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Easements / Covenants / Servitudes
PROMISE= Covenants & Servitudes (See also Types of Intsts)
Table of Contents
Table of Contents............................................................................1 1. Definitions of Property................................................................3
Theories and Justifications for property..................................................3 Competing Definitions of Property (Native American v. EUR)................................3 Justifications for Granting/Upholding Private Property Rights................................4 Public Trust Doctrine..............................................................................6 Public Trust Doctrine limits right to exclude when private land limits access to land in the public trust (see limits to right to exclusion)........................................7 Natural Resources / Tragedy of the Commons..........................................7 Intellectual Property............................................................................10 Property in Cyberspace........................................................................12
2. Rights of the Landowner............................................................13
Right Against Trespass (Right to Exclude).............................................13 Trespass – Common Law + Statutory Quirks......................................................13 Coase Theorem.................................................................................................. 14 Right Against Encroachment (Check AP...).............................................15 Land Improvement by Encroacher?....................................................................16 Limits on the Right to Exclude..............................................................17 Common Law + Statutory Limits........................................................................17 Constitutional Limits...........................................................................................18 Limits to Exclusion in the Context of the Public Trust Doctrine............................19
3. Rights of the the Public Against the Private Landowner...............20
Adverse Possession..............................................................................20 Requirements (detailed explanations on p. 119).................................................20 Normative Considerations / Cases......................................................................20 Nuisance..............................................................................................23 Private Nuisance.................................................................................................23 Public Nuisance..................................................................................................24 Nuisance Tests...................................................................................................24 Possible Defenses to Liability..............................................................................25 Remedies...........................................................................................................26 Nuisance Cases (Public + Private)......................................................................26
4. Bequeathing Ownership.............................................................29
Types of Property Interests / Vesting (p. 571)........................................29 Rule Against Perpetuities.....................................................................32 Overview............................................................................................................32 Hypos (from Thompson).....................................................................................34 Restraints on Alienation.......................................................................37 Waste..................................................................................................39
5. Sharing Ownership....................................................................40
Co-Tenancies.......................................................................................40 Tenancy in Common...........................................................................................40 Joint Tenancy......................................................................................................41 Tenancy in the Entirety......................................................................................43 Accounting / Partition...........................................................................43
6. Easements / Covenants / Servitudes
PROMISE= Covenants & Servitudes (See also Types of Intsts)
Marital Property ..................................................................................46 Outline of Marital Property (Thompson)..............................................................46
6. Easements / Covenants / Servitudes...........................................52
Types of Non-Possessory Interests........................................................52 Written Easements...............................................................................53 General Issues....................................................................................................53 Interpreting a Written Easement........................................................................53 Expanding the Scope..........................................................................................54 Implied Easements (Estoppel, Necessity, etc.).......................................55 Easements by Estoppel......................................................................................55 Easements Implied from Prior Use (Easement Implied from Quasi-Easement).. . .55 Easements by Necessity.....................................................................................56 Conservation Easements....................................................................................57 Prescriptive Easements (Like Adverse Possession)................................58 PROMISE= Covenants & Servitudes (See also Types of Intsts)................60 Horizontal v. Vertical Privity................................................................................61 Touch or Concern...............................................................................................62 Common Communities..........................................................................64
7. Government Regulation.............................................................66
Zoning.................................................................................................66 General Principles...............................................................................................66 Non-Conforming Structures / Amortization..........................................................67 Vested Rights (for Developers)...........................................................................68 Variances and Special Exceptions.......................................................................69 Rezoning/Spot Zoning........................................................................................69 Aesthetic Zoning................................................................................................70 Discriminatory Zoning / Alternative Use Zoning.....................................72 Direct Discrimination – (Generally) Not Allowed..................................................72 Indirect Discrimination (Complicated).................................................................72 Zoning as Growth Control...................................................................................74 Governmental Condemnation of Land: Public Use..................................76 Overview............................................................................................................76 Public Use Requirement......................................................................................77 Regulatory Takings..............................................................................79 Overview / Summary (Thompson).......................................................................79 Categorical Takings (Detail)................................................................................80 Penn Central Balancing (Detail)..........................................................................82 Takings in Time (Detail)......................................................................................83 Historical Tests (Probably Not Relevant).............................................................84
6. Easements / Covenants / Servitudes
PROMISE= Covenants & Servitudes (See also Types of Intsts)
1. Definitions of Property
Theories and Justifications for property
Competing Definitions of Property (Native American v. EUR)
EUROPEAN -- Blackstone’s description: “that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe” (EUR right) NATIVE AMERICAN – Usufructuary: One has a right to use and occupy the property, but not to exercise complete dominion / exclude others. To the extent an individual uses/improves the land (i.e. building a house or planting corn), others cannot interfere with the use/improvement. Examples of USUFRUCTUARY interests: o Community commons: public highways, parks, international waters, beaches, inter-tidal zones [most states – see public trust doctrine] o Water rights in the US: West has “prior appropriation rights,” permitting a farmer to remove water from a stream; but he doesn’t have exclusive control over it; percolates back into the stream and is available for others. o Lakes: Adjacent properties on a lake each have a usufructuary interest in the lake; each adjacent property “owns” a portion, but each owner can swim in the entire lake. Can exclude public. Native American title to property: JOHNSON & GRAHAM’S LESEE v. M’INTOSH. Native Americans do (did) not have the right to sell their ancestral lands to westerners. o Facts: Two owners (J&G) claim they own a piece of land in modern IL. M claims he owns exactly the same piece of land. J&G bought directly from the Native Americans who occupied the land, while M bought it from the state on the basis of its charter. o Holding: Indians had a right to occupy it but they lost their dominion through conquest. Thus they didn’t have the right to sell to J&G, and so M owns the land. o Basis: (1) Practical Necessity: “conquest gives a title which the courts of the conqueror cannot deny” – holding otherwise would have invalidated everything. (2) Statute: Land was held by VA before; VA had passed statute after the sale saying only state agents could buy; ex-post-facto/taking problem, but court mentions. (3) Doctrine of discovery: whoever (white man) discovers or conquers the land has an exclusive right to sell it. 3
6. Easements / Covenants / Servitudes
PROMISE= Covenants & Servitudes (See also Types of Intsts)
o Background: Indian tribes sold land to a syndicate. One member of the Syndicate was Thomas Johnson, who left (through Devise) to Johnson & Graham. M bought directly from the US. Possible that this was a dispute staged to test the title. o Nature of Tribal Rights: They had a right of occupancy but it was not exclusive and could be revoked at will. They can’t sell the property. Not clear as to rights in other respect, such as exclusion and devise, improve, develop or manage. But can’t sell the property. 19th Century Status of Native American Property Rights o Indians have right of occupancy unless US or owner explicitly extinguishes right of occupancy. o If right is revoked, not entitled to compensation under takings (Tee-Hit-Ton) o Individual Native Americans can only own land if they “assimilate” and take title like any European would. o Only the US can authorize acquisition of Native American lands (M’Intosh, Nonintercourse Act); other conveyances generally void.
Justifications for Granting/Upholding Private Property Rights
Justifications for the EUR exclusivity model: o Utilitarian Encourage use and development of the property Often set legal protections very close to accepted custom – prevent violence Avoid tragedy of the commons – if you have commons you lead to tragic situations o First possession (moral + utilitarian) – they “earned it” o Labor Theory (not that common) o Political Goals Personal freedom Democracy o Personhood (landlord hypo – kick out the 84 year-old woman? Only reason you wouldn’t do it is it’s intrinsic to her existence) Creating new forms of property (labor theory of property?): ARNOLD v. MUNDY (p. 22, note 3) Planting oysters in a riverbed does not grant the planter a property right in the oysters. o Facts: Property owners’ title extends only to riverbank. Owner Arnold plants oysters in the river and builds a fence around them; Munday, other property owner, goes across the river and harvests the oysters. Is Arnold entitled to the oysters? o Held: No exclusive right – similar to “a stranger throwing his money into my heap, when, from the difficulty of separation, caused by his own folly, I would be entitled to the whole.” o Upsides to granting property right: Encourage use or development of common property? 4
Granting private individuals land in the Western US: FEDERAL PREEMPTION ACT o Background: US was selling tracts of its land to private companies in individuals. use Eminent Domain or kick him off?) o Held: No right under the pre-emption act. o Issue: Does the pre-emption act give him an entitlement to the land. Seeks to purchase under pre-emption act. Easements / Covenants / Servitudes PROMISE= Covenants & Servitudes (See also Types of Intsts) o Downsides: Let it come from the legislature. Lives in the valley and had publicized the valley. o Distinction: In Yosemite. o Upsides to preemption: Notion of fairness. future acts gave rights to squat and them claim. leading tourists there. 37).25 if the US government attempted to sell it to someone else. and he lost. downsides to development. o Provisions: Squatters could claim up to 160 acres and buy for $1. he snoozed. encouraging development o Downsides to preemption: Possibility of windfall.6. Cf. Pre-emption gives some individuals the right to purchase land ahead of other individuals. instead retain for public benefit. the government was retaining it for a public use. Says that if US attempts to sell the land there’s a right to buy it at that price. People living there would sometimes be outbid by speculators. but see takings. zoning. RR Development: BRODER v. Prior Use/Occupancy vs. extreme diffusion of settlers (vs. o Held: Awards to Natoma. o Facts: Natoma mining co built a canal on federal land to supply mines and sell to farmers. while here it was going to a private owner. Pre-Emption vs. US hands over Yosemite Valley to CA to establish a state park. Government’s refusal to sell its property is not a violation of pre-emption o Facts: Hutchings built a hotel in Yosemite Valley and otherwise satisfied the requirements of the pre-emption act. pre-emption/options to purchase only get you in front of other private buyers. Feds making land grants to RRs awarded the land including the canal to a RR. but many of them had already been settled to some degree. or pre-emption). No contractual right/obligation. weird provision of Mining Act of 1866. NATOMA WATER & MINING COMPANY (p. LOW (p. o Legal basis: Wasn’t under pre-emption. Conservation: YOSEMITE VALLEY CASE: HUTCHINGS v.t.r. GENERALLY: Government can change its mind at any time (w. cities). 5 . 40). or can Congress change its mind? (effectively. but the US didn’t attempt to sell the land. bad to allow privatization of common property. was only retrospective (had to already be squatting).
as subject to revocation. ILLINOIS (Chicago Harbor) (p.6M estimated market value). commerce and fishing New forms: Water itself (appropriation must be balanced against public interest) Doctrinal points: Standing: Any citizen can sue to enforce the public trust doctrine. protect for navigation. It therefore must use/dispose of the lands only for the benefit of the public as a whole. Facts: IL Legislature (under Republican control) contemplated turning Chicago’s harbor over to the city itself so Chicago could operate it. beds of navigable waterways. It cannot sell or allow things to happen that impair the public interest. CENTRAL RAILROAD v. recreation and environmental purposes). the only way a court can overrule a statute is if there’s a constitutional problem. Passed law invalidating the sale. privatizing something to do it more efficiently) o (2) Or if doing so won’t impair the public trust Origin/legal basis: o Somewhat difficult. fishing. o Easements imposed on the RR: (1) must always preserve public right of navigation and (2) could only use the area for harbor development. if there’s some land traceable back to the King of England. IL can’t sell the Chicago harbor to a private company. doctrine isn’t in the US Constitution (although arguably in some state constitutions) o Origin: King of England. Changed their mind and sold it to the IL Central RR for $800k (vs. for navigation. $2.6. Examples: Traditionally: Seas. whether the doctrine extends to non-navigable readings.” 6 . if not absolutely void on its face. no money had changed hands at that point. RR brings quiet title and gets to SC 20 years later. he couldn’t dispose of it in ways that violated public interest (Magna Carta) As Applied: IL. Js vary greatly on water rights Alienation: Government can sell the property if: o (1) Doing so promotes the public interest reflected in the trusts (i. tidelands (usually to the high tide line. Easements / Covenants / Servitudes PROMISE= Covenants & Servitudes (See also Types of Intsts) Public Trust Doctrine Definition: The government holds certain lands “of special public value” as a trustee on behalf of the public as a whole.e. as can the government Open Questions: What’s the limit of privatization? Is it in the public interest? Also. 43). and any attempted grant of the kind would be held. commerce. o Ds retake IL legislature. Throught RR would do a better job than the (Democrat-controlled) city. Held: Sale (if it occurred) is invalid under the public trust doctrine – “a grant of all the lands under the navigable waters of a state has never been adjudged to be within the legislative power.
but if you know that if you’re going into help promote secondary recovery. Public Trust Doctrine limits right to exclude when private land limits access to land in the public trust (see limits to right to exclusion) Natural Resources / Tragedy of the Commons Traditional rule applying elsewhere: You own your property ad coelum at ad infernos (from the heavens to hell). CO. meaning the legislature can undo it (which it did).6. but property owner can drill anywhere on his property. KS): property owner holds title to all oil under his land at that time. NM. first-served best? First mover (rich guy) advantage o Underinvestment in secondary recovery – have to go in and push it out. LA. OK. but remains voidable. Almost TC-squared. Problem: you can’t mark individual molecules as having been your property – “I can drink your milkshake” Primary alternatives (Rule of Capture): Ownership-in-place (TX. just a matter of the titling. (2) the sale was legit. Problems with the Rule of Capture Tragedy of the Commons: Everyone has incentive to capture as much as possible. in which case the RR doesn’t have it. Exclusive right to take (CA. your neighbors get a lot of the benefits. but everyone can appropriate and remove it. Not only can everyone use it. taking title once it’s extracted o Functionally the same as OIP. Easements / Covenants / Servitudes PROMISE= Covenants & Servitudes (See also Types of Intsts) o Two possibilities: (1) the sale was void to begin with. Leads to: o Over-capitalization (too many wells) o Temporal misallocation Production too early You have to pay to store it Problem in market timing – use all at once – gluts and droughts o Non-optimal production Inefficient way to extract oil from a well. WY): no one holds title while it’s underground. you extract less in total than if you had coordinated Locational: Adjacent landowners – each wants to put wells as close as possible to the other guy’s land Safety issues o Fairness: is first-come. so less interested in doing it General Statement of the Tragedy of the Commons (Elinor Olstrom) o Appropriation Problems Appropriation Externalities • Overexploitation 7 .
ELLIFF v. CENTRAL KENTUCKY NATURAL GAS CO Facts: Natural gas company pumps already extracted natural gas back into empty well to store it. sues for trespass to get compensation. who sits atop part of the well. Manufacture a duty of care. define the nature of the property right to actually invite legislation and regulation. preventing others from using it. Re-pumping gas into an empty well (could) mean(s) it reverts back to “wild” status. “you can only pump out X per year” amidst common law rule allowing you to pump out whatever o That’s a taking (or at least will claim to be) Common law can help legislature regulate though. one negligently lets it blow out.e. o Can make it compulsory – if you get most people to agree to it you can force the defectors into it Other Commons o Fisheries o Experiments Alternatives to the Rule of Capture “Correlative Rights Doctrine” o Everyone has a common opportunity to a fair share of the petroleum o Still rule of capture in that if you don’t drill you don’t get paid o No “reckless and lawless irresponsibility” allowed ordinary care?? Say legislature says. ownership-in-place doctrine -> damage done due to the blowout caused injury to P’s property. Facts: Multiple property owners over a single well. venting the gas that allows extraction. correlative rights. Hammonds. Easements / Covenants / Servitudes PROMISE= Covenants & Servitudes (See also Types of Intsts) Assignment Problems • Arguing with each other and taking steps to try and get more of the resource before someone else does Technological Externalities • I. Held: Was negligent and liable for lost revenues from oil. saying everyone should have an opportunity to a fair share. seems hard to get from exclusive right to take. HAMMONDS v. drilling into the gas cap or using unsafe means o Provision Problems Degradation and Maintenance Voluntary Unification = possible solution o Suggests you can increase the ultimate benefits by 2-5-fold if you engage in unification o All property owners get together and sign agreement under which the field ends up being managed by one entity. allows legislature to define that. 8 . TEXON DRILLING CO. One can be held liable for negligently tapping a natural resource.6.
Thus. it would be a trespass. but give pro-rated damages or something reasonable. o No physical damages – could even say zero damages o Could also recognize that there’s a value here and that she could sell the right to store to a different company.” Rule with animals: if you let a wild animal off of your property. But: If it’s no one’s gas and it’s underlying her land. you’re going to want to sue for trespass. under the rule of capture she can pump it out. once the gas is back in the ground. it’s “something natural. Carbon capture: pump into old wells? If you find out that BP is storing CO2 under your land. o Or condemn the well (a taking) legislatively – but does that satisfy the public use test? Effectively what the statutes passed for gas storage and sequestration are doing. don’t give injunction (one person could bargain for the fees due everyone overlying the field – holdout). Could also say it’s a trespass o Option 1: give her an injunction to get it out (bargaining) o Option 2: give her damages Does wild animal analgy apply? Should it be a “domestic” animal? If I brought wild animals and put them onto someone’s property. 9 . it’s no one’s gas and therefore hammonds can’t complain.6. then it’s no longer your animal. award her the value of the storage capacity. How do you come up with a rule to make this work? Some legislatures did it by dictating a statutory amount. Easements / Covenants / Servitudes PROMISE= Covenants & Servitudes (See also Types of Intsts) Holding: Analogize to wild animals. so doesn’t work Thompson recommends: CALL IT A TRESPASS.
$3. by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. can’t patent plant but can patent genetic modification o 20-year monopoly Copyright o Sonny Bono Copyright Term Extension Act Individual: lifetime + 70 years Institution: 95 years o “Fair use”: educational use. Easements / Covenants / Servitudes PROMISE= Covenants & Servitudes (See also Types of Intsts) Intellectual Property Article I § 8 of the Constitution: “to promote the Progress of Science and useful Arts. and non-obvious o Can’t patent mathematical formula or scientific formula. either 10 . a common law action that is very similar to IP to the degree that (for instance) send an employee to work undercover at competitor’s factory. parody Trademark o 20 year.5M/year spent gathering news o INS: commercial news agency.e. nondescript period. zipper. thermos. Uses time difference to pirate east coast news from the AP and transmit to west coast. commentary. novel. all members contributed to AP and had to submit scoops first to AP. 273) Facts: AP: cooperative.6. looked at bulletin board Issue: Only whether it’s ok to take advantage of the time difference (a la is there a property interest in the news before it’s released publicly?). not good against the public Technical issues: (1) not a copyright issue. INTERNATIONAL NEWS SERVICE v. $2M/year. ASSOCIATED PRESS (p. renewable monopoly o Lose if trademark becomes generic description I. useful. (2) Quasi-property interest in the news – very limited o Limited in time (short. patents not applicable. only one newspaper in a particular region could be a member. q-tip There can be a property interest in the news. as they were paraphrasing. all other issues settled by trial court Holding: (1) this was unfair competition. however long it takes for INS not to be able to rip it iff) o Good against INS/other competitors. not a trademark. use morning edition to pirate for afternoon edition Also bribed members to give them stories ahead of time Encouraged violations.” Three types: Patents o Requirements: patentable subject matter.
There is a common-law property interest in personality/likeness: WHITE v. J for Vannah. Easements / Covenants / Servitudes PROMISE= Covenants & Servitudes (See also Types of Intsts) Basis for majority: utilitarian – nobody’s going to do it absent some type of quasi-property interest + labor theory of property (they “improved it”) + accuracy concerns + general contempt for INS profiting by doing nothing Problems: (1) INS had to resort to this because they were not allowed to report from England during WWII – too accurate . (2) They are getting the news out to a wider audience. o Kozinski dissent: we get to a point where we’re focused too much on property and we can’t do anything because everything’s so protected o Not clear how long the right should exist after death/fame 11 . SAMSUNG ELECTRONICS Facts: Samsung made a parody of Vannah White using a robot dressed similarly. possibly at the expense of accuracy. White sued caliming that it violated her right of publicity. Held: There is a common law right to likeness. (3) creates perverse incentive to publish as quickly as possible. (4) drives prices up through grant of quasi monopoly Holmes: Would have been fine as long as INS had given credit.6.
Intel tries to block but Hamidi gets around blocks. causes damage. Personal property: trespass to former doesn’t require showing of injury. Intel just did not like the content of these e-mails. Talks trash with FACE-Intel group against Intel via Intel’s e-mail system. should not privatize and completely propertize because then too many barriers and would curtail free flow of info. o Tragedy of the anti-commons: Value from Internet comes from allowing all to use and access the internet. If allow BE. Held: No trespass: o No harm was actually done. Held: Is a trespass.000 times a day (about 1-2% of info requests received by eBay). Hamidi and Bidder’s Edge would win. No physical damage to the computer system. Did not impair its functioning. Just a lot of e-mails were coming in on daily basis. Cumulative effect would cause injury to eBay. Took into account the effect such an activity would have on the computer system functioning if replicated over and over again. trespass to chattel does. allow others to do some. 12 . EBAY v. Not so much concerned with the e-mails coming in but the content (people then had to spend time deleting the messages and people had to spend time trying to figure out how to block them). not content-driven. INTEL CORP v. o Different kind of injury: Court distinguishes harm from content and harm in function. Basically. Easements / Covenants / Servitudes PROMISE= Covenants & Servitudes (See also Types of Intsts) Property in Cyberspace Trespass to chattels can’t be extended to cyberspace unless it interferes with use / causes damage. Real v. eBay did not like BE (competition). adverse consequences if held otherwise… Broader issues: o Has internet become like modern-day shopping center? Common property? E-mails are like pamphlets being passed out at a mall (acceptable)? With this line of reasoning. DoS/robot attacks can constitute trespass to chattel if activity. not robots. eBay sues because BE continues.6. eBay wanted people to access its site personally. HAMIDI (p. replicated over and over. BIDDER’s EDGE Facts: BE was auction aggregating site and accessed eBay about 100. Court said past decisions awarded damages only when actual or threatened interference with computer’s functioning. not real property. 285) Facts: Hamidi fired. Claim: Trespass to chattel—personal property.
Trespass need not cause damage to be actionable: JACQUE v. even after refusal from Jacque o “Private landowner’s right to exclude is one of the most essential sticks in the bundle of property rights” 13 . INC (moving mobile home across land) (p. Easements / Covenants / Servitudes PROMISE= Covenants & Servitudes (See also Types of Intsts) 2. 54). is no defense If you take action intentionally and substantially certain or knowing that it will cause trespass. or remain. below surface of land. Examples/Doctrinal points: D trespasses on P's land when he intentionally o himself enters the land or causes a thing or third person to do so o remains on the land after his privilege to be there has expired.6. or his reasonable mistake concerning title. full stop. Would also be a nuisance. Steenberg could use a really windy road or go through Jacque’s property. D's good faith (but erroneous) belief that he has a right to be there. allows seeming private right of eminent domain o Intentionality of the trespass. Neighbor to Jacques ordered a mobile home from Steenberg. Steenberg sells mobile homes. unlawful entry is a trespass. on above. consent. buring house. Intentional. or privilege. but then they do it anyway. Dellinger for starting fire while trespassing.The intent required is merely to enter upon the land. Courts tend to treat harms which occur during trespass strictly. Intent . [Ex. Facts: Jacques (P) own ~170 acres. Steenberg asks Jacques and he says no.] Intangible trespass possible as long as there’s physical harm. no damage Held: $1 in compensatory damages and $100k in punitive damages Reasons for Punitive Damage Awards: o Right of exclusion is central to private property (almost gut feeling) o No incentive to not trespass sans damage if the fine is only $1. Child Ds liable in Brown v. right to possession. cause the entry. STEENBERG HOMES. home on one corner. or o fails to remove from the land a thing which he is under a duty to remove. non-damaging trespass merited $100k punitive damages. Redress limited to “serious and substantial. Jackques didn’t find out until neighbor told them. then trespass. Rights of the Landowner Right Against Trespass (Right to Exclude) Trespass – Common Law + Statutory Quirks Trespass Definition (Tort): Every unauthorized.
bargaining will lead to an efficient outcome regardless of the initial allocation of property rights. the optimal outcome is to not build the fence. Maguire has a duty to fence. 59). ID has open-range rule. expense of coordinating) In reality. the optimal outcome is to build the fence.6. bargaining = one party either bribing the other to build a fence or to decrease the number of cattle. Coase Theorem Statement: If trade in an externality is possible and there are no transaction costs. i. As applied to grazing cattle: Externality = damage done to crops. the rancher will build the fence to avoid paying damages o If the cost of the crop lost < cost of the fence. still trespass if: Someone puts up a reasonable fence to keep the cattle out and the cattle break it. Assuming the Coase theorem holds. YANKE (p. ranchers) Promote particular attitudes / uphold social norms (avoiding violence. MAGUIRE v. but is supported by the Restatement of Property Cattle: common law = duty to fence in/closed range. (DEPENDS ON J/statute). Changes the calculus a little. Facts: Yanke’s a ranger in ID. Y’s cattle cross onto Maguire’s land and destroy $4k worth of crops.e. the cost of fencing in will differ from the cost of fencing out (farmer and rancher don’t necessarily have the same perimeter. General Policy Considerations in the Context of the Coase Theorem Promoting efficiency Distribution of wealth (particularly if there’s a powerful political interest. Held: No trespass because of statutory “open range” rule.e. then the owner is liable for trespass. for example). the rancher has no need to bribe (it’s an open range) and the farmer won’t be willing to pay the cost of the fence If a closed range rule o If the cost of the crop lost > cost of the fence. rancher not liable for damages to farmer for crop loss. make sure people know the law by making the law mirror social norms) 14 . Easements / Covenants / Servitudes PROMISE= Covenants & Servitudes (See also Types of Intsts) NOTE: Jacque is the minority rule. If fence-out rule. the optimal outcome is to not build the fence. you’re only worried about the distribution of wealth. instead. resentment) or if there are transaction costs (lawyers. the rancher will pay damages instead of building the fence Implications: Falls apart if people aren’t completely rational (i. Under the Coase theorem: If an open range rule o If the cost of the crop lost > cost of the fence. the farmer will bribe the rancher to build the fence o If the cost of the crop lost < the cost of the fence. the optimal outcome is to build the fence. various western states have duty to fence out/open range rule. most Js WOULDN’T UPHOLD PUNITIVE DAMAGES (particularly after Exxon Valdez).
Secondary question: intentional or unintentional encroachment? Four possibilities: D wins v. court 15 Defendant (person who built the structure on plaintiff’s land) .) Definition: The right to not have structures built fully or partly on one’s property. make the law parallel to local norms) Local Norms: SHASTA COUNTY: Generally no one knew what the law was. Reasons: worried that P will be unjustly enriched if he can bargain away an injunction for a huge sum. P wins x Inunction v. Concerns: lack of consideration of subjective value. plays out as quasi-injunction: If P wants house moved. he may bargain inefficiently because he especially values the right he already has. Coase Theorem doesn’t apply because transaction costs are high. Right Against Encroachment (Check AP. SEE EQUITABLE DAMAGES BELOW Technically P gets nothing..6. there were local norms as to how people resolved cattle disputes and it was enforced informally. usually arises when a structure is accidentally built partly on an adjacent lot. damages Winner (holder of entitlement) Plaintiff (person who owns the land on which D encroached) Injunction (Property rule) Default remedy at common law: granted almost always if intentional or negligent.e. Key Question: If encroachment. if you’re going to part with your property it should be on terms acceptable to you (preserve subjective value) P walks away with nothing. granted if cost of compliance not much greater than diminution of market value (i. should the P get damages (DMV due to encroachment) or injunction (ordering removal). not grossly unfair to impose). animosity. imperfect information. and wealth limitations. if one person has the default property right (legally). P can bargain with D to remove the enroachment Damages (Liability Rule) Granted only if unintentional and the cost of compliance with an injunction far exceeds the actual damage done. Easements / Covenants / Servitudes PROMISE= Covenants & Servitudes (See also Types of Intsts) Equity/fairness Deal with deficiencies in the Coase thorem Minimize transaction costs (again. if unintentional. Calculation: Diminution of FMV as a result of the encroachment. Encroachment can be intentional (trespass) or accidental. ENTITLEMENT EFFECT: Who you give the property right to somehow influences the value they place on the right.. Reason for injunction as default: Notion of property. For instance.
the winner can bargain up to the cost of moving. inefficiency becomes a major concern in the presence of an injunction. Land Improvement by Encroacher? Common Law: Improvement belongs to the property owner. even if they’re imperfect. the cost of complying with an injunction would be so great or it would otherwise give one party such great bargaining power that it would be unfair to grant. Injunction is default remedy: ex. o If there is negotiation. o Given lack of negotiation. period.6. Damages should include ecosystem services. Coase theorem considerations: Coase theorem likely fails in these circumstances because: No one ever negotiates post-judgment (animosity after long legal fight) So when damages are << cost of compliance. ARCHAMBAULT (p. discovered while surveying for retaining wall. PETERS v. most Js would require damages). the inefficient outcome. o Compare cost of complying with the injunction against the actual damages. Letting D get off with damages is basically a forced sale of the property to the defendant. 68) Facts: Archambault’s house encroached on Peters’ land. Equitable Defenses (BRINGING FROM INJUNCTION TO DAMAGES): Balancing the equities / relative hardship doctrine (both are the same thing). o Motive/intent of D also important: if D did it on purpose. but unlikely to get this in court. Say someone accidentally builds a shopping mall in a nature preserve. Held: Peters get injunction (minority rule. 16 . Easements / Covenants / Servitudes PROMISE= Covenants & Servitudes (See also Types of Intsts) will order it. covering 10% of the lot. but will make P pay for it. generally calculated as the diminution of FMV (bring in appraiser) Equitable estoppel: If you stand by and allow encroachment. (still true for bad faith cases) Statute: Good Faith Improver Rule (by statute). very unlikely to get injunction. Person whose land was encroached gets to choose between: Keeping the improvement and paying its fair market value Give up the property and get paid for the fair market value of the land CHECK ADVERSE POSSESSION Damages don’t necessarily have to be FMV: Nature conservancy hypo. don’t want to give him a mechanism to force the sale of the property. the loser will likely comply. o Concerns: subjective value of the land to the D. getting him a huge windfall So damages can be more efficient/fair under certain circumstances. Neither P nor A owned their lots when the encroachment occurred.
disability or medical condition o Interpreted very broadly to include all arbitrary discrimination Places of “public amusement” can exclude arbitrarily: BROOKS v. o Basis: (1) importance of those facilities/services to the public/monopoly power (i. 1964 (Title II) California Civil Rights Act o Precludes any business establishment from excluding on the basis of sex. land. lone hotel late at night). Statutory Protections Civil Rights Acts of 1866. Limits on the Right to Exclude Common Law + Statutory Limits Traditional Exceptions: Tort justifications/excuses for trespass Necessity: privilege to trespass for the purpose of avoiding serious harm to person. Also includes public officials (i. CHICAGO DOWNS ASSOCIATION (p. importance of public interest in the property. Holding: Citing unjust enrichment. Easements / Covenants / Servitudes PROMISE= Covenants & Servitudes (See also Types of Intsts) Good Faith Improver Rule as applied: SOMERVILLE v. (2) expanded due to arbitrary exclusion as pretext for racial bias. 79).e. ancestry. national origin. JACOBS Facts: Company built building on the wrong lot. or chattels – yours or a 3d persons.e.6. race. required landowner to either pay for the improvement or sell the building + the land to the enroacher. 17 . Allows D to commit what would otherwise be tort of trespass or conversion. o Courts have been EXPANDING based on importance to the public. and separation between ownership and management (guy deciding who gets in is not the owner). Raises ? of compensation to parties who are injured by the policy. D doesn’t lose privilege b/c he acted negligently o Value of life greater than nominal trespass damages o Public necessity – general community safety concern (sacrificing buildings) creates perfect necessity – city protected from liability. cops) doing their duty o Private necessity allows D to use P’s property but D must compensate for damage – incomplete or conditional privilege (Vincent) 72-3 “Public Calling” duty: hotels. color. Facts: Racetrack wanted to exclude members of a betting club on the ground that they were winning too much. No provision to remediate. religion. o No other options available to D. Owner sued to keep the building. monopoly power. common carriers must accept anyone on property except with “good cause” for exclusion o Most courts haven’t extended to places of public amusement (see Brooks).
etc). then worry is that shoppers go elsewhere. Company owned all of the property in the town. Downtowns were used for freedom of speech. and (3) this is about controlling behavior. NOT IN SCOPE OF PUBLIC CALLING DUTY. Policy considerations o Effectively punishing the mall for being too successful. then there’s no problem. NOTE: MOST STATES DO NOT FOLLOW THIS Other state case: State v. must be extended to the “new” public square—the mall. or (3) wanted insurance that was too expensive for them to afford. o Lilian DeBeers argument: collective action problem. Alabama: SC extended free speech to a company town on grounds that the company had assumed the role of a municipality. Easements / Covenants / Servitudes PROMISE= Covenants & Servitudes (See also Types of Intsts) Key Q: Is the nature of their business such that it should be subject to the public calling duty? (similar challenges brought to amusement parks. no controlling statute. shopping malls must allow demonstrations. o Have monopoly over large aggregations of people – only way protesters can actually come into contact with the public. The malls either (1) said no. and the shopping centers are going to argue that there was good cause in that they’re bothering the shoppers. (Collective action problem). Held: Track has right to exclude. But if all shopping centers are forced to do so. not exclusion. (2) they don’t want the services of the mall. as traditionally exercised in the public square.” fulfilling a formerly public function o Upholding freedom of speech. or (2) would have an out-of-the-way community booth that they were limited to. nor compelling bargaining asymmetry (monopoly). we have to extend free speech for malls. Could make a reasonable argument that they’re sort of similar. The more private enterprises fulfill traditionally public functions / advertise their openness. SC didn’t take it further under the federal constitution and said specifically it was only limited to company towns. Construe public calling duty as it’s laid out in the common law.6. but the protesters are still subject to reasonable restrictions. Legal aid wants to get access to the migrant workers to give legal advice to the workers. Facts: Group protesting desert storm and wanted to pass out leaflets against the war. Constitutional Limits Free Speech Rights: NJ COALITION AGAINST WAR IN THE MIDDLE EAST v. but precedent is not). but SC still extended free speech. Shack – Large farm with resident migrant workers. RELEVANT FEDERAL CASE: Marsh v. Basic argument by P: Malls are the new downtown business districts. Can the shopping centers decide to exclude people who want to protest the war? Held: Under NJ Constitution (wording of US constitution the same. JMB REALTY CORP. subject to reasonable conditions owned by management. also brought 18 . dress shops excluding teenagers. o Shopping malls are the new “town center. If one mall allows leafleters. the more likely they are subject to the public calling duty. but (1) you could always exclude for good cause. and PC really only relates to provision of services. Given the withering of downtowns.
6. Rebalances private property rights and says that matters of private property can change over time. BAY HEAD IMPROVEMENT ASSOCIATION (p. Court says yes. it is a quasi-governmental institution (not dispositive) Monopoly – if there’s a public beach to get to the tidelands. there was public access. (big one). CT in 2001 held that private beaches had to be open to the public so members of the public could express themselves. 94) Facts: Beach association owns much of the dry and area in a particular municipality. and (2) actually meaningfully use the tidelands by having a place to rest (i. Key Q: is there a public right to cross the dry sand to (1) be able to reach the tidelands. Public beaches in context of freedom of speech (JOKE)? Go onto private property and say “I’m here to exercise my freedom of speech”. Limits to Exclusion in the Context of the Public Trust Doctrine Inaccessibility of land in the Public Trust due to enclosure by private land may give right of access: MATTHEWS v. Owner of the farm says no.e. o Factors for consideration: How the property is otherwise used – in this case. 19 . But here. can they put their beach towels on the private lands)? Holding: No absolute right. Basis: A right of access to the tidelands is meaningless if you can’t get there. but have a reasonable right of access and can reasonably use the area of the dry sand next to the tidelands so that you can take a step away from the ocean. you probably don’t have a right of access. Easements / Covenants / Servitudes PROMISE= Covenants & Servitudes (See also Types of Intsts) along a health care provider.
119) Actual Possession o Indicators vary by the nature of property. planting. it was open. but usually not necessary (although some Js require it). Rights of the the Public Against the Private Landowner Adverse Possession Requirements (detailed explanations on p. Continuous for Statutory Purposes o Tacking: Ok if multiple people occupy the land linearly over time (i. Easements / Covenants / Servitudes PROMISE= Covenants & Servitudes (See also Types of Intsts) 3. PRESCRIPTIVE EASEMENTS (subsequently): Can adversely possess the right to do something on someone’s land. continuous. railroads wanted an easy mechanism to learn if squatters were occupying land. Normative Considerations / Cases 20 . upkeep. it’s impossible to adversely possess the property.e. Paid Taxes (some jurisdictions) o Originated largely due to railroad expansion. o Complicates when it’s not a parcel of land. p1-> p2 -> p3). construction. o Most: can’t ripen into title when others making similar use: Ranches in Sanchez didn’t get AP over graze land because no single person had exclusive possession. you were the only one who did it. i. “OK you’re welcome to be here” and then you say nothing. harvesting. if owner grants permission (AND you accept). (taxes doesn’t apply). Run through the factors: you did it. Exclusive o Can’t share occupancy with owner. o Minority follow Maine Rule. It can’t be a morass of people in and out (E 13th Street Homesteaders). but include: cultivation. such as having a party in someone’s barn. won’t break if owner says.6. Adverse (Hostile and Under Claim of Right) o Occupation must technically be a trespass. so they had states pass statutes requiring adverse possessors to pay taxes. adverse. if innocent encroacher. an apartment in a building or an easement Open and Notorious o Can’t be clandestine (see Marengo Cave) o Actual notice sufficient. but there generally needs to be privity between them.e. must intend to keep land even if it turns out not to be his.
land sold to Beacon Hudson Mountain Corp in 1978. 113) Facts: P thought his land extended further than it did on the basis of a badly written title. She dies in 1962. Can P gain AP by mistake? (period while P still mistaken must be part of the SoL calculation) Holding: Yes. o City knew they were there and tried to enforce their rights (not per se neglectful) o Personhood is weak because no one person was there for an extended period o Possible discrimination against the homeless Can AP land by mistake in some jurisdictions: QUARLES v. paid utility bills. at least of the type in Ray. Normative: This doesn’t hit the primary bases for AP o Doesn’t encourage development. Personhood: “A thing which you have enjoyed and used as your own for a long time. Folks who otherwise would be homeless were living in those apartments. whether property or an opinion. In 1988. Easements / Covenants / Servitudes PROMISE= Covenants & Servitudes (See also Types of Intsts) Normative factors: Courts have general bias towards development. Rob and Margaret Ray move in in 1963. A legal ruling that the APs have to leave would break continuity for statutory purposes. Held: No dice o Not continuous: No formal agreement between the people who inhabited the property and no one person had stayed there for the 10-year period. BEACON HUDSON MOUNTAIN CORP (p. hurts under open and notorious.” (Holmes). They probably made some improvements and combined over a lengthy period of time to satisfy that 10 year period. Incentives: Encourages property owners to actually enforce their rights. the city had sealed the buildings multiple times and kicked out the inhabitants. 102) Facts: 1931: Rose Ray rents on a multi-decade lease. Also. As applied (east AP case): RAY v. ARCEGA (p. this was transferred without anyone looking into it. Possession can be Hostile. Terminated lease in 1960. so wasn’t continuous. takes root in your being and cannot be torn away without your resenting the act and trying to defend yourself. Generally to break: bring a lawsuit to eject and win that lawsuit. but kept using. kept off trespassers and otherwise satisfied the requirements for AP Held: It’s their property under AP Privity required for “tacking”: EAST 13th STREET HOMESTEADERS’ COALITION v. P files action under adverse possession. LOWER EAST SIDE COALITION HOUSING DEVELOPMENT Facts: NYC is planning a FHA redevelopment of a building on 13th street. Was informed by D that it wasn’t. Bias against the neglectful. But BE CAREFUL-> 21 .6. but may limit continuity as well (court doesn’t say). They had made improvements. possessors are doing something constructive with the property. occupied the property one month out of each year.
concern that a public servant would screw up. he takes possession of the land of another believing it to be his own. Easements / Covenants / Servitudes PROMISE= Covenants & Servitudes (See also Types of Intsts) o Be careful with this: Court merely said that the D didn’t show mistake was the cause of the possession. o Court makes bizarre distinction between: (1) taking possession of the land of another intending to claim only to the true boundary and (2) acting on a mistake as to the true boundary. they meet the requirements for AP Held: AP allowed – follows trend of courts treating states like private entities when they act like private entities. no public purpose in the particular structure). making checking for APs difficult. don’t want to punish the community for that. individuals overseeing government land don’t have the same connection to it/motivation as private landowners do. BOROUGH OF BOGOTA: AP of state-owned property allowed if the state’s acting as a market participant (i.6. (1) is not adverse. only a factor. Repudiation of Maine Rule requiring a demonstration that P intended to occupy land even if he knew it wasn’t his. Facts: Family used adjacent. City got the land through a foreclosure/tax lien. Sovereign Immunity In General: Rooted in the king of England – you can’t AP his land. Other than sovereign immunity. Also. Cf. Courts still uphold for public property put to a public use. and some for public property with no public use. US owns such a massive amount of land. 22 .e. Yosemite: Government wanted to put the land to a public use. city-owned lot for parking and recreation. while (2) is – “intent to retain possession under an honest belief of ownership is adverse possession” Sovereign immunity from AP – traditional but there are exceptions: DEVINS v.
g. people aren’t entitled to sunlight. especially if at unreasonable times o Courts more likely to find sound nuisance than light nuisance Unmaintained house Light pollution – amusement park comes and destroys view of stars Smoke. o Only exception: Prah v. Definition: RST §821D: “nuisance is a nontrespassory invasion of another’s interest in the private use and enjoyment of land. Easements / Covenants / Servitudes PROMISE= Covenants & Servitudes (See also Types of Intsts) Nuisance Private Nuisance Problem: Two adjacent property owners each use their property legitimately. block sunlight to pool. 681) Not Nuisance • • • • Yelling at kids (trivial) Visually offensive uses o Flipping off window Fence Block light – e. air pollution o McCarty v Natural Carbonic Gas Co (Soot from factory (clean coal possible) • • • • • . resulting in one property owner having fewer rights than he otherwise would. sometimes exception for malicious blockage Air View • Nuisance Noise o Neighborhood rock band.” It generally must be: (1) intentional and unreasonable (2) negligent or reckless (3) actionable under the rules governing liability for abnormally dangerous conditions or activities (conditions in p. Maretti where owner whose solar panel was blocked by other’s structure successfully got nuisance o Also. but one use interferes with the other use. 23 .6.
in a public nuisance they look at the utility v. . 13435) Epstein: The Substantial Invasion Test: Court looks to see if there has been a substantial physical invasion of the plaintiff’s property (Epstein. the harm to those before the court.6. like the interest in a healthy environment. 134-35) The Community Norms Test: Court looks to see whether the change in land use “is perceived as unneighborly according to contemporary community standards" (Ellickson. the harm to the public.. or (2) A private party who had suffered special damage different in kind from that suffered by the public at large. a plaintiff must be either: (1) A public official. Key distinction from private: whether the activity impacts general public rights. polluting factories. 136) o The Locality Rule: "Whether anything is a nuisance . Easements / Covenants / Servitudes PROMISE= Covenants & Servitudes (See also Types of Intsts) Public Nuisance Definition: “an unreasonable interference with a right common to the general public” (RST §821B). Standing Requirement: To bring a public nuisance claim. 134). 142. rather than a private interest in land.. some courts will enjoin if practical certainty of substantial damage. they look at the utility v. Nuisance Tests Primary Restatement Approach – Economic Balancing Test: Court looks to see whether "the gravity of the harm outweighs the utility of the actor's conduct" (§ 826(a). § 829A. 134) Alternative Restatement Approach – Fairness Test: Court looks to see whether action is causing severe harm greater than the plaintiff should bear (§ 829A. An activity can be both a public and priate nuisance. by virtue of their owning property. have suffered special injury. is a question to be 24 . SOME courts say that property owners. storage of explosives in a major city. Common Examples: brothels. 136 – also § 821D. Prospective Nuisance: usually can bring only if it’s a nuisance per se (it’s a nuisance at all times under all circumstances). (NOT a matter of degree – can’t meet by showing especially severe injury) a. Alternative Restatement Approach – Economic Feasibility Test: Court looks to see whether action is causing serious harm and whether compensation is economically feasible (§ 826(b). but RARE The reason to bring a public nuisance is that in a private nuisance.
6. Easements / Covenants / Servitudes
PROMISE= Covenants & Servitudes (See also Types of Intsts)
determined, not merely by an abstract consideration of the thing itself, but in reference to its circumstances; what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey; and where a locality is devoted to a particular trade or manufacture carried on ... in a particular and established manner ..., judges and juries would be justified in finding ... that the trade or manufacture ... is not a private or actionable wrong." Sturges v. Bridgman, 11 Ch. D. 852 (1879).
Possible Defenses to Liability
"Coming To The Nuisance" Doctrine (Note 2, pp. 164-165) – almost NEVER works in public nuisance cases; in private nuisance cases, it’s a factor, but not a bar (RST) Abnormally sensitive use of land by the plaintiff (dissent in Prah v. Maretti, at p. 142; Note 5, p. 145) Freedom of Expression issues (Note 4, pp. 144-145)
6. Easements / Covenants / Servitudes
PROMISE= Covenants & Servitudes (See also Types of Intsts)
Injunctions o Balancing The Equities (or the “Relative Hardship Doctrine”). If the benefits of the injunction (lack of nuisance) outweigh the costs (economic loss), issue the injunction: Boomer Atlantic Cement Co., p. 151 Get into weird land under primary RST: Is a nuisance only if the harm outweighs the benefit, so injunction or bust, but Boomer brings damages o Other Defenses: Laches, Estoppel, Unclean Hands Periodic or Temporary Damages o Concern is that they don’t protect personal value; or if a private nuisance case, will have no benefit for parties not before the court. Also avoid environmental end. o Some courts have granted damages in deference to legislature Permanent Damages: Boomer, p. 151 o Relatively new phenomenon The Fourth Quadrant: Spur Industries, p. 158
Holder of entitlement
Method of Protecting entitlement Property Liability Nuisance allowed Plaintiff receives damages
Nuisance allowed; no damages
Nuisance enjoined. ∆ receives damages. Spur: Spur moves, Del Webb indemnifies
Nuisance Cases (Public + Private)
(PRIV) Early example of a nuisance: McCarty v. NATURAL CARBONIC GAS CO (p. 129) Facts: Guy lives next to a factory belching smoke. He lived there before the factory moved in. Factory came in, was using soft (bituminous) coal instead of anthracite coal, which doesn’t use much smoke. Held: Is a nuisance: Never state an explicit test, implicitly balance: 26
6. Easements / Covenants / Servitudes
PROMISE= Covenants & Servitudes (See also Types of Intsts)
o It’s feasible to abate it by using anthracite coal o The extent of the injury is significant – black belching smoke surrounding his house (extent rather than nature of injury governs) o Didn’t come to the nuisance o Smoke is a trespass in some jurisdictions (definition of T varies on size of particle – no T if it’s just a gas) o Offender causing the damage is also a foreign corporation o Cf. Plants there because there were springs there; not much of an alternative (PRIV) Sunlight obstruction held to be a nuisance (RARE): PRAH v. MARETTI (138) Facts: Solar water hearter obstructed by new construction on adjacent lot. Holding: Held to be a nuisance. Basis: Three policy considerations drove not calling this a nuisance under the traditional doctrine (court things they no longer apply). o Protect landowner’s rights o Light only of aesthetic value o Promote development Court thinks they no longer apply: o Society increasingly limiting landowner’s right o Light serves a purpose – energy (this was right after the energy crisis) o Development no longer really worth promoting. Other side: o Nuisance is a “nontrespassory invasion of one’s use and enjoyment” – there was no invasion here (PRIV) Sunlight obstruction NOT a nuisance: SHER v. LIEBERMAN Facts: Tree grew too high to cover solar panel. On Stanford campus. Found not a nuisance. New CA statute: If trees there first, then can continue to grow. If solar panels there first, trees can’t be planted and then allowed to grow. (PUB/PRIV) Economically important factor not enjoined but must pay damages. BOOMER v. ATLANTIC CEMENT CO. Facts: Homeowners live near enough to the Atlantic Cement Co that they suffer from pollution which is pouring out on a daily basis. Considered as private nuisance, likely standing problem. Holding: Is a nuisance, but relegate Ps to damages because they think the value of the cement company is so important to the local community. Damages: Give them “permanent damages” – figure out calculation for all future damages, discount for present value, and then award it all at once. o With perm damages, it has no incentive not to increase damages o With temporary damages, it will want to avoid them in the future o Boomer used a balancing the equities defense to move from injunction to damages. o Also unclean hands – if you pollute, courts won’t give you an injunction.
6. Easements / Covenants / Servitudes
PROMISE= Covenants & Servitudes (See also Types of Intsts)
Buuuut: If court’s instinct is correct, then it should not be a nuisance under the economic balancing test. If it fails under economic balancing, then you should get an injunction, but they give damages. Case for Injunction o Damages don’t help personal value o If there are other injuries, the damages only pay parties before the court. o Achieves environmental end Court seemed to want to defer to legislature (PRIV) public nuisance + coming to the nuisance = shut down, but P indemnifies. SPUR INDUSTRIES v. DEL E WEBB DEVELOPMENT CO Facts: Rancher (Spur) had a bunch of cattle in AZ. When Spur was built, Youngtown was there, but out of range of the smell. Webb starts developing “Sun City” between Youngtown and Spur; Spur expands into range of very large CAFO. Sun City builds out and eventually gets within the critical distance where the community can smell the CAFO. Sales drop precipitously and existing homeowners are mad. Brought as public nuisance: Special injury: says because they were selling the homes, that made them different as the rest of the public; AZ went for it Held: This is a public nuisance, grant injunction. They’re not going to stop the development of Phoenix in order to protect a CAFO. BUT P must indemnify Spur for cost of moving or shutting down. Able to do this as a court sitting in equity -- FLEXIBLE Coming to nuisance: CAFO argued were there first and developer benefitted from low property values because of CAFO; coming to nuisance rejected—almost never works in public nuisance cases Policy considerations: o They technically made the bringer of the public nuisance suit pay the cost of dealing with it – undercuts incentive to sue under special injury! If a public official had brought the suit, then probably wouldn’t have gone this way. o Dell Webb could have walked away from the injunction in order to not pay damages. Some courts could say that because it’s a public nuisance anyone can enforce and then we’re gonna make Dell Webb pay, but probably a stretch.
Can transfer inter-vivos. (see chart on 573) Detailed explanation with language Name Fee simple absolute Rights Perpetual ownership. person who gets personal property is the legatee If person dies without a will.6. Reversion Remainder “to B for life” Reversion Remainder (“then to C”) 29 . Bequeathing Ownership Types of Property Interests / Vesting (p. he is said to have died intestate. C’s interests terminates upon recipient’s death. Easements / Covenants / Servitudes PROMISE= Covenants & Servitudes (See also Types of Intsts) 4.if recipient sells to C. Int in 3rd Party N/A Fee Tail (not in use today) Life Estate FSA that reverts if there are no lineal descendants. all rights (subject only to statutory/contractual restrictions) Language CL: “to B and his heirs” More recently: “A to B to hold forever” or “A to B in fee simple absolute” or “A hereby conveys to B”. 571) How to determine who gets what: If there’s a will: person who gets real property is the devisee. these constructions convey LE if inter-vivos (statutory construction. Primogeniture + keep in family. Length = per autre vie (by another’s life). but if selling. Int in Grantor N/A Fut. if state allows. property goes to his heirs according to the statute of descent. often hard to find buyer. only does for one generation Lasts for the life of the transferee. including in CA) “to B and the heirs of his body” Fut.
Marhenholz o Note that most states allow intervivos transfer reverter. allow intervivos transfer of right to reenter 30 . This is NOT a contract so no privity required. So if condition violated. interpret as condition subsequent) Same as Fee Simple Determinable except without automatic reverter. then to C” “to B. that B continues to use the property as a horse ranch” (this construction similar to FSD. possibility of reverter not transferable intervivos. N/A Fee Simple Subject to Executory Limitation Leasehold Same as Fee Simple Determinable. O does inter-vivos transfer: if determinable. then A may enter and retake the premises” “to B. tenancy at will (terminable by either party) or tenancy at sufferance (possessory interest held by a person who had an estate in the land but is now term’d) N/A Executory Interest Reversion Remainder in 3rd-party transferee. and in the event the land is developed. sub-lesee is not in privity) Practical import of distinction between Determinable/Subject to Condition Statute of limitations for exercising right of entry (usually shorter than AP statute of limitations) Historically. provided. however. If condition subsequent. then A may enter and retake the premises” “to X. automatic interest. but fewer. for either a term of years. O only had right of reentry. or else it reverts (abolished in CA and KY. C still subject to condition. Easements / Covenants / Servitudes PROMISE= Covenants & Servitudes (See also Types of Intsts) Name Fee Simple Determinable Rights Rights of FSA until it “determinates” upon the occurrence of a specified event. which can’t be transferred. for periodic tenancy (month to month).6. right to enter. but if X uses for commercial purposes. (be careful. but with a remainder to a third party Right to use. and most. but if the land is developed. subject to contract. but is not an FSD) “to B so long as the land is maintained in its natural condition. Int in Grantor Possibility of Reversion Fut. If B sells to C. [otherwise revert to A]” Fut. goes to transferee. then to C” Right of entry / power of termination (some states impose SOL on right of entry). Int in 3rd Party N/A Fee Simple Subject to Condition Subsequent “to B on the condition that the land is maintained in its natural condition. gives grantor right to retake if he wants to Language “to B so long as the land is maintained.
doesn’t vest until Jill dies Transferability: in some jdx. then to B. o Future interest in B is NOT vested because there is a condition that has to be met. If life estate to Mulder — my remainder interest vested so I can sue. o B has vested remainder interest: We know who is getting property. O to A for life. o Fee simple subject to executory limitation and B then gets fee simple absolute.g. then to B and her heirs. but something that must occur. o Once B dies. then to B and her heirs. Jill. Maybe B will also be dead. then to my grandchildren who are still alive” o Ambiguity: alive when will-writer dies or when Jill dies? Law will chose “time that will-writer dies” because that vests immediately. A. O to A for life. but if B does not survive. Easements / Covenants / Servitudes PROMISE= Covenants & Servitudes (See also Types of Intsts) Vesting: A future interest is vested when two things occur A future interest will inevitably become “possessory” o Not a condition that might not occur (stops being used a beer garden). Vesting examples: O to A so long as used as a beer garden. 31 . for a taking o If someone gave B Zots so long as beer garden. I can’t sue – just remote chance I’d get land. then to B if she survives A. O to A for life. otherwise. then to the heirs of B. but he will get interest and is clearly known. otherwise to C.6. then to B” –B’s remainder interest is vested. O to A for life. o Don’t know who heirs will be. then to C. for life. o A has current possessory interest. Significance of Vesting: Early vesting: Can determine who gets property in ambiguous will/gift: Law prefers early vesting o “To my daughter. can only sue if vested interest o For waste. B has vested interest. C has contingent interest. e. it vests since we then know who the heirs are. Inevitable termination of prior estate. o Contingent interest in B and in C. o A has life interest. A’s death We know WHO gets the interest when it becomes possessory o That person can be dead O “to A for life. o Don’t know if B will survive A. only vested rights transferrable o Rights of entry not transferable under traditional common law b/c not vested Ability to sue: often when just own future interest. o Contingent remainder interest in B. then to me. B will get interest after A dies.
beneficial reversions. B. o Beneficial life estates. More willing buyer this way since trustee can sell.” Basis: Prevent people from dictating how property will be used too far into the future Increase sale-ability of property by cutting off the date before which wills/estates could dictate its disposition. beneficial remainders. 32 . who’s death it’s based on) will often point you to an obvious measuring life. Rule Against Perpetuities Overview Statement: “A future interest in a transferee is void if there is any possibility that it will not vest within twenty-one years after the end of all lives in being at the creation of the interest. which then passes to beneficiaries. but is responsible for managing for the benefit of the benficiaries. see if there is an obvious measuring life (e. o Can be flexible in setting measuring life.A is the “measuring life” in both instances). has to be someone within the scope of the agreement (A. 30 years) (620-621) (2) When will the interest inevitably vest or fail? o If the future interest is held by more than one person (i. be suspicious that there’s a violation of the rule." (3) If that interest will inevitably vest or fail 21 years after the death of someone currently alive (“in being at the creation of the interest”).e. such as options to purchase lease agreements (Colter) o Some states limit possibility of reverter and rights of entry to set period os time (e. Steps to analyze: (1) Is future interest in grantor? If so. When it vests (i. buy bonds with your estate/property and then give you interest. only applies to transferees o If transferee = charitable organization. or a child in being) Second. the question under the Rule is what is the first point at which the interest of every person in that class will inevitably "vest.g. etc. Easements / Covenants / Servitudes PROMISE= Covenants & Servitudes (See also Types of Intsts) Trusts: Grantor/devisee puts all property into a trust protected by trustee.e to my grandchildren). Trustee has fee simple absolute.g. he can sell property if he wants.6. in “O to A if she reaches the age of 25" or “O to A’s heirs” -. OK under RAP. then NOT OK under RAP.. probably doesn’t apply o Js vary on whether it applies to commercial interests. etc. If it doesn’t.
LTD v. “O to Lois so long as the land continues to be used as a beer garden. Easements / Covenants / Servitudes PROMISE= Covenants & Servitudes (See also Types of Intsts) o If you can make a hypo. however.” Then.” Malcolm’s interest violates RAP. if land not used as a beer garden. if he dies. no issues with frozen sperm If violates: Courts won’t invalidate the whole grant. not with what is “probable. Assume (and this often is critical) that anything could happen during this period (in particular assume that any women could have had a baby during this period even if there is no evidence that anyone was pregnant).” (lifetime conveyance). to my grandchildren. you have proven a violation of the rule. Savings clause: “if RAP violated. If not. reverts to O. Russell wants out so tries to violate with RAP. so is subject to rule against perpetuities Holding: Invalidate because it could vest after the statutory period Alternate way to handle: Read in requirement that the subdivision must be completed within a “reasonable amount of time” (standard contract interpretation). Becomes “To my husband H for his lifetime. Then kill off everyone who was alive at the earlier point.” If something could happen in the Bible. Does the interest immediately vest? If not. go to someone who doesn’t violate” 33 . it’s fair game under the Rule Against Perpetuities.” no matter how absurd it might sound.e. RUSSELL (p. then to my children for their lives. then to Malcolm. Same policy problem.” That said. are you absolutely certain that it will vest within twenty one years? If so. to my grandchildren.” Voided business option agreement on basis of RAP: COULTER & SMITH. the rule generally ignores “science fiction. then to my children for their lives. so struck.6. Remember that the Rule Against Perpetuities is concerned with what is “possible. o Would normally be a corporate contract claim. Or make it terminate upon his death (personal to Roger Russell). you may be home free. and upon the death of my last surviving child. and upon the death of my last surviving child. try the following hypothetical: Wait a couple of years after the gift/grant/devise is made. 615) Facts: Russell gives Coulter & Smith LTD an exclusive option to purchase property that he owns after they’ve completeted a subdivision. but this creates a future interest in real property. O to Lois so long as the land continues to be used as a beer garden. Subdivision delayed. then to Malcolm. he’s out. o To the first grandchild of A who reaches 21 – strike fully o “To my husband H for his lifetime. This would have made it inevitably vest or fail within the period. then it’s void: If you’re suspicious. Quirks/Exceptions Does not apply if both present and future interests held by a charitable organization Follows what was possible biblically – i. just the part that violates the RAP o So.
less likely given the language. A’s future interest will vest if and when B is elected to public office. To A so long as he remains unmarried. Hagemann v. So A’s future interest will vest or fail by the end of B’s life. Use B as your measuring life. O (either a possibility of reverter or. rewrite using cy pres Exemption for Trusts (if Trustee has power to sell the property) Complete Abolition Hypos (from Thompson) 1. A’s future interest will fail if B dies without ever having been elected to public office. Easements / Covenants / Servitudes PROMISE= Covenants & Servitudes (See also Types of Intsts) Increasingly. Okay. Okay under the Rule Against Perpetuities. To the A Institute if the A Institute discovers a cure for cancer. Okay. then do it. A has an executor interest. a right of entry). if within period. 4. during his lifetime. and there is an implicit future interest in the grantor. wait and see if it vests within 90 years o If it doesn’t. courts reject. 3. if you can re-write it to stay relatively true to intention of testator. A has an executory interest. Because the Rule Against Perpetuity limits only future interests in transferees. o If it does. To A if he marries. go to the same people and in same proportions as otherwise”) Reforms to the RAP: Generally: courts interpret to avoid violation Reforms of specific applications o Fertile octogenarian: assume no woman over 55 will have a baby o Slothful Executor: probate will occur in a reasonable period of time o Open Ended Contingency: only lasts for 21 years Wait and see doctrine o See if it does vest. Use A as your measuring life. 2. Here A has a defeasible fee. A will marry. O’s future interest is fine. National Bank (“If a law violated. so A’s future interest will either vest or fail by the end of A’s life. Uniform statutory rule o See if it violates the rule. all OK Cy Pres Doctrine o Say the interest does violate. To A if B is elected to public office. if at all. which is within the perpetuities period.6. 34 .
B has a life estate. (By the way. So in the vast majority of jurisdictions. Okay. Similarly. are held by charitable organizations. 6. In her will. You’ve just shown that the interest might not vest until more than 21 years after all current lives in being. you just need to come up with one hypothetical showing that the interest could violate the Rule. assume that one year after O makes this agreement. Use B as your measuring life. The third child gets married forty years later. so it’s also okay under the Rule. which is within the perpetuities period. 5. otherwise to C. The A Institute might not discover a cure for cancer for 1.000 years. Many states apply a special exception to the Rule Against Perpetuities when all interests. neither married). only the future interest is held by a charity.) 7. then to the A Institute if the A Institute has discovered a cure for cancer by the time B dies. Easements / Covenants / Servitudes PROMISE= Covenants & Servitudes (See also Types of Intsts) Invalid in most jurisdictions. Here. so it’s okay under the Rule. The remainder interest in the A Institute will inevitably vest or fail by the time B dies. since this is a trust. Okay. Everyone alive when the agreement was made then dies (without the first two children ever marrying). Here. Fifty years after that. There is no problem with B’s life estate because that’s a current possessory interest. the current interest is held by O. while the A Institute and C have alternative contingent remainder interests. A has an executor interest. Assume that O is 60 years old and has two children (30 years old and 35 years old. Invalid. Here again you’re faced with the validity of an executor interest. both current and future. O might have a third child after she sets up the irrevocable trust. Soon after B is born.6. outside the perpetuities period. The future interest in O’s kids will inevitably vest or fail by the time that the last child dies. To A if any of A's children finds a cure for cancer. Invalid. 8. The A Institute has an executor interest. however. C’s alternative contingent remainder will inevitably vest or fail by the time B dies. we’re dealing 35 . To B for life. This interest is very similar to Example # 7. (The fact that A is dead when the future interest vests is irrelevant since the future interest is not contingent on A still being alive. this agreement would be invalid. O provides that her property will be placed in a trust with the principal to be paid to her first child that marries. long after (and certainly more than 21 years after) the lifetimes of everyone who was alive when O made this agreement. Here. B finally discovers a cure for cancer. To my first child that marries. everyone who was alive at the time of the agreement dies. all you have to do is come up with one possibility (no matter how remote) that would violate the Rule. And again. To show that a future interest violates the Rule Against Perpetuities. but O has died so it’s impossible for her to have any other children. A has a child B. You therefore can use O’s children as your measuring lives.
and the remainder interest in O’s grandchildren). Here. For example. You can use the children as the measuring lives. the class will close and the interest will completely vest) when O dies. assume that after O has a child. after the agreement is made. and any other grandkids alive at the time of the agreement). This means that you won’t know whether GX gets the property (i. Once again. To my husband H for his lifetime. Z has a child. in equal shares. Assume that all of A's children have died. H’s life estate is fine under the Rule Against Perpetuities because it’s not a future interest. Upon her death. O provides that her property will be placed in a trust with the principal to be paid. which means that the future interest violates the Rule.. G1. is 20 years old. so we cannot use them as measuring lives. just come up with one hypothetical set of facts that would violate the Rule. and thus whether the future interest vests or fails. But don’t worry about the niceties of trust law or terminology because I won’t have a trust on the final examination. Z. We will not know who all the grandkids are (and thus the class will not close and the interest completely vest) until the last of O’s children dies. Here there is one possessory interest (H’s life estate) and two future interests (the remainder interest in O’s children. Immediately after Z is born. But O might have children after she creates the irrevocable trust. everyone alive when the irrevocable trust was formed suddenly die. The remainder interest in O’s children is fine because we will know who the children are (i. Okay. to her children when they reach the age of 25.e. The analysis here is the same as for Example # 8. Invalid. 10. Partially Invalid. X. assume X has a child. to my grandchildren. then to my children for their lives. we have a “hole” that a court is likely to “plug” up with a reversion interest in O. None of A's grandchildren has reached 21.6. to show that the future interest in the grandchildren of A violates the Rule Against Perpetuities. Z1's future interest in the principal vests outside the perpetuities period. G1. 36 . Easements / Covenants / Servitudes PROMISE= Covenants & Servitudes (See also Types of Intsts) with a “beneficial” executor interest. The problem comes with the remainder interest in O’s grandchildren. To the first grandchild of A who reaches 21. forty years later. Then immediately after X is born.) 9. Fifty years later. for more than 40 years after all possible measuring lives. GX. and O is a life is being. Finally. turns 21). Z1. kill off all the people alive at the time of the agreement (including A. Because the future interest in O’s grandchildren is invalid. so the entire future interest in the class of O’s grandchildren fails. but one grandchild. and upon the death of my last surviving child. after setting up the irrevocable trust.. assume that A has yet another child. 11.e.
Easements / Covenants / Servitudes PROMISE= Covenants & Servitudes (See also Types of Intsts) Restraints on Alienation Why restrain: Dead hand. MONTOYA (p. Bargaining works in these situations. all OK for life estate and lease o If court thinks its really better for Mulder to sell. and B promises never to convey the lands” o Mulder promises Scully “never to sell Zots” o Partial restraint OK for FSA. marketability. could just award damages Scope of Restraints Total restraint prohibits all transfers Partial restraint limits transfers for a specific period or particular manners of transfer. or to specific people Applies Differently Depending on Interest Type of Restraint Disabling Forfeiture Promissory Fee Simple Invalid Invalid Possibly OK if partial and reasonable Life Estate Prohibited OK OK Leasehold OK OK OK As applied: ALSUP v. if indirect -> reasonableness Types of Restraints Disabling: withhold the power of alienation – “A to B. and any attempted transfer by B shall be void and of no effect” o Scully to Mulder: “any purported transfer of Zot’s shall be null and void” or “Zots shall not be sold” o Hate these the most Forfeiture: grantee loses his interest if he attempts to transfer – “A to B so long as B does not convey” o Scully to Multer “so long as Mulder does not purport to sell Zots” o Holder can conspire with owner of residual because together they have an FSA (defeasible fee + future interest). so courts sometimes allow for life estate o Not OK for FSA – makes very difficult to figure it out 400 years down the line Promissory: expose to contract remedies – “A to B. flexibility If direct -> chart. remainder to any grandchildren or their issue 37 . 621) Facts: Alsup leaves life estate in his farm to his daughters.6.
Easements / Covenants / Servitudes PROMISE= Covenants & Servitudes (See also Types of Intsts) o “The land herein devised should not be sold or alienated during their lives and no court shall sell the same for reinvestment or alter the situation of said land as it exists today. one guy who lived adjacent to the land objected. Charitable exception applied: HORSE POND FISH & GAME CLUB v. Interpreted restraint to not apply to that individual group but fraternal lodges in general. Facts: Faux transfer (club -> members -> club) with condition that prohibits sale unless 100% of club members present at meeting agree to sale or the club is officially dissolved. Holding: Indirect restraint OK (with some stretching by the court. MOUNTAIN BROW LODGE NO. 626) Facts: Property willed to lodge (Local Odd Fellows Club) with facially invalid direct restraint on alienation. o Charities can petition a court of equity to remove the restriction on the basis of unforeseen circumstances (not true of non-charitable orgs). Indirect restraints on alienation judged for reasonableness. 82 v. You can’t prevent a life estate holder from selling interest. also included provisions saying that the property restricted for the use and benefit of the lodge and shall revert if it’s no longer used. Affordable Housing How do you sell someone a cheap house and not have them flip it at full market value? You could limit who could purchase the property – but that’s a restraint on who can use the property You could limit on how much to sell the property – looks like a restraint on alienation 38 . Club tried to sell. Moved it from a restraint on alienation to a restraint on use. Could have accomplished with ag easement: Gives third-party charity the right to enforce agricultural use. 630).6. Reason for exception: o Concern that people won’t bequeath to charities unless they can impose such restrictions.” Held: This is a restraint on alienation (marketing/transfer). it being my purpose that it shall not be sold in any way whatsoever. TOSCANO (p. Club challenged restriction. Held: Restriction OK because it’s a charitable organization. CORIMER (p.
Effectively takes money out of the future value (equity goes down). reversion). Reasonableness judged by extrinsic evidence or grantor’s intent. Types of Waste: Affirmative (Voluntary/Commissive) Waste: The possessor does something affirmative that decreases the property’s market value (taking resources. LE v. 641) Facts: J married A and died. giving A a LE then a remainder to her kids (she had non) / alternate contingent to J’s grandkids. Kids want to hold out for higher property value Held: Remand to come up with plan to sell part of the property. only covers neglect/failure to exercise due care Ameliorative Waste: Against the wishes of the future interest hold. 39 . may sue during life or after death for damages o Doesn’t include normal depreciation. Permissive Waste: Possessor fails to maintain. assumed real estate market didn’t price accurately In this situation. Courts intervene because: o One party or another is unrealistic o Parties act in way inconsistent with best interest o One or the other party is using leverage for personal gain o One or the other party is incompetent (or really young). o Wal Mart hypo Courts balance future v. Grandkids don’t know they have it. but then find out. selling would have been in everyone’s best interest. Quirk: Took for granted the grandkids’ position that the value would increase. This is why landlords collect security deposits. making unreasonable use). present interests.6. the possessor changes the identity of the land. WEEDEN (p. often creatively: BAKER v. and general bias among courts towards development o Generally goes on intent of grantor. Easements / Covenants / Servitudes PROMISE= Covenants & Servitudes (See also Types of Intsts) Waste Problem: Someone with a present possessory interest may have very different incentives than the person with the future interest (i. even if it increases its value o Hard to prove (not quantifiable). but only if they can’t reverse-mortgage it.e. She wants to sell to support herself off interest and give $$ to kids.
751) Facts: George Carr (father) and Joel Carr (son) are co-tenants. but the court rejected this o If property was already being used as timber property at time Mittie received it. Held (MS): Needs permission of the co-tenants Mittie’s artument 1: LE: She can take because she’s current possessory owner. she cuts 113. Requirements: Unity of possession Partition: allowed Cotenants can’t eject one another’s lesees: CARR v. Held: Either co-tenant can lease without getting the permission of the other. THREATT v.) is a life-tenant with a ¼ remainder interest (had willed the remainder to her four kids. o Exceptions to this: “good husbandry” – if you’re cutting down in order to thin them to allow the others to survive. fails because it’s deemed waste. what can Joel do about it? o Petition for partition. Bequest: Interest can be willed to anyone. RUSHING (p. Joel doesn’t like the deal. low-ball) o Make lesee’s life as annoying as possible o Demand an accounting Co-Tenants may or may not extract natural resources without others’ permission (varies by J). then OK. DEKING (p. but could sell and partition the proceeds (problem if the other tenant is the only bidder. Alienation: Any co-tenant can sell his interest without the permission of the others. 754) Facts: Mittie Alice Cooper Rushing Threatt (full name…. each co-tenant owns it in exactly the same degree. When Joel not there. and one returned it). The land has 1. 40 . Deking goes to George and enters into a lease.8k. Easements / Covenants / Servitudes PROMISE= Covenants & Servitudes (See also Types of Intsts) 5.6. Sharing Ownership Co-Tenancies Tenancy in Common Definition: Dominion: Each holds all rights and has total control over the property. asks for cash rent.02 million board-feet of lumber. Preference is to literally partition the land. then courts will let the removal that’s already happening continue to happening.5k (11%) of it and sells it for $14. have historically leased to Richard Deking (farmer) for a share of 1/3 of his crops. All co-tenants have all the rights of the FSA and thus can delegate their share in the land without consent. Q here: Now that George has leased to Deking.
Allow proportionate share i. if will provision leaves interest to someone else. Require unanimity i. Third holder can assign. o Upon death. in the lesee steps into the place of the lessor. if 3 JTs with 1/3 interest. May nix on grounds of ameliorative waste Conservation easement bind the other?: Leopold v. If it doesn’t. can’t bring someone on as a JT o Usually use a straw man if you want to create a JT after-the-fact (but many states have abolished this requirement) Unity of time: 41 .6. and has no incentive to cut down the best trees right away because that’s just more $$ she’s going to have to give to the remaindermen ii.e. then it’s void. then A & C are not tenants in common o If three and one severs: remaining two JTs stay JTs with respect to their share. Partition: allowed Requirements: Unity of possession: Must all possess the same property Unity of title: o Must obtain title by same instrument. Easements / Covenants / Servitudes PROMISE= Covenants & Servitudes (See also Types of Intsts) Mittie’s argument 2: RE (co-tenancy): She also owns 1/4 of the remainder interest. Race to get everything b.e. Going to get the 25% of the best trees c. other two still revert to each other. Permit unilateral harvesting because she has an undivided interest (i. Make her pay ¾ of profits to future interest holders because that’s their share. so effectively she owns ¼ of the fee simple absolute. o No need to probate. I. then it’s meaningless as an easement. Does that apply to the other? If it does. death of one leaves 2 with ½ interest. she’s entitled to occupy whole thing with everyone else) i. interest goes immediately to A. they’re tenants in common with the third holder. Joint Tenancy Rights: Survivorship: if A&B are joint tenants and B dies. Nothing will happen d. Options in this situation: a. Third thing (not in case): let kids demand an accounting i. What happens if one cotenant gets conservation easement. Mittie can decide whether it makes economic sense to cut down the trees. and vise versa. She cuts down only 11% of the boardfeet. interest goes pro-rata to other tenants. Severability: If B sells his interest to C. Freemont (Note 5). then that’s inconsistent with lease rights. iii. less than her proportionate share. Some states allow this + #1 – let her do what she’s gonna do and then make her pay remaindermen.
HARMON (p. She wants to leave her half interest by will. o Not OK: “O to A for life. Option on the death 42 . Q2: Does H have to be bound by lease that J entered into? NO – lease is void o Lease only stems from J’s interest. o Emerging rule: lease ends. then to A’s children living when A dies as JTs” is OK – vests when A dies. which no longer exists (J’s dead) o Fair to put risk on leaseholders? Maybe. Easements / Covenants / Servitudes PROMISE= Covenants & Servitudes (See also Types of Intsts) o Interests must vest at the same time. Q: what kind of interest does Hasel have in the property? Does lease survive? Generally: R&H. not clear that he wants out. can’t go 60-40. if R sells property. Tries to get out of JT by transferring it to herself. then to A’s children as JTs” (interest vests when kids born. when she goes to a lawyer to talk about what’s likely to happen to her interest. she could also not tell anyone else – lock transfer in a safe deposit box? If you die with instructions to look in safe deposit box. boswell is sophisticated. the “king of cotton” without telling Hasel. but is the same issue with a Life Estate. If he dies first. o To hold otherwise would be to allow one dead tenant to kill the other’s interest without severing – could lease at $1/year. but if one just wants to lease his interest. Thus. Johnson leases to Boswell. at which point you become a TiC. Unity of interest: o All JTs must have the same proportion. deliberate manner and can be nixed easily (by selling).6. o Troubling? She doesn’t tell her husband o But she could not tell her husband with a straw man o But. but a lot of courts would let the lease continue Elimination of straw man requirement: RIDDLE v. however. eliminates JT. which happens at different times) o OK: “O to A for life. o Reasonable expectations: very few people who have JTs would expect a lease to sever it. if you can do it with a Straw Man you should be able to do it all by yourself. Background: Old feeoffment ceremony – you couldn’t hand yourself a piece of dirt. she finds out that it’s going to go to him. Usually husband and wife. Riddle gets sick and. but R leases. then it makes sense to sever. Lease doesn’t sever JT (jurisdictions differ on this): TENHET v. destroy the document. should require explicit revocation of the JT and not allow the ambiguity of the lease. he had the right to lease under his share of the joint tenancy. then tenancy severed. BUT could still use a strawman. Mrs. If one wants out. then J dies. Holding: CA says. Q1: JT severed by lease? NO: Lease doesn’t sever JT (jurisdictions split) o Joint tenancies are formed in an explicit. 747) Facts: Happy couple buys a house together in a joint tenancy. BOSWELL Facts: Johnson and Hasel are joint tenants.
your carrying charges are $1. the other co-tenants can demand a pro-rata share of the profits (accounting). that co-tenant owes the other co-tenant(s) for their share. mortgage payments. can’t petition for partition without one. but if one co-tenant rents to a third party. or in partition (i. as it’s not severable from the other tenant Termination: Only by divorce.g. ask that your share of the partition include the value of the new roof). If. “I’d like to be let in. Specifics If you’re using it.e. Easements / Covenants / Servitudes PROMISE= Covenants & Servitudes (See also Types of Intsts) Tenancy in the Entirety Joint Tenancy except: Only for married couples Can’t dispose unilaterally: Has to have approval of spouse to transfer interest (other has right of survivorship as in JT) o Often prevents creditors from reaching the interest. Partitions: Co-tenants or JTs can petition the court to partition the property. you can charge co-tenant 50% of the difference. or $100 (2 tenants) “Significant Repairs” o E. but only if expenses exceed rental value or if ouster “Carrying Charges” = Taxes. on the other hand. minority would allow 50% of fair rental value. if carrying charges are $200. also ouster Suing to quiet title can be an ouster Hughes Occupancy by one spouse after divorce is a constructive ouster (minority) Can demand contribution for upkeep.” but gets no response. If one co-tenant lets a friend move in. if you’re living there.200. you don’t owe anything.6. general maintenance o Accounting: carrying charges can offset o Ex: Say FRV = $1k/mo. friend owes nothing. you can’t get charges. Most Js would say no accounting if co-tenant opens restaurant. if you rent it. Ouster allows co-tenants to demand accounting=% of fair rental value: Ouster = one co-tenant (forcibly or otherwise) ousting the other(s) Usually established by a letter/changing locks/overt act No ouster if you offer to let in (bluff?) If co-tenant sends letter saying. 43 . you owe an accounting *Disagreement among Js over whether opening a business merits an accounting. new roof o You can recoup in accounting. but if any co-tenant derives revenue* from the property. Accounting / Partition Requirement: Each co-tenant is permitted to use all of the property.
after which he then has to pay Victoria and Charles each 1/3 of the FMV of the property. Otherwise. but sometimes they’ll resort to sale. you’re entitled to a “forced share” (something ~ 1/3 to ½ of an interest in all of the property). but “reluctantly” Filing a quiet title action can establish an ouster: ESTATE OF HUGHES (p. Court finds no great prejudice. w/o permission. Will lower price of sale Renting the property warrants an accounting. SCHNELL (p. Robert wants sale o Physically partitioning it will make the aggregate land worth less than if it were one single ranch o Court doesn’t want to do this. Forced Share: In virtually all Js today. They give an undivided 1/8 interest in property to their son and wife (Garris and Peggy) + remainder interest. Court will physically partition unless doing so “greatly” diminishes value of whole property: SCHNELL v. physically partition. he could have gotten the property by AP. partition sale. partition it. Then. even to ungrateful kids. if spouse leaves you out of the will or with a paltry sum. Court interpreted lawsuit as being the same as declaring that no one else could come onto the property. George gets a 1/3 forced share. divide profit o If issue lease: sale subject to tenant’s lease. Held: Under the traditional rules. leaving martins with LE. however. Statute: if the property is so situated that you can’t partition without “great prejudice” to all owners. She excludes her then-husband George from the will. Court says it’s all OK. etc. then you have to sell it. Adverse Possession: If he had remained there long enough. while co-tenant renting to others owes accounting to other co-tenants. parents owe accounting. MARTIN v. 4420 acre ranch. 766) Facts: Married couple used to live together on ND ranch. George’s mistake: He attempts to quiet title. Options: Do nothing. Held: Filing the lawsuit constitutes an ouster. particularly given that there are already two houses where each spouse is living. 747) Facts: Charles and Mary Martin have FSA. raised kids there. 759) Facts: Kathryn Marlow Hughes dies. Held: physically partition 44 . Martins develop into a trailer park with 4 lots. Easements / Covenants / Servitudes PROMISE= Covenants & Servitudes (See also Types of Intsts) Physical: separate land physically. Kids can inhabit and they don’t have to pay. presumption is physical partition.6. leaving property to Victoria Wiseman and Charles Marlow. Ouster sets the clock running on AP. filing a lawsuit to get a court to declare that he owns the whole house. G&P refuse to pay anything on their quarter of the property and ask for 1/8 of the rent from the other lots. MARTIN (p. etc. Garris and Peggy move a trailer on a lot. So build shopping center/lease part of landP o Presumption for physical partitions unless “it can shown that greatly prejudicial to both parties” to have to a physical partition o But most go to sale because courts lack institutional competency to make complicated division • Partition sale: sell property.
6. Easements / Covenants / Servitudes PROMISE= Covenants & Servitudes (See also Types of Intsts) 45 .
46 . Nevada. Texas. Louisiana.6. Code 5110. (4) A life estate in any "homesteaded" residence Community Property States:2 (1) All property held in joint tenancy with the spouse3 (2) One-half of all "community property" (essentially all property (i) traced to the earnings of either spouse during the marriage or (ii) "donated" to the community) (3a) If the spouse dies intestate. Nevada. Idaho. Civ. and Washington. will presume that a residence is community property unless it is made extremely clear that the couple intended to hold the property in joint tenancy. on the other. either all of the spouse's property interest (if no children) or all of the spouse's interest in the community property plus 50% of the spouse's separate property (if in California.. 3 Note that some community property states..g. 2 The community property states are Arizona. "intestate"). Easements / Covenants / Servitudes PROMISE= Covenants & Servitudes (See also Types of Intsts) Marital Property Outline of Marital Property (Thompson)1 1. the law of individual states can differ. a choice between (i) property left to you under your spouse's will and (ii) an "elective forced share" (3) In eight states (including several populous ones). Idaho. e. Cal. The following outline provides the general rules. but some states have slightly different rules. either 100 percent of the property (if no children) or 50 percent (if there are children) (2b) If the spouse dies with a will. or New Mexico) or 50% of all the spouse's property interest (if elsewhere) 1 As with most areas of property. like California. New Mexico. on the one hand. "dower" (if you're a widow) or "curtesy" (if a widower) is generally a life estate in one-third of all real property held during the marriage (even if since conveyed). Some states require a choice between dower or curtesy. California.e. and an elective forced share. See. What property are you entitled to upon the death of your spouse? Common Law States: (1) All property held in joint tenancy or tenancy in the entirety with the spouse (2a) If the spouse dies without a will (i.
What is property? Profession degrees? -. p. **Equitable: • Equal • Rebuttable presumption that equal. Can you contract for different marital property rights? Generally yes.typically "yes. especially in lengthy marriage • Factors to determine equitability: 47 .6. p. 800) Pension rights? -. "maybe" if not vested Professional good will? -. James & Co." but not if personal to the spouse (see Dugan v. whatever additional property is conveyed by the will (or a forced share in some states) (4) A life estate in any "homesteaded" residence. 2d 834 (La. Uniform Marital Property Act: Similar to community property rules. 1976)) 4."no" (see T.L. Dugan. 332 So. 811) Life Insurance benefits? -. Easements / Covenants / Servitudes PROMISE= Covenants & Servitudes (See also Types of Intsts) (3b) If the spouse dies with a will.typically Ano@ (see In re Marriage of Graham. Montgomery. 804) Personal good will? often no (see Note 4."yes" if vested. p. v. What property is one entitled to upon divorce? Common Law States: The court will make an "equitable" division of Majority Rule: all “marital property” Minority Rule: all property currently owned by either spouse Delaware & New Jersey: all property acquired by whatever means during marriage Community Property States: Equitable division (majority rule) or equal division (minority rule) of all community property (although courts have some discretion) 3.
degree not) Policy: • Reliance • Equitable • Giving spouse other spouse’s hard work/trapping spouse with earning potential in job Dower/Curtesy A few of Common Law states On divorce get: • Land that spouse held at any point during marriage. • Can choose between will. Homestead Can homestead house where living.000 regardless of FM • When die. Can’t change with will Tenancy by the Entirety (For common law states) • Like joint tenancy: o 4 unities o right of survivorship • Must be married at time of transfer o Ends on Divorce → Tenancy in Common o Death→ fully to one spouse • Can only hold for one residence (some states allow other types of property. Thus. life estate goes to spouse. If I sell it to A. health. only if married • House protected at least to some degree (capped amount) against predators o Only unsecured. dower/curtesy. creditors get $10. Endo (house held in tenancy in the entirety. dower/curtesy attaches it. like a bank account) • Only both spouses can agree to sell – indivisible unless joint action • Creditors (for debt incurred by one spouse only) o Majority: creditor can’t reach any part of tenancy in entirety Sawada v. If secure debt with home itself (mortgage) bank can get that whole value o so if house goes for $510. even if sold it. A takes it subject to dower rights of my wife. the Endos’ transfer to sons was not fraudulent) Idea that gambling on one spouse’s death unseemly Spouse can’t sell anything unilaterally 48 .6. Dower (if widow). kids can live there until majority. o if property is sold during marriage. Sawada’s can’t reach it because only Mr. courtesy (if widower). $500K exemption. Endo’s wrongful driving.000. future earnings o Contribution to acquisition or dissolution of income o Contribution of homemaker (including working to put the other through school contribution severable. forced share. Easements / Covenants / Servitudes PROMISE= Covenants & Servitudes (See also Types of Intsts) o Age.
if husband survives the creditor get property. o Handful: Husband’s right of survivorship. gifts. then C – tenancy in common life estate with spouse 2. surivorship. title in his name. Have to be very clear o Lucas – automobile donation to husband. Some – separate. Need to be very clear to overcome presumption • Separate Property • • • • Anything bring into marriage. interest accumulation during marriage o Stocks that spouse brings into marriage. As soon as either spouse dies. some – proportion of down payment separate. in Community: ½ is each person’s separate on death) unless extremely clear that coupe intended to hold in joint tenancy with right of survivorship o Some if take title as JT. nothing. if wife outlives. inheritance Anything that flows from separate property Anything that husband and wife intend to donate separately to one spouse. some – comminty. Nothing during period that TE exists. o Joint account: presumption that donating to community when add spouse to account. All creditor can do is get ousted and get accounting Debtors (spouses) free to transfer property during lifetime One spouse can sell half to C. wife didn’t object Specifics: o Spouse’s saving account that brings into marriage. dividends on stocks o Spouse’s apartment building. rents from it that accrue during marriage Meretricious relationship 49 .6. creditor’s interest would disappear Not worth much. states will vary. Can only sell right of survivorship Can’t transfer property to kids – transfer fraudulent b/c creditors owe right of survivorship BT thinks this is best for protecting spouse and creditors’ intersts Community Property • • Traced to the earnings of either spouse during marriage Increase in value from time spent during marriage (community time) o Increase in value of rents o Increase in value of stocks that come from management o Separate property used for community purposes presumed community property unless agreement between parties that donating spouse will be reimbursed Lucas o Presumption that contribution will be reimbursed (post-Lucas statute) House: o Some will presume residence is T-I-C even if in Joint Tenancy (in JT. Easements / Covenants / Servitudes PROMISE= Covenants & Servitudes (See also Types of Intsts) o Minority: Creditor gets life estate in ½ of property. will treat as ½ each spouse’s separate property o If paid for after marriage.
and future earnings unclear. before U dies. then debtors cannot get at that home up to that amount. so went to K as a FSA. Held: Can’t collect against the house that Kokichi and Ume Endo have as Tenants in the Entirety: o Tenancy in Entirety means that the creditors of one spouse can’t get to the common property of both. valuation is speculative. Court tries to equitably divide on basis of how many hours/week they worked. 800). Since K was the one who was negligent in this particular case. Sisters sue and recover $$ from Kokichi and then go to collect. Facts: Wife worked as stewardess to put husband through school. unlike other property. 804). Way to account for it: Commentators like idea of dividing $$ spent on tuition / living expenses. Not limited to real property – could have sold the house and put $$ in a bank account that was effectively a tenancy in the entirety. if U dies. it’s not saleable. goes 100% to K. the homestead will be protected against some degree of debts (generally $ limit). Worried that. Courts haven’t universally adopted. And as a UNIT they can transfer the property. hits them and causes serious injury. IN RE MARRIAGE OF GRAHAM (p. Except that. but has a house. 50 . Opportunity cost + direct payments = total investment. Future earnings recoverable if husband materially contributed to them / not speculative (singer): ELKUS v. 782) Facts: Helen and Masako Sawada are walking across the street in a designated crosswalk when Kokichi Endo. Francisco. can only account for by relative contribution. K’s creditors could not get to that tenancy by the entirety. use homestead: Most states permit you to homestead your residence— record notice that says I’m putting the family residence in a homestead. MBA is not marital property subject to division upon divorce. Easements / Covenants / Servitudes PROMISE= Covenants & Servitudes (See also Types of Intsts) Courts will include significant meretricious relationships Connel v. Courts do various things: • read statute as applying to these relationships • look at as K • make equitable argument like in Connel Creditors can’t reach property held in T-I-E. Here. U died. ENDO (p. divide that. homestead exemption worth $25k. SAWADA v. ELKUS DUGAN v. transfer to the sons. In HI. Alternatively. DUGAN (p. right of survivorship. Wants division of MBA on basis of expected future earnings Held: Not divisible. Kokichi is uninsured. If you homestead. then in each of those states.6. but K couldn’t have sold the property on his own. o K & U . age 87. So in this case it was fine for K&U to xfer to whomever they wanted to. DUGAN Business goodwill (stepped-up asset base) is severable marital property: DUGAN v.
Is this sufficient for a court to step in and basically create a cotenancy? Why do this: Equity. Draw divining line between marriage/meretricious by dividing community property but not all property. Meretricious relationships bring community property designation for property derived during the marriage. wouldn’t necessarily make him sell the practice. Key Q: is it saleable. FRANCISCO (p. 812) Facts: Richard Francisco & Shannon Connell. The difference is that the goodwill is part of the law partnership. If saleable. courts are supposed to divide up all of the property. then it’s not. If not. If you don’t stay at the company for the period of time. Nature of goodwill: Considered independent from Dugan. even if he left the partnership would have it. constituting 40% of the assets. Ie it’s the difference between the sale value and the asset value of the practice. When they get divorced. S gets paid $40/mo to run B&B property. Implied K (kind of weak). there’s real property (easily divisible). then you don’t take the pension with you. reliance and unjust enrichment. but not full rights of equitable division: CONNELL v. R gives S engagement ring in 1986.hrmm…. Goodwill is property if it’s business goodwill rather than personal goodwill. Why not do this: They didn’t get married and had every opportunity to. If it was personal to him. Pension vests based on whether or not you actually stay at the business for a set period of time before you have a right to that pension. But there’s a WA statute that says. Pensions: If pension is vested. Everyone thinks they’re a married couple. then it looks to the court much more like a professional degree or potential future earnings.. Equity is big. Would just lopsidedly give him the goodwill and the pension and leave her with the cash and real property…. it’s divisible. in case of divorce. James Dugan built up successful law practice. 51 . Why go beyond what they had actually agreed (which was nada)? Held: It’s a meretricious relationship. Divide up what would be considered to be community property acquired during the marriage. F invites S to move in in 1983.6. Also goodwill that’s part of the legal partnership. Easements / Covenants / Servitudes PROMISE= Covenants & Servitudes (See also Types of Intsts) Facts: Long marriage between James and Rosaleen Dugan.
Implied license via movie ticket. o I. just has to satisfy definition. etc Easement: right to do something or prevent someone from doing something Positive – right to do something on someone else’s property that they would otherwise not be able to do o Profit a prendre (right to take something. everyone in a neighborhood agreeing to keep their house pink Negative: agreement that you don’t do something that you would otherwise be able to do. o Negs are same as easements.6. o The exact same instrument could be both a negative covenant and an equitable servitude. o If you want injunction + dmg it’s both a covenant and a servitude. Neg easement. neg covenant. o Traditional: light (Europe: ancient lights) o This is a form of property that you bargain for (generally) – you bribe your neighbor. 52 . o Helps fill the void of tort where you can deal with something that’s not a nuisance/trespass Covenant: promises to do something or not to do something Positive: an agreement to do something that you don’t otherwise have an obligation to do. like resources) Negative – right to prevent someone from doing something on their property that they would otherwise have the right to do. o Generally: call it everything you can imagine calling it. Doesn’t matter what it’s called. Easements / Covenants / Servitudes PROMISE= Covenants & Servitudes (See also Types of Intsts) 6.e. o Now distinction is functionally meaningless Equitable Servitude o Covenant enforced through equity (injunction) rather than through law (damages). o Only distinction comes from ancient legal distinctions – used to only have certain types of negative easements. Easements / Covenants / Servitudes Types of Non-Possessory Interests License: weakest form of interest – terminable at will by owner and gives you right to be on the property. equitable servitude. o Now this isn’t that common because of zoning law.
but don’t have to be • Can use those for non-use: abandonment – if stop using easement for long enough.6.e. duty to go check it out). If purchaser made reasonable inquiry and was told no. court can conclusde that abandoned and can lose it Right of way: RR gets right to cross/use for transport • • • Right of way: RR has all rights to strip Interpreting a Written Easement 53 . such as RR tracks on the property. anyone can access property X by crossing property Y) In Gross = personal benefit (i. differs from benefit) Can be actual notice Or constructive notice (in a county recorder’s office. RRs pushed this Or inquiry notice = some indication that you should ask.e. then didn’t have notice for purpose of running Benefit: o In writing o Intent o Notice not required: courts don’t care about limiting pleasant surprises Fee simple Perpetual Don’t lose by non-use Can lose if someone else starts using – Adverse possession Easement • Can be perpetual. PEPCO can run utility lines across property X) Burdens: Runs with the land = survives transfer Requirements for running with the land Burdens: o Must be in writing (subject to SOF) o Intent to run must be clear o Purchaser must have notice: (courts want to limit unpleasant surprises. Easements / Covenants / Servitudes PROMISE= Covenants & Servitudes (See also Types of Intsts) Written Easements General Issues Benefits: Appurtenant = attached to the land (i.
just because it’s a public use doesn’t mean we should shortcut the traditional way of paying for the public use. maintenance and operation of a steam railroad. US (p. and (2) is the new use within the scope of the easement? Language: Granted “a free and perpetual right of way” “in fee simple” Held: It wasn’t granted an FSA (looked at consideration + wording) but new use was within the scope of the easement. but no explicit discussion (if the use is outside of original intent. Is within the contemplated intent of the parties when easement granted Various presumptions on flexibility vs. CHEVY CHASE LAND Co. Expanding the Scope Courts will allow a new use only if: o 1. Examples: o Chevy chase: “a free and perpetual right of way” -> expanded for rail-to-trail o Marcus cable: “an electronic transmission line or distribution system” – denied expansion of easement for power lines to include cable tv lines OK to expand RR easement to use as bike trail. Superior Court: “the right of way for the construction. stability (results-oriented) Seeming dependence on importance of new use and who’s trying to use it. it’s a trespass(!!)) Policy: o Holmes: worst outcome is to just pay for it.6. Easements / Covenants / Servitudes PROMISE= Covenants & Servitudes (See also Types of Intsts) Interpret like a contract Fee simple or easement? Look at: o Language o Intent Consideration not required.” 54 . Vs. Doesn’t increase the burden on the servient estate(s) o 2. “in fee simple” – suggesting “right of way” was different Presumptions o CA Supreme Court: presumption of FSA o Most courts follow MD: it’s an easement. but consideration given could be indicative of what was actually transferred. 826) Facts: G-town branch rail had “a free and perpetrual right of way” granted to it in 1911. Q: (1) was this an easement or a fee transfer. Manhattan Beach v. o But you’re dealing with two property rights – FSA and easement owners –like a nuisance case. FSA divides property. o But. presume easement to keep it contiguous. there’s no cost to the property owner if you’re not dealing with burden. v. What other language • Chevy chase: there was another contract for the land for the RR depot. Wanted to convert to rail trail. that was simply.
might be less likely to get easement than if you sold to someone else having implicitly understood that they’d be able to get across. if you cut off your own property. 847) Facts: Stoner gives Zucker oral license to build and maintain an irrigation ditch. property owner could argue trespass. Held: Gets easement by Estoppel Should we reward people who don’t know what the law is? But. property was contiguous and owner used the one parcel to gain access to the other. Easements Implied from Prior Use (Easement Implied from Quasi-Easement) Requirements: Quasi-Easement o Existing right-of-way: prior to sale. Necessity. but then Stoner tells Zucker that he’s revoking license. he sat there and saw all $$ being spent.6.) Easements by Estoppel Requirements: Substantial reliance on a reasonable expectation that the license wouldn’t be revoked. Easements / Covenants / Servitudes PROMISE= Covenants & Servitudes (See also Types of Intsts) Rule on Easement: If the new use wasn’t within the scope of the easement. SAN SIMEON (p. etc. or let them bargain). I. Implied Easements (Estoppel. Stoner knows what’s going on. alternative is to force Stoner to sell him an easement. o Informal understanding upon severing the land that someone had right to continue to cross land o Sometimes depends on whether a buyer holds the quasi-easement or seller. Zucker spends $7k to build ditch. and then that changed his mind.e. o Courts don’t like to imply negative easements. you could be viewed as having abandoned it. Example Easement Implied by Prior Use: WILLIAMS ISLAND COUNTRY CLUB v. ZUCKER (p. or on an assurance that there’s an easement. Trend-> courts allow regardless. Hard to stretch this to not interfering with a view because it’s not an invasion Reasonable necessity o Showing that you actually need it – don’t have to absolutely need it. get off my land. Abandonment: According to the terms of the easement. 852) 55 . you can also be viewed as having abandoned the easement. but if you don’t use an easement for a lengthy period of time. You can’t abandon property (sans someone else’s AP). (but. (some): No easement if the servient owner warns that it’s revocable after he’s aware of the anticipated reliance. Example Easement by Estoppel: STONER v.
sell an inaccessible portion to the Whitesides. Upon sale: For easement to run. Only route from W to road is by going through wetlands (hugely expensive to comply with CWA and would need to get gov approval). which needs prior use. which would then kill the easement by necessity) Some Js allow condemnation to effect easement by necessity: Petition the government to condemn property to get your easement – depends on statute BUT is complicated by takings – this is a taking for a PRIVATE use. Generally for buyer. Implied by prior use. would have probably passed inquiry notice due to clear presence of golf carts. Development had allowed golf carts to cross entry strip for decades. 855) Facts: Duponts own large contiguous piece of property. Agreed verbally that there would be an easement but it was never executed. The owner tells William Island they can’t use. Holding: Get the easement implied from prior use. Remands for consideration as easement by estoppel. San simen was told one existed. falling out. LEO SHEEP v US (864) 56 . 1994 Duponts object to use of Road. No easement by necessity for government. Most courts have said it’s a legitimate exercise of eminent domain because of the reasons easements by necessity are granted (avoiding dispute. Rationales: Avoidance of dispute Avoid exploitation Desire for development Assumed intent (but can expressly disclaim. Easements / Covenants / Servitudes PROMISE= Covenants & Servitudes (See also Types of Intsts) Facts: Golf course surrounds residential development. Easements by Necessity Requirements: Property becomes landlocked. Duponts had given permissiton to W to cross property to get to the public road (D builds road). you need notice. Roadway (“entry strip”) goes through separates 13th hole from 14th hole. if for new development (requiring car access) there wouldn’t have necessarily been a prior use (Whiteside). duty of seller to reserve his own if he landlocks his own property. DUPONT v. even though it didn’t. W builds $240k house.6. usually due to grant or sale. Held: No easement because no absolute necessity. exploitation. promoting development) Easement by necessity requires absolute necessity. WHITESIDE (p. but harder to get. This has no prior use requirement. can exercise ED so no absolute necessity. Need absolute necessity Cf.
going in different direction from preventing control over future generations: permitted AND even rewarded o Who knows what people will think is good in 100 years • BT: good because o Reduce transaction costs of collective action problem. Easements / Covenants / Servitudes PROMISE= Covenants & Servitudes (See also Types of Intsts) Facts: US gave RR’s a checker-board grant of land. In Gross agree not to build on land. would probably get it because they can’t use eminent domain. charity) • Movement toward general enforcement (e. or to build just on one part of land – negative easement in gross o Blackman – VA recognized such easement agricultural easements: promise develop for agricultural use. because the government can always condemn the property. Concerns the other way: (1) Was congress reallllly this stupid in setting up this particular approach? No record. Who can Enforce? • Whoever holds (gov’t. (2) If sheep company wanted easement over government land. Conservation Easements • • • Negative Easements. Q: Does the US have an easement by necessity? Holding: No – it’s not absolutely necessary for the government. not others historical easements (preserve historical house) 1.6. Who can Hold? • Govt & Charities 2. Length • Perpetual (usually) 4. But. Should the Law Encourage • IRC promotes (taxes) o Only Perpetual o Decline in Value of Property as a result of easement Policy • Julia Mahoney: o Here. It’s technically (geometrically speaking) impossible to get to other parcels of government land without minimally trespassing on RR land. tragedy of commons o Avoid odysseus temptation 57 . hiker) 3. intent unclear.g.
Cf.6. Estoppel: no promise/reliance necessary. Ways to Defeat: Put up permissive sign or send note saying they have permission at the outset (as a license) Succeed in excluding Show that the use unreasonably burdens servient estate Record notice of permission Enter into written agreement with the government that public can use for a certain period. Necessity: no need to show necessity Requirements: Hostility (adversity) o Presumption is that lengthy use doesn’t imply permission. check for AP Continuous o Use (a la crossing land) is necessarily discontinuous o Show that it’s been done over and over Known or Open and Notorious o Need actual knowledge or enough notoriety to make reasonable neighbor aware Exclusivity (most Js don’t require) o Nonpossessory interest -> no need to be the only one doing it o But need to show that right doesn’t depend on rights of others. Easements / Covenants / Servitudes PROMISE= Covenants & Servitudes (See also Types of Intsts) Prescriptive Easements (Like Adverse Possession) Definition: Gives right of use Owner cannot affirmatively interfere with use. but no obligation to maintain Cf. but a minority of Js presume it does. o Permission -> no easement o Always the most litigated question Use o Cf. occupation for AP (sometimes the line between “use” and “occupation” blurred – improvements bump to AP?). Some states have statutes for ways sufficient to defeat prescriptive easements Public Prescriptive Easement Historically not allowed at all but growing number recognize Test o Continuous use o By people not separable from public generally o For statutory period o Under a claim of right adverse to the owner 58 .
Policy concern: would have to stay a long time to see if someone crossing hiking path. • AP: Someone who doesn’t even notice someone’s building a house on their land doesn’t care about their property. Easements / Covenants / Servitudes PROMISE= Covenants & Servitudes (See also Types of Intsts) o With owner’s knowledge and acquiescence (or so open and notorious that acquiescence presumed) but NOT permission In Lyons – instead not allowed because for recreation. had used as-if they had the easement. so told Country Club. more-or-less continuous raining of golf balls. Hilda eventually sold to Conrad Hilton. NOT true for prescriptive • Reliance o True for both • Con: Owner is acting in way we want to behave. Corp = individual for purposes of use (golfers v. BEL-AIR COUNTRY CLUB (p. no! Held: Grant prescriptive easement: no permission ever explicitly given. with golfers going onto property to retrieve. Basically need to prevent people from entering long enough that get a reverse prescriptive easement. 872) Facts: Public used school road to get to stream. Bel-Air gives her a portion of their land allowing her easier access to her property in exchange for the right to build a tunnel under her land. corporation using the easement?) Some Js presume repeated deference to open/notorious use = permission: LYONS v. School got tired. 869) Facts: Bel-Air Country Club and Hilda Weber enter into an arrangement. neighborly o NOT true for AP • Con: Prescriptive Easement very hard to reverse. Policy for AP/Prescriptive: May want to create an exception for changed circumstances like Lyons to recognize a prescriptive easement. 59 . Held: No easement. BAPTIST SCHOOL OF CHRISTIAN TRAINING (p. put up fence at edge of road. Hilton wanted the golfers to stop. Presumption that open and continuous recreational use permissive. Not obvious even if using that part of property Private Prescriptive Easement example: MACDONALD PROPERTIES v. allowing easier access between golf holes.6. Hilda didn’t complain and golf balls kept raining down.
Easements / Covenants / Servitudes PROMISE= Covenants & Servitudes (See also Types of Intsts) PROMISE= Covenants & Servitudes (See also Types of Intsts) Covenants: damages Servitudes: Injunction (historically: only negative – promise not to do something) Burden/Benefit run with land: burden/benefit future property owners Equitable serivitutdes easy to defend than covenants.6.but does not have to be the same interest) Not required • Most jdx don’t require horizontal privity • Don’t need notice Burden Intent Y Real Covenants Benefit Equitable Servitudes Burden Benefit Y Y 60 . Burden (usually when the original owner of dominant estate wants to sue new buyer of servient esteate) Covenants Servitudes • Writing • Writing • Notice to subsequent purchaser • Notice • Intent for burden to run • Intent for burden to run • Touch or concern the land (explicity • Touch or concern the land (laxer than concerns how you use land) for covenants) • Horizontal Privity (courts beginning to eliminate b/c need strawman) • Vertical Privity: succession to estate of same duration (fee simple absolute to fee simple absolute) Benefit (when someone is sold from dominant estate and wants to sue new buyer of servient estate to enforce the burden upon them) Covenants Servitudes • Writing • Writing • Intent for benefit to run • Intent for benefit to run • Touch or concern the land • Touch or concern the land (laxer than for covenants) • Vertical Privity: succession to any part of estate (some interest.
as has the restatement on property. Promise made in connection to land transaction between A and B. Show: Some “connection of interest” between the covenanting parties o I. B. makes sure sufficient relationship between A/X and B/Y. still enforced against A (who holds remainder) o But if A gives X life estate.e. B. Vertical Privity A ——-promise in connection to land transaction —— B ↓ Conveys to ↓ X ↓ Conveys to ↓ Y Horizontal privity: relationship between original promisor and promisee. C add restrictive covenant and then sold. if A had fee simple. A promised B. presumption = doesn’t run with the land Some courts have dispensed. A’s new owner not in vertical privity with original owner re the covenant. Easements / Covenants / Servitudes PROMISE= Covenants & Servitudes (See also Types of Intsts) Notice Horizontal Privity Vertical Privity Touch or concern Y Y Many courts eliminating – need straw man Y (same duration) Y Y Generally not required Y (succession to any part) Y Y (laxer) Y (laxer) Horizontal v. A sold to X. A transfer of the estate conditioned on the covenant (not mere agreement). o Needs to be an actual transfer.e. leasing doesn’t bind the lessor.6. Z remainder – can’t be enforced against anyone • Vertical privity fails if (as in Runyon) covenant imposed after sale o Say plot X split into A. 61 . • Ask for both covenantor and covenantee (i. measures intent that burden run with land. only the owner). B sold to Y. A sold. Vertical privity: relationship between successors on both sides. but can be circumvented with strawman Rationale: effectively prevents neighbors from making casual agreements with one another. are you bound? And can you enforce?) • X must have received the same interest as the original promisor held (i. C. • Same Duration: e. X has to have fee simple o Enforced against original owner unless give away estate of same duration o If X just lessee.g.E.
or enjoyment of land (898) • Whether burden influences servient • Benefit influences dominant 3) Affects legal right as property owner rather than rights in general (similar to 1) 902 4) Lay understanding – what lay person would say if touches land 5) Whether promise relates to subdivision development or use of property Examples: Policy: increase overall value of land/neighborhood generally explains Can build only a single family house on this property – YES. use. (Davidson Bros) Tests: 1) Dependent on land ownership (886 Runyon) • Is this a promise that “might exist independently from the parties’ ownership interest in land”? (i. Technically. v. use. look at whether reasonable when entered into and whether reasonable now. If dealt with visual demeanor of property. for a covenant to run with the land. eliminating explicit touch and concern test (NJ).000 a year to favorite charity – NO (nothing do with property itself) o If charity that maintained local parks. Inc. 1-year interest holder likely not intended to be held responsible for major repairs Runyon shows problem: order in which you engage. o Could alter: no vehicle but GM cars can park on driveways. Fence that doesn’t physically touch A’s land (A promised to maintain): increases value but doesn’t touch land. Gross: Promise to purchase well water from neighbor: NO (if promised to keep lawn watered would be OK) 62 . Old NJ statute: covenant that “exercises a direct influence on the occupation.e. or enjoyment of the premises satisfies touch and concern. satisfies all o but if dominant estate not with view wouldn’t touch/concern dominant estate makes sense – likely didn’t intend to run with land Owner has to buy GM cars – NO.6. Can’t be unrelated to the property itself. pay money to keep up neighborhood) Golf Course assessment Majority of cts. respectively. but technically owners not promising to do anything on land. Satisfies all various tests Must keep house painted yellow – YES. does it make any sense?) 2) Directly influence occupation. burden doesn’t run but because raises value sp some courts will find Covenants against competition touch and concern when they’re made to to facilitate harmonious development Eagle Enterprises. formality drives outcomes • Touch or Concern Definition: Many Js require that. the burden AND benefit must touch or concern the servient AND dominant estates. measures intent. MAYBE Owner will give $10.” Most Js going for reasonableness. probably OK Agreement to fund homeowners association OK (satisfies policy. Easements / Covenants / Servitudes PROMISE= Covenants & Servitudes (See also Types of Intsts) Policy: again.
P v.6. allowing it to enforce promises “on behalf of” property owners although association doesn’t own any property. 63 . TRMI Holdings: indemnifying for cleanup costs: NO (technically touches but against policy. Just makes harder to sell) Note: Courts have generally made exception for homeowner’s association. Easements / Covenants / Servitudes PROMISE= Covenants & Servitudes (See also Types of Intsts) El Paso Refinery L.
909) Facts: 25-lot 168-acre development. Nahstedt has 3 “noise-less” cats. “no animals (which shall mean dogs and cats). Deed said. SCHOVEE v. o FL (traditional): any condition is OK unless it’s “wholly arbitrary” o CA: can do anything as long as it’s not unreasonable – i. But there were two lots noted in small print as not being part of the subdivision Holders of other lots were pissed that the two lots could have a dozen or 15 families. NAHRSTEDT v. judge reasonableness at all times). 64 . (see grocery store case) Violates some fundamental public policy o e. but usually P must show rule is wholly arbitrary. Condo association orders her to get rid of them or move out. plaintiff has to show it’s unreasonable. Enforce Covenant in Deed Unless: Tests varies by state.6. MILOSASKO (p. reptiles. doesn’t meet arbitrariness standard and explicitly agreed to. Held: No implied. reciprocal negative easement because there was small print in the deeds specifically saying that 6-7 weren’t covered as part of the scheme. Easements / Covenants / Servitudes PROMISE= Covenants & Servitudes (See also Types of Intsts) Common Communities CCR = “Covenants. new buyer bound. Conditions and Restrictions” Implied Reciprocal Negative Easement/Covenant When developer imposes conditions but then tries to change common plan. o NJ: Can judge reasonableness contemporaneously (i. o Some Others: reasonableness: burden on enforcer to show it’s reasonable. 916) Facts: 530-unit condo development. Developer showed 25 different lots on the maps and the map said that everyone was agreeing that it would be a single family neighborhood. Other states judge reasonableness at the time of the CCR (!!).e. courts will step in and try to impose these covenants When developer forgets to include covenants in formal deed but buyer is aware (marketing materials). LAKESIDE VILLAGE CONDO ASSOCIATION (p. Held: OK to enforce. livestock.g.e. cannot enforce racially discriminatory covenants Nahrstedt: restriction against noiseless cats upheld b/c agreed to In Considering Homeowners Association Rules: Most: a vague reasonableness standard Some: business judgment rule – defer to homeowner’s association’s business judgment No implied reciprocal negative easement if exception stipulated. Dissent: Would have been willing to imply an easement Relatively arbitrary covenants enforced as long as explicitly agreed to. Ms. or poulty shall be kept in any unit” Enforced by condo association.
A few courts go with the business judgment – will look to see whether what they’re doing is reasonable but will defer the their expertise. Easements / Covenants / Servitudes PROMISE= Covenants & Servitudes (See also Types of Intsts) Policy: Legislature can always nix. For original CCRs. go wholly arbitrary or not unreasonable – usually. so can get away with a strong standard for judicial review. 65 . For homeowners associations? Majority of courts go for objective reasonableness – i. association has to show that it’s reasonable.6.e.
e. health and morality of the general public Individual decisions can be overruled at the state level Trend -> more flexible zoning acts (SZEA template provides for specific things that can be regulated. however. Have to show decision arbitrary or capricious (as applied) Zoning constitutional even if it significantly decreases property value. Tacitly about keeping poor people out of there. VILLAGE of EUCLID v. mobile home) (middle level of protection) o Some: protect indefinitely o More likely: amortization period designed to allow owner to recoup investment (Valatie v. AMBLER REALTY CO (p. If you can show that the way in which the zoning ordinance applies makes no difference to anyone. P 965: zoning out apartments on basis that people in the apartments would corrupt moral fiber of single-family residents. To be sustained under the police power. Policy: Who should it protect? Developer caught midstream: (most protection) o Initial plans finished o Construction began o Most states grant vested rights Owner of a nonconforming home (i.6. 962) 66 . Government Regulation Zoning General Principles Authorized as state exercise of the police power. may get lucky. Easements / Covenants / Servitudes PROMISE= Covenants & Servitudes (See also Types of Intsts) 7. Smith) Owner of vacant land (least protection) o Euclid: lost facial challenge brought because regulation eliminated 75% of his land value o Hard to prove. SZEA generally: Requires that decisions be made to promote the welfare. it must be related to the public welfare. (Cambridge case) Often used to achieve surreptitious (and perfectly legal) segregation. State Zoning Enabling Act delegates the responsibility to cities and municipalities. but many no longer relevant and others not included) Value reductions not necessarily a taking: Much easier to mount an as-applied than a facial challenge.
e. it gives them the opportunity to recoup their investment. Argument: Facial constitutionality of the statute – said no rational basis / made due process argument Held: Statute constitutional (they lost). Easements / Covenants / Servitudes PROMISE= Covenants & Servitudes (See also Types of Intsts) Facts: U1 zoning allowed single-famility residentces. Let him repair Courts generally will allow. other changes that aren’t nuisance can constitute changed use If you have a non-conforming use within the amort period. zoned out. o Madame Wong’s. date is usually fixed) Within amortization period.$2. U6 = Heavy industrial + U5. Runs with the land unless statute says otherwise (i. could extend the non-conforming use – lots of non-conforming uses disappear before amortization period ends. you can continue that use but not substantially change it. Courts allow repair: o Billboard case: guy builds billboard. owned 68 acres. Don’t want blight Flexible amortization period constitutional. Ambler Realty Co. then damaged in a storm. VILLAGE of VALATIE v. 982) 67 . not every new owner gets the same period. More likely to win on a challenge to the statute as it’s applied (p. U4 allowed commercial + U3. U2 allowed duplexes + U1. don’t allow non-conforming uses to substantially change Tests for whether there’s a change: o Character of business altered o Effects on general welfare of the district o Increase in traffic. Also permit based on: o Hand-wavey equity o Due process o Takings Virtually every court requires some form of amortization. If you let them use it for decades. after zoning -. U3 allowed Apartment houses + U2. Before zoning: $10k/acre value. Don’t allow substantial changes because: o Sometimes it makes it more non-conforming o At the very least. maaaad. 968 Note 3) Non-Conforming Structures / Amortization Reason behind amortization: Is a grace period allowing non-conforming structures to exist for a certain period of times Want to permit you to get the value out of your investment. SMITH (p.5k/acre value. Value of non-conforming uses: sometimes non-conforming uses are valuable because no one else in the area can do it. As a legal matter: o Similar NJ case: restaurant that had become a disco.6. U5 = light industrial + U4. She took over a non-conforming restaurant still within the amortization period.
can stay there FOREVER. Held: Have vested right. This also was the situation the statute was designed to deal with. CITY OF LOGAN (p. then city rezones in 1978. Easements / Covenants / Servitudes PROMISE= Covenants & Servitudes (See also Types of Intsts) Facts: 1968: city bans mobile homes outside mobile home parks. thus ending the amortization period. D inherits mobile home from her father. rogue zoning agent inappropriately issuing permit under statute) o Although this seems very similar to estoppel. Held: Amort OK. April 1976. 988) Facts: P in 1969 buys 18. Policy issues: Majority approach (permission + reliance) o Doesn’t address government mistakes (i. In 1989. and that’s satisfied by cutting it off at the time of voluntary transfer or death Vested Rights (for Developers) Requirements for Vested Right: Some type of official action – usually the granting of the permit Significant expenditures in reliance of that action o Some have quantum requirement – “enough money” o Some have % requirement o Some have balancing test (how important is the public interest. but weak. Argument: Facial challenge arguing that amortization period is arbitrary. Zoning is about the use of the property. submit preliminary plan in 1977. Planning commission improperly rejects in Oct 1977. o There’s a compelling countervailing public interest Once you have the right. not who owns it (SZEA/due process) As-applied challenge? Could have argued that change-of-control didn’t include death.5 acres. will this have a long-term impact on development? UT test (minority approach): Once you apply for permission to build (no permission necessary).e. WESTERN LAND EQUITIES v. is merely an attempt by the city to ease the burden on non-conforming uses. and this had gone on long enough. you need promise (permit) + reliance o Uncertainty – difficult to judge when you have enough reliance – property owner can’t make decision 68 . Allows amortization until there’s a change of ownership. The public need to remove non-conforming uses isn’t rationally related to who owns the property (due process).6. announce new Utah rule. Only not a vested right if: o Developer doesn’t move forward with due diligence o Some zoning change was in the works. Property zoned M1 – moderately priced housing OK. Basis of the law was to protect personhood. Much better off than owner of nonconforming structure Vested right example (UT): App = right.
Very deferential 69 . 996) (NY) Facts: 181’ x 286’ lot with a steak house. BOARD OF APPEALS (p. Rezoning/Spot Zoning Rezoning: Municipalities can re-zone on the basis of changed circumstances Assessed under abuse of discretion standard. (North Shore) Example of hardship denied. Show o The zoning as applied will pose an undue hardship. Appl court that they satisfied special exception but upheld denial of hardship variance.e. Show that: o The use is one contemplated by the statute and o The use satisfies the conditions for granting the special exception. o Additional NY condition: the exception sought is in harmony with the overall purpose and intent of the ordinance. you can’t use the property in any meaningful way. Restaurant seeks 25’ special exception and remaining 61’ variance to use the entire back 86’ section for a parking lot. Use within the special exception zone was contemplated by statute. area variance o Courts very deferential Special exception = carve-out in the ordinance that you have to get permission to do. Some courts will accept showing of a less profitable use o No fair and substantial relationship between the general purposes of the zoning and the specific restrictions on the property o The variance is in harmony with the overall purpose and intent of the ordinance and would not injure the public or private rights of others.6. o Need higher showing for use variance vs. or unreasonable. Extending it through the rest of the 86’ was not. Minority approach (application submitted) o Boards may want to always be “re-evaluating” o Requires only due-diligence – limits flexibility if something really needs to change. Easements / Covenants / Servitudes PROMISE= Covenants & Servitudes (See also Types of Intsts) o Creates incentive to speed up construction – the further you get the more likely you have the vested right. Front 200’ = business B. capricious. Special exception allows up to 25-foot extension of zoning if the lot is divided between zones. NORTH SHORE STEAK HOUSE v. variance granted. Held: Trial court used facts denying hardship variance to also justify denying special exception. Variances and Special Exceptions Definitions and burden: Hardship Variance = permission to do something prohibited by the statute. allowed as long as not arbitrary. back 86 = Residence B. i.
Easements / Covenants / Servitudes PROMISE= Covenants & Servitudes (See also Types of Intsts) Spot Zoning: Unacceptable amendatory ordinance singling out a small tract for treatment that differs from surrounding area without proof of changing conditions. Review: Rational basis – Zoning statute can’t be arbitrary. Originally zoned R-1 single family housing but want to build duplexes/etc. Courts uphold unless town outlaws all speech regardless of how small or discriminates based on content 70 . Adjacent property owners challenge ordinance. and masses shall be encouraged” “colors shall be harmonious” ) 1st amendment claims – Hard to win. thus people can intercede however they want. safety. capricious or unreasonable. All gov agencies approve. Is rezoning legislative or adjudicative? Court treats it as legislative – evaluates as question of law. The result may be invalidated on the basis of the 14th amendment. Aesthetic Zoning Most will uphold it. issues with neutrality. at least in theory o Courts initially troubled by this type of zoning. and (2) was it resulting from a substantial change in the neighborhood. generality. Presumption is that it’s unreasonable Can be accomplished (more-or-less) through referendum (Eastlake) Rezoning of one piece of property not spot zoning as long as there’s a public interest. ask: (1) does it correct error. small lot. and thus must bear “a substantial relationship to the public health.” In context of Spot Zoning. FOREST CITY ENTERPRISES (p. 1009) (SCOTUS) Facts: Forest city enterprises wants to build multi-family high-rises. but not the process. not fact. Zoning by popular referendum allowed. CITY OF PHARR v. Q: Should people be voting on this? To the extent that’s adjudicatory – absolutely not To the extent that it’s legislative (SC thinks it is). City of Issaquah (stuck down for vagueness “harmony in texture. bill serves the public interest and doesn’t burden others. and who uses vs.6. TIPPITT (p. City rezones to allow it. stevens. people can override anything with popular referenda. Requires zoning change from light industrial. Not allowed if there’s a substantial negative impact on surrounding areas or if it’s applied to a single. Change fails to get 55%. what use. Held: This is a legislative determination (cf. Held: Community is growing and more housing necessary. 1002) (TX) Facts: Urban Housing Associates has 10. Courts much less deferential. Voters amend city charter to require 55% of popular approval of all zoning changes. lines. traffic concerns Vagueness most common way to strike down: Anderson v. morals or general welfare. Some courts want something other than aesthetics motivating it – attract tourists. who convinces it’s not).1 acres. EASTLAKE v.
6. Easements / Covenants / Servitudes PROMISE= Covenants & Servitudes (See also Types of Intsts) 71 .
Federal Fair Housing Act 72 . limits on multi-family dwellings. but minority (NJ. City of East Cleveland (grandmother living with two grandchildren who were cousins. SC) say illegal under state law or state constitution. Cannot foreclose classes of people States diverge as to whether they scrutinize. VILLAGE OF BELLE TERRE v. it’s a reasonableness balance with respect to the general welfare. Marshall Dissent: Constitutionally suspect – would accomplish with other means. Sometimes state statutes explicitly prohibit stuff like this. Possible Claims to Challenge Indirect Discrimination Equal protection claim – under either the federal or state constitution o If no stated racial intent in the statute. Handicap: City of Cleburne v. o Class is not a suspect classification. only hold to rational basis scrutiny. Easements / Covenants / Servitudes PROMISE= Covenants & Servitudes (See also Types of Intsts) Discriminatory Zoning / Alternative Use Zoning Direct Discrimination – (Generally) Not Allowed Race: Banned in Buchanan v. 1049) (SCOTUS) Facts: Belle Terre. college town (SUNY Sony Brook) bans more than two unrelated people from living together. Warley Family makeup: Can limit to single family (Belle Terre) But can’t define a single family too narrowly: Moore v. BORAAS (p.6. maybe a legislator mentioned something. minimum lot sizes Will overturn under FHA if exclusionary impact on race Some courts have read-in constitutional or statutory requirements that all municipalities make a variety of housing realistically possible. Held: Is OK. so only subject to rational basis (arguments for strict scrutiny shot down). limits on apartment buildings. Indirect Discrimination (Complicated) Background: Examples: Minimum floor area. city said didn’t constitute family) Number of kids: Marjrity says limits OK. Cleburne Living Center: Some forms unconstitutional (failed rational basis) Federal Fair Housing Act: bans discrimination against the old and the handicapped Can prohibit more than one family from living in the same dwelling. If they do scrutinize.
courts can’t order subsidies. If it does. not just the welfare of those in the city (minority rule). Petaluma policy 500 new units/year 8-12% have to be low and moderate income housing o Difficulty enforcing: Limiting who you can sell (i. people have to show some kind of countervailing interest. Zoning restrictions must promote the general welfare. o Mandatory set asides E. but may be able to force if no other way to satisfy judicial order. o Can have the city change its zoning rules. why not just take the $$ and use it to house more people elsewhere. SOUTHERN BURLINGTON COUNTY NAACP v. Easements / Covenants / Servitudes PROMISE= Covenants & Servitudes (See also Types of Intsts) o Show discriminatory effect -> burden shifts to the city to show there’s some independently justifiable basis. for example.6.e. TOWNSHIP OF MT LAUREL (NJ) (p. In Mt. Remedies usually legislative. but will that really change anything? You’re going to have to get people to develop and move (Mt. State Constitutional Claims o Right to travel and migrate (not part of SC jurisprudence but read-in by some states) o Privacy o Equal protection o Not a legitimate exercise of the general police power SZEA Intent o Zoning must promote the general welfare.g. 1054) 73 . the general welfare = the welfare of everyone. Rent control is hideously inefficient Could get people in there who don’t need the help Almost any economic intervention will have some unintended result / require a massive number of carve-outs. Laurel. Laurel rezoning unsuccessful) Subsidies for low-income development o Court can’t enforce this directly. and not just the local citizens Ask whether it discriminates against people outside the city. for example. o Inefficient – if you’re going to carve out an expensive area for a small number of poor people. unsuccessful Remedies: Fair Share Requirement: every city in NJ has a responsibility to provide for housing of it’s fair share of the low and middle classes. income limits) may be a restraint on alienation. “Inclusionary Zoning” o Incentive zones: if developer builds low-income housing it can do something more profitable elsewhere.
Easements / Covenants / Servitudes PROMISE= Covenants & Servitudes (See also Types of Intsts) Facts: 29. Environmentally focused zoning restrictions may cover for indirect discrimination. CA Facts: 4000 acres. rest residential. but no one developed/moved there. upper class neighborhood that’s racially homogeneous. Consequences: $4 m average home price. Had no practical impact. higher tax base. inclusiveness. 1042) Regime: No new building permits until: (1) sufficient educational facilities (no double sessions or overcrowding). avg income = $200k. Indirect discrimination in terms of the type of people who can end up here Likely Motivations: Direct discrimination on basis of class. Racially homogenous: 85% Tension: Environmental amenities v. No facial discrimination. rural. LIVERMORE (p. minimize expenditures (# of kids in the school. For residential zones.2% Industrial zoning. city hasn’t done anything to relieve. City wasn’t able to rebut with a valid non-selfish basis. (3) adequate water supply (no rationing). for example) Holding: This doesn’t promote the “general welfare” – just looks out for the interests of the local citizens. stipulations on minimum lot sizes and dwelling floor area – big homes on big pieces of property (can’t subdivide). (2) adequate sewage facilities (as determined by gov reg). apts or mobile homes). Land use goal “scenic. #2 most expensive zip code. 74 . 7200 residents. Growth control violates SZEA if it burdens surrounding areas to help local residents. Aftermath: City re-zoned. only single-family (no townhouses.6. ASSOCIATED HOME BUILDERS v. never been challenged. thickly wooded residential area with abundant open space. 1. Would probably pass since it’s not a hard limit on development (squishy Livermore test). Possible remedy: expanding who can vote? Maybe extend to surrounding municipalities? Courts have no idea how to deal with this stuff – often done legislatively – state leg (as in NJ case) will come in and deal with it Zoning as Growth Control Moratorium on development Majority: uphold moratorium so long as cities work to solve constraints. Problem: Leads to homogeneous. 2413 homes. ATHERTON. so strike although would normally uphold) Has to be related to general welfare o probable impact/length of impact on people outside wanting to move in o Competing interest of town – worry about growth o Has town made reasonable accommodation between competing outside/within interests? Exaction (alternative): Impose costs on developers – charge developers money to build school/expand water. o Rhode Island (notes case – moratorium for 3 years.2% commercial. This is called an exaction. Allowances for Planned Unit Developments (PUDs) but restrictions likely would have priced low-income people out of the market. Livermore.” Zoning: families only.
Ultimate test: “whether the ordinance reasonably relates to the welfare of those whom it significantly affects. Local Welfare: SZEA is where local authority to zone comes from (municipalities adjunct to the state). Why scrutinize? Procedural argument (a la dormant commerce clause – “crowd-source” the problematic stuff and deal with it judicially – state legislature may either be captured or otherwise not pay attention). Standard of Review: Should we just leave it with the state to deal? The state delegated. so suggests general welfare.6. Actual level of review: CA scrutinized. the city council decided. and the state can overrule. There was no racial problem. 75 .” Held: Remanded to see if it’s an undue burden. Easements / Covenants / Servitudes PROMISE= Covenants & Servitudes (See also Types of Intsts) General Welfare v. but still discriminatory (similar to NJ Mount Laurel case).
others get what the government offers and the government generally low-balls. beyond financial 76 . Political donors can get special statutes to get around Navigational Servitude (bill saying that particular pieces of property aren’t navigable) No compensation for intangible social vaue. similar provisions in state: Government o Doesn’t specify which branches (legislative. Basis for the Takings Clause Encourage development – if government could just take it then you don’t have an incentive to improve it o There is expropriation insurance if you’re developing in certain countries (Lybia. Arguably more political though. and would take it even if the benefits the the taking were less than the costs. then everyone should bear the cost. title to inter-tidal) are exempt due to Congress’ power to promote navigation. Easements / Covenants / Servitudes PROMISE= Covenants & Servitudes (See also Types of Intsts) Governmental Condemnation of Land: Public Use Overview The Takings Clause: 5th amendment of US constitution. o But now get freeways built through cheapest/poorest area possible. Just wrong: kind of circular. not just the landowner where it happens to be “Fiscal illusion” – if the government didn’t have to pay. Venezuela) Navigational Servitude: There are some examples in the US of this: takings related to navigation (ports. but… “demoralization” Corruption/Unfairness: Discrimination among property owners Unfairness: If government is building a freeway. courts?) Cannot Take property o What does it mean to take? When do you have a taking? Main question For Public Use W/o paying Just Compensation Government may take private property for public use only with just compensation – 5th amendment In Practice Payment = FMV – no special value (appraiser comes in) Studies of compensation : people generally get less than FMV o People who are rich get their own attorney and push for a higher price. executive branch.6. it would treat it as free.
likes house. not so in Kelo case Main dissent in Kelo harps on this – is special exception Takings for economic development OK. private ownership where public access guaranteed (interpreted broadly. They picked Poletown. Used as basis for majority holding of public purpose. hospitals). public health) Currently controversial: delegation of authority to private institutions (Columbia U. CITY OF DETROIT Facts: GM was threatening to move out of Detroit and Detroit wanted to keep them there. 77 . unsettled Public purpose but no public use/ownership: Kelo test: does the taking have a rational relationship to the public purpose announced in the taking? (deferential. rational basis). Gov’t wants property for economic development. even if for a factory (controversial): POLETOWN NEIGHBORHOOD COUNCIL v. public access includes use of utility services. but poor immigrant community with churches/synagogues/etc.e. likes view. for example. Detroit said they’d buy whatever piece of property GM wants and Detroit would give it to GM. 179) Facts: Suzette Kelo doesn’t want to sell. a long-standing. not necessarily entry onto the land) Probably OK: o Public accountability. Held: this is Public Purpose. Area was very. Ok taking with just compensation. but viewed almost universally as a bad decision. very blighted. Issues: (1) did the city really need to use ED? Corporations assemble property all the time (2): ED worries us because it’s a fairly extreme exercise of government power. o Judge by rational basis Rational basis scrutiny for taking to give to private party to promote economic development: KELO v. Holding: OK. Easements / Covenants / Servitudes PROMISE= Covenants & Servitudes (See also Types of Intsts) Public Use Requirement Range of Public Ownership Clearly OK: public ownership. OK to transfer condemned property to private entity as long as use is overseen by government (Michigan) o Special exigencies: Affirmative public harm / source of public concern (i. Thomas calls out in Kelo dissent and is a note case. Remedying urban blight is OK: Area on PA ave near capitol. condemned area in order to expand development. NEW LONDON (p. Thomas dissent: “public use” must mean something other than “general welfare” Reaction: Many states changed their own constitutions to prevent a kelo-type taking.6. collapsing it into rational basis gives its exercise more-or-less the same level of scrutiny as every other exercise of power.
leased by many others. Easements / Covenants / Servitudes PROMISE= Covenants & Servitudes (See also Types of Intsts) Poletown overruled. MIDKIFF: large part of Oahu owned by a few landowners.6. (Although in effect taking from native Hawaiians) Note: Owner of property held it in trust for the benefits of educating the native Hawaiians. SC allows breaking up concentrated landowners. so got government to condemn property held by the native Hawaiians. So reason is to condemn. Most renters were pretty rich. canals. HATCHCOCK Saying that transferring to another private owner only OK if o public necessity (highways. railroads. other instrumentalities of commerce) o private entity remains accountable to public o when condemnation itself based on land. Professionals didn’t want to pay more. not to give Limit monopolies: HAWAII HOUSING AUTHORITY v. 78 .
“Physical Occupations” • • Loretto. there is no taking. If the government regulation does not constitute a categorical taking. Does the governmental action interfere with a property right that the plaintiff enjoys as a matter of state or federal law? • • E. 1145 Open Questions: o What if your property retains some modicum of value? Non-economic value? Small percentage of economic value? Simply not settled o What is the relevant parcel of land for purposes of applying the Lucas test (the “denominator” issue)? Adjacent lot problem. 1137 (CATV) Open Questions: o Does it have to be “permanent”? (EPA inspections are NOT) o Cf. smoke detectors? o If so. 1155 n.7. Easements / Covenants / Servitudes PROMISE= Covenants & Servitudes (See also Types of Intsts) Regulatory Takings Overview / Summary (Thompson) 1.6. 4. p. if the government simply prevents you from using your property in a way that would constitute a common-law nuisance. Open Questions: o To what degree can the legislature avoid takings by redefining future property rights? See Palazollo. p. 1169.. o To what degree can courts avoid finding a taking by redefining existing property rights? See Stevens v.g. Denial of “economically” beneficial use of the land • • Lucas. City of Canon Beach. does the government regulation constitute a “categorical” taking? i. Are you dealing with a “physical taking” or a “regulatory taking”? 3. p. If the latter. what does that mean? ii. p. 2. 1124) balancing test? • Character of government regulation 79 . does the regulation fail the Penn Central (p.
Held: New type of taking that’s “categorical” – a “permanent physical occupation. NYS gives cable companies right to install for $1. Physical use constitutes 36 ft of cable + 2 directional taps + 2 silver cable boxes. Cable companies initially negotiate deal with each landlord. p. Cannon Beach. TELEPROMPTER MANHATTAN CATV CORP (1982) (SCOTUS) (p.” LORETTO v. Easements / Covenants / Servitudes PROMISE= Covenants & Servitudes (See also Types of Intsts) o Physical interference o Purposes of regulation: safety.” The former is a categorical taking. morals. Js have oscillated (note 4.” This is such an occupation. But not all that compelling (smoke detectors) – any building code? 80 . 1155) (denied cert) Hang up is the denominator: o What if two adjacent properties and deny use of one? If they’re subdivided. or general welfare • Expectations of property owner o “Distinct investment-backed expectations” • Extent of depreciation in the value of the property TDRs? Debate with Scalia over whether attempts at compensation should be used in determining whether a taking occurred from the beginning Categorical Takings (Detail) Physical Invasion Examples: Requirement to allow CATV Co. should they be taken together? o Courts have no idea. should it matter. 1137) Facts: Jean Loretto.6. so is taking. the other may be a taking under Penn Central o Distinguish smoke detectors – say that you have a choice as to where they go – exception is “permanent physical occupations by third parties. o Distinguish “temporary physical invasions. p. 1154) PERMANENT PHYSICAL INVASION CASES Is a categorical taking if there’s a “permanent physical occupation. to string cable through property = YES (Loretto) Requirement to let public use your beach = YES (Nollan) Periodic EPA inspections to assess groundwater contamination = NO (Hendler) Rent control + Restrictions on eviction = NO (Yee) Deprivation of all Economically Viable Use Example: Disallowing development on beachfront property = YES (Lucas) Denial of building permit to build seawall = NO (Stevens v.” but don’t do so on basis of safety interest.
Categorical taking: No. SC blocks all development seaward of a particular line in order to prevent further beach erosion / existence of the barrier islands. Facts: CA wants to expand access to the oceans. Requirement that beachfront property owners let the public on is a permanent physical invasion. there’s likely no reciprocity of advantage – if you can’t do anything. o Doesn’t explain what constitutes economically beneficial use. o Scalia – “where the state seeks to sustain regulation that deprives land of all economically beneficial use. Held: Is a permanent physical invastion – continuous traversal (Scalia). would have to move a structure). Development jeopardizes dune system and endangers adjacent property. CITY OF ESCONDIDO Facts: City of Escondido controls all rents on apartments. EPA asks Hendler to allow them put a pipe in the ground to extract groundwater samples. Also had been underwater not so recently. New type of categorical taking: o #1: If you’re deprived of all value of property. Easements / Covenants / Servitudes PROMISE= Covenants & Servitudes (See also Types of Intsts) EPA inspections to contain groundwater contamination not a physical invasion categorical taking.6. Problem with incentives to kick tenants out to reset. it’s the functional equivalent of an expropriation. you know you get no benefit from being there and benefitting from restrictions on over. LUCAS v. restricts ability of landlords to evict tenants who have paid rent – even if term of lease has expired. no dice. we think it may resist compensation only if the logically antecedent inquiry into the nature of the owner’s estate shows that the proscribed use interests were not part of his title to begin with” 81 . Is this a taking? Held (Scalia): Is a taking – deprived all “economically viable” use of the land. Requires all property owners along the beach to provide ocean access unless physically impossible (i. Rent control + restrictions on evictions not permanent physical invasions because one didn’t have to lease property to begin with. HENDLER v. Some of the water is contaminated. o #2: Because you don’t have anything left at all. Held: No permanent physical occupation because one doesn’t have to rent the place to begin with. because EPA will stop at some point. 1145) Facts: David Lucas spends $1M on beachfront property. Want EPA employees to occasionally come test the water. ONLY exception (under Scalia): o If the regulation has done the same thing as the common law would have done.e. EPA needs to figure out whether contamination is spreading towards city’s well. YEE v. ignores privity. NOLLAN v. CALIFORNIA COASTAL COMMISSION. UNITED STATES Facts: Hendler owns a piece of property over a groundwater aquifer. SOUTH CAROLINA COASTAL COUNCIL (1992) (SCOTUS) (p. DENIAL OF ECONOMICALLY BENEFICIAL USE OF THE LAND CASES Deprivation of all economically viable use of the land is a categorical taking. He can still use it for his own recreational purposes and exclude.
Test (Brennan): Factors: o Economic impact of the regulation on the claimant (extent of depreciation). o State is cash-strapped. Look at time title was brought. Easements / Covenants / Servitudes PROMISE= Covenants & Servitudes (See also Types of Intsts) o Legal formalism Kennedy (concur. but elsewhere in the city. Political realities don’t give them the truly massive amount of money necessary to buy all this beachfront property. 1124) Facts: Grand Central Terminal. Penn Central wants to build a massive skyscraper on top. more likely to be a taking Adjusts benefits/burdens Held: No taking. Can interpret as: o Fiscal illusion: State didn’t need to do it anyway. Penn Central Balancing (Detail) Balancing test for takings weighs economic impact.6. Declared a historic landmark. If designated as landmark. PENN CENTRAL v. investment-backed expectations and character of the government action. o Didn’t fully depreciate their property (denominator). said they couldn’t look at the air rights separately from the rest of the property. owner must keep building in good repair and can’t modify without commission’s permission. then someone had an investment-backed expectation. under Scalia. but the state still would have been better off. and could thus use that to determine o Character of the governmental action If physical invasion. but then flipped it and allowed it to be development. o Say there’s no case in your jurisdiction that says it’s a nuisance to develop a wetland. NEW YORK (1978) (SCOTUS) (p. No one thinks they’re fully compensatory 82 . Statute: 400 landmark sites as designated by NYC. you’re fine o Under Kennedy: you have every reason to expect that courts in your J would do what courts in every other J did. Aftermath of Lucas: SC paid Lucas compensation. If someone purchased a mineral interest with an expectation to mine. but very different): Would look only at reasonable investmentbacked expectations. Denominator unsettled Not clear if they look at the $ value/% loss or whether there’s still remaining value o Extent to which the regulation has interfered with distinct investment-backed expectations. Never fully explains this – seems to suggest denominator – Frank Michaelman – his explanation for how you would determine what the denominator was. plans rejected by historic preservation counsel. o Got transferrable development rights – the right to build higher buildings than zoning laws would allow. built in 20s and then surrounded by skyscrapers.
O’Connor: Under Penn Central. this is still relevant. SC: we can evaluate what the state court says is common law to determine whether it actually is the common law – seeming exception to right that state courts are ultimate arbiter at the state level. Scalia – convincing – doing what Brennan did means that the government can pay unjust compensation by giving you something to get it past the takings hurdle. just doesn’t want government to get off the hook. Basically: o A owns land. o 1) doesn’t want to force A to have to try and develop to ripen o 2) allows A to get compensation by making sure B knows he can mount takings challenge and possibly develop o 3) government’s done the “wrong” by passing the law without compensation. o Judiciary can’t effect the taking either: Scalia doesn’t think so (Note 1: 1155 note 7) – can’t invoke judicial decree to transform private property without just compensation. but still took it. Goes against O’Connor: says it shouldn’t be relevant. Easements / Covenants / Servitudes PROMISE= Covenants & Servitudes (See also Types of Intsts) Brennan suggests that it lessens economic impact and thus cuts against taking. just rejected the proposed plans Takings in Time (Detail) General principles: If a regulation is a taking and the regulation is later reversed.6. RHODE ISLAND (2001) (SCOTUS) (p. PALAZZOLO v. 1169) Facts: Shore Gardens purchases property in 1959: sells 6 of 70 lots. 1978: State revokes SGI’s corporate charter – property passes to Palazzolo (as corporation’s sole shareholder). o No investment-backed expectations o Didn’t completely kill their air rights. “Coming to the taking” is not a bar for a takings claim. 83 . 1971: Rhode Island creates the Coastal Resources Management Council. 1971: RI passes regulation o B buys from A o Can gov argue that because regulation was there first. Cf. might not be relevant under Lucas Scalia: Not worried about windfall (“savvy investor”). If A doesn’t care. A period of time during which a use was deprived is not separable from the rest of the estate for the purpose of determining whether it’s a taking (denominator) Buying the property after a regulation is in-place isn’t fatal to takings claim. it’s not a taking? Held (Kennedy): Says that “coming to the regulation” isn’t dispositive. owner is entitled to compensation for period during which he was deprived of use. then the government shouldn’t benefit from it. The government has taken something – technically from A.
Property owners mount facial attack on the statute. so FE distinguishable. it’s within the police power. so legislated with nuisance. TAHOE-SIERRA PRESERVATION COUNCIL v. was ruled a taking.” FIRST ENGLISH EVANGELICAL LUTHERAN CHURCH v. Status of taking: No determination as to whether permanent moratorium would be a taking. If it expropriates a benefit.6. Reject per se rule because: o Not all building moratoriums would be taking to begin with (and not sure about this one) o Don’t want to sever the 36-month deprivation from the rest of the state to determine whether it fits Lucas (denominator) o Don’t want to add perverse incentives get development council to finish hastily or property owners to hurry up and build. MUGLER v. 1156) Facts: Regulation prevented a church from expanding. it’s a taking. Temporary prohibition on development in Lake Tahoe until state settled development plan IS a taking. or if it’s useful it’s severely declined in value. TAHOE REGIONAL PLANNING AGENCY (2002) (SCOTUS) (p. Historical Tests (Probably Not Relevant) Historical Takings Tests: Physical Invasion: No physical invasion no taking. was unclear. 84 . Mugler owns an existing brewery. Then. Today. Problem arises in that you could expropriate land to make a public park by forcing owner to not exclude/keep up and still no technical physical invasion. Easements / Covenants / Servitudes PROMISE= Covenants & Servitudes (See also Types of Intsts) If regulation that’s a taking is repealed/amended. say reg = don’t kill endangered wolves. According to Mugler. not a taking Regulation used to be a taking only if it resulted in a physical invasion (brewery). Benefit. Held: To taking. are they stopping the harm of species destruction or expropriating the benefit of population growth? Public Nuisance: If the regulation prevents what would be a CL public nuisance. owner entitled to compensation for the period the property was “taken. 1112) Facts: Legislature declares breweries to be a “common nuisance” and orders them closed. so NBD to do directly. Depends on where you place the baseline. 1160) Facts: Government placed temporary moratorium on development during the process of devising a comprehensive land-use plan. KANSAS (SCOTUS) (p. but then city repealed in lieu of paying. COUNTY of LA. all of the equipment is no longer useful. would have argued they could have sold the equipment and it wouldn’t have been a total deprivation. Taking? Held: No taking because no physical invasion. Held: Church entitled to compensation for the period that it was deprived the use. (1987) (SCOTUS) (p. Now: Legislatures could directly ban brewing / dry county (21st A). If regulation stops a harm. Harm v. similar to First English.
Other side: fish have a right to the water? I agree. this seems to be a taking. CAUSBY (p. Each landowner preventing flooding of the others. Purchaser waived all rights to sue for the subsistence. The government’s not taking the sheep. Dissent (denominator): Brandeis: need to consider the value of the entire parcel. PENN COAL v. UNITED STATES (p. but then removing the coal underneath causes subsidence and destruction. but helped in ways whereby others are hurt under the same statute. Water right is binary – you either can use it or you can’t. note 2) Facts: Jim Bridge owns a sheep ranch. LUJAN (p. note 3) (1946) Facts: Military aircraft fly low and directly over your property and reduce enjoyment. + Could mine. sometimes takes the land it owns (coal underneath) and sells the surface estate to third parties. Is a taking if doesn’t fly directly over your property? If going on physical invasion test. Is considered a taking. note 2) Facts: Mary Austin holds a water right on a river. PA passed Kohler Act – prohibits PA coal from mining from underneath someone’s property if it’s at all likely to lead to surface subsidence. Never says what the threshold is (%) or what it’s to be measured against (denominator). US v. any reduction of it is a taking. value goes down 50%. Protections of predatory species may or may not be a taking. so unclear: I’d say that killing endangered species is a public nuisance. Twist: they’ve effectively turned a contract dispute into a takings case Average reciprocity of advantage: (Brandeis counterargument): to the degree that a law hurts you. You’re hurt in your inability to use your property. TULARE LAKE BASIN WATER STORAGE DISTRICT v. MAHON (1922) (SCOTUS) (p. 1117) Facts: PA coal company mines for coal. government orders reduction in water withdrawals to save Chinook salmon under the endangered species act. CHRISTY v. Other issue: Why do we grant water rights? Why not just tax for how much water you remove? Today. o Example in coal: statute requiring coal companies to keep a coal pillar around their land has average reciprocity of advantage. SC denied cert. 1116. grizzly bears have eaten 100 sheep. Test: Diminution of value. then no. Limiting mining rights can be a taking (OLD – early confusion about the denominator). but I think you have a good nuisance. the tax law would not be considered a taking. 85 . 1115.6. Low-flying military aircraft my constitute taking of fly directly over. the bears are taking the sheep. Argue taking. not just the subterranean estate. but other similar laws also benefit you (namely zoning). gov forbids harming them as an endangered species. Is this a taking? Hold: Yes – no different from an expropriation of a piece of land. Is this a taking? Taking of what? The sheep. 1115. Easements / Covenants / Servitudes PROMISE= Covenants & Servitudes (See also Types of Intsts) If the right is binary (there’s one stick in the bundle). Held: Is a taking because it eliminates basically all of their mining rights. but under the doctrine. People build houses on the land. just not in a way that causes subsistence – Brandeis is reducing the % diminution.
Mary goes into court and waves Penn Coal – is taking? Is an average reciprocity of advantage + Public nuisance + DMV of her whole estate. she didn’t just own the mineral rights. Easements / Covenants / Servitudes PROMISE= Covenants & Servitudes (See also Types of Intsts) Aesbestos Hypo: Say lady owns mineral rights and starts mining asbestos.6. 86 . Gov shuts down all asbestos mines because of the danger.
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