Kelly Prop Fall2012

7/27/2019 Kelly Prop Fall2012

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PROPERTY I OUTLINE

PROFESSOR KELLY

WIDENER LAWFALL 2012

I.

TRESPASSA. RS: Unprivileged, intentional intrusion on the property of another

B. Elements for a cause of action:1. Intentional (voluntary physical act)

2. Intrusion3. Onto land of another

4. Unprivileged

5. Criminal law add on to forbid access (requires state of mind-willful

trespass after being told no access)

II.

RIGHT TO EXCLUDE AND LIMITATIONSA. The Right to Excludea. Majority Rule: LO can exclude

i. Rationale: promotes autonomy/freedom of LO

ii. Elements of Civil Trespass:1. Intentional (intent of entry)

2. Invasion

3. Upon land of another 4. That is unprivileged

iii. Criminal Trespass:

1. Objection of LO creates ―5th

element‖

iv. Defenses/Exceptions to Trespass (see below)v. Right to exclude will yield to right of access when there is

an important public policy issue (when exclusion is

harmful)

B. Right of Access (Limits on the Right to Exclude)

The more an owner has opened their property to the public, themore likely it is that courts will find public rights of access to the

property a. Private Property

i. Defenses to Trespass

1. Privileged if consent, including implicit

a. Ex: Child throws ball into neighbors yardoccasionally, goes into yard to retrieve ball

2. Necessity/Emergency

a. Ex: to save someone having heart attack,fire in house, etc.

3. Public Policy

a. Ex: State v. Shack (necessity)



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i. Narrow: Rootless and isolated

migrant farmworkers who live on

LO’s land have a right of access of visitors who are legal services are

healthcare providers seeking to assist

the workers. Thus, private LO’sright to exclude is limitedii. Broad: The right to exclude is

limited if there is an important

countervailing public policy that will be promoted

iii. Rationale: Although the LO’s

autonomy interests are important,

they must yield to promote the privacy/autonomy interest of the

workers and enable them the

opportunity to live with dignity andto associate with others. (rights

customary among citizens ―too

fundamental to deny in the interest of

real property‖) 4. Right to Roam: ½ states allow hunting unless ―no

trespass‖ signs are posted. Some countries allow

hiking/camping on undeveloped land. b. Property Open to the Public

i. All landowners: Right to Exclude is limited by anti-

discrimination law (discrimination against a protected

class is prohibited according to state/federal law)

ii. Special Rule for Innkeepers/Common Carriers 1. Can exclude only if reasonable (must have good

reason not to provide services)2. Rationale: need to protect access to crucial services

relating to travel and housing in order to promote

autonomy of consumer, even though it underminesautonomy of service provider

iii. Rules for Non-Innkeeper Businesses

1. Majority Rule (emphasizes right to exclude)

a. Except for prohibited discriminatory reason,LO’s can exclude for any reason, even

―arbitrary and unreasonable.‖ Consistent

with state & federal civil rights law

b. Rationale:i. Personal autonomy of LO

ii. Allow LO to maximize business

interests without interference



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(inviting litigation undermines

business function)

iii. Ex. Marsh free speech - allowedto distribute literature on private

university campus b/c campus held

open to the public2. Minority Rulea. May exclude only if reasonable (Shack and

Schmid).

i. Owner must explain why excludingii. Protects against arbitrary exclusions

b. Reasonable exclusions:

1) Security Threat

2) Undermines BusinessFunction

ii. Ex: Uston unreasonable to

exclude card-counter from casino because such conduct does not

threaten security or undermine

business operation and there is no

other reasonable basis for exclusionarticulated.

Extended in Uston to apply to all

places ―open to the public‖ c. Rationale:

i. Autonomy interests of consumer

1. Exclusion may be a cover for

discrimination that is hard to prove

2. Dignity and respect for the

consumer ii. Public is invited in and relies on that

invitation (implied K theory; LO

waives right to exclude)iii. Compromise between public’s

interest in right of access and LO

autonomy interest in exclusion

III. PUBLIC ACCOMODATIONS STATUTES

A. Civil Rights Act of 1964, Title II

(federal law)-Prohibition against discrimination or segregation in places of public accommodation

a. Access to place of public accommodation on grounds of race, religion, and

national origin (sexual orientation or gender are not part of this) b. Elements: (PPA: + commerce OR state action)



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i. Def committed discrimination/segregation, on the grounds of race,

religion, or national origin, over access to place of public

accommodation

ii. which includes list of facilities named or implied

iii. and serve the public, not a private establishment;

iv.

and either affect commerce OR supported by state action c. Remedy = injunctions only

B. Civil Rights Act of 1866

a. Applies to retail stores b. Governs race discrimination only

c. Remedy includes economic damages

IV. COMPETING CLAIMS TO PROP – ALLOCATION OF RTS

A. Things in the wild

a.

Property of wild animals is acquired through occupancy onlyi. Occupancy: actual corporal possession

1. Mere sight, pursuit, or flushing of animal is not enough

2. Even pursuit accompanied with wounding is not enough

3. Physical seizure, mortal wounding, greatly maimed, netsand toils satisfies

4. Ex: Pierson To define occupancy as the act of pursuit,

without depriving the animal of its natural liberty, would provide ―fertile source of quarrels and litigation.‖

5. Rationale: for sake of certainty and to preserve peace;

reduces litigation.

b. Acquiring title to abandoned propertyi. Gray’s Rule: The actor must retain control of the ball [property]

after incidental contact with people and things

ii. However: Where an actor undertakes significant but incompletesteps to achieve possession of a piece of abandoned personal

property and the effort is interrupted bu the unlawful acts of others,

the actor has a legally cognizable pre-possessory interest in that property

1. Pre-possessory interest constitutes a qualified right to

possession which can support a cause of action for

conversionc. Intellectual Property/Excised Human Tissue

i. RS: Moore – excised human tissue extracted for healthcare

purposes are not property of patient.

1. Arguments supporting this:a. Human health concerns

b. Commodification of human tissue can undermine

autonomy interests



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i. Want to discourage people from selling their

own human tissue

2. Arguments against this rule:a. Autonomy:

i. Self-determination

ii.

Privacy b. Need for people to make their own decisionsc. Moore’s opportunity cost:

i. Commuting to and from hospital

ii. Breach of fiduciary duty

B. Gifts

a. Transfer of property from one person to another without payment

i. Inter vivos – from one living person to another ii. Testamentary transfers – effectuated at death through will or

inheritance

b.

Elementsi. Intent to immediately transfer ownership of property

1. NOT prospective transfer

ii. Delivery, may be:

1. Physical given to someone2. Constructive granting access (like a key)

3. Symbolic indicates intent to deliver gift (photo, note,

etc.)iii. Acceptance (presumed as a matter of law)

c. Conditioned precedent

i. Where something must be satisfied before property will be

transferredii. Transfer is not complete until condition is satisfied

1. Ex: ENGAGEMENT RINGS

2. Majority Rule: engagement rings are conditioned onmarriage

3. Minority Rule: engagement rings are not conditional gifts

(i.e. bride gets to keep ring if wedding is called off)

C. Improving Trespasser

a. Adverse Possession (limited to ACTS on land, not state of mind) Somon v.

Murphy testi. Actual possession

1. Physical activity on the land like a TO would engage in

2. Boundary fence creates presumption of adverse possession,

but fence of convenience gives rise to presumption of permissive use.

3. Evidence to show that poss was used for enjoyment,

cultivation, residence, or improvements for entire requisite period



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ii. Open & notorious

1. Visible, obvious (reputation)

2. To put TO on notice that someone else was using propertya. TO is charged with ―seeing what reasonable

inspection would disclose.‖

3.

Theory that failing to intervene is waiving right to propertyiii. Adverse or hostile1. Lack of permission from true owner; Against the rights of

the true owner, nonpermissive. Some states add on the

trespassers state of mind (good faith is maj vs bad faith)2. Without permission

a. TO may defeat this element by showing he granted

permission (no to trespass = hostility)

b. Silence by TO = lack of permission = hostilityc. HOSTILITY IS PRESUMED BY LAW and

implied consent is not enough to overcome the

presumption3. This is easiest element to satisfy because it is presumed

iv. Exclusive

1. Cannot be shared with TO (trespasser excludes TO)

2. Others were not permitted to use property3. Occasional visit is allowed (like TO would allow)

v. Continuous (for the statutory period)

1. AP must exercise control over the prop in the wayscustomarily pursued by owners of that type of prop

a. Ex: maintaining, cultivating, claiming ownership

2. Frequency of use like a TO would use that type of property

a. Like summer cabin in Nome 2000, possession onlyexpected during summer months.

b. Dependent on type of property

3. Tacking: successor trespassers can add periods periods of possession, like in Brown v. Gobble

vi. For statutory period

1. Usually 5-10-20 years2. If not told, assume 20 years (Jurgensmeyer)

b. Poss under claim or color of title

c. Did TO grant permission?

i. silence = no permissionii. silence= hostility

d. Burden of proof: on trespasser

i. Majority rule: clear and convincing evidence

1. continuous (physical)2. open and notorious (physical)

3. exclusive (physical)

4. hostile (intent)



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ii. Minority rule: preponderance of evidence (only because that is the

norm in civil lawsuits)

e. Policyi. Encourage land use

ii. Punish LO for negligent supervision

1.

Implied waiver of LO rights but not coming around or caring for their land for ten yearsiii. Reward labor & investment of trespasser

iv. Can be used to argue in favor of adoption of new law or in

interpretation of existing lawf. Doctrine of sovereign immunity may not bring A.P. claim against

government owned property

g. Use in both border dispute ( Brown v. Gobble) and vacant land contexts

( Nome 2000)

h. Unjust Enrichment

i.

Benefit conferred on a TO by someone without title1. Direct economic investment

2. Labor

ii. Knowledge of the benefit

iii. Unjust under the circumstances to allow the T.O. to retain the benefit of the enrichment – **BOP is on trespass

1. Fraud (purposefully)

2. Misleading (accidental)3. Mistake

i. Somerville Case

i. unjust enrichment args

ii. TO: innocent, forced saleiii. Trespasser: innocent mistake, surveyor gave wrong info, TO

negligent

j. Annexation (entire structure on property or improves property value)i. Trespasser builds on land, T.O. may keep it by annexation

ii. Unjust enrichment test applied to determine if compensation to

trespasser is appropriate1. What constitutes unjust under third requirement?

2. Some states will not compensate for mistakes

k. Constructive Trust (remedy)

i. T.O. has no interest in asset (like administrator in a trust), thereforeunjust to allow T.O. to keep asset.

ii. Ex: funds of one person used to acquire property, but title held in

name of another (concurrent ownership)

l. Bad Faith Improver i. Deliberately builds on another’s land

ii. Majority: will not be granted a right to compensation for valuable

improvements AND will be required to remove the encroachingstructure



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m. Betterment Statutes

i. Allow owners to choose between paying the builder the value of

improvements OR selling the land to the builder on which theimprovement sits

D.

Encroachment Trespassa. Relative Hardship Doctrine (structure encroaches on or decreases value of property)[where TO wants to remove encroachment]

i. Elements

1. innocent2. harm to remove minimum

3. interference small

4. cost of removal substantial

5. remedy choiceii. Hardship to remove structure vs. loss to landowner

1. May be successful if loss to landowner is slight compared

to hardship of trespasser to remove structure2. Good faith is required to prevail (mistake)

3. Doctrine applies only where T.O. remedy of choice is to

remove the encroachment

E. Boundary Settlements

a. Acquiescence

i. Adjoining ownersii. Who occupy their respective tracts up to a clear and certain line

(such as a fence)

iii. For a long period of time

iv. CANNOT thereafter claim the boundary thus recognized is not thetrue boundary

b. Estoppel (unclean hands)

i. Invitation/acquiesce by TO allowing TP to access the propii. Trespasser invests in reliance - reliance on invitation to invest in

non-titled property by non-titled person

1. Some states infer estoppel where an owner is silent despitefull knowledge that a neighbor is building an encroaching

structure

c. Laches

i. Lapse of time – unreasonable (by true owner to act on trespass)ii. Relied to their detriment on your inaction

V. NUISANCE



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A. RS: Substantial and unreasonable interference with use and [quiet]

enjoyment of land

a. Arises from conflict where two or more parties are using their properties legitimately

b. Balance interests between the parties

i.

Noise and odor problems are governed by nuisance lawc. Concerns the result of a neighbor’s conduct i. Conduct must be unreasonable (balancing test)

1. Gravity of the harm

a. Extent of the harmi. How much harm does LO2 experience if

the harm continues

b. Character of the harm

i. What kind of loss is it?ii. Aesthetic?

iii. Health risk?

c. Social value that the law attaches to that type of use or enjoyment invaded

i. Social benefits in preventing?



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i. Social costs if court allows harm to go

unredressed?

ii. What incentives are created by preventing the harm?

iii. Who can most cheaply remove the cost?

Loss? b. Suitability of the use or enjoyment invaded tothe character of the locality

i. Commercial use in commercial area?

ii. Resort use in resort town?c. Burden on the person harmed of avoiding the

harm

i. How difficult or expensive would it be?

ii. Who should bear the cost?iii. Which use was established first?

2. Utility of the Conduct

a.

Social value that the law attaches to the primary purpose of the conduct?

i. Social benefits of allowing the harm to

continue?

ii. Costs of prohibiting the harm?iii. What incentives are created by allowing

the conduct?

iv. Who can most cheaply avoid the cost? b. Suitability of the conduct to the character of the

location

c. Impracticability of preventing or avoiding the

invasionii. This implies judgment that reasonable person would have

foreseen the harm and prevented it

b. May overlap with trespassi. Trespass requires physical invasion of land

ii. Nuisance is acting on your own prop which adversely affects

neighbors propiii. Nuisance requires only that plaintiffs use and enjoyment of

land be diminished

iv. Flexible doctrine, may be used in a variety of circumstances

v. Smoke would be both a trespass and a nuisancec. Permanent nuisance: irreparably injures plaintiff’s property or is of

such nature that it is likely to continue indefinitely

d. Temporary nuisance: can be alleviated by changes in the defendant’s

conduct



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B. Private Nuisancea. Nontrespassory invasion of another’s interest in the private use and

enjoyment of land (Restatement) b. Determined using reasonableness standard; ensures not every case will

constitute a nuisance

C. Exceptions to usual rules of nuisancea. Spite/Malice

i. Must be sole motivation

ii. Considered nuisance per se

D. Light and Air

a. General rule: no right

b. Exceptions:i. Unless there is a contract

ii. Sole motivation is spite (nuisance per se)

iii.

CA passed statute regarding vegetation blocking solar panels

E. Sunlight/View

a. General rule: property owners have no right to light and air

b. Exceptions:i. Spite (must be sole reason)

ii. Unless there is a contract

iii. Solar energy (minority view)

F. Special Rule for Vegetation (Fancher)

a. Living trees and plants are ordinarily not nuisances, but can become so

when they cause actual harm or pose imminent danger of actual harmto adjoining property

b. Traditional rule was self help



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G. Nuisance remedies

a. Massachusetts rule (self help)i. A landowner’s right to protect his prop from the encroaching

boughs and roots of a neighbors tree is limited to self help (i.e.

cutting off the branches) b. R2Ti. imposes an obligation on a landowner to control vegetation that

encroaches upon adjoining land if the vegetation is ―artificial‖

(planted and maintained by a person) but not if the vegetationis ―natural"

c. Hawaii Rule

i. Living trees and plants are ordinarily not nuisances, but can

become so when they cause actual harm or pose an imminentdanger of actual harm to adjoining property

VI. COMMON OWNERSHIP OF PROP (Concurrent vs. Over Time)

I. Present Estates and Future Interests

a. Ownership Over T ime

i. Future interest exist the moment they are created (will, sale, lease,trust)

ii. Future owner has no right to possess until triggering event occurs

b. Types of Ownershipi. Fee Simple Absolute – O has all rights to property

1. Current law: O presumed to convey all interest they own

unless conveyance states otherwise

2. No one has future interest 3. Ex: Landlord can give certain rights away (disaggregation)

a. L owns property, can give away right to possess to T b. L retains future interest reversion (present interest

in a future interest)

4. Ex: OA or OA and her heirsii. Fee Simple Determinable Possibility of reverter [future

interest][uses durational language, ―while,‖ ―during,‖ ―until,‖

―unless‖]

1. Future interest automatically reverts to O on happening of stated event

2. Language must denote grantor’s intent to cut off ownership

rights automatically when condition is violated or met

3. AP clock starts ticking as soon as condition is violateda. If owner of POR does nothing for statutory period,

title shifts back to original owner

4. Ex: OA as long as used for residential purposesa. A owns FSD



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b. O owns POR

c. Once A breaks condition, A is trespasser and AP

clock starts tickingiii. Fee Simple Subject to Condition Subsequent Right of Entry or

Power of Termination [future interest][uses conditional language,

―provided that,‖ ―but if‖] 1. Grantor retains right to decide, at time condition is violated,whether to take property

2. If grantor does not assert rights, ownership stays with

current owner 3. Ex: OA on condition that property is used for X

a. A owns FSSCS

b. O owns ROE or POT… options:

#1. Usually, AP clock doesn’t start until owner of ROE asserts right to take over property

#2. AP clock starts running at violation of

condition#3. Doctrine of Laches applies (substitute for AP)

Unreasonable delay

Detrimental reliance on breachiv. Fee Simple Subject to Executory Limitation Executory

Interest [future interest][uses conditional or durational followed by third party designation]

1. When a future interest in a defeasible fee belongs to

someone other than the grantor

2. Ownership shifts automatically on violation of the condition3. Ex: OA but if property is used for commercial purposes

Ba. A owns FSSEL [current right of possession] b. B owns executory interest [becomes possessory

automatically when condition is violated… AP clock

starts at same time]v. Life Estate Contingent/Vested Remainder OR Reversion [future

interest]

1. Estate held only for the duration of a specified person’s life a. May be sold, but buyer will only have right to

property during A’s life (LE per autre vie)

2. Automatically creates reversion in O unless otherwise stated

3.

Future interest in third party is remainder [remainder = Ohas an interest] a. Contingent remainders – contingent on if one or

both of two conditions are met

i. Remainder will take effect only uponhappening of event that is not certain to occur

ii. Remainder will go to a person who cannot be

ascertained at time of initial conveyance



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iii. **survivorship is OFTEN a contingency in

wills and estates

b. Vested remainders – remainders that are notcontingent

i. Absolutely vested remainder – remainder

that is not subject to change1. Ex: OA for life, then to B2. A has LE (becomes possessory at O’s

death)

3. LE goes away when A dies4. B has future right of possession

5. B will have FSA when A dies

6. B’s interest is greater than A’s, if B

dies first then interest transfers to B’sheirs/devisees

ii. Vested remainder subject to open –

remainder that may be divided among persons born in the future

1. Subject to class closing rule: closes

class to eligible parties that are

already alive and excludes parties born after life tenant’s death UNLESS

grantor demonstrates intent to leave

class open. However, this willusually violate RAP.

2. Vertical severability: if RAP is

violated in VRSO, same effect as

class closing rule where none exists.iii. Vested remainder subject to divestment –

vested remainder that may be destroyed by an

event that occurs after the originalconveyance (interest may be lost)

1. Executory interest – cuts short the

interest of another. Always follows

VRSD.

Example vi. OA for life, then to B, but if B uses property for commercial

purpose, then to C

1. A = life estate2. B = VRSD

3. C = Executory Interest (may only get property by taking it

from B)4. O = reversion

II. Standard for interpreting ambiguous conveyances



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i. What are present interests at time of conveyance (classify the

estate)

ii. Then look at what happens when interest becomes possessory1. What is the grantor’s intent? [precatory language is not

binding]

2.

Policy against forfeiturea. Protecting right of current possessor b. Court’s generally want to find FSA

iii. A condition totally prohibiting the alienation of a vested fee simple

estate or requiring a forfeiture upon alienation is void.1. Exception: conditions prohibiting alienation of land granted

to corporate entities for their special purposes are valid. A

conditional limitation imposed upon a life estate is valid.

b. Doctrine of Worthier Title [still good law]

i. OA for life, remainder to heirs of O

1.

A = life estate2. Heirs of O = contingent remainder because we do not know

the heirs until O dies

a. Doctrine reclassifies so that O gets reversion

b. Rule of construction designed to ensure language inwill is more specific

c. Heirs are people who get property in absence of will

ii. Example: OA for life, then to the heirs of O1. A gets life estate

2. O gets a reversion

c. Doctrine of Shelley’s Case [abolished but tested on bar exam]

i. OA for life, remainder to heirs of A1. A = life estate

2. Heirs of A = contingent remainder

3. A has FSA under old rule4. Doctrine reclassifies so that A has FSA

5. MODERN RULE = do not strike language!

III. Regulatory rules governing present estates and future interests

a. Rule prohibiting creation of new estates

i. If a conveyance does not fit within any of the established

categories, it must be interpreted to create the most closelyanalogous estate

1. This includes the abolition of the fee tail (keeping estates in

family lineage)

2. Conveyance that purports to create a perpetual series of lifeestates will not be valid

b. Rule against unreasonable restraints on alienationi. Total restraints on alienation of fee simple interests



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1. Disabling restraints: directly forbids the owner from

transferring her interest in the property.

a. Ex: OA but any transfer of Blackacre will be void2. Promissory restraints: covenant by which grantee

promises not to alienate his interest in the property [accepted

in life estates only!]a. Ex: OA in FS. A promises not to conveyBlackacre.

3. Forfeiture restraints: provides for future interest that will

vest if the owner attempts to transfer her interest in the property [accepted in life estates only!]

a. Ex: OA, but if A tries to transfer, then to B

ii. Total restraints are uniformly held void and unenforceable

1. Promotes dispersal of ownership of property and preventingconcentration of land in passive family dynasties

2. Encouraging individual autonomy by vesting control of

resources in current resources3. Promoting social utility and efficiency by allowing property

to be transferred to its most valued use

iii. Partial restraints on alienation

1. Acceptable when lasting for a limited time or limitingtransfer to certain persons

2. Not acceptable if restraint constitutes wholesale prohibition

on transfer iv. Test for reasonableness of restraint = weighing the utility of the

restraint against the injurious consequences of enforcing the

restraint

v. Application: STRIKE OFFENDING LANGUAGE1. Ex: OA, but if A sells (or attempts to sell), then to A’s

children

2. A now has fee simplevi. Ex: Edwards – because restraints on alienation are invalid, but

grantor wanted to prevent devisee from losing property to debt

problems, court read life estate into conveyance. Restraint onalienation are valid in life estates.

c. Direct Restraints

i. the restraint may be valid depending on whether or not plaintiff is acharitable entity

d. Consent to Sell ( Northwest )

i. The restriction by the deed on sales is repugnant to the fee-simpletitle which the deed conveyed



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e. Rule against perpetuities – ―No interest is good unless it must vest, if at

all, no later than 21 years after the death of some life in being at the

creation of the interest.‖ i. If it is possible that we will have to wait longer than a lifetime + 21

years, then conveyance violates RAP and the offending language

must be struck 1. Applies only to:a. Executory interest

b. Contingent remainder

c. Vested remainder subject to opend. DOES NOT apply to vested remainder subject to

divestment BUT since executory interest follows

VRSD, needs to be tested anyway

ii. Who is alive at the creation of the interest?1. Who is a relevant life?

2. Distinguish between interest of O vs. interest of third parties

iii.

Uniform Statutory Rule Against Perpetuities (USRAP)1. Property interest is created by deed, will, trust.

2. If on the date of the conveyance the interest violates RAP,

then strike the offending language

3. Under wait and see, wait to see what happens in window of time (90 years under USRAP)

a. If future interest owner still waiting after stated

period of time, gives possession to current owner b. If condition is violated, future interest holder loses

the interest

iv. Cy pres (equitable reformation)

1. Applies only when there is a quantifiable number (like age)in years that the court can modify to 21 years

2. Ex: OA for life, then to first child of B to reach 25

(assuming B has no children at the time of the initialconveyance)

v. Statutory cut-offs

1. Some states have passed statutes that cut off the interests inthe grantor following defeasible fees if the condition does

not occur within a stated time period after the initial

conveyance

a. Meant to prevent grantor from getting around RAPvi. Marketable Title Acts

1. State wants owners to reregister ownership interest every

30-40 years in order to protect ownership interest in

property (varies with state law)vii. Exception: OA for 120/5000 years… does not violate RAP

because it creates a lease

IV. Interpretive rule prohibiting waste of present estate [Doct of Waste]



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i. Life tenants have fiduciary duty to remaindermen not to commit

waste… life tenants must maintain property in substantially

the same condition in which they received it. ii. Types of waste

1. Affirmative/voluntary (diminishes value)

a.

LT must maintain status quo b. Courts apply reasonableness testi. What are circ. and why did owner do what

they did?

ii. Did alteration actually increase value of property?

iii. Can LT bring unjust enrichment claim?

iv. Can LT get declaratory judgment from court

to alter property?1. YES to both, but may also just ask

remaindermen for permission!

2. Permissive (neglect)

a. However, LT not responsible for normal wear and

tear (where is the line drawn?)

3. Ameliorative waste (increases value)iii. Actionable claim breach of fiduciary duty, remedies:

1. Damages

2. Injunction3. Receivership (very rare, unusual circumstances)

a. Life tenant would be dispossessed of LE

b. Sometimes will go to remaindermen if there is a

vested remainder c. Some states give estate to bank until life tenant dies

(court may establish trust)

d. Some states revert property to original grantor iv. Who may bring claim for waste?

1. Remaindermen

2. Landlords against tenants3. Banks that have mortgage interest in property

v. Ex: Moore v. Phillips (Ada permissive waste of farmhouse)

1. SOL not applicable because injury is ongoing

a. Everyday injury continues SOL starts2. Laches – court says doesn’t apply because there is no

detrimental reliance

b. Prohibition on invalid racial conditionsi. Shelley v. Kraemer : cannot restrict race in property conveyance

c. Rule against unreasonable restraints on marriage



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i. Restatement: restraints on marriage are generally restricted unless

the motive of the transferor is to provide support until marriage

ii. Focus: grantor’s intent 1. Restraints based on malice or dislike of marriage as an

institution is not enforceable.

2.

Restraints on remarriage are generally acceptablea. Reasonable to try to control property jointly heldduring he marriage (where one spouse dies)

3. Partial restriction on marriage

a. Will this unreasonably interfere with the person’sability to find a mate?

b. How big is the potential pool of mates?

c. Ex: Shapira case incentivizes marriage to certain

person i. Doesn’t completely restrain his right to

marry

ii.

Sufficient pool of marriage mages is legalstandard iii. Still looks at intent of the grantor (malice?)

d. Ex: Lewis v. Searles

i. Not invalid because grantor intended nieceto be provided for while she was single

VII. CONCURRENT OWNERSHIPI. Tenancy in Common (default)

a. Each tenant in common has right to possess the entire parcel

i. Unless cotenants agree otherwise by contract

b. Each cotenant has an undivided interest (right to possess whole property)i. Fractional amount in ownership is important only to questions such

as determining shared purchase price of the property

c. Proportion of ownership only comes into play in termination of estated. TIC may be transferred in following ways:

i. O conveys [or devises] Blackacre to A and B as tenants in common

ii. O conveys [or devises] Blackacre to A, B and C as tenants incommon, a with ¼ undivided interest in A, a ¼ undivided interest

in B, and a ½ undivided interest in C.

e. Interest transferred by estate of O at death of co-owner (will or intestate)

f. Tenants on a lease are TIC with concurrent ownershipg. Ex: Carr – issue whether TIC may eject lessee from parcel when lessee

has leased other cotenant’s property interest?

i. Plaintiff not entitled to eject lessee, secretive lease of one

cotenant’s interest in property is legal ii. Lessee essentially becomes cotenant with other owners for

duration of lease

iii. Plaintiff’s options: 1. Co-possess property



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2. Seek partition from the court to determine which part of the

parcel to possess

3. Find his own lessee4. Can give up right of possession in exchange for his portion

of the rent of the property

a.

No rent payable if co-owner chooses not to possess property (option but not obligation in this case)5. **not ouster because not making plaintiff’s right to

possession impossible (inconvenience/economic difficulty

≠ impossibility for ouster purposes)

II. Joint Tenancy a. Each joint tenant has right to possess entire parcel

b. Traditionally, JT’s required to possess equal fractional interests in the

propertyc. Formalities of creation – unity in time, title, interest and possession

i. Interest of each JT must be created at same moment in time

ii.

All JT’s must acquire title by same instrument or title (does notordinarily arise by intestate succession)

iii. All JT’s must possess equal fractional undivided interest in the

property and each interest must be in the same fractional amount

1. Equal amount invested in propertyiv. Al JT’s must have right to possess the entire parcel

d. A WILL CANNOT OVERRIDE RIGHT OF SURVIVORSHIP

e. Ex: Tehnet – issue whether a lease effectuates a severance of JTw/ROS.i. CL requires formalities of creation

ii. Held lease does not sever JTw/ROS [split of jurisdictions], but

lease expires on death of lessor JT

1. Because CA statute required JT be expressly declared,court requires severance be equally explicit

2. Expiration of inter est at lessor’s death = same result in

mortgage liens/creditor attachment.iii. Options [split of jurisdictions]

1. JTw/ROSlease ≠ sever survivorship feature

a. Non-leasing joint tenant survives, lease goes away2. Lease = sever TIC

a. Lease survives death of leasing co-tenant

b. Non-surviving co-tenant’s interest is transferred to

heir or deviseeiv. Split of jurisdiction about whether lease/mortgage severs JTw/ROS

III. Difference between JT and TIC is right of survivorship

a. When a JT dies, her property interest is immediately transferred to the

other joint tenant in equal shares b. Right of survivorship may be destroyed by severance

i. Severance only occurs between selling owner and remaining

owners, does not change relationship among remaining owners



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ii. Ex: A and B own property at JT, A sells ½ interest in property to

C, JT is severed (B and C are TIC)

iii. If a JT wishes to destroy interest in property:1. Can convey to third party who then reconveys back to her

(strawperson destroys unity of title and time)

2.

Can create document indicating she wishes to own TICc. Where conveyance is ambiguous, courts interpret TICi. Must clearly create JTw/ROS: ―to A and B as Joint tenants with

right of survivorship.‖

ii. Must overcome presumption of TIC IV. Commonalities between TIC and JTw/ROS

a. JT’s and TIC’s are free to transfer their property interest without consent

of the other cotenant – ―co-tenants retain right of unilateral transfer of

property interest‖ b. Partition – when the parties ―break up‖

i. Judicial partition – one of the cotenants files a lawsuit, court will

attempt to physically divide property1. If unable to do so, court will order property be sold (forced

sale) and proceeds will be divided between co-owners

according to ownership shares

ii. Voluntary partition – co-owners agree among themselves to divideor sell the property

iii. Courts try to balance rights of owners, but prefer COOPERATION

AND AGREEMENT between partiesc. Ouster – explicit act by which one co-owner wrongfully excludes others

from jointly owned property

i. Constructive ouster – co-owners in possession of a property have

obligation to pay rent to a non-possessing owner if a property is physically too small to be occupied by all of the co-owners

1. Non-possessing owners have effectively been excluded

from the property2. Ex: Olivas – issue was constructive ouster present, entitling

him to half reasonable rental value of home?

a. Court said no, husband chose to live with girlfriend b. Court asks whether tenant was pushed or pulled out

of property

c. Husband ―abandoned‖ property interest and is

therefore not entitled to half rental value

V. Tenancy by the Entirety

a. Available only to married couples

b. Retained by about 20 statesc. Elements:

i. Co-owners must be legally married

ii. Property cannot be partitioned except by divorce proceedings



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iii. In most states, individual interest of each spouse cannot be sold,

transferred, or encumbered by a mortgage without consent of the

other spouse. Result is ROS feature cannot be destroyed by

transfer of the interest of one party.

iv. In most states, creditors cannot attach property held through TBE

to satisfy the debts of one of the spouses.d. In states that have TBE, some interpret ambiguous conveyances to marriedcouples as TBE, others apply TIC

VI. Equitable Distribution of Propertya. Community/Marital Property (9 states)

i. Property acquired during the marriage is owned equally by

husband and wife unless they have signed an enforceable

premarital agreement b. Separate Property (majority)

i. Property earned by each spouse is his or her separate property

during the marriage unless they agree otherwiseii. Property will be equally distributed between the parties according

to factors such as duration of marriage, contribution of labor, and

need.

c. Hotchpot/Kitchen Sink Approach [MT statute][15 states, minority]i. If you own it, its available for distribution during divorce

1. Court will consider reasons to give one spouse property

that belonged to the other 2. These states tend to look at where the wealth came from in

determining who gets what

3. Policy: recognize joint acquisitions that come from family

economy and choices that are made jointly in that contextii. Split of jurisdictions as to what goes into the pot

iii. Ex: In re King – issue whether court may grant residence to

custodial spouse in lieu of child support obligation?1. Case law allows for property division to favor one party

where it is warranted

2. Husband was professional gambler, income unstable3. Wife granted proportionally larger share to offset her

increased obligation

d. Marital misconduct generally not taken into consideration when it comes

to property distribution (may be taken into consideration in alimonyhearing)

e. Family Law Issues

i. Main question is based on the timing of the acquisition

ii. Anything acquired between date of marriage and date of separation is subject to equitable division

iii. Title generally does not matter

f. Ex: O’brien – issue whether professional degree is property that can besubject to equitable distribution?



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i. Non-licensed spouse was granted equitable portion of enhanced

earning capacity

ii. Most states [34] have decided that a degree is not property1. BUT equitable reimbursement alimony: supporting spouse

may not qualify for traditional alimony, but ERA is based

on tuition paymentsiii. PA – degree/earning capacity is not property, but debt associatedwith degree is joint responsibility

iv. Some states that spouse does not get to share in degree/earning

capacity unless spouse shares in debt associated with it

VII. Courts’ approach to Unmarried Cohabitants

a. Deny any remedy (IL prostitution approach)

i. Based on ground that such a relationship is precluded by states that prohibit common law marriage

ii. Seen as a contravention to a family based society by entering a

―meretricious‖ relationship. b. Allow enforcement of a written or oral agreement between parties

i. How explicit does the agreement need to be?

ii. Can an agreement be inferred from the conduct of the parties?

iii. Equitable remedies may be employed, including constructive trustdoctrine and restitution of the reasonable value of services

rendered.

c. Provide for property distribution even though the parties were not legallymarried and did not enter any explicit agreement pertaining to support or

property rights [Kelly: status based approach]

i. Pickens: Court finds that the parties entered a relationship akin to a

partnershipii. Instead of finding a contract implied in fact, court imposes an

agreement as a matter of law

iii. Ex: Watts – contract, express or implied, to equally share in property during relationship? P claim unjust enrichment? Partition?

1. Watts couple functioned like married couple [held

themselves as married, she took name, joint tax returns,etc.] (not common law marriage, only 12 states recognize)

2. Focus is on appearance of marriage (implied contract)

3. Title rules, unless argument can be made otherwise

4. Claim must exist independently of sexual relationship5. Claim for constructive trust must show

a. Unjust enrichment

b. Abuse of a confidential relationship or some other

form of unconscionable conduct (relationship of mutual trust)

VIII. Constructive Trust Doctrine



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a. Equitable principles impose a constructive trust on property to avoid the

unjust enrichment of a party who violates his fiduciary duty and acquires

property at the expense of the person to whom he owed the dutyi. Treats supported spouse as trustee

b. Applied in unjust enrichment

i.

Benefit conferred on defendant by the plaintff ii. Appreciation or knowledge by defendant of the benefitiii. Making it inequitable for defendant to retain the benefit

c. More likely to be successful in making argument with economic benefits

as opposed to noneconomic benefits (caregiving)

IX. Property Rights on Death

a. In situations where there is no written enforceable contract (as required by

statute of frauds), courts will implement doctrine of Quantum Meru it i. Quantum Meruit : The reasonable value of services; damages

awarded in amount considered reasonable to compensate a person

who has rendered services in a quasi-contractual relationship.Black’s Law Dictionary.

1. Courts more likely to recognize right to recovery when one

party is working in employment context as opposed to

homemaker context2. QM meant to compensate for services that one should be

paid for.

ii. Party alleging an oral agreement must do so by clear andconvincing evidence since decedent is not present to give his side

of the story

X. Same-sex couplesa. Remedies depend on the state

b. Law that governs same-sex relationships in most states (including states

that do not recognize same-sex marriage), law of cohabitant remedies aretypically available.

c. States that recognize civil unions typically apply married property law of

that statei. This is for STATE purposes ONLY… federal benefits are barred

under DOMA (SS benefits, filing of joint tax returns, etc.)

d. Some states allow for registered partnership, but benefits vary from state

to state

VIII. LANDLORD TENANT RELATIONS

I. Term of Years – lease lasts for specified period of timea. Ends automatically at specified period

b. Future interest in landlord is reversion

c. Future interest in third party is remainder d. Landlord entitled to evict only if tenant breaches material term of lease



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e. Right to possess survives tenant’s death and transfers to heirs/devisees

i. Rent obligation also survives… tenant’s estate obligated to pay

rentII. Periodic Tenancy

a. Renews automatically at specified periods unless either landlord or tenant

chooses to end relationshipi. Statute or common law requires notice by either party thatrelationship is to be terminated

ii. Landlord can evict only by providing requisite notice that tenancy

will not be renewedIII. Tenancy at Will

a. Similar to periodic tenancy except it can be ended with no notice by either

party

b. Effectively abolished in many states by requiring either party to givenotice of termination of tenancy

c. Traditionally, death of landlord terminates lease

d.

Landlord may have absolute right to evict since tenancy technically never ending

e. Landlord may not be able to terminate tenancy if tenant has defense to

eviction like violation of IWOH

f. Death terminates relationshipIV. Tenancy at sufferance (holdover tenant).

a. A tenant rightfully in possession who wrongfully stays after the leasehold

is terminated. b. Meant to distinguish between tenants and trespassers (never had right to

possess property to begin with)

c. Legal procedures for ejecting trespassers vs. evicting tenants may differ

i. Landlords who accept monthly rent checks may be held to haveagreed to a new tenancy

V. Statute of Frauds – requires interests in real property be in writing to be

enforceable. Most states require that leaseholds of more than one year be inwriting, while leases of less than one year may be in writing or oral to be

enforceable

VI. Duties of the Tenanta. Duty to repair T must maintain premises and make ordinary repairs

b. T must not commit waste [may be evicted if intentionally or negligently

inflicts damage on premises]

i. Voluntary (willful)ii. Permissive (neglect)

iii. Ameliorative (enhances value)

iv. Fixtures

1. When a tenant removes a fixture, he commits voluntarywaste, therefore, T may not remove fixtures

2. Rule applies even if T installed fixture

3. When tenant removes a fixture, causing irreparable harm, Tcommits waste



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c. Duty to pay rent

i. When T breaches duty and is in possession:

1. Landlord may evict properly, or 2. Continue the relationship and sue for rent due

3. LANDLORD MAY NOT ENGAGE IN SELF HELP

ii.

T is not paying rent and is wrongfully out of possession1. Ex: leaves wrongfully without justification with time lefton a term of years

2. Landlord may:

a. Surrender choose to view abandonment as offer to surrender which the landlord accepts

i. T is showing intent to surrender leasehold

b. Ignore abandonment and hold T responsible for

unpaid rent [minority rule]c. Re-let premises on wrongdoer’s behalf and hold

wrongdoer liable costs associated

i.

Majority: L has duty to mitigate (attempt)ii. Does not require finding a substitute, only a

good faith effort.

VII. Landlord’s Duties

a. Delivery of possessioni. Majority:

1. Landlord has duty to deliver possession of rented premises

to the tenant at the beginning of the leasehold (RP 2d)2. Failure to deliver possession to T constitutes a breach of the

lease by L

3. Shut-out tenant may:

a. Terminate lease and recover damage ascompensation for having to find new place; or

b. Affirm lease, withhold rent for period of she could

not occupy premises and recover cost of temporarily renting alternative housing whole

holdover tenant is evicted

ii. Minority:1. Landlord has duty to deliver right to possession, not actual

possession

a. New tenant must bring ejection proceedings against

holdover tenant b. Since L is not in default, new T is obligated to pay

rent despite not being in actual possession of

property

c. Remedy is to go after holdover Tiii. Exceptions to evicting T at and of leasehold

1. Fed and state antidiscrimination laws prohibit L from

failing to renew leasehold if motivation is discriminatory



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2. T in units that are subject to statutory or local rent control

ordinarily are protected from eviction unless L can show

cause3. Some states or localities also regulate eviction for the

purpose of converting apartments into condos

4.

Fed law protects occupants from eviction for without justcause5. T’s are protected from eviction is L’s motivation is to

retaliate against them for asserting right to habitable

premises by calling housing inspector b. Duty to mitigate

i. Hypo on CB 781 - L has burden in showing he satisfied duty

1. Must demonstrate some type of outreach

2. Some L’s write waiver of duty to mitigate into leases a. Risky because courts protect duty to mitigate

b. Demonstrates L’s commitment to find someone who

will stay entire leasec. Rent acceleration clauses are similarly viewed

ii. Accept T’s surrender (by moving out and ceasing rent payments,

implies offer to end term of years)

1. L may accept T’s surrender 2. L may still sue for back rent owed but not paid for the time

before T abandoned premises

3. L may also sue immediately for damagesa. Damages = agreed upon rent – fair market value

iii. Re-let on T’s account (refuse to accept surrender)

1. When new T is found, L may sue former T for difference

between old rental price and new rental price if new price islower.

a. New price must be reasonable [FMV]

2. How does L make it clear she is refusing to acceptsurrender?

a. Some states, act of re-letting may be taken as

evidence that L has accepted surrender [stayingsilent often interpreted as acceptance of surrender]

b. In those states, L must notify T that she is re-letting

on T’s account and that she refuses to accept

surrender in order to hold T to rent later.iv. Wait and sue vs. mitigate damages

1. Traditional rule was L may sit around and wait for rent to

accumulate, then sue for back rent at end of term of years

a. To sue in the middle of the lease term, L must duefor damages

b. To sue for entire rent, L must wait for term of years

to end



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2. Most states reject ―wait and sue‖ option. Instead they

require contract option which requires landlord mitigate

damages [even states that maintain traditional rule, likelycase that states simply have not yet adopted duty to

mitigate]

3.

Ex: Sommer – T asked L to let him out of lease, L wassilent, waited and sued [may have been able to arguelaches]

a. Rule: when L has multiple vacant apartments, L

must treat abandoned apartment as one of vacantstock

b. L may not disincentivize potential T’s from renting

abandoned apartment

c. Implied covenant of quiet enjoymenti. Implicit promise that every landlord makes

ii. Applied to residential and commercial leases

iii.

Every T has right to quiet use and enjoyment of premises withoutinterference from L

1. L breaches by:

a. Actual wrongful eviction by L

b. Committing constructive evictioni. BOTH result in breach of implied warranty

of quiet enjoyment

2. To plead constructive eviction, T must show:a. Landlord’s conduct is

b. substantial

c. interference with use and enjoyment

d. abandonment (total/partial)T must vacate withinreasonable amount of time after L fails to correct

problem

i. RP doesn’t require this— states we can look at property to determine if it is habitable or

not)

iv. Ex: Blackett – L also leased property to lounge, which played loudmusic; do disruptive court found constructive eviction based on

implied covenant of quiet use and enjoyment.

1. Because L could control actions of lounge through the

lease, L should not be able to collect rent from propertiesthat were reasonably uninhabitable.

2. Court declined to distinguish between nonfeasance and

malfeasance in contexts where L creates a situation and has

right to control objectionable conditions.3. Emphasis is on landlord’s CONTROL

d. Implied warranty of habitability

i. Residential context ONLYii. NOT WAIVABLE



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iii. Standard premises must be fit for basic human habitation (basic

minimum standards)

iv. Appropriate standard may be supplied by housing code or case lawv. Examples of breach:

1. No heat in winter

2. No running water 3. Lack of adequate plumbing

vi. Failure to provide necessary service:

1. IWOH is not violated until L has been notified and has had

reasonable time to fix problem2. Breach exists whether or not L has had reasonable time to

fix problem

3. Breach occurs when L receives notice of lack of services

even if when problem is promptly fixedvii. T’s options

1. Rescission (move out before end of lease term)

a.

L’s breach entitles T to stop performance of her contractual obligations

2. Repair and deduct allows tenant to make repairs herself

and deduct from rent

a. Local statutes may dictate amount and types of repairs allowed

3. Withhold rent

a. If landlord sues, T may claims breach of WH asdefense

i. Not breach on T’s part because she has right

to stop paying rent

ii. NOT constructive eviction, usually requiresT move out before end of lease

b. Some states: T must put rent in escrow

i. Ensures T is acting in good faith4. Rent abatement (rent reduction)

a. T may ask court to have L reimburse T for

previously paid rent b. Some states lower rant based on FMV

c. Others reduce rent on percentage basis

5. Remain in possession, pay rent, and sue for damages

6. Injunctive relief allows T to bring suit against L seekinginjunctive relief for L to make repairs

7. Administrative remedies

a. Consistent with local housing codes

b. May require housing inspector to verifycircumstances then inspector will contact L

viii. Ex: Minjak – respondents entitled to withhold rent based on breach

of WH?



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1. Evidence supported finding that T’s were compelled to

abandon music studio portion of loft

2. Punitive damages awarded to deter morally culpableconduct = conduct implies ―criminal indifference to civil

obligations‖ [also where conduct is intentional and

malicious]3. Brought constructive eviction claim:a. Landlord conduct must be

b. Substantial and material deprivation of beneficial

use and enjoyment of propertyc. Effective abandonment of property

i. Total

ii. Partial

d. ***attempting to balance tenant’s rights vs.landlord responsibilities

ix. Ex: Javins – set WH into leases; standards to be governed by DC

housing regulations; gives remedies consistent with breach of contract

1. Replaced old ―no-repair rule‖ that originated out of feudal

law

2. L-T relationship more closely resembles seller-consumer relationship

a. IWOH borrows from consumer protection cases

b. L in biz of ―dealing homes‖ c. T is like ordinary consumer, cannot be expected to

have knowledge/capacity to remedy situation

d. When T is paying same amount in rent, reasonable

to expect L to maintain condition of property3. Nature of urban housing market dictates abandonment of

old rule

a. Inequality of bargaining power b. Shortage of adequate housing increases L’s

bargaining power

c. Escalates need to maintain and improve existingstock

4. Rule from Javins : T’s obligation to pay rent is dependant

on L’s performance of his obligations, including WH

a. Fact finder must find:i. Whether alleged violations existed during

period for which past due rent is claimed

ii. What portion, if any or all, of T’s

obligations to pay rent was suspended byL’s breach

iii. If NONE, judgment for possession may be

issued



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iv. If entire rental obligation was extinguished,

action for possession for nonpayment must

fail b. WH is BOTTOM LINE for quality of living

standards

e.

Implied warranty of fitness of purposei. Applies to commercial contexts (ex: restaurant must be fit for restaurant)

ii. Minority rule

f. Retaliatory evictioni. Landlord is barred from retaliatory eviction

1. May not raise rent in reprisal

2. May not harass

3. May not try to end leaseii. Don’t want to dissuade T from making complaints to appropriate

authorities

iii.

Adverse action by landlord within presumption period creates presumption of retaliation

1. Six months in Iowa Law ( Hillview Assoc.)

2. One year (URLTA)

iv. L then has BOP in showing he has non-retaliatory reason to evictv. Rule: complaint must be related to habitability of premises in order

to raise retaliatory eviction ( Imperial Colliery)

g. Assignment vs. subleasei. Assignment is full transfer of property interest

ii. Sublease is partial transfer of property interest

1. Future right of possession may be maintained by original T

2. More difficult for L to sue and collect unpaid rent from T2a. Some states prohibit this

3. L may always sue L1 for breach of K

a. Jurisdictions split on allowing L to sue T2 b. No privity of K with T2

h. Landlord’s restraint on alienation

i. Consent clause – ―assign or sublease only with L’s consent‖ 1. T may have option to enter ―reasonable‖ at lease signing

ii. Minority: When a consent clause exists in a lease, a landlord may

only withhold consent where it is commercially reasonable to do so

1. Kendall [commercial context] – lessor does not have right tounreasonably withhold consent to assign interest in the

property

2. Requires good faith and fair dealing

3. ―Denying consent solely on basis of personal taste or convenience has nothing to do with permissible restraint on

alienation, which is to protect the lessor’s interest in the

preservation of the property and performance of the leasecovenants.‖



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4. Concern in commercial context is that L will withhold

consent for financial gain

iii. Majority: where consent clause exists, L may withhold consenteven if arbitrary

1. Slavin – L is not obligated to be reasonable in refusing

consent in this case since the property in question is rent-controlled (no reason to use commercial lease applicationhere)

i. Property is foreclosed on?

i. Traditional answer depends on timing of lease contract vs. timingwhen mortgage was attached

1. If lease came before mortgage, lease survives

2. If mortgage came first, lease is secondary and therefore

subordinateii. Some leases flip the rule (see PA form lease paragraph 14)

1. L’s do this because there is less risk for a bank if it knows

its interest supersedes lease

VIII. PROPERTY & SOVEREIGNTY

I. Zoninga. Prior Non-Conforming Use

i. Rule: Existing non-conforming use permitted to continue only

if continuance were of substantially the same kind of use as towhich the premises were devoted at the time of the passage of

the zoning ordinance. ( Parillo’s)

ii. Inquiry is an appraisal of the basic character of the use, before

and after the changeiii. Courts don’t like PNU because it undermines goals of zoning

b. Variance

i. Majority rule: no variance shall be authorized unless it findsstrict application would produce undue hardship

1. NOT where hardship is self-imposed

2. Test: if variance denied, will owner lose alleconomically viable use of property?

ii. Minority rules:

1. Lesser showing of practical difficulties

a. Test: significant economic injury fromenforcement of zoning ordinance

2. Public Benefit: unusual circumstances where variance

will provide significant public benefit and the variance

can be granted without substantial detriment to publicgood and will not substantially impair the intent and

purpose

3. Undue hardship AND practical difficultiesiii. Considerations:



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1. Are other economically viable uses available?

c. Vested Rights

i. Within scope of police power/authority?1. Interest of health, safety, welfare?

2. Ask: legitimate goal consistent with police powers?

ii.

Ends and means analysis:1. Will rule actually accomplish goals set out? Is rulerationally related to the goal

2. Are investments = vested rights?

3. Where owners have invested in property substantiallyrelying on those zoning regulations, generally yes.

II. Regulatory takings

a. Police power

i. Takingii. For Public use

iii. Without just compensation

b.

Eminent Domaini. Taking

ii. For public use

iii. With just compensation

c. Ad hoc test [balancing state and LO interests]i. Character of government action

ii. Economic impact on owner

iii. Interference with reasonable investment-backed expectations1. PNU, vested rights

iv. Test determines whether a regulation constitutes a taking d. Per Se test [skips balancing test][COMPENSATION]

i. Government mandated permanent physical invasion of property

1. Can be above ground or putting something on property

ii. Regulations that completely deprive owner of ALLeconomically viable use of property unless restricted by

nuisance law

e. Examplesi. Miller – told to cut down trees, no compensation. No public

concern, state had to act.

ii. Penn Central : Establishes ad hoc test, no compensation

required for preserving historic landmark iii. Kelo – adds economic development as public purpose, which is

public use. So eminent domain for property that will be given

to a PRIVATE PARTY is ok if it serves a public purpose

1. This is bottom floor for requirements 2. Some states require more showing of public benefit

a. Balance, public benefit > private benefit

b. Property itself must justify taking



c. Public purpose cannot be achieved without

taking

d. Cannot take and give to private, only publicownership

Kelly Prop Fall2012

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