunctive Relief: Parties get to bargain Vertical privity privity
on the value of the covenant; don’t need (relation btwn conventor and assignee)
to respond to an imposed solution from Lease = relaxed vertical privity but not
the courts strict VP
Damages: Attempt to impose the result
Assignee of Assignee of
that parties would bargain for where the
servient estate dominant estate
parties either cannot or will not bargain
efficiently.
MODIFYING OR TERMINATING COVENANTS
CHANGED CONDITIONS RELATIVE HARDSHIP
 Covenants won’t be enforced where conditions have changed so drastically  Covenants won’t be enforced where harm to the serv. estate caused by
that enforcement is functionally useless to the dominant estate (El Di) enforcement is greater “by a considerable magnitude” than the benefit to
 Rest. Third: Change has to be so radical as to defeat the essential purpose the dom estate
 Successful claims of changed conditions are rare—the test is stringent  Where benefit to dom estate is substantial, courts are reluctant to apply RH
 Traditionally didn’t apply to easements; Rest. Third extends it to easements; doctrine, even where there is substantial harm
uses termination rules to substitute for controls that were usu. applied  Rest. Third doesn’t use this test as a means of modification/termination, but
through T&C test; suggests trying modification > termination to further rather to assess the availability and appropriateness of various remedies to
 original intent, and if that fails, then terminating the case at hand.
 Courts may now allow parties to violate the covenant in exchange for $ to
dominant estate
Other Equitable Defenses:  Acquiescence: Complaining party barred from enforcing covenant if they’ve
 Language in the instrument could reveal an expiration date tolerated prior violations w/o objection
 Merger of dom & serv estates  Abandonment: Can be barred from complaint if they expressly/implicitly
 Release in express or implied expressions abandoned covenant
 Prescription  Unclean Hands: If they violated terms of covenant themselves
 Estoppel: dom estate orally represents that they will not enforce covenant,  Laches: Covenant goes ignored/unenforced for a long time, and a court finds
serv estate relies, substantially changes position to their detriment the delay inexcusable/unjustifiable. If another party invests, enforcement
 Marketable Title Acts: Owners could be req to record all covenants might be unconscionable
Common Interest Communities
Multiple dwellings joined by servitudes that provide shared rights/obligations. Focus on how, when, and to what There is a strong presumption of
Usu. enforced through an HoA that maintains the community, enforces degree HoAs can change rules after deference to HoAs in determining the
covenants, enacts rules. owners have moved in. CC&Rs/declarations that govern them
Minority: Subjective analysis determines whether or not a common interest Majority: Individual impact is unimportant; focus on the substance of the rule
community’s regulations are unreasonably burdensome for individual owners to determine whether or not it’s unreasonable or arbitrary
Abandonment: CICs can have covenants on the books that they don’t enforce. Reliance: If you moved into a CIC because of certain terms, courts may be more
If these are generally ignored and selectively enforced, that may be invalid sympathetic to your cause if you seek enforcement after the fact
Residential Subdivisions & Condos: Devs Co-Ops: Entire bldg. owned by a Community Land Trusts: Non-profits Competing Perspectives: These
will draft initial CC&Rs, recorded in corporate entity with a single own the land, and sell units at below- create private, autonomous zones
master deed/declaration. Owners have mortgage. Owners buy shares in market rates for low-income buyers. w/in a municipality. There are serious
autonomy in their units, share ownership corp. in exchange for a lease. Purchasers receive 99 year ground concerns about exclusionary conduct
of common areas. Owners can amend Where owners fail to pay, others lease. and privatization of public functions.
initial covenants w/ a supermajority. have to make up shortfall. Ltd. Equity Co-Ops: Members own States can set a baseline of rights and
Voting power proportionate to Governed by bylaws and HoAs, stock in common entity, return is functions they’ll allow a CIC to
ownership. but also by state laws. capped to prevent speculation, but assume, but there are still certain
Agreements are treated like also allows owners to sell shares at a limitations that the state will be able
covenants. This is a more fragile fixed price. to impose on their conduct.
arrangement than a condo.

DIVIDING AND SHARING PROPERTY: CONCURRENT INTERESTS & FAMILY PROPERTY

 Property can be divided and shared over time or concurrently  In all tenancies, tenants have the right to possess the entire parcel unless
 Concurrent Ownership: >1 person can own 100% of a property at the same otherwise agreed
time as the others  Co-tenants have the rights to share profits & the obligation to share costs
 Family Property Rights: Family members share property rights, dist. btwn.  Main tenancies: Tenancy in Common; Joint tenancy; Tenancy by the
Separate Property vs. Community Property Entirety
DIVIDING AND SHARING PROPERTY: CONCURRENT TENANCIES
More detail on p. 32 TENANCY IN COMMON JOINT TENANCY TENANCY BY THE ENTIRETY
 Needs to be explicitly stated how it  Must have Four Unities (Time, Title,  Must have Four Unities (Time, Title,
will be apportioned if conveyed to Interest, Possession) Interest, Possession)
CREATION
multiple people  Some states assume TBTE when
 Presumed if conveyed to >1 conveying to married couple
Yah
SURVIVORSHIP Nah Interest is automatically transferred to Yah
surviving JTs
Yah
UNILATERAL SEVERANCE OR Only by death or divorce, unless
Nah Becomes TiC w/ remaining JTs
TERMINATION? previously agreed upon
Splits on question of self-severance (p.32)
Yah
Yah but jurisdictions vary on whether it Usually Nah
UNILATERAL ENCUMBRANCE?
but only your interest survives death but jurisdictions vary
Splits on specifics (p.32)
POSSESSION PROFITS WASTE
Agreement: Parties can agree to divide by time or by part Each party is entitled to a share in Where one party makes a
Rent: If one tenant chooses to live on the property at the exclusion of others, profits proportionate to their modification that lowers the value of
majority rule is that they owe non-possessing tenants rent ownership stake, subject to bargain. the property, remaining owners can
Ouster: If a tenant denies other tenant(s) possessory rights, remaining tenant If rented, proceeds need to be sue for compensation. Where
must compensate for the remaining proportional interest divided accordingly; if sold through modification increases value,
Adverse Poss: Insufficient just to exclude from possessory rights; need to exclude partition, each will also be entitled unilateral improver has to share, but
ownership rights to assert AP. to their fractional share. gets to back out their expenses first.
BURDENS CONFLICTS OVER RENT AND POSSESSION
 Basic expenses: if one tenant covers an expense, some courts req. they give  If one party makes co-habitation impracticable/impossible, there can be a
the others notice in order to recover claim for a constructive ouster, entitling the ousted to compensation. This
 Co-tenants are not obligated to pay for any one tenant’s unilateral usu. requires an affirmative act (eg changing the locks)
improvements  Any co-tenant has the right to invite guests regardless of other tenants’
 Majority: Exclusive possessors are required to pay expenses on their own up wishes. Co-tenants cannot prevent one another from doing so w/o
to the value of occupation; beyond that price point, expenses are split interfering with poss. rights.
 If a tenant builds a new structure/area on the property and rents that out, that  Where a party actually agrees to move out, ouster is impossible
tenant is obligated to share proceeds, and is entitled to recover costs of  Some states require separated spouses to pay rent to the ousted spouse;
improvement upon sale prior to dividing the profits proportionally. others don’t make exceptions for marital properties w/o affirmative ouster
 Any one tenant may move for a judicial accounting to settle disputes on
expenses
CONFLICTS OVER UNILATERAL TRANSFERS
TENANCIES IN COMMON JOINT TENANCIES
LEASES LEASES SPLITS
 Co-tenants can do whatever they  Can lease interest, but lease ends
want, incl. lease. Lessee can in turn do on death as lessor’s interest
whatever the lessor was entitled to would
do. Where co-tenants accept rent,  Some allow lease to carry past
they have to accept burdens of the lessor JTs death
lease, as well.  Lease either severs JT completely
 Co-tenants and their lessees are req’d converting ownership to TIC;
to share proceeds w/ remaining co- severs JT temporarily for lease;
tenants doesn’t sever at all
MORTGAGES
TICs: No effect – co-tenants are free to encumber their share of a property as
they see fit
JTs: (title theory v. lien theory)
 Maj: bank can only take possession on default; default during life of lending
tenant severs tenancy, creates TIC w/ bank and other JTs. Default after tenant
dies conveys prop. unburdened to surviving JTs
 Min: Title theory says lender takes title subject to “equity of redemption”
PARTITION: Disputes about management, profits, and expenses related to joint
ownership of a shared property can be settled by a division of the property
 Voluntary: All co-tenants agree to a partition, either in kind or by sale
 Forced: One tenant can seek this action w/o other tenants’ consent; court
ordered and adjudicated
 Partition in Kind: Co-tenants divide the property amongst themselves. Where
precisely proportionate division is impossible, co-tenants receiving less than
they’re due are granted owelty to compensate for the difference. This is
preferred to partition by sale.
 Partition by Sale: Court-ordered sale of property, with proceeds divided
according to each co-tenant’s share after sale. Ordered where physical division  Minority: Sentimental value of property should be respected and
is impracticable, partition in kind would lead to prejudice, substantial injury, or
when property is worth more whole than it is divided
DIVIDING AND SHARING PROPERTY: FAMILY PROPERTY
SEPARATE PROPERTY (MAJORITY)
DURING  Spouses own their own property independently, except to the
MARRIAGE extent they choose to voluntarily share it.
 Each spouse remains separately liable for any/all debts they
enter into, and creditors cannot go after a spouse’s property to
satisfy debts incurred by the other.
 Spouses are not completely free to keep all their property to
themselves during marriage—spouses have a legal duty to
support one another, and those who fail to do so may be
forced to by a court order for maintenance.
 Property earned after marriage is also owned separately.
 Property can be shared informally or formally (joint bank
accounts held in joint tenancy)
DIVORCE  Statutes provide for equitable distribution of property owned
by each party on divorce (box below)
 Courts have broad discretion to shared / shift prop. btwn
parties
 Alimony: payments from one spouse to support the other.
Generally considered exceptional now, and if awarded, it’s
temporary. Modern trend is toward maintenance to wean the
spouse off of support until independence
DEATH  Each spouse can devise their property in a will, but many
separate property states may have a forced/elective share
statute, effectively allowing the spouse to override the will to  No forced share statutes—couples own property equally
receive a stated portion of the estate (1/3-1/2)
 Spouses can give away their own property while still alive
 Without a will, a state’s intestacy statutes will usually govern.
SPLIT: Some will give the entire estate to the spouse; some will
divide between spouse and children
o Some states will divide the assets and give the surviving
spouse their share; others will allow a spouse to pick and
choose which assets they want for their 1/3-1/2 share
Divorce and Ousters
Minority: Rebuttable presumption of Majority: Party claiming ouster has
ouster in case of divorce to prove that in court
TENANCIES BY THE ENTIRETY
 Majority: Creditors can’t reach property held in TBTE to satisfy debts of
just one spouse even if the debtor spouse survives the non-debtor
 Majority: One spouse can’t use their interest as collateral w/o other
spouse’s consent
 Minority: One spouse can encumber their share of a TBTE, but non-debtor
spouse inherits the interest free and clear on debtor spouse’s death.
Creditors can attach life interest of a TBTE share, but probably won’t
defeat surviving spouse’s interest or force a partition.
 TINY Minority: Creditor can get a lien on debtor spouse’s right of
survivorship, but not non-debtor’s.
TAX LIENS: SCOTUS says one spouse can alienate property w/ the other’s
consent, and once it is sold, the government is free to place a lien on the
interest sold by the spouse
HOMESTEAD LAWS are designed to protect surviving spouses’ ownership and
occupancy rights in a family home from decedent spouse’s creditors. Can
prevent spouses from individually encumbering interests w/o mutual consent
 Maj: protect a limited dollar value of the home
 Min: provide unlimited protection for the value of the home
Theories of Justification
 Owners shouldn’t be forced into co-ownership where they don’t want to
be, but partition is inherently about taking and redistributing property
 Coase says that bargaining will prevail here and lead to the best possible
outcome, but parties aren’t always free to work under ideal bargaining
conditions.
 Majority: Property is increasingly understood as a purely economic asset
w/ readily appreciable value, and the value of a property divided vs.
unified will guide courts’ decisions on how to best partition shared
properties
protected whenever possible, irrespective of co-tenants’ economic
interests.
COMMUNITY PROPERTY (MINORITY)
 Property acquired before marriage is separately owned, as is property
acquired by gift, devise, inheritance
 All other property acquired after marriage, including income, is owned
equally by both spouses
 SPLIT: Several states allow income on separate property to remain
separate; others allow for these to be considered community property
 Transmutation: spouses can change property status between
separate/community property by written agreement (compliant with SoF)
 Community Property is owned like a partnership—both spouses must
agree in order to encumber property; CREDITORS: SPLIT
o Some protect each individual spouse from the other’s creditors unless
there is written consent to the contrary; Others allow community
property to be used to satisfy debts incurred by one; Others limit the
portion reachable by creditors
 Majority: “equitable distribution (see left),” but have to decide what
property belongs to individual spouses and what belongs to the
community;
 Minority: allocate property mechanically by giving each spouse their
separate property interests, as well as half the community.
 A spouse can devise separate property and half the community property
by will
 Intestacy: will control separate property and up to half the community
property.
 o Intestacy statutes usually exhaust every option available, but
if there are no surviving heirs whatsoever, the estate with
escheat to the state
CREATING THE POOL OF MARITAL PROPERTY WHAT IS AN EQUITABLE DIVISION? FACTORS TO CONSIDER:
 Duration of marriage, prior  Level of maintenance (more
What is marital property? SPLIT
marriages expected, less owed in division)
 Includes only property acquired during marriage; excludes anything owned
 Age, health, station, occupation,  Future earning opportunities
prior
income  Fault
 Includes property acquired outside the marriage; includes anything prior
 Custodial provisions for children  Contributions as a “homemaker”
PROFESSIONAL LICENSES PREMARITAL AGREEMENTS
 Trad Rule: void as contrary to  Voluntary if done w/ enough time
public policy for signing party to seek indep.
Majority: Not property, but spouse will
Minority: This is property, and its  Modern Rule: enforceable if counsel & relatively sophisticated
be required to reimburse the other for
value will be calculated into voluntary and not contrary to  Unconscionable? Equitable &
their support during education and for
equitable division of property public policy Fair? Maj assessed at the time of
the opportunity cost of doing so
the agreement; Min assessed at
the time party seeks enforcement
 DIVIDING AND SHARING PROPERTY: DIVIDING PROPERTY RIGHTS OVER TIME
Estate Language Duration of Ownership Transferability Future Interest
Devisable,
Fee Simple “To A and his heirs” Absolute ownership, of potentially
Alienable, NONE
Absolute “To A” infinite duration
Descendible
Devisable,
DURATIONAL
Fee Simple Potentially infinite, so long as the Alienable, Possibility of Reverter
“To A, so long as…”
Determinable condition doesn’t come to pass Descendible, Held by Grantor
“To A while…”
All subject to condition
CONDITIONAL Potentially infinite, so long as X
Fee Simple “To A, but if X event happens, doesn’t come to pass. Devisable,
Right of Entry/
Subject to grantor reserves right to reenter Alienable,
Power of Termination
Condition and retake” NB: holder of right of entry has to Descendible,
Held by Grantor
Subsequent Right of Reentry must be assert it or exercise the power of All subject to condition
explicitly stated termination in a timely fashion
Fee Simple Devisable,
DURATIONAL/CONDITIONAL
Subject to Potentially infinite, so long as X Alienable, Executory interest
“To A, but if X event occurs,
Executory doesn’t occur Descendible, Held by Third Party
then to B”
Limitation All subject to condition
Devisable,
Reversion if held by grantor
“To A, for life” Measured by life of transferee, or by Alienable,
Life Estate Remainder if held by third
“To A for the life of B” some other life Descendible,
party (contingent or vested)
If person specified is still alive
FEE SIMPLE INTERESTS
Fee Simple Absolute: Total freedom Fee Simple Determinable: Automatic Fee Simple Subject to Condition Fee Simple Subject to an Executory
to alienate at will, no associated transfer to the grantor once the Subsequent: Like f.s. determinable, Limitation: Like f.s. determinable, but
future interest, owner free to condition is triggered. Present but grantor retains the right to decide the future interest is retained by a 3rd
determine. Presumed that w/o interest is a f.s. determinable; Future when/whether to exercise right of party, not original grantor. Ownership
specification, owner in FSA is interest is poss. of reverter (held by entry. automatically shifts to 3rd party when
conveying the same. grantor) condition is violated.
ALIENABILITY OF FUTURE INTERESTS LIMITS TO RIGHT OF ENTRY
Majority: All future interests are Minority: Poss. of reverter and rights Laches: grantor cannot wait SOL: Some states have a limited time
alienable, devisable, inheritable. of entry are not alienable; some unreasonably long to assert right of within which an owner must assert
Whatever law governed the granted minority states will allow transfer of entry, cannot take so long as to the right; if not declared, then right of
interest at the time it was created the former, not the latter. unfairly prejudice another possession remains w/ grantee
governs. Adverse Possession: For the possibility of reverter, the SOL begins to run the
moment the condition is triggered; for right of entry, the SOL doesn’t begin to
run until the grantor asserts their right
LIFE ESTATES
Present interests are defined by the Reversions & Remainders: future Contingent Remainders: Remainder will only take effect upon happening of a
lifetime of a designated individual; interest in grantor – reversion; in 3rd condition that is not certain to occur or if the remainder will go to a person
created by the words “for life” in the party – remainder. Either way, who cannot be ascertained at the time of the initial conveyance (think class
conveyance. Where the interest of ownership conveys automatically to gifts—grants to a group that is described, not named specifically). These always
the one A sells to during their lifetime either interest holder upon death of have a default reversion in the grantor in case the contingency is never met.
-- > life estate of another or life estate designated individual. Holder of right Vested Remainders
per autre vie can sell it, but grantee of that right Absolutely Vested Remainders: Remainder is not subject to change or another
only has possessory rights upon death condition
Vested Remainders Subject to Open: Vested in some individual, but could be
further divided upon new additions to the class (subj. to rule of convenience)
Vested Remainders Subject to Divestment: vested remainders that could be
Destructibility of Contingent Remainders: Nearly universally abolished at this
lost due to an event that occurs after the original conveyance—fully vested if
point. Where contingent remainders are likely to vest too far into the future,
condition never occurs, but owner of vested remainder could lose their interest
they are regulated by the RULE AGAINST PERPETUITIES
if the event ever occurs, even after taking possession.
INTERPRETATION OF AMBIGUOUS CONVEYANCES; PRINCIPLES OF INTERPRETATION
Future Interest vs. Precatory Lang:  Where grantors’ intent is clear, courts will weigh that as much as possible
Presumption against Forfeiture:
 Maj: presumption against  Courts can differ on weight they give will of grantor vs. presumption against
Courts will avoid taking land from
forfeiture will guide this, unless forfeiture
current possessors where possible.
grantee is a charity—courts will  Where courts can read something as a covenant > future interest, they’ll do
Courts typically do so by striking
work in charity’s favor where that instead
unclear conveyances, provided this
possible.  Parties give away whatever interest not expressly preserved
doesn’t clearly contradict the will of
 Min: “purpose” language will be  Changed Conditions doctrine: courts may remove future interests if it will
the grantor.
read to convey a defeasible fee impede a party’s ability to achieve their purpose (also for charities)
WASTE
Life tenants and owners of Application balances: Voluntary/Affirmative Waste: Remedies:
reversions/remainders have  Efficient use of resources deliberate, harmful conduct by  Injunction
conflicting interests in terms of profit  Intent of drafters present possessor  Damages (adjusted for willingness
maximization and preservation of  Justifiable expectations Permissive Waste: Passive omissions of the waste, 2x, 3x for affirmative)
property. Waste is intended to  Rights of future/present holders that allow property to lose value for  Forfeiture (in extreme cases)
mediate by preventing current  Role of property is society the future interest holder Ameliorative Waste allowed when:
possessors from altering or damaging Ameliorative Waste: beneficial  justified by changing circumstances
property in a way that impacts its changes that increase value of  consistent w/ f.s. ownership
value to a future interest holder. property to future interest holder  doesn’t contravene parties’ intent
 RULE AGAINST PERPETUITIES
Purpose:
 Used to prevent/limit dead hand control
No interest is good unless it must vest, if at all, no later than 21 years after
 Invalidates future interests that may vest too far into the future
the death of some life in being at the creation of the interest
 Promotes alienability & productive use of land by requiring that the identity
of those who own the property be fixed within a certain period of time
2.) Identify what needs to happen for that interest to fully vest: Question is
1.) Identify future interest created in the grant not when the future interest becomes possessory; need to know when we will
know who will own the property
Subject to RAP Not Subject to RAP 3.) Identify all lives in being at the creation of the interest:
 Executory Interests  “At the creation of the interest”
 Contingent Remainders o Gift or Sale: at the time of conveyance
 Vested Remainders Subject to Interests retained by the grantor
o Devise by Will: at the time of death (wills are revocable UNTIL death)
Open…in the minority of states o Irrevocable Trust: at the time the trust is signed
 Possibility of Reverter
that don’t apply Rule of o Revocable Trust: at the point at which the trust becomes irrevocable
 Right of Entry
Convenience (usually upon death of settlor)
 Reversion
 Options to Purchase Right to  “Life in Being”
Vested Remainders
terminate an estate o A person alive (or in utero) at the creation of the interest in question
 Absolutely vested remainders
Right of First Refusal Courts are split (refer to above) who may affect vesting
 Vested remainders subject to
—up to the seller if he wants to sell, o Only includes human beings—no corporations, animals, or other non-
divestment
and he’s guaranteed market price… human things count
BUT there is also a right to a future
interest subject to a condition…
O to A for life, then to A’s children 4.) Imagine how the interest could fully vest 21 years after death of all lives in
being
 Need to be absolutely certain that the answer to question 2 has to happen
within 21 years (+9 months) of the death of the last life in being at the time
the interest is created
 Have to imagine what could possible happen if all normal practices are
suspended
“O to A for residential purposes, then This becomes a fee simple
RAP Remedies:
to B” determinable, with a possibility of
 Just cut out offending language – whatever’s left is the interest created
reverter in O
 Make sure the interest is cognizable—no creating new interests
“O to A, but if not used for residential
 Give effect to the will of the grantor wherever possible
purposes, then to B” This becomes a fee simple absolute
Modern Approaches to RAP
 Wait and See: wait 21 years after the death of the last life in being at the
Savings Clauses: CYA move where drafters want to avoid violating RAP
time of creation, and invalidate the interest if it has not vested at that point
 Option 1: Give the court or a trustee corporation the power to reform the
 Cy pres: allow courts to modify conveyances to reflect grantor’s intent
conveyance in case it violates RAP
compliant w/ RAP.
 Option 2: Insert a clause instructing readers to construe it to say that it will
 Uniform Statutory RAP: Changes common law rule for donative transfers
vest in only those that may legally take it under RAP
and makes it so that no interest is good unless it vests no later than 90 years
 Option 3: Insert a clause that says “in case this interest is void, the future
after the creation of the interest (gets rid of “lives in being + 21 years)
interest shall vest within 21 years (+9 months) of the death of the last
 Abolition of the Rule for Family Trusts
descendant of Joseph P. Kennedy (or other very famous person) who has a
 Statutory Cutoffs
lot of descendants who are readily ascertainable
 Marketable Title Acts: Some states allow future interests to disappear I not
recorded/re-recorded
DIVIDING AND SHARING PROPERTY: LEASEHOLDS
 Agreements between a landlord and a tenant to transfer possession of a Law implies a standard set of covenants into basically every lease:
property to a tenant for a specific period of time in exchange periodic rent  Landlord’s reasonable right of access
payments to the landlord.  Tenant’s right to have visitors
 A lease is both a conveyance of a property interest and a contract between  Tenant’s commitment to rent payment; Landlord’s entitlement to receive it
the two parties.  Tenant’s right to quiet enjoyment
TERM OF YEARS: Lasts for a specific PERIODIC TENANCY: Think month-to- TENANCY AT WILL: Similar to periodic TENANCY AT SUFFERANCE: Holdover
period of time determined by the month leases tenancy, but no notice is required by tenants
parties  Renews automatically at specified either party  Occurs where an initially lawful
 Can be of any length periods unless either the landlord  Many states have effectively tenant in possession of a property
 Ends automatically at the end of or tenant elects to end the abolished this lease interest by wrongfully overstays the term of
the term, but may be terminated relationship requiring notice in all leases the leasehold
prior to then under certain  Notice is required for termination,  Death of landlord or tenant will  Eviction proceeding and a court
conditions of the rental agreement can come from either party terminate the tenancy at will judgment are generally required to
(eviction)  Typical notice required is generally  Landlord may hold an absolute evict a tenant, including a tenant at
 Where the landlord retains the equal to one period of the lease right to evict as long as he gives sufferance
future interest, they hold a  Death of the landlord or tenant notice, even if the tenant has a
reversion does not terminate the tenancy defense to eviction
 If the interest shifts to a third party  Landlord can only evict by REGULATION OF LANDLORD-TENANT RELATIONSHIP
at the end of the leasehold, the providing requisite notice to the  These are regulated by both common law & local, state, and federal statutes
third party holds a remainder tenant  Procedural regulations impose formal regulations for creating them
 Death of either party doesn’t  Tenant has defenses to eviction  Statute of Frauds: Leases of more than a year must be in writing
terminate the tenancy  Regulations define circumstances where breach by each party entitles the
 Tenant has defenses to eviction other party to end their performance of their contractual obligations
CONFLICTS ABOUT OCCUPANCY CONFLICTS ABOUT OCCUPANCY – DURING THE LEASEHOLD
 When the LL asserts a claim  LL may also claim damages Transfer of LL’s Leasehold Interest Transfer of T’S Leasehold Interest:
against a T based on T’s failure to resulting from T’s breach  Question is one of priority (did he  Assignment vs. sublease
pay rent or otherwise breaches the  T can affirmatively admit that he lease the property prior to  Assignment: T gives up the entirety
lease, LL may seek either/both: stopped paying rent in response to mortgage, or v.v?) of their interest. Creates a direct
o Payment of back rent T owes a LL’s prior breach  If LL sells, new owner gets what the relationship with the LL, and
AND/OR  Ts can make counterclaims for LL would retain—LL’s reversion preserves privity between them.
o Possession of the premises damages or rent abatement for subject to T’s leasehold  Sublease: T gives up a portion of
(eviction) the period the LL was allegedly in  New owner would also receive the their interest to a 3rd party. No
breach contractual rights to collect rent & privity with the LL, and no direct
 Ts may also file for injunctive relief enforce other terms of the lease relationship unless LL agrees to a
new contract with the sublessee.
LANDLORD’S DUTY TO DELIVER POSSESSION: Landlords need to deliver Slavin: Residential landlords are free to unreasonably withhold their consent to
possession at the beginning of a lease an assignment of a lease where there is no provision that the landlord can’t do
that. This can be arbitrary or unreasonable.
Traditional: If there is a holdover Modern: Landlord is responsible for Tenant’s Right to Early Termination:
tenant/tenant at sufferance, the new eviction of holdover tenant(s), and  Several states allow Ts who have suffered from domestic violence to
tenant was responsible for eviction needs to deliver occupancy without terminate a lease early
issue  LL can end it where the T violates material terms of the lease
 LL can refuse renewal for any reason other than discrimination, retaliation
 Some states protect Ts in rent controlled units—typically can’t be denied
without just cause
CONFLICTS ABOUT RENT DEFENSES TO EVICTION
Duty to Mitigate:  In a suit for back rent, landlord can  Actual Eviction: a T is fully, Partial Constructive Eviction: LL’s
 Traditional Rule: Landlord had no only recover the difference physically barred from entry to the actions have substantially deprived T
duty to mitigate damages between the market value of the premises of the use and enjoyment of a portion
 Modern Rule: Almost all states property and the contracted rent  Partial Actual Eviction: T is barred of the property. T need not actually
require reciprocal duties to provided in the lease with the from only part of the leased leave the premises in order to assert
mitigate on landlord AND tenant original tenant, plus the cost of property this defense.
finding a new tenant  Constructive Eviction: LL does
something to make the T leave (ex:
turning off heat, water, gas)
Uniform Residential Landlord and Tenant Act (URLTA) goes further—where a Landlord’s Liability:
landlord fails to mitigate, they can recover no damages past point of failure  Traditional Rule: Constructive eviction applies to landlord/agent’s actions;
no liability for other tenants’ actions.
 Modern Rule: Landlords are responsible for all tenants’ rights to quiet
enjoyment.
RIGHT TO QUIET ENJOYMENT IMPLIED WARRANT OF HABITABILITY
 This is implied in every lease as a  There is some overlap with the Obligates LLs to provide Ts with Majority: Implied Warrant of
“covenant of quiet enjoyment” implied warrant of habitability premises that are safe and suitable to Habitability has been almost
 LL/agent cannot do anything that  Ts generally have duties to one live in (health & safety). Breach of the universally adopted in residential
directly interferes with the T’s another not to interfere with one warranty entitles Ts to move out leases, non-waivable, non-
enjoyment of the leased property another’s right to quiet enjoyment. early, or stay and stop paying/pay a disclaimable
 If LL can control 3rd parties Breach can legitimize a LL’s reduced rent until premises are Minority: Implied Warrant of
impacting a T’ s right to quiet decision to evict offending Ts. acceptable Habitability may be a default rule. If
enjoyment, LL has a duty to  Where this rises to the level of a  Where this has been violated, and waivable/disclaimable, then it’s just a
intervene nuisance, neighboring Ts may have T provides LL notice, LL gets a presumption; if non-waivable, it’s a
additional remedies reasonable chance to address it. non-disclaimable, compulsory term
 Relation to Building and Housing in the contract that cannot be
Codes: Building codes set bargained away
minimum requirements for a
building’s structural
safety/water/waste/electrical…
gives Ts statutory rights where
these codes are violated.
REMEDIES FOR BREACH OF IMPLIED WARRANT OF HABITABILITY
 Rescission: T is free to move out prior to the end of the lease term  Administrative Remedies: Inspector can be brought in and take it from there
 Withholding Rent: T can stop paying for the rental term in administrative proceedings for noncompliance with local/state/federal
 Rent Abatement: T can seek a lowered rent housing codes
 Repair and Deduct: T is responsible for the repair, and deducts costs of  Criminal Penalties (fines and imprisonment)
repair from following rent payment  Compensatory Damages: This may be an amount that exceeds the rent vs. a
 Injunctive Relief or Specific Performance rent reduction. This may be appropriate where a violation harms personal
property. These can be counterclaims or independent claims.
 CONSTITUTIONAL PROPERTY
DISPARATE IMPACT (SEE: ZONING): PROVES DISCRIMINATORY EFFECTS, NOT NECESSARILY INTENT
 Usu. facially neutral policies that π establishes prima facie case of disparate impact:
have discriminatory effects against  Statistical evidence that policy/practice has significantly disproportionate impact on protected class
Establishing
protected classes > another
Prima Facie
 Many of these involve land use - Focus is on relative percentages, not absolute numbers
Case
regulations - Effect must be “significant”; this is a highly fact-specific assessment
 Texas Dept. of Housing v. Inclusive  Policy/practice will tend to perpetuate segregation
Communities Project: Held: Huntington Test HUD Test (controlling)
o Disparate impact claims relying Step 1 π establishes prima facie case of disparate π first has to prove challenged practice
on statistical disparities alone impact: caused/predictably will cause a discriminatory
are subject to a “robust (1) Occurrence of certain outwardly neutral effect
causality” requirement--π needs practices AND
to be able to point to a specific (2) Significantly adverse disproportionate impact
policy causing that disparity on persons of a particular type produced by 
o Disparate impact claims were facially neutral acts/practices
recognizable under the Fair Step 2 BURDEN SHIFTS TO  to prove that BURDEN SHIFTS TO  to prove that challenged
Housing Act, and that the 2013 (1) actions furthered, in theory and in practice, a practice is necessary to achieve one or more
HUD regulation was controlling legitimate, bona fide governmental interest AND substantial, legitimate, nondiscriminatory interests
(2) no alternative would serve that interest with
less discriminatory effect
APPLYING DISPARATE IMPACT Step 3 COURT weighs adverse impact vs.  justification IF  FAILS -- > π WINS
THEORY TO PUBLIC ACTORS
MAJORITY RULE: Huntington: courts IF  SATISFIES -- > BURDEN SHIFTS BACK TO π to
have to balance justification for the prove that substantial, legitimate,
policy against the disparate impact. nondiscriminatory  interests could be met by less
Now HUD regulation governs. discriminatory means
Disparate Treatment (Fair Housing Act): Prove discriminatory intent
DISCRIMINATION IS PROHIBITED AGAINST PROTECTED CLASSES UNDER FHA PROHIBITED ACTS
Represent to anyone that a unit is not
Refusing to rent or sell an available
RACE COLOR available on the basis of a protected
unit on the basis of a protected status
status
Discriminate in the terms or Blockbusting: Agents lie to certain
RELIGION NATIONAL ORIGIN conditions in a sale or rental because groups of people about the influx of
of a protected status other groups to induce them to sell
FAMILIAL STATUS Print/publish advertisements that Discriminate based on handicap,
SEX indicate a preference hostile to a denying reasonable accommodations
DISABILITY protected class or modifications
EXEMPTIONS TO FAIR HOUSING ACT WHO CAN SUE? REMEDIES
 Mrs. Murphy Exemptions (§3603): Intended to cover informal rental  Aggrieved Party: The victim of the  Damages: Both compensatory and
arrangements outside of professional real estate operations. (townhouses discrimination punitive damages
w/ rented basements, not professionally managed apt complexes)  HUD: Either on behalf of the  Injunctions/Restraining Orders
 Religious Exemption: Religious organizations are permitted to discriminate aggrieved party, or on its own  Relief from HUD (see flowchart)
against those of other religions, provided their religion isn’t exclusive on the  US Attorney General: If  is For punitive damages, π must show
basis of race, color, or national origin “engaged in a practice or pattern of  intent from ,
 Private Clubs: They can limit lodging or give preference to their members if resistance,” (FHA §3614)   was reckless or callously
it’s not open to the public  Organizations that focus on indifferent to the federally protected
 Senior Housing: §§3607(b)(c) make exceptions for senior housing housing equality rights of others
 Intimate Association: Roommates are exempt from FHA protections
Complaints to HUD

Unlawful to intentionally treat members of protected classes differently in the context of the provision of housing.
 Where there is a conflict between antidiscrimination and anti-segregation, the former wins
 To win under either the FHA or under Civil Rights Act of 1866, §1982, you have to prove intent
ESTABLISHING LIABILITY FOR  To establish intent, there is typically very little direct evidence, assess circumstantial evidence—usually up to juries
DISPARATE TREATMENT  LLs can be held directly liable; there is also vicarious liability for employers for the actions of their employees/agents
o Corporate officers are not usually personally liable unless they acted as an employee or agent of the corporation, or if they
directly approved the discriminatory conduct
o Shareholders (owners) can only be held liable up to the value of their stock in the corporation
McDonnell Douglas Framework RACIAL STEERING AND
 DISCRIMINATORY SEARCH
 Realtors showing minority
customers certain housing that
they do not show whites, and vv, or
realtors withholding information
about available housing.
 Functionally excludes certain
customers on the basis of race, and
involves making statements that
indicate a preference on the basis
of race.
UNLAWFUL HARRASSMENT AND
RETALIATION
 §3617 of FHA makes it unlawful to
coerce, intimidate, threaten or
interfere with any person in the
exercise or enjoyment of any right
granted/protected by FHA.
 This can involve harassment by
neighbors.

ADVERTISING AND THE REACH OF FHA

 Communications Decency Act of 1996: immunizes sites like Craigslist from liability under FHA, but doesn’t apply where they’re responsible for creating or
developing discriminatory content
 Signaling: Ads that are deemed to cater to certain groups/exclude others (only white people featured, etc), that ad may be determined to be discriminatory.
(Reasonable viewer test)
CONSTITUTIONAL PROPERTY: EMINENT DOMAIN – PUBLIC USE & JUST COMPENSATION
DEFINED: The government’s police power, granted by the 5th Amendment,
FIFTH AMENDMENT: “…NOR SHALL PRIVATE PROPERTY BE TAKEN FOR
made binding by the 14th Amendment, to take private property for public use
PUBLIC USE, WITHOUT JUST COMPENSATION.”
in exchange for just compensation.
MAJOR QUESTIONS: AUTHORITY
 Has anything been taken?  What the state may legally achieve through police power, it can also choose to do via eminent domain.
 If there was, has there been just
compensation for it? MAJORITY: justified this by using the requirement that the government pay market value as a check on the limits of what
the government can do, subject to charge.
“FOR PUBLIC USE” “JUST COMPENSATION”

 Takings must be justified, public purpose could not be achieved in any other
way other than through a taking and transfer of an owner’s property.
 Kelo v. New London: Government can’t take private property from one
legitimate owner and transfer it to another private owner, even where
publicly ratified. (see outline for varying opinions on this)
 Question of public use vs. public purpose—courts argue that local govts are
arbiters of what constitutes a legitimate use of eminent domain
 Want to avoid destroying property values through govt action
 Defines value of property as is, not prospectively or accounting for the value
of the future use.
 This is further defined as “fair market value,” or the amount that the
property would likely sell for prior to the taking on the open market—“a
willing arm’s length buyer and a willing arm’s length seller”
 Compensation = damage to the owner, not the benefit attained by the govt.
Some states have super-compensatory statutes (125-150% mkt value)

CONDEMNATION CONDEMNATION PROCEDURE – GENERALLY DEFINED BY STATUTE

 Federal and state governments have the power to take private property; Majority: Condemning agency Exception: “Quick Take” statutes that
when taken, just compensation is owed negotiates a fair price with the owner authorize immediate seizure of
 Condemnation power is regulated & defined by statute. prior to filing suit. If parties can’t property while the government pays
o Legislature can exercise power directly, or they can delegate to an agency agree, court appoints experts to what it deems to be fair market
empowered to take property for specific purposes. determine fair mkt value and a value. The burden is then on the
o Purposes are typically school/road construction, condemnation of unsafe lawsuit will determine just owner to challenge that amount
structures compensation. Absent appeals, suit
o Eminent domain authority can also be granted to condemn private ends with a condemnation decree
property, like railroads, utilities and highway companies. that transfers title from the owner.

Leaseholds and Eminent Domain: Majority: lessee should be compensated for value of improvements on the land, based on evidence that the lessor
they are clearly a property right, and would likely have continued to renew the lease, and lessee could have alienated the lease
clearly compensable, but SCOTUS was Dissent: Government condemned leasehold, not the buildings, and because the tenant had no contractual right to renew
split on how to compensate the lease, the government was not required to compensate a mere expectation of renewal.

CONSTITUTIONAL PROPERTY: REGULATORY TAKINGS

Point at which a regulation crosses from a generalized burden to a functional ARMSTRONG PRINCIPLE: The Takings Clause bars govt from forcing a specific
equivalent of a taking that requires the govt to provide an owner/owners with owners to bear burdens of public regs which should be borne by the public as a
just compensation. whole. Where one owner/small group of owners do bear that burden
disproportionately, it can necessitate just compensation.
POINT OF INQUIRY: When does a regulation go too far? WHAT IS THE EXTENT OF THE PROPERTY BEING REGULATED?
 Magnitude of harm to the owner: a regulation can be so intrusive to an  What is the “denominator” that the diminution in value is measured
owner that compensation is owed against?
 Balance of public interest vs. private harm: less about diminution to owner’s  This is crucial in determining the extent to which a regulation diminishes the
 value, more about the extent to which a public interest may demand that value of property
diminution  “Conceptual Severance” vs. “Parcel as a Whole”
STEP 1: WAS THERE A TAKING PER SE?
 Categorical takings per se require compensation PHYSICAL INVASION RULE
 These occur where govt deprives owners of certain core property rights or  SCOTUS has held that a per se taking occurs where a law authorizes a
estates in land (eg the right to pass on fee simple property at death) permanent physical invasion of property.
 Retroactive deprivation of vested rights belonging to owners who invested  Not all physical invasions necessarily qualify—the rule articulated in Loretto
in reasonable reliance on a prior regulatory authorization is very narrow
 Judicial decisions that eliminate property rights may also give rise to takings  Where parties could have bargained for an easement or another allowance,
liability but the government imposes one instead, this can be considered a taking.
Physical invasion by a stranger: SPLIT
 Generally hold that a per se taking has occurred where an owner is forced to DEPRIVATION OF ALL ECONOMICALLY VIABLE USE (LUCAS)
accept a stranger that would otherwise be trespassing or impermissibly  Has there been a total deprivation of an economically valuable use
occupying their property. regarding an owner’s property rights?
 Fair Housing, Public Accommodations, and Employment Discrimination cases  Is the regulation at issue a restraint on property use that inheres in title?
show areas where the government can force owners to accept those that
they would prefer to exclude against their will.  When an owner is required to sacrifice all economically beneficial uses in the
PER SE NON-TAKINGS name of the common good, he has suffered a taking.
Covers uses of property that are already prohibited by common law property  State can only avoid just compensation if the nature of the owner’s estate
rights (probably can’t build an explosives plant on top of a fault line, as this is shows that the regulated use interests were not part of his title to begin
probably a nuisance per se). Simply put, you can’t be compensated for a right with.
that doesn’t actually exist, and property rights are not inherently limitless
STEP 2: WAS THERE A TAKING IN THIS CASE (AD HOC TEST)
INTERFERENCE WITH A DISTINCT OR REASONABLE
ECONOMIC INVESTMENT CHARACTER OF
IMPACT BACKED EXPECTATION GOVERNMENT ACTION
  
 Greater the diminution in value, the more likely  Modern view: reasonable expectations govern  Physical interferences are more likely to be
the regulation will be considered a taking (setting  Regs are more likely to be determined a taking considered takings
the denominator matters) where owners have already invested  The state is empowered to legislate to protect
o Penn Central: “parcel as a whole” substantially in reasonable reliance on an existing the public w/o compensating affected property
denominator statutory or reg scheme owners who suffer a resultant economic impact.
 Complete deprivation of “economically viable  Less likely if the regulation prevents the owner  This is an implicit limitation on the use of
use” will be ruled a taking unless the regulation from realizing an expected benefit in the future, property that the govt holds indefinitely
denies property rights that never actually existed or imposes a mere opportunity cost (Penn  Look to balance of priorities btwn harm
 Owners aren’t guaranteed the most beneficial Central) prevention and conferring benefits
use of their property—regs can govern economic  Tension between people’s right to reasonably
conduct even where this deprives owners of rely on existing law at the time they invest and
bargained-for K rights the legislature’s right to change the law with
changing circumstances.
PROCEDURE AND ANALYSIS REGULATORY TAKINGS AND DUE PROCESS
 Claims challenging a taking or lack of compensation are brought through an  SCOTUS found that a regulatory taking would be found if a law does not
action for inverse condemnation: owner vs. public body alleging that a substantially advance legitimate state interests.
regulation has taken the owner’s property without just compensation.  This hints at a means/ends test similar to due process analysis, but with a
 Regulations are not takings if they are properly treated as part of the burden higher level of scrutiny than the deferential rational basis standard.
of common citizenship  In 2005, SCOTUS unanimously ruled that a regulation cannot be ruled to be
 Regulation of a property will be deemed a taking if fairness & justice require an unconstitutional taking on that basis, and that it was improper to try to
a court to conclude that the public, rather than a single owner, must bear the develop a test on Due Process precedents, and that the court shouldn’t be
burden of an exercise of state power in the public interest. involved with judging the validity of regulations in the first place.
 Presupposes that owners have reciprocal obligations and rights, and that  Each approach to regulatory takings the court has proposed aims to identify
owners will have to live with substantial regulation designed to protect the regulatory actions that are functionally equivalent to the classic taking in
interests of others affected by the exercise of their property rights, incl. which government directly appropriate private property or ousts the owner
other owners and non-owners, as well as the public at large. from his domain.
 If protecting public welfare is sufficient to characterize a government action  Distinction between due process and regulatory taking is still unresolved in
as a legitimate regulation rather than an unconstitutional taking, then the applying to retroactivity
government can destroy property interests at will, without compensation, o Newly enacted laws can be unconstitutional where they interfere with
and totally undermine the takings clause. owners reliance interests
o It’s less clear that those interests are appropriately protected by the
takings clause or by the due process clause