PROPERTY I KORDESH

Examinations are open-book and open-note

The three hallmarks of private property: exclusion, alienation, and use, can be in tension with one another.

The goals of a private property system: investment, incentive, and predictability, can be in tension.

The legal system’s goals can be at odds with a private property regime: clear rules can lead to unjust outcomes; fair outcomes may be hard to prove or enforce. The provenance of the property right may be murky, or internally in conflict. The correct remedy may not be imposed because of its cost. And so on.

In this course, it is my hope that you will develop an understanding of some basic property doctrines, namely acquisition of property rights, estates in land and future interests, marital and community property; landlord and tenant law, easements and servitudes, nuisance law, zoning, eminent domain, regulatory takings, and policy governing property rights.

Acquisition of Initial Property Rights

By Discovery (or conquest and maintained by force) p. 10 note 2 Johnson v. M’Intosh , 3-9

property rights are relative to others Possession taken by “the sighting” or “finding” of previously

unknown or uncharted territory. Taking from non-christian people (John Marshall dicta) Indians has occupancy rights, not ownership rights Absolute title of land cannot exist at the same time in different

persons, or in different governments. An absolute title must be an exclusive title or at least a title

which excludes all others not compatible with it. Conquest is a transfer of property rights

By Capture Pierson v. Post , 17-21. Gave a clear standard that everyone could follow to preserve the

peace and order in society. (predictability, certainty) BRIGHT LINE RULE : An entity can only become property through

occupancy or physical possession. Pursuit alone cannot grant occupancy or right to the property.

Capture Theory – a wild animal must be caught or domesticated before it becomes ones property.

DISSENT Property in wild animals may be acquired without bodily touch, provided the pursuer be within reach, or have a reasonable prospect of taking, what he has thus discovered an intention of converting to his own use.

Applies to oil, animals, water Ferae Naturae – wild animals are part of nature

By Creation Moore v. Regents of the University of California , 69-81 If you create something, if in the sense you are first in time, then

that something is most certainly yours… Locke=Labor theory The court then considered the meaning of property, essential

elements are:o Dominion, or rights of useo Controlo Disposition

No possession therefore, no conversion Court says that in order for property to be created…

o He has to have possession or interest in ownership in order to have property in human tissue

Value of the potential research is greater than the value to the past possessor

Some things will not be comidifiable…human tissue, body partsBy Find

questions court askso who has possession?o is property lost or mislaid?o is it private or public property?o is finder honest or a cheat?

ANALIZE FIRST

Lost Misplaced Abandoned

Armory v. Delamirie; McAvoy v. Medina

McAvoy v. Medina McAvoy v. Medina

1st owner state of mind

unintentionally voluntarily placed in a particular place,

intentionally and

involuntarily parted with it through neglect or inadvertence

intending to retain ownership

voluntarily relinquished

does not know where it is

Fails to reclaim it or forgets where it is

Does not want to claim or chooses not to claim

Rights of possessor

Lost property: finder IS entitled to possession against everyone except the true owner.

Mislaid property: a finder of property acquires NO rights in mislaid property.

Abandoned property: the finder IS entitled to keep abandoned property.

Armory v. Delamirie , 96; Question 1 at 96-97.o if you are a finder, your title is superior to everyone except

the rightful owner (prior finder has superior title to later finder)

more likely property will get back to original owner (key concern is to protect the owners)

idea of first in time comes in with law of finders McAvoy v. Medina , 105; Notes and Questions 1-3 at 106-107.

By Gift A voluntary transfer for no consideration Inter vivos - given during life…requires

o Acceptance (presumed unless direct evidence to contrary)o Intent (Q of fact) present intent to give the gift

NOW, in the future NOT good enougho Delivery (Q of fact)

symbolic- giant lottery check, paper that says “I give you my car”

constructive- key to a safe box manual or actual

Causa mortis - deathbed wish…requireso Acceptance (presumed)o Intent (Q of fact) present intent to give the gift NOW,

in the future NOT good enough (competence may be issue)

o Reasonable fear/expect impending death o Delivery (Q of fact)

manual or actual REQUIRED A Rule, but not the ONLY Rule…(b) constructive MAY

be allowed, ONLY IF actual not physically possible… NEVER SYMBOLIC!!

Actual death must occur…time lapsed between wish & death may be an issue

Policy arguments under Statute of Wills and Statute of Frauds are considered: widower did not have a will, a gift causa mortis is usually not written, a will contains written intent, and courts take it seriously because the giver cannot be present to defend it himself. Recognizing it as a gift would reduce the value of the estate for other heirs, taxes may have been avoided rather than paid if gift causa mortis is recognized

Newman v. Bost , Rule of Law To constitute a donatio causa mortis there must be an intention

to give a gift and delivery of the gift. Intent may be inferred from the delivery. Constructive delivery is permissible when the

subjects of the gift are not present, but when the objects are present and actual delivery is possible, it is required.

By GiftBright line gift law requires actual delivery at the time the gift is given (delivery and intent coincide)

If O gives a ring to A, A accepts it & tries it on, but hands it back to O because it is too big, and O will get is sized. O dies. A sues executor for ring. The ring belongs to A. The elements of a gift is satisfied: intent & delivery.Bailment occurs when O is holding ring for A

If same facts, but O says, “I will give you the ring when I die”A does not have possession, no present intent, & no delivery.

Under the no-fault, An engagement ring is returned to the donor regardless of who breaks the engagement

The traditional rule is that the donor cannot recover if he/she is at fault

B writes a check and hands it to C as a gift. B dies before check is cashed. -court held that there is no gift until the check clears because donor could stop payment at any time

By Adverse PossessionEither by claim if right or claim of title

Claim of right is most common- squatter, no titleClaim of title- bad title

Elements:1) Actual entry giving 2) Exclusive [usually hard to prove]

a. (in a manner that reflects the possessor’s dominion/control over land)3) Possession4) Open

a. (visible and not surreptitious)5) notorious (known) [usually hard to prove]

a. (in opposition to the true owner’s title and in opposition to how the true owner would use it)

6) Adverse (sometimes hostile) and under a claim of right

Exclusivity can be established by naming it, ex. Lutz’s farm, public perception, inviting people on your land, chasing people off the land, putting up a fence,

a. (w/out true owner’s permission)7) Continuous for a statutory period

a. (without interruption to claim of ownership; Abandonment isn’t continuous)

Statute of Limitations begins to run when there is evidence of adverse possession, some action that should alert the owner

Ordinary Adverse Possession Doctrine protects Owners interest in property before that statute of limitations runs out,

then protects The adverse possessor’s interest after the statute runs out

Con: Benefitting from a wrong, outdated: boundaries are better defined now, creates uncertainty

Pro: Promotes vigilance/punishes neglect, maximizes productive use, prevents self-help (violence), acknowledge equity of reliance

If statute of limitations runs out, then…Prior owner loses the right to eject themPrior owner loses the right to claim titleTitle transfers to adverse possessor

Possession merely raises the presumption of title

(prescription [a path through one’s property] gives rise to rights of use, not ownership)

NY statute mentions cultivated and improved; and substantial enclosure

Color of Title – a deed or other instrument of conveyance that purports (but fails) to convey title to the land described in it…defective and invalid…open and notorious is presumed…statute of limitations is shorter …you get what the deed describes, not what you actually occupy

Claim of Right – an interest in property by adverse possession without color of title. You only get what you actually occupy

Law of Prescription - Statute of Limitations for Adverse Possession

Quieting Title – an action to resolve title against adverse claims

Ad Coelum – He who owns the soil, owns the sky above and the depths below

A. Tacking, only under claim of title…where you use someone else’s adverse possession time to tack on to your own

1. The summation of an interest in a property by successive relationship to the same rights of property 2. adverse possession cases may use it when a statute of limitations is either partially fulfilled by one and then voluntarily surrendered to another who in turn completes the statute of limitations requirements to achieve actual adverse possession, 3. or where one fulfills the adverse possession requirement and then transfers the property to another who in turn receives full ownership rights from the first

a) Manillo v. Gorski, (Stairwell encroaching on neighbors property) Gorski built an outside stairwell connected to his mom (D’s) house, which encroached on the property of Mannillo by some 15 inches for 20 years. Rule – If someone occupies land the presumption is that it is adverse to the title holder

o Where the encroachment is not sufficiently open (hidden), the owner will NOT be presumed to know of its existence.

Where a boundary encroachment is shown to be executed in bad faith, the encroacher may be forced to remove it regardless of the cost entailed. Reasoning – Allowing adverse possession of a tiny portion of a property puts an undue burden of constant surveying of land by the true owner, while it may put undue hardship on the adverse possessor who under an innocent belief of title put in extensive work on home improvement.

3 different views of claim of title The Maine Doctrine – states that an intention to claim the land not

embraced in title is a necessary element of adverse possession (doesn’t help those who take the land accidentally). Bad Faith or Aggressive Trespass Standard’ I thought I didn’t own it, but I decided to make it mine.”

The Connecticut Doctrine – Motives are of no importance in determining whether an adverse possession claim has been made. Instead the very nature of the act is an assertion of one’s own title and the denial of the title of all others (protects those who mistakenly take land). Objective- Intent is irrelevant

IGNORANCE DOCTRINE - Good Faith- “I thought I owned it”

The Doctrine of Agreed Boundary – if there is uncertainty between neighbors to the true boundary line, an oral agreement to settle the matter is enforceable if the neighbors subsequently accept the line for a long period of time. The Doctrine of Acquiescence – long acquiescence (which may be shorter than the statute of limitations) is evidence of an agreement between the parties fixing the boundary line.

II.The Law of Landlord and TenantLeaseholds or tenancies: “An unintended stepchild of a defective conveyance”

Term of years

Periodic tenancy Tenancy at will MISNOMER: not a tenancy…tenancy at sufferance

The Term of Years is an estate that lasts for a fixed period of time, or (a day, month, year, 3000 years) for a period computable by a formula that results in fixing calendar

dates for beginning and ending No notice necessary for termination because end was known at

onset

Periodic Tenancy A lease for a period of some fixed duration that continues for some

fixed duration Self-renewing Ex…. the month-to-month lease Have to give notice to terminate

o 6 months notice must be given for a one-year lease Must be given on anniversary of renewal date, otherwise

another 6 month term is extended If no notice is given, then L may require T to pay for

another year Expense for L to recover cost

o One month lease Must give 30 days notice that ends at end of month Ex. if notice is given on June 13, tenant must pay for June

& July & be out by July 31 Courts can rule that notice given on any date other than

the 1st is improper and therefore NO notice has been given

Tenancy at will No fixed term At will of L or T 30 days notice required by statute If no notice given, then L can charge 1 month rent

A. Crechale & Polles, Inc. v. Smith, pp. 369-371Rule of Law "When a tenant continues in possession after the termination of his lease, the landlord has an election either to evict him (treat him as a trespasser it is said) OR to hold him as a tenant [for a full new term]." However, if a landlord "accepts monthly checks for rent due, he in effect agrees to an extension of the lease on a month-to-month basis."

****Look for facts to see how the landlord initially treats the tenant: Prove the tenant was being treated as a trespasser or not Double rent or eviction = trespasser

L accepts check= extension of lease

Max holdover term is one year by statute

1. Discrimination in selection of tenants a. Federal Fair Housing Act § 3604…classic civil rights statute

i. Unlawful to refuse to rent or sell based on race, color, religion, sex, familial status, or national origin or disability

ii. publishing/ads that send a message that there is a preference are unlawful

b. Is the person a member of a protected class?c. Prima facia case: A discriminating motive is not necessary, just a

disparate impact…burden shifts to Landlordi. Ex. forcing single parents to rent a 2 bedroom apt rather than a 1

bedroom apt, so they just find an apt elsewhere.ii. If there were 3 apts in a 200 unit building with single parent

families, there is a disparate impactd. Only Landlord defense is demonstrating that the business necessity

was a pretext for engaging in discriminationi. If successful, then burden shifts back to Tenant

e. Civil Rights Act of 1866 Law: 42 U.S.C.A § 1982i. Only prohibits discrimination based on race

Know that during tests…explain all possibilities Under Fair Housing Act: In the event that the court finds this discriminatory,

then there is another issue:o Does this fall in the single family home sold or rented by an owner

exception of the fair housing act? The exception does not apply to published ads The exception does apply to single family home owner, Mrs.

Murphy exceptionso However, if the court did find this racially discriminatory, there is no

exemption under the Civil Rights Act of 1866

Subleases and AssignmentsPrivity of K…a direct obligation between the parties…damages claim

Privity of estate… is an expression of a relationship between a grantor of land and a grantee of land…obligations that run with the land…ex. keep the premises in repair….fix doors and windows…rent claim

L & T end up in privity of K and privity of estate with each otherA lease is partly a K and partly a property interest

Assignment – a new tenant agrees to takeover the lease, “for the balance of the term”

L T (1)

T(2)

L & T(2) have privity of EL & T(1) have privity of K[L can grant novation to create new K with T(2), then L & T(1) no longer have privity of K ]

Sublease- tenant rents out to a second tenant for part of the term of the lease

L T (1) l T(2)

L & T(1) have privity of K and privity of ET(1) & T(2) have privity of K and privity of EL & T(2) have privity of E, NOT privity of KL only has right of eviction to T(2)

Sublease v. Assignment : look for the term that is being granted. If the term is for everything it is an assignment. If there is any time left on the lease that is not conveyed then it is a sublease.

Test Q’s will say” what are the L rights against T(1) and T(2). Answer should say if the court considers this transfer an assignment, then… If the courts consider the transfer a sublease, then…

Covenant is K languageInterest is Property language

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DefaultsSommer v. Kridel, -overturned the rule that L had no duty to mitigating damages in the event of abandonment by tenants

Presumption was that the landlord had no duty to mitigate damages (came from agricultural/sharecropper times)

In commercial rentals, L is expected to mitigate damages and make reasonable efforts Space has to be added to available stock to avoid accumulating damagesResidential Ls have more discretion than commercial Ls

Efficiency- keeps product in stream of commerceReasonableness- L has to make reasonable effortsLost volume? Unique feature- -doesn’t work hereFairness to T

RemediesDamagesSpecific performanceRecission/reformation

Surrender is the Ts perspective on novation

-a T surrenders the lease & if the L agrees then the T has no obligation to the T; & the L has no rights against the T- If a L relets “on the Ts account” (this language means that the L has not released the T on novation) for an amount less than the fair market value and less than the original lease, what can the L recover? L can recover the difference of the amount of the relet and the fair market value.

When the L breaches…conditions of the premisesQuiet Enjoyment and Constructive Eviction

Rule…The right of quiet enjoyment is implied in every leaseThe elements of a constructive eviction are 1. The conditions must be substantially unsuitable and permanent2. The Landlord must be aware3. L must have opportunity to make repairs; Tenant must show attempts at redress rather than acceptance of conditions4. Tenant has to leave within a fairly quickly time period once it has become unbearable

Construction Eviction - has to go on long enough that the landlord is not going to cure.

T is a T at the will of the L. Maximum damages available would be the rent, not the cost of a new rental

T has a term of years. L fails to control excessive noise of neighbors. T has recourse under constructive eviction

L has a duty to take care of common areas such as parking lots and lobbies

********************************************************Hilder v. St. Peter The Vermont Supreme Court found that the rental of any

residential dwelling unit comes with an implied warranty exists in the lease, that the landlord will deliver over and maintain, throughout the period of tenancy, premises that are clean, safe, and fit for human habitation. This warranty covers all latent and patent defects in the essential facilities of the residential unit.

"Essential facilities" are facilities vital to the use of the premises for residential purposes.

The Vermont Supreme Court found that any substantial violation of an applicable housing code shall constitute prima facie evidence of a breach of the warranty of habitability.

The Court further held that damages should be calculated as the difference between the value of the property as warranted and the value as it exists.

In addition, compensatory damages can be awarded for tenant's discomfort and annoyance.

However, in order to recover, the tenant must show that they notified the landlord of the

problem, AND the landlord failed to correct it within a reasonable period of time. Although punitive damages are not normally awarded under

Contract law, they can be awarded in especially "willful, wanton, and fraudulent" cases to set an example.

Differences between Reste (constructive eviction) & Hilder (implied warranty of habitability): She stayed-Why?... maybe conditions were worse elsewhere, no

opportunity, no $ Residential v. commercial Hilder situation worse? Implied warranty of habitability (designed to protect poor & maintain

public health)o Leaveo Stay and withhold rento Stay, repair and charge Lo Punitive damages (not available in constructive eviction)o Compensatory damages (not available in constructive eviction)o Actual damages: rent and repairs

Implied warranty of merchantability can be waived; Most courts will not recognize a waiver of an implied warranty of habitability

As time goes on and the situation remains bad, the option of constructive eviction goes away and the only remaining option is implied warranty of habitability

Hypo:High end apt, high rent, pool, elevator, gym, State law requires that leased dwellings be fit for habitability, safe, and healthy, & in accord with “the uses reasonably intended by the parties”Xtra services not included in implied warranty; not intended to extend beyond basic health & safety

Nuisance-a private action to control use of land

Morgan v. High Penn Oil Co . Morgan’s owned house, restaurant and trailer park

Jury found Oil refinery emitted nauseating odors was a nuisance Rule: Private nuisance is any substantial non-trespassory invasion of

another’s interest in the private use and enjoyment of land by any type of liability forming conduct; either intentional or unintentional

If it is unintentional…conduct must be negligent (standard of care is reasonableness), reckless, or ultra-hazardous (strict liability, no standard of care)

“Unreasonable” looks at person affected by conduct, cannot be hypersensitive plaintiff

“Negligence” looks at actions of the perpetrator Classic nuisance does not ask about social utility of offending conduct Remedies

o Injunction/abatement…most common Recurring frequency Annoying density Continuing Irreparable injury

o Damages Permanent

If this conduct continues indefinitely into the future, what amount covers the damages minus present value

How does asking the social utility question pose a problem?

o The larger business usually winso Economic impact of closing planto Denser population=increased nusances

Temporary Covers damages up until a defined point in time

Boomer v. Atlantic Cement Co. Boomer (and his neighbors) lived near a cement factory. Dirt, smoke

and vibrations came out of the factory. Boomer sued on the basis that this was a nuisance.

The Trial Court found for Boomer and awarded temporary damages. However, they did not award an injunction. Boomer appealed to get the injunction.

o Temporary damages are to pay the plaintiff for damages already accrued, but they say nothing of the future.

In theory you are supposed to stop the behavior that's causing the damage. But if you don't, you might get dragged back to Court and have to shell out more money.

o Permanent damages are to pay the plaintiff for all damage they could possibly ever accrue from a continuing, long-term problem.

Permanent damages make the Court's job easier. They are admitting that there is a continuing harm which Atlantic will continue to rack up liability for, but Boomer

won't have to keep coming back to Court over and over again to collect more and more damages.

The New York Supreme Court partially reversed and awarded Boomer permanent damages, but no permanent injunction.

o The New York Supreme Court felt that an injunction didn't make economic sense, and there was nothing Atlantic could do to fix the problem.

o This court factored in social utilityo In some situations, like this one, injunction is too harsh a remedy

People lose jobs Plant shut down No incentive to clean air

o Boomer's damages were relatively small in comparison with the value of Atlantic's operation and with the consequences of an injunction.

Under the economic theory of law, the law has a duty to encourage economic growth. Factories bring in jobs after all.

o However, New York law has traditionally granted injunctions even if the damage to the defendant from the injunction significantly outweighs the damage to the plaintiff from the nuisance.

Of course, the damages the plaintiff sustained must not be "unsubstantial".

In a dissent, it was argued that the award of permanent damages instead of an injunction was tantamount to licensing a continuing wrong. It also eliminates the incentive for Atlantic to ever alleviate the problem, since it's already been fully paid for.

Btw, when this case went back to Trial Court to assess permanent damages, the total bill to Atlantic came out to $710k, which was considerably more than Boomer's property was worth.

Traditionally at law, no easement for light and airHWHs and homes for the disabled scare people, hard to prove as nuisanceSpite fences….might block air/light…court will see if as a nuisanceAesthetic nuisances Lateral support…the right of subjacent support…

Spur Industries, Inc. v. Del E. Webb Development Co. Spur Industries ran a cattle feedlot that was originally way out in

a rural area since at least 1911.. Over time, the area people moved to the area, and in 1959, the

Sun City housing development was built by Webb. Webb sued Spur because the smell from the feedlots was a

nuisance to the residents of the houses he built. Trial Court held that Spur's operation was an enjoinable public

nuisance.

o "Enjoin" is the verb form of an injunction. The Trial Court was saying that an injunction could be granted to stop Spur from using the feedlot.

In general, the courts have held that if you enter an area reserved for industrial or agricultural use and are damages by a nuisance, you can't get relief due to the doctrine of coming to the nuisance.

o Webb could not get relief based on Spur being a private nuisance.

However, the courts have also held that Spur is required to move not because of any wrongdoing on the part of Spur, but because of a proper and legitimate regard for the courts for the rights and the interest of the public.

o Sun City could get relief on the basis of Spur being a public nuisance.

However, since Webb brought the city to Spur, Webb is responsible for the nuisance. Therefore, since Webb caused the foreseeable detriment of Spur, Webb must pay a reasonable amount of the costs of relocating Spur's business.

Basically, in this case, the Court is saying that if you put yourself in the way of a legal business and are nuisanced by it, then you can get an injunction to get rid of the problem, but you will have to pay the costs incurred by the business!

This case also explains the difference between a private nuisance that annoys a particular landowner, and a public nuisance that annoys the general public at large. There are different standards for relief depending on which nuisance you are causing.

o Spur was both a private and a public nuisance. Private nuisance- only owners of interests in the land can bring

suit Public nuisance- any member of the publican sue, but only if the

person bringing suit can show “special injury” or “special damage” or “particular damage” which is injury of a different kind than what is suffered by the general public.

The System of EstatesEstates in Land

Freehold Estates grants the holder seisin (title rights)Leasehold estates grant possessory interest w/o granting title rights

Three basic Fee Simple (absolute)…all the rights that are available Fee Tail…limited to heirs of the grantee…can go on forever, but only to

lineal descendantso I could sell it, but when I die, it goes back to my heir

Life Estate…lasts for the life of the grantee or for the life of another (pur autre vie)

Essential terms Grantor/grantee Grant, convey

o A transfer or a conveyance made during a grantor’s life Transfer

o More general term, can be a devise, a conveyance Devise

o Transfer by will (written into the will) Inheritance

o Property transfer that happens when a person dies without a will Remainder

o Leftover that happens on an estate that does not last forevero A leftover piece of a fee simple

Words of purchaseo “To Bob”o Without “and his heirs” creates a fee simple

Words of limitationo “and his heirs”o Secret lawyer code

Means “in fee simple” Gives alienable rights

Heirso When a person dies without a will

The people who are related to that person, who will get something

Don’t know who the heirs are until the inteste dies Issue

o Lineal descendants of the dead persono A particular kind of inheritance

Ancestorso People in the line before whoever is dead

Collateralso People on the sides of whoever is dead

Escheato When there is no will, no heirs, all goes back to state…Eleanor

Rigby law Intestate

o Someone who dies without a will Per stirpes

o Default in most jurisdictiono How things are distributedo Estate is split at first level

Per capitao Whoever is alive, takes an equal share

Fee Simple

o Freely alienableo Inheritableo Devisableo Otherwise transferableo “and his heirs”

Fee Tailo Inheritable only by issue of Grantee’s bodyo Limited alienability for the granteeo Continues to be a fee tail until line of descendants run out, then

reverts back to O and his heirs, if none then escheats back to the state

o Not devisableo “and the heirs of his body”o “in fee tail”o “and his heirs male”o “and the heirs of his body by his wife, X”

The Fee Simple and the Fee Tail a system of estates in land developed From feudalism tenant had status as a tenant of the fee or a tenant for life status became estate each is defined by length of time it may endure A fee simple may endure

o Forevero A life estate, for the life of a persono A term of years, for some period of time measured by a calendar

The fee system developed out of a Rise of Heritabilityo The land was not owned by the possessor, but held by the possessor as

a tenant of someone elseo Tenants had lifetime tenure

Could not pass on to heir Personal nature of landlord-tenant relationship Tenant’s holdings called fief or fee

o After tenant’s death Heir may request that the lord recognize the heir as successor Lord under no obligation Lord may regrant the land for ($) a relief

Would secure homage and oath of loyaltyo Eventually, consent to descent could be obtained before tenant death

Would be written by a conveyance from the lord “to Bob and his heirs”

o By the 13th century, conveyance of a fee was a right, but payment to the lord was still required

Rise of Alienability (transferability)o Fee was not freely alienable inter vivo (within the living)o Fee not divisible by willo Conveyance was necessaryo By the end of the 13th century, a tenant could convey the fee without

the lord’s consent It became freely alienable

Rise of the Fee Simple Estateo The land will escheat only if the current tenant dies without heirso Thus the fee which started out as a holding became an alienable fee

simple A freehold estate not terminable upon the will of the landlord With an existence all its own

o Instead of thinking of the land, we think of an estate in land Has an existence apart from the land

o Ex. O has an estate known as a fee simple If he owns it at death, it passes under his will or descends to his

heirs Creditors may reach the fee simple and sell it to pay debts in

defaulto Modern analysis says that an estate is a bundle of rightso Estate is a word that denotes legal relationships between persons with

respect to a thingo Fee simple is as close to absolute ownership as our law recognizes.

Largest estate in terms of duration May endure forever

o Interests in personal property Usually fee simple is only in land Sometimes there is a fee simple in personal property

Creation of a fee simpleo Early common law created by grantor conveying land to heirs

Land was inheritable, but no interest during lifetime of grantoro Judges interpreted “and his heirs” as words of limitations which define

the estate granted as a fee simpleo Heirs do not take as purchasers

Purchaser is a old common law term that refers to a person who is given an interest in land by an instrument as opposed to an intestate succession

o In a conveyance, the words “to Bob and his heirs” the words “to Bob” are words of purchase

o The words “and his heirs” are words of limitations

A creditor can sell a life estate, then it goes back to the original grantor after the grantee dies

The Law of Primogeniture (assume in place in 1800s) Only the eldest son could inherit If the eldest son died before the father and the son left a son, that child

would take before any daughterso Eldest son of the eldest son of O takes before youngest son of O

Keeps the land parcels large Daughters could only take if there were no boys at all

o Women ceased to exist when they marriedo Land would transfer into other families

In modern law, all heirs share equally.o A wife of a dead son does not inherit from O’s fee simple

Dying without issue does not mean dying without heirsEstate does not escheat to the state,

Estate goes to ancestors and/or collaterals

Future interests are in themselves valuable property rights

The Life Estate…shift in presumption Life tenant has limited seisin rights and possession Pre-modern presumption

o w/o evidence to the contrary, a grant not clearly transferring fee simple title was presumed to grant only a life estate pre 1600

modern fee simple

White v. Brown Handwritten will Wishes White to “have home to live in and not to be sold”

o Is it a life estate? “to live in”

o Is it a fee simple? She chose not to put conditions on this that she could have

o What happens to the remainder is missing from the will A life estate leaves a remainder

Rule: In ambiguous cases, the court looks to the testate’s intento In this case, common law default rule is preceded by statutory

presumption Presumption against partial intestacy

Cannot have some pass by will and some pass by inheritance

Fee simple is presumedo In all states, unless there is no language specifying, fee simple is

presumed Restraint against alienation

o Against public policyo Repugnant in fee simpleo Possessor cannot sell life estate

Goes back to owner Fee simple with a restraint against alienation

o Makes property unmarketableo Perpetuates the concentration of wealth by making it impossible for

owner to sello Discourage improvements on lando Prevents owner’s creditors from reaching the property

Restraint types Disabling restraint- Void

o Withholds power of transferring interesto You cannot sell

Forfeiture restraints- Usually upheldo If you attempt to transfer, then property will go to someone else

Promissory restrainto Grantee promises not to transfero Rare

Fee simple

Fee tail- lineal descendants Life estate- for the life of a person

Defeasible estate Any freehold estate can be made defeasible

o Fee simpleo Fee tailo Life estate

A condition is imposed on the grantee’s seisen

Determinable v. Condition subsequent

Determinable estate Language created a limitation on the power of the grantee to retain title The condition has durational aspect Title is terminated automatically upon happening of stated event “inherently limited”

Just because a clause says “reverts” does not make it automatic

Only an original grantor can have a reversionCan have a right of entryCan have a possibility of reverter

Every fee simple determinable is accompanied by a future interest retained by the transferor and called a possibility of reverter

Estate subject to condition subsequentSubject to condition subsequent retains right of entry

-requires an action of eviction against party occupying land or actual reentry onto the land

If you confront a problem that contains conflict…do not skip over the analysis that it may be an ambiguous grant, address that first.

Default rule is if you cannot tell, then it is an estate subject to condition subsequent

Inheritability of future interestLeasehold Estates and Defeasible Estates

Marenholz v. County Board of School Trustees, 208-213.-discussion on what constitutes “school purposes”-conditions

Release- future interest released to possessorproblem where Blackacre is conveyed to A and his heirs so long as premises are not used for sale of beer, wine, or liquor. Restaurant cooks with wine and gives complimentary wine with dinner. A wants to sell to B so he can open a bar.

First…is it a life estate, is it a fee simple? determinable language

condition subsequent…when there is conflicting language, then condition subsequent

Has the condition been met?Is cooking with liquor selling liquor? No license=no saleIs giving away wine selling wine? Does sell mean consumption?

when the condition subsequent has been violated, the property should go back to O, if this does not happen, then doctrine of laches (adverse possession) may apply because statute of limitations may run out, A would still need to sue for quiet title. (a declaration of rights)

Fee simple is the whole pie (no termination…no reversion)Anything less than a fee simple has a remainder that potentially belongs to someone else…that is the future interest

When we talk about future interest we look at two things to give a complete answer to what is the state of the title: 1) Present possessory estate …what the current possessor possesses now +2) future interest + estate Future Interest holder will get

Future interests questions-who receives the future interest?-whether conditions are imposed to take-whether conditions are imposed to keep-whether condition lasts too long

Only two things can happenEither original grantor retains interestOR A third party gets an interest

An original grantor retains an interestCondition is sure to happen = natural terminating estate (death) = REVERSION (goes back to original grantor)-to A for life LIFE ESTATE-to A and the heirs of his body (line of lineal descendants may die out, if it ends it ends when the last issue dies) FEE TAIL

Reversion?-to A for life, then to B and her heirs.A has a life estate, B gets a fee simple…nothing left…O cannot get a reversion

-to A for life, then to B and the heirs of her bodyA has a life estate, then B gets a fee tail, B may have no issue, then estate will go back to original grantorFee tail has a remainder…YES REVERSION

-to A for life, then to B and her heirs if B attains the age of 21 before A diesA has a life estate, B will have a fee simple if B reaches age 21, if B dies before 21 , then only a life estate exists YES REVERSION, if B gets to 21 before A dies, then B gets fee simple NO REVERSIONB has a present right to a future interest

-to A for 20 yearsA has a term of years, YES REVERSION

-to A for life, then to B for life A life estate, then B has a life estate, something is left, O has REVERSION in fee simple -O dies testate, devising O’s property to C

The fee simple is property, C gets O’s REVERSION, still called a reversion

-Then A dies and B dies then C is left with fee simple

Non Naturally Terminating Estate -to A as long as she never shoots a gunPOSSIBILITY OF REVERTER

-to A and her heirs, but if she ever travels outside the United States, then O retains the right to reenter and take as of his former estate (the grant is complete, but subject to condition subsequent)RIGHT OF ENTRY

-To A so long as she never serves alcohol on the premises, otherwise to BEXECUTORY INTEREST

Naturally terminating

Non-Naturally terminating

Original Grantor

Third Party Grantee

-To A upon her marriage (A is 7 years old)O has a fee simple, until/unless A marriesEXECUTORY INTEREST

Original grantor or Third party receives an interest (either or, one or the other)-if a third party gets the future interest it is called a REMAINDER-to A for life, then to B and his heirs---REMAINDER goes to B’s heirs-To A and the heirs of her body, then to B---REMAINDER goes to B

Vested and Contingent Remainders-a remainder is vested if1) the taker is ascertained; AND2) no pre-conditions exist to take…DEATH is NEVER a pre-condition…SURVIVAL is different from death, it is a condition

-if one condition is missing, then remainder is contingent

-To A for life, and in the event of A’s death to B and her heirs.A has a life estate, then B gets a fee simple. B’s heirs really have nothing.This is written as though there is a condition, but death is not a condition.A has a life estate, b has a VESTED interest in fee simple

-To A for life, then to B for life, then to C and her heirsA has a life estate, B has a VESTED remainder in a life estate, C has a VESTED remainder in fee simple

-To A for life, then to B for life, then to C and her heirs, if C survives A and B.A has a life estate, B has a VESTED remainder in a life estate, C has a CONTINGENT remainder in fee simple and possible revision to Original grantor

-To A and B for their joint lives, then to the survivor in fee simpleA and B have a joint life estate, each have a CONTINGENT remainder in fee simple, possible REVERSION to Original grantee if both A and B die together

-To A for life, then to A’s children who reach 21. A has a life estate, A’s children have a CONTINGENT remainder, O has REVERSION until B reaches 21-If B reaches 21B has a VESTED interest in fee simple, but so do any other A’s children if/when they reach 21

Vested interest subject to divestment by third party-to A for life, then to B and her heirs, but if B does not survive A, to C and his heirs

EXERCISES-To A and his heirsA has a fee simple, no future interest

-To A and the heirs of his body, then to B and his heirs if B married at the time A’s issue runs outA has a fee tail, B has a CONTINGENT remainder in fee simple, O has REVERSION

-To A and his heirs so long as none of A’s children enters the militaryA has a fee simple determinable, O has the possibility of REVERTER

-To A for life so long as A remains marriedA has a life estate determinable, O has the possibility of REVERTER, if A remains married, she has a life estate until she dies, O also has the possibility of REVERSION

Executory Interest-Interest to third-party grantee cuts vested interest short -Power to take-reads like a determinable estate or an estate subject to a condition subsequentBUT when the condition is met, the interest passes to a third party, rather than back to the original grantor- shifting - going to some other third party - springing - O holds title until it goes to third party

Ex. To A and his heirs, but if A dies without issue surviving him,…to B and her heirs…A has a FEE simple subject to an executory limitation in B, and B has an executory interest in fee simple

Ex. To A for life, then to B and her heirs, but if B dies under age 21, to C and her heirs.…A has a life estate, B has a vested remainder in fee simple subject to an executory limitation in C, and C has an executory interest in fee simple

What does this mean?-Figure out who gets it next

Problems at 2381.(A)-To A for life, then to A’s children and their heirs, but if at A’s death he is not survived by any children, then to B and her heirs.---A has a life estate, A’s children have a contingent remainder in fee simple, and B has an alternate contingent remainder in fee simple, O has reversion in fee simple until A’s death

LIFE ESTATE FORFETURE: There is always a possibility of a life estate being forfeited, so a LIFE ESTATE can end up not transferring and ending before the life of the holder endsSo A’s kids and B may never get it.

Whenever there is a contingent remainder, O has a reversion

Two years after the conveyance, twins, C & D, are born to A. What is the state of the title?--A has a life estate, C & D have a vested remainder in fee simple subject to open (because A can have more children)and subject to complete divestment (executory limitation) (because C & D can fail to survive A), B has executory interest. (O has no reversion)

Class gift, subject to open OR subject to partial divestment…means the same thing

There cannot be a contingent remainder after a vested remainder in fee simpleC dies during A’s lifetime, A is survived by B and D.--A has a life estate, D has a vested remainder in fee simple subject to open (because A cannot have more children)and subject to complete divestment (executory limitation) B has executory interest in fee simple. If any child survives A, then A’s children take. D & C’s heirs each take ½ interest in fee simple.

(b) to A for life, then to such of A’s children as survive him, but if none of A’s children survives him, then to B and her heirs.-A has a life estate, C & D have a contingent remainder in fee simple, B has a alternate contingent remainder in fee simple (C & D’s interest is not subject to open because nothing is vested, nothing is sure), O has reversion

At the time of the conveyance, A is alive and has 2 children, C & D.-A has a life estate, C & D have contingent remainder in fee simple, B has alternative contingent remainder in fee simple, O has reversion.

(c)To A for life, then to B and her heirs, but if A is survived at his death by any children, then to such surviving children and their heirs.-A has a life estate, B has a vested remainder subject to complete divestment (executory limitation), A’s surviving children have a shifting executory interest in fee simple

T devises: $10K to my cousin, Don Little, if and when he survives his wife. (T is dead)- T’s heirs have fee simple (seisin) subject to complete divestment (executory limitation) in Don Little, Don Little has springing executory interest (comes out of original estate)

The Rule Against Perpetuities: RAP- Rule intended to free up land so it can be bought and sold- if we have to wait too long to see it interest will vest, it’s too long - Prevention of “dead hand control”- we will wait a certain amount of time, but no longer- the rule applies to all future interest

- Q is: does it waive the future interest?- No interest is good unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest.

Working problems-What is the state of the title w/o RAP? First work the problem as if there is no RAP-What has to happen for the interest to vest or fail?

Will you know for sure that the condition will happen w/in 21 years of the death of whoever?

Is it possible that you won’t know for sure that the condition will either happen w/in 21 years of the death of whoever?

If the rule is violated, if it is possible you won’t know for sure, then that clause is struck from the state of the title leaving what ever is still good

Whenever a taker is categorized as a class as opposed to identified with names, need to look at an individual in a closed class when calculating 21 years after death

Notice that whether the problem begins with an O or a T makes a difference in the state of the estateMore problematic when there is an open class

More… Rule Against Perpetuities-First set up the state of the title w/o rule-then figure out what contingency needs to be resolved-will you know for sure within 21 years of the death of someone alive at the time of the xfer [the clock starts ticking when the person dies]-apply the rule if it applies, then identify the state of the title

Ask not what did the grantor intend, but what is left after the rule is applied

TEST:1) State the title w/o RAP2) What will happen for the interest to vest3) Will we know for sure w/in 21 years of the death of someone alive at the time

of the transfer?4) Is it possible we will not know for sure?

Rule is about possibilities, (ex. Fertile octogenarian, precocious toddler)

To A for life, then to B if B attains the age of 30. B is age 3.A has a life estate, [B is 3rd party grantee following naturally terminating estate] B has a contingent remainder and fee simple [condition] if B turns 30. O maintains a reversion in fee simple.

TEST: Look at B, will U know for sure within 21 years of B’s death whether B made it to age 30 or not?Yes, we will know. B will live or he will die within 21 years of his death. We will know at the moment of his death whether he reached 30 or not. We will know when he turns 30 whether he turned 30 or not.

This entire grant is valid and does not violate the RAP.++++++++++++++++++++++++++++++++++++++++++++

To A for life, then to A’s children for their lives, then to B if B is then alive, and if B is not alive then to B and his heirs. A has no children at the time of conveyance.A has a life estate, A’s children have a contingent [not all children exist & no preconditions, so its not vested] interest in a life estate. B has a contingent remainder in fee simple, B’s heirs [they are a third party grantee following a naturally terminating estate] have an alternate [single condition] contingent remainder in fee simple.There is the possibility that A or A’s children abandon the life estate before A’s death, so O maintains reversion.

TEST: A’s life estate and children’s interest in life estate satisfy RAP.B will die before A’s children or survive them all, so this conveyance satisfies RAP.This entire grant is valid and does not violate the RAP.

Interest has to be VESTED before it is subject to divestment (subject to open) There is no such thing as a contingent remainder subject to open!

Executory interest only applies to VESTED interest

++++++++++++++++++++++++++++++++O holds $1K in trust for all members of her present property class who are admitted to the bar. Is the gift good? O has fee simple because no one in class has been admitted to bar yet, but it is subject to springing executory limitation and the class has springing executory interest. The class is closed because no one else can join.

For a class gift to vest, (1) the c lass must be closed and (2) all conditions to join the class must be met, The gift must be vested for ALL members of the class to satisfy the RAP.

Everybody who gets admitted to the bar gets a gift. All members of the class serve as their own measuring life.

Suppose that O said for the first child of A who is admitted to the bar?A child of A must be admitted to the bar. It is possible that we will not know within 21 years that A’s child is admitted to the bar. A could die and her child may not be admitted to the bar within 21 years of her death.This grant violates RAP.

O would retain fee simple.++++++++++++++++++++++++++++++

To A for life, then to A’s children who reach 25. A has one 26 year old child, B, alive at time of conveyance.A has a life estate, A’s children, particularly B, have a vested remainder subject to open. [the remainder is vested because there is a named member of the class who satisfies conditions for membership of the class]For the interest to divest indefeasibly, A has to die to close the class. If A has an afterborn child, X and B dies, it would take more than 21 years for his/her interest to vest.This conveyance violates the RAP.

++++++++++++++++++++++++++++++To A for life, then to A’s widow, if any, for life, then to A’s issue then living.

Is the gift to A’s issue valid? A has a life estate, A’s widow has a contingent remainder [not vested because we won’t know who she is until A dies] in life estate. Then to A’s issue with a contingent remainder in fee simple. O maintains reversion in fee simple.

TEST: only A can be measuring life because A’s widow cannot be ascertained.Since it is possible that we will not know for sure who A’s issue still living at time of W’s death, this conveyance violates the RAP.

++++++++++++++++++++++++++++++++++T devises property to A for life, then on A’s death to A’s children for their lives, and upon the death of A and A’s childen, to…B if A dies childless. A and B survive T.-A has a life estate, A’s children have a contingent remainder in life estate; B has a contingent remainder in fee simple. T’s heirs have reversion.

Apply RAP: Looking at A as the measuring life, we will know at the time of A’s death whether or not she has surviving children.

The grant is VALID.

T devises property to A for life, then on A’s death to A’s children for their lives, and upon the death of A and A’s childen, to… B if A has no grandchildren then living. A and B survive T.-A has a life estate, A’s children have a contingent remainder in life estate; B has a contingent remainder in fee simple. T’s heirs have reversion.

Apply RAP: We need to identify the living grandchildren of A within 21 years of someone alive at the time of the transfer.

We will not know for sure within 21 years of T’s heirs death, A’s death, B’s death, or A’s children’s death. [A’s children cannot be measuring lives because they are in an open class]

The contingent remainder to B is VOID.

So, then -A has a life estate, A’s children have a contingent remainder in life estate; B has a contingent remainder in fee simple. T’s heirs have reversion.

T devises property to A for life, then on A’s death to A’s children for their lives, and upon the death of A and A’s childen, to…B’s children. A and B survive T.

-A has a life estate, A’s children have a contingent remainder in life estate; B’s children has a contingent remainder in fee simple. T’s heirs have reversion.

Apply RAP: We need to identify B’s children within 21 years of the death of someone alive at the time of the transfer.

Using B as the measuring life, we will know for sure at the moment of B’s death whether or not he has children.

The contingent remainder to B’s children is VALID.

T devises property to A for life, then on A’s death to A’s children for their lives, and upon the death of A and A’s childen, to…B’s children then living. A and B survive T.

-A has a life estate, A’s children have a contingent remainder in life estate; B’s children has a contingent remainder in fee simple. T’s heirs have reversion.

Apply RAP: We need to identify the children of B who survive A’s children within 21 years of the death of someone alive at the time of the transfer.

We will not know for sure within 21 years of T’s heirs death, A’s death, B’s death, or A’s children’s death.

The contingent remainder to B is VOID.

So, then -A has a life estate, A’s children have a contingent remainder in life estate; B’s children have a contingent remainder in fee simple. T’s heirs have reversion.

T devises property to A for life, then on A’s death to A’s children for their lives, and upon the death of A and A’s childen, to…A’s grandchildren. A and B survive T.

-A has a life estate, A’s children have a contingent remainder in life estate; A’s grandchildren have a contingent remainder in fee simple. T’s heirs have reversion.

Apply RAP: We need to identify the grandchildren of A who survive A & A’s children within 21 years of the death of someone alive at the time of the transfer.

We will not know for sure within 21 years of T’s heirs death, A’s death, B’s death, or A’s children’s death.

The contingent remainder to A’s grandchildren is VOID.

-A has a life estate, A’s children have a contingent remainder in life estate; A’s grandchildren have a contingent remainder in fee simple. T’s heirs have reversion.

T devises property to A for life, then on A’s death to A’s children for their lives, and upon the death of A and A’s childen, to…T’s grandchildren. A and B survive T.

-A has a life estate, A’s children have a contingent remainder in life estate; T’s grandchildren have a contingent remainder in fee simple. T’s heirs have reversion.

Apply RAP: We need to identify the grandchildren of T who survive A & A’s children within 21 years of the death of someone alive at the time of the transfer.

The death of T’s last living child closes the class of grandchildren.

This grant is valid.

T devises to A and B as joint tenants for their joint lives, remainder to the survivor.A and B have JT in life estate. Contingent remainder to A or B in fee simple. O reversion.

-If A & B had a JT in fee simple, then O has no reversion and there is no right to sue for waste

Symphony Space v. Pergola propertiesBroadwest sold building to non-profit Symphony Space with option to buy back at certain intervals. The intervals exceded 21 years

Symphony Space sold property to Pergola based on the theory that the Purchase option violated the RAP.

Broadwest argued that the RAP does not apply to commercial options.

Businesses have a potentially infinite lifespan, so RAP looks at date of Xfer + 21 years.

The argument against applying RAP:-Rule was not designed to regulate transactions between two sophisticated business entities

RAP voids the condition which violates the rule, not the entire K.The condition was invalid from the moment it was signed, but no one tried to exercise the option, so neither party noticed it was void for many years.

The NY court cannot apply “wait & see doctrine.” NY statute prevents this.

Rights of First Refusal v. Option to BuyCannot force sale v. Can force sale

Rescission is only available in mutual mistakes of fact, not mutual mistake in interpretation

IN this case, allowing rescission would provide the same consequences of forcing the option to buy.

Underlying policy…tax dodging by Broadwest

++++++++++++++++++++++

If, on a test, the language makes the tenancy unclear because of conflicting language be sure to discuss it.

Concurrent InterestsJoint Tenancy [JT] Tenancy in

Common [T/C]Tenancy by the Entireties [TBE]

Tenants are together regarded as single owner

Tenants have separate but undivided interests

Tenants are together regarded as single owner

Right of Survivorship

No right of survivorship

Right of survivorship

Right of survivorship Unilaterally severable- one tenant can sever JT on his own by creating a new deed

---------------------Right of survivorship Cannot be destroyed unilaterally

Transferable during life, but destroys the interest of the one who transfers it, the remaining tenants still have a joint tenancy in their common share

When there is ambiguity as to whether a tenancy is joint or in common, courts tend to construe as tenancy in common

Transferable by joint action of both spouses protecting certain marital assets, the marital home designed to protect wives, but in effect also protects the husband (Sawada) and the family unit

Avoid Probate Divorce terminates the marriage and the TBE

Rights extinguish upon deathNot inheritable Can be conveyed by

deed or willNot inheritable

Not devisable Devisable Not devisableOffers some protection from creditors; attackable only to the extent of the debtor’s interest

Offers some protection from creditors; attackable only to the extent of the debtor’s interest

Best protection from creditors; creates an absolute protection for both spouses

4 unities-time

Unities do not apply 5 unities: 4 + Marriage

-title-interest-possession

Harms v. Sprague-IL views the mortgage as a lien rather than a property interest [lien theory]-taking out a mortgage does not destroy a JT-the mortgage only has a lien on the title, not ownership-the debt does not survive the death

-title theory holds that a mortgage is a transfer of ownership

Delfino v. VaelencisDevelopers want to partition by sale. They are T/C with a lady who owns a garbage business.

Joint Tenancyo Tenancy in Commono Partition in Kind..default rule

Presumption in favor of Partition in Kindo Partition by Sale (Divorce)

Presumption that partition in kind is the action that should be taken

Rebuttableo Physical partition is impractical

ANDo Promotes owners’ interest, not detrimental

Developers argued 4 points why partition by sale is best action1-land cannot be zoned for residential use if garbage business stays…no permits to build2-lots might not sell if garbage business stays- reduction in property value3-access to her home, if it remained, would affect 3 lots- reduction of profitability4-road would have to be rerouted if her home remained

[Partition by Sale is an elements test, yet trial court did not require P to meet both factors…also this trial court did not look at both owners’ interests…but it is just rebutting a presumption]Land is not hard to partition, not a pond, not hilly

Garbage lady’s points- her livelihood is threatened

-her residence is threatened -no evidence that license will not be threatened -forcing the little guy out

Appellate court remanded and ordered that the land be partitioned in kind.-the elements were not satisfied-the land was physically partitionable-legally it was the right thing to do-her business was a preexisting nonconforming use & permits will not transfer; no obligation for council to grant permit in new location-her livelihood was important to the community by dealing with the garbage-her business may not be movable; people would not want her to move nearbyWhen zoning, it is not uncommon for government to take land that doesn’t fit in zone. Often these properties are allowed to stay as a preexisting nonconforming use.

Public policy supported…people do not like forcing people out of their homes.

Marital Interests Based on English law Women as non-entities Legal fiction that man and woman are one Husbands and wives can hold jointly Husbands and wives can hold in common

Hypothetical p.313W agrees to care for H personally at home for the rest of his life and in exchange he will will her certain property. W did care for H until his death. When he died H devised his property to a daughter from a previous marriage.Court found K between H & W unenforceable due to lack of consideration. K should have been worded to define W’s consideration naming what she gives up, ex. other employment. Ruling that a K existed would be opening the door for commercializing/contractualizing maritial duties.

Sawada v. Endo Hawaii is an unusual state Ruled by sovereignty until taken over by US Land was parceled out from center of island to the shore Oligolopy Few landowners; high rent

Challenge as to how to not take land Endos owned their home and conveyed property to sons a month after suit was filed against Endo in personal injury.

Judgment entered against Endo. Endo wife dies.

Court ruled that tenancy by entireties protects homeowners from creditors. Transfer to sons was valid because both spouses agreed to transfer. Transfer to sons was not fraud to creditors because they had no right to the property under tenancy of the entireties. Home would have ceased to be protected after death of wife. Without transfer to sons, creditors would have been able to get house.

Elkus v. ElkusDivorce of opera singer and husband. Husband claims her celebrity status is marital property to be divided.

NY statute defines marital property is “property acquired during the marriage regardless of the form in which title is held.”

Court found that she did have to pay something to compensate husband’s efforts.

Property

Use

Exclusion

Alienation

Celebrity status and professional license as a divisible marital asset is discussed.

Gained through personal labor Innate talent Conferred upon a person Inalienable (not transferable) Cannot just buy it May have some measurable earning capacity Usually has effort of spouse in building it

Hypo discussed: Jennifer Gray of Dirty Dancing. After movie, her prospects looked great but she never did anything else. What if her husband and her split up when her career was up and he gets a share of projected future earnings?

Dower was replaced with Forced elective share or taking against the will which amounts to a one-half share, so if deceased spouse left surviving spouse less than one-half, he or she should take against the will to get a larger share. If there are children, the surviving spouse typically gets one-third.

problemH dies in a state that gives the surviving spouse an elective forced share of one-half. Insurance policy is not part of estate, it goes to beneficiary. Surviving party gets all of title to house since they were joint tenants. Wife can take against the will and get half of the estate that was willed to daughter. If he left each half under the will, each would get half. Wife would not be able to take more than half.

Basic assumption is that married couples split things evenly no matter who generates the income-community property can only by husband and wife-like any t/c you only get to will the part that belongs to you-no survivorship, Favorable tax status of community property-No forced elective share

Community Property System 10 states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico,

Texas, Washington, Wisconsin, Alaska Earnings of each spouse during marriage should be owned equally in

undivided shares by both spouses A spouse can will his or her share Includes rents, profits and fruits of earnings

Whatever is bought with earnings is community property All property that is not earnings is separate

Acquired before marriage Acquired during marriage by gift, devise or descent In some states the income from ALL property is community

property Property acquired or possessed during the marriage by either spouse is

presumed to be community property Can only be overcome by preponderance of the evidence

Deeds prepared by one spouse that property is separate property are not controlling

In most states, a spouse can freely “transmute” (change) the character of their property by written agreement and in some states by oral agreement They can convert community property into separate property And separate property into community property

Divorce Some states…equal division of community property

Some states…equitable division of community property Management of Community Property

Community property can be conveyed to a third party only as an undivided whole

All original 8 community property states enacted statutes giving husband and wife equal management powers

Most community property states allow either spouse to act alone in managing community property

But in certain situations, only one spouse may be empowered to manage Title of property in one name Business

Most states statutes require both spouses to join in transfers or mortgages of community real property

Manager of community property is a kind of fiduciary Must be managed for good of community Each spouse must act in good faith in exercising authority

Good judgment not necessary Manager may sell community personal property If joinder of other spouse is not required by statute, real property

can be be soldCommunity Property Common Law Concurrent

InterestsNo dower or curtesyNo tenancy by the entiretyTenancy in Common OK as separate property, but 2 spouses cannot hold community property & T/C simultaneouslyJoint Tenancy OK as separate property, but 2 spouses cannot hold community property & JT simultaneously

Husband and wife

Can exist only between husband and wife

T/C or a JT can exist between any 2 or more people

Conveyance of share

Neither spouse acting alone may convey his or her undivided ½ share of community property except to the other spouseNeither spouse can change community property into separate property w/o consent of the other

a tenant in common or a joint tenant actions alone can convey his or her undivided share to a third party, can change the form of an estate (ex. from a JT to a T/C) and has the right to partition

At death Each spouse has the power to will ½ of the community property at death

At death No survivorship JT has survivorshipIn most states, if a spouse dies intestate, his or her share of the community property passes to the surviving spouse

At death In some states, if a spouse dies intestate, his or her share of the community property passes to the descendants of the decedents

At death Some states allow spouses to create right of survivorship in the surviving spouse

Sale after death

The entire community property receives a “stepped-up” tax basis for federal income tax purposes. (The difference between “basis” which is what the item cost, and selling price is income to the taxpayer) The new basis is the value of the property upon the date of the decedent’s death.

Goodridge v. Dept. of Health, 346-56, Notes and Questions at 356-59

3 reasons to distinguish between hetero and homo couples

1. Rational relationship to legitimate state interesta. Human experience/procreationb. Does excluding same-sex couples from marrying

2. Treating similarly situated individuals equally/differentlya. Gender- b. Optimal child-rearing settingc. Some religious traditions doctrined. “unnatural” and therefore wrong

3. Statutory interpretation: statute is clear, but….4. Legislative intent

Servitudes: Easements Private Land Use Controls

The Law of Servitude Covenant

REMEDY OF DAMAGES Servitute

REMEDY OF SPECIFIC PERFORMANCE Easement- (ex.Pass and repass- most common)

Appurtenant/In gross Appurtenant

Adds value to someone’s land Land benefit

In gross Doesn’t benefit anybody’s land Personal benefit

Negative /affirmitive Negative

Affirmitive Tenement (estate)

Dominant ( Servient (the land subject to restriction)

Servitudes: Easements and Covenants Running with the LandWillard Case = Stranger to the Deal 

Oral and knowledge of easement is not sufficient to pass the easement. Property = bundle of rightsThis case represents the notion that property can be divided. The seller has the right to divi up the rights that are sold. So it is logical to move from the conservative old rule that denied "reserves" to now accept that the seller can create and gift an interest in a 3rd party.  Statutes will not apply retrospectively unless the legislature says that they will. Courts feel freely to change the common law because the understand that the right and true rule is out there and if it came up before they just did not realize it.  Courts Retroactivity discussion

Unjustness to apply (the rules that apply Expectations (reliance on the old rule)

 There are no expectations which rule should apply because it was open and obvious that the parking lot would and had already been used by the church.  The new rule may or may not apply prospectively now. Page 675 "We must balance the injustice which would result from refusing to give effect to the grantor's intent against the injustice, if any, which might result by failing to give effect to reliance on the old rule and the policy against disturbing settled titles." To get around this - McGuigan could have deeded to the Church and then have the Church deed to Peterson. (Don't worry about the differences between Reservations and Exceptions on page 676 - most of the things we will deal with are reservations

------------------------------------------------------------------------------------------------------------------ Van Sandt Case = Implied ReservationEasement by reservation

Bailey failed to express that there was a sewer running across the partitioned lots. The two other owners thought that they had a fee simple (absolute title) with no reservations or conditions.  If Van Stand and Royster got free and clear deeds how did the court get to saying there was an implied reservation.

1. Easement must be of strict necessity2. Whether the claimant is the conveyor or conveyee

(conveyee's needs get more weight)3. The extent of prior use/notice4. Whether there are reciprocal benefits

 What is the standard for notice? Even if there is no knowledge -

1. They were presumed to have thoroughly inspected the land 2. Notice to the parties = They knew the house with modern

plumbing so you have to know the house connects to a sewer.   

-----------------------------------------------------------------------------------------------------------------Mathews Case = Public Trust Doctrine  

Complete public access up to high tide line. The upper dry sand is called the tidal waters beach. There is no disagreement that the public has access to the lower area. Who owns the dry sand? - the private people say they do, but people have to walk across it to get to the beach and when the tide goes out the private/public land line is not clear.  Why is this not a taking? Public trust doctrine renders poor shore argument null. You can't take in order to give people access to the poor shore. By the court did turning Bay Head into a quasi public agencies it socialized/subsided the entity. Can the gov. exercise eminent domain over another gov entity? - NO Finding Bay Head as a quasi governmental organization was CRITICAL for them to find that it was not a taking.  

------------------------------------------------------------------------------------------------------------------ Brown v. Voss 

Normal Rule - if you have an easement to go from parcel A to parcel B. That gives you a right to get from parcel A to B period. It does not give you the right to get to parcel C. It is a miss use of the easement if you use the easement for any other use.

 TC: Both awarded $1 in damages. The court did not grant an injunction. CA: Did not speak to damages, just reviewed the denial of the injunctive relief. TC judgment was affirmed.

 Abuse of discretion is the standard for review - a lot of deference is given to the court Why does the court still allow, what is technically a violation of the easement? The reaffirmed the rule that the easement is being violated, but there was no injury to the parties. No increased burden to the servient parcel. Violation of property law, but this violation is not making a difference in their property rights.  What kind of an award is an injunction? An equitable remedy!

1. Legal question = resolved and not appealed and that was the $1 damages

2. Equitable issue = defendant says just because there was a legal wrong it would still be to harmful/burdensome on us even though we are a little in the wrong. So the refusal to grant the injunction is on the equity side and where the abuse of discretion is being reviewed by the Supreme Court.  

------------------------------------------------------------------------------------------------------------------ Prescriptive Easement

 An easement by adverse possession. They come about by long periods of use, and often tide to adverse possession statutory limitation ejections. It arises because someone has cut across the back 40 and no one has stopped the person. What is different is - the easement exists only so long as the use continues!!! It can be extinguished by nonuse. But most easements end by non use anyway though.  When the kids stopped going over the ladder to get to the sledding hill the prescriptive easement ends.  

------------------------------------------------------------------------------------------------------------------Preseault Case 

Railroads had been granted condemnation - they were able to condemn land for public railroad usage. Took them by eminent domain or purchased.

 What is at issue is whether the railroads took the land with fee simple. If the railroads owned fee simple then it would not matter if the railroads stopped using the land for railroad purposes = because it still owns the land. If it is an easement, then when the use stop so does the easement.  Limited eminent domain - the railroad could only take what they needed to pass through land. The railroads were not granted all of the land by fee simple. The purpose of granting eminent domain was to serve public service = run trains and transport goods. If they did not have eminent domain it would have been to costly for the railroads to have negotiated with each individual person to get access or inability to make a straight and efficient track route.  Vermont ProblemEither by state or by reasonable interpretation of federal law - the only thing the railroad ever purchased was a fee simple. It was limited by scope and distance/space. Width was dictated by the needs to clear brush and lay track.  The consequence of owning an easement - once it is not used anymore it goes back to the original owner!! Title merged then goes back to the owner of the underlying land. (Same thing with a sidewalk in your front of the house - you own the land but you cannot exclude people from using the sidewalk) The court says the railroads abandoned the easements.  How is this different then the school land/school purpose case previously discussed? The railroads had removed all of the tracks and effectually abandoned the space. There was no argument that the land as far as for railroad use was not abandoned. This is beyond the outer limit of what constitutes still proper use. They could not argue that they were going to come back and use that space for rail use in the future just because there was some spare line in places.  Does this mean the US is not allowed to do this project? No, the government has to exercise eminent domain and pay just compensation for the land. The government would have to take individually and determine who the fee owners are. Even with an express easement - when people sold their land to the railroads - and easement can be extinguished by abandonment as evidenced

by non use, removing the means of use, and acting as though there is no future intent to use.  Easement = temporary property right.

Servitudes: Covenants Running with the Land Easements and servitudes are essentially the same thing No need to know the difference

American courts agree with English courts in that there are 4 types of negative easements (negative servitudes)

Blocking your windows Interfering with air flow Removing building support Interfering with flow of water in an artificial stream

When there are reciprocal promises…work out each promise separately

often each has a benefit and a burden

If you want damages you have to plead real covenant Harder to prove…six requirements

Horizontal privity Vertical privity Promise in writing Promise intended to bind successors Promise touches and concerns land Successor in interest has notice of covenant for burden to run

No notice for benefit to run

Most people want equitable servitude Promise in writing Promise intended to bind successors Promise touches and concerns land NO notice of covenant required NO horizontal privity NO vertical privity

Horizontal privity

An agreement about land use is created Between the original parties when title is being carved out of a larger parcel and promise is part of the title transfer

Not required for Benefit to run in REAL COVENANT or SERVITUDE

Vertical privity Between one of the covenanting parties and a successor party Must be same amount of property right, ex. fee simple & fee

simple Not required for Benefit to run in SERVITUDE Does not exist in adverse possession Burdens and Benefits (a vertical privity question)

B accepts burden (I will not build a factory on my land) A accepts benefit (Because of B’s promise, A benefits) In order for B’s successor (C) to be bound by B’s burden

C needs Horizontal privity Vertical privity Promise in writing Promise intended to bind successors Promise touches and concerns land Successor in interest has notice of covenant

For Benefit to run of REAL COVENANT No horizontal privity required Vertical privity required No notice required

For Burden to run of REAL COVENANT Horizontal privity required Vertical privity required Notice required

Equitable servitude Differs from real covenant because of remedy available Wants to enforce promise rather than collect damages Less that has to be proved to establish

For Burden to run in SERVITUDE Promise in writing Promise intended to bind successors Promise touches and concerns land

Successor in interest has notice of covenant NO horizontal privity, NO vertical privity required

For Benefit to run in SERVITUDE Promise in writing Promise intended to bind successors Promise touches and concerns land NO horizontal privity, NO vertical privity, NO notice

required

For Burden to Run For Benefit to Run

Serv

itud

e

Promise in writingPromise intended to bind successorsPromise touches and concerns landSuccessor in interest has notice of covenant

Promise in writingPromise intended to bind successorsPromise touches and concerns land

Cove

nant

Horizontal privityVertical privityPromise in writingPromise intended to bind successorsPromise touches and concerns landSuccessor in interest has notice of covenant

Horizontal privityVertical privityPromise in writingPromise intended to bind successorsPromise touches and concerns land

Sanborn v. McLean McLean wanted to build gas station Does the successor in interest have notice? Constructive notice?

Court says yes to INQUIRY NOTICE because all the other houses looked the same They should have checked to see if that was required

Court says that once Owner sells the first lot with the restriction, then all the lots are bound by the restriction

Court proved that restriction attached even though it was not in the deed

Burden did pass because there was a general plan and successor should have inquired

Hill v. Community of Damien of Molokai Home for 4 AIDS patients Neighbors claimed that members of Community were not a

family and therefore violated the negative covenant Court found the group to be a family

Neighbors complained about increased traffic Court found that covenant was not intended to control traffic

Court ruled that there was no violation of the covenant Court ruled that Neighbors violated Fair Housing Act

Community members were members of a protected class (disabled)

Court found there was no legitimate purpose to the discriminatory effect of denying housing to the handicapped

Court found that in balancing the neighbors interest in reduced traffic against the Community’s interests, the community’s interest wins

Under FHA claim, a discriminator must make reasonable accommodations by changing some rules to make the burden less onerous on the handicapped individual

Even if the restrictive covenant was enforceable, not enforcing it would be a reasonable accommodation.

Shelley v. Kramer 39 property owners signed a restrictive covenant prohibiting sale

or rental of property to white people only; intent is to keep out “negro” or “mongolian” race

Black family purchased property Covenant signers went to court to enforce covenant Higher court ruled that enforcing covenant denies petitioners

equal protection of the laws and the action of the state cannot stand

Western Land Co v. Truskolaski Terminating covenants

Courts zealously guard the private rights under restrictive covenants

Western land asserts there were significant changes that make the purpose of the covenant nullified Increased traffic Increase in commercial development

Because the restrictions are still of real and substantial value to those homeowners living within the subdivision the covenant is not unenforceable

Later the homeowners sold the injunction and some commercial development was allowed

Rick v. West Rick subdivided land & declared a restrictive covenant on the

lots restricting to residential use West bought a lot Rick tried to have land rezoned for industrial use West refused to consent to release covenant Court affirmed that she cannot be involuntarily separated from

her property right just because someone else wants to develop the land.

Pocono Springs v. MacKenzie Courts hold that membership dues are covenants that run with

the land MacKenzie asserted that they abandoned their property The property could not be built on because it was not suitable for

on-site sewerage They tried to sell it, they tried to abandon it But Pennsylvania law holds that perfect title of fee simple cannot

be abandoned

The Law of Zoning What goes where Public land use control and its consequences “A nuisance may be merely a right thing in the wrong place-like a

pig in the parlor rather than the barnyard.” Justice Sutherland in Euclid

Private Public

Bargaining Judicial-Public Nuisance

Nuisance Legislative-Zoning

Trespass Executive-Planning

Real covenant

Equitable servitude

Costs of private solutions Isolation Transaction costs can be very high Limitation of remedy

Injunction Damages

Enforcement Can be problematic bringing multiple injunction suits year

after year After-the-fact

Benefits of Public solutions Comprehensive Democratically controlled decisions

Enacted by democratically elected city councils Efficiency in transaction costs Distribution of cost across all taxpayers in a municipality Problem prevention- maximize the beneficial location of uses Deliberate segregation of uses avoiding the ‘pig in a parlor’

Authority to Zone State creates municipalities State delegates power to zone and plan “POLICE POWER” Municipal planning bodies create plans Municipal legislatures enact zoning ordinances (municipal

statutes)

Review of Zoning statutes Judicial deference to legislature Police Power:

Is there a substantial relationship to a legitimate public interest in the public health, safety, morals, or welfare?

Euclid: If the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control.

Presumption of validity…it’s good enough as long as there is some benefit

Burden of proof on challenger Must prove that there is no legitimate public interest Rationally related to health, safety, and welfare Must prove there is no connection or goal is not

legitimate Is there an arbitrary deprivation of a right to property?

Constitutional Facial attack A limitation as to the use of the land The mere existence of this ordinance has taken the value

from my property Zoning the land residential reduces the property value Property zoned industrial has more value

Zoning ordinance in this case was intended to preserve the small-town character of the village Courts found this to be a legitimate public interest Cumulative zoning Euclidean–

Residential-single family-highest use Residential-dual family use Civic & high residential use Retail Warehouse Industrial

Ranks single family residences as highest best use even though it is not the most profitable

Does not necessarily result in segregation of residential and industrial use

Segregates poorer populations Often results in race segregation

And marital status segregation as single parents often have less income

Separating residential and retail zones increases traffic

Types of Zoning Cumulative Zoning “smart” growth (higher densities, mixed uses, cost-effective

design) Cluster zoning Performance zoning (looks at effects on impervious coverage,

retained open space, protection of water resources); “density, intensity, & scale.” Allows for more mixed uses

Planned unit development (aggregation of plots and development of mixed-use areas)

Neo-traditional/new urbanism zoning; mixed-use, walkable neighborhoods

Overlay zoning: Identifies critical environmental areas and developable areas and protects/clusters development simultaneously

Zoning typically comes in after-the-fact One of the goals of zoning is to eventually get rid of nonconforming

uses Amortization of non conforming uses

It forces the people with nonconforming uses to leave or conform PA Northwestern Distributors v. Zoning Hearing Board People have a vested right in their property Property cannot be taken away from them without compensation PA Supreme Court said you cannot amortize ever

Facial attack- amortization is unconstitutional per se Concurrence stated that amortization provision could be

reasonable if there was more time allowed for eliminating nonconforming use

A good reason for amortization is that remaining businesses get stronger, for example if dry cleaners are zoned out and one remains, it will have a monopoly on dry cleaning business

Division of Labor

Legislative Commission

City Council Comprehensive Plan

City Council Zoning Ordinance Zoning Amendment

Executive/Judicial Variance/Special Exception

Zoning Hearing Board Zoning Officer

A zoning code is a statute It might be too narrow 3 ways to change it

Request zoning amendment- legislative Apply for permit & it is denied

ask for variance from Zoning officer or zoning hearing board It allows you to do something that is unlawful under the

code ask for special exception from Zoning officer or zoning

hearing board requires a review before permit is issued

Exercise authority co-extensive w/legislative powerExercise beyond delegated authorityAppropriate exercise of delegated power

Not every city that has zoning has engaged in comprehensive planning Most cities have the authority to plan comprehensively, but are not

required to have a comprehensive plan Comprehensive plan are not always required to be addressed in zoning

code Sometimes zoning ordinances do not work for everyone

Quasi judicial- subject to scrutiny under review Variance -authority extended to a landowner to use his property in

a manner prohibited by the ordinance…made by zoning board Area variance- size, shape, height Use variance- residential, commercial, etc….burden of proof

greater for use variance Special exception- allows landowner to put his property to a use

which the ordinance expressly permits, but regulates with an approval process

Legislative- more deference given to this Zoning amendment

A court can only invalidate a statute if it is unconstitutional

Commons v. Westwood Zoning Board of AdjustmentSupreme Court of New Jersey, 1980

Lot is too small to put a house on according to the code. P was denied an area variance. There was no zoning code when the lots were subdivided which is important because he did not cause the hardship himself.P tried to purchase strip of land from neighbor to increase the width of his land, but neighbor refused.P also offered to sell his land to neighbor, but neighbor offered a ridiculously low price. P choices are limited, if he cannot build on the land he can file a lawsuit to claim taking due to zoning.

In order to justify the issuance of a varianceMust prove…Undue hardship involves the underlying notion that no effective use can be made of the property in the event the variance is denied.Must prove… No impingement on public good as defined by code…can be aesthetic reduction in property values,

Rule of Law and Holding"Undue hardship" When the regulation renders the property unusable for any purpose, the analysis calls for further inquiries which may lead to a conclusion that the property owner would suffer an undue hardship.

Both parties have a role to play is determining if there is a detriment to the public good.

Special exception case….Cope v. Inhabitants of the Town of Brunswick

Supreme Court of Maine, 1983Plaintiffs filed for an exception to the zoning rules which would allow the plaintiffs to construct apartment buildings on undeveloped land. The board denied plaintiff's exception and plaintiffs appealed. The Board was not specific enough in their explanation of why exception was denied. The ordinance was worded in such a way that gave the zoning board (executive branch) the same power as the legislature which is way beyond their scope. The ordinance should have gave them some standards. The authority (law) was invalid, so the decision was invalid.

Rule of Law and HoldingA special exception use differs from a variance in that a variance is authority extended to a landowner to use his property in a manner prohibited by the ordinance while a special exception allows him to put his property to a use which the ordinance expressly permits. An exception is a conditional use under a zoning ordinance and results from a legislative determination that such use will not ordinarily be detrimental or injurious to the neighborhood within the zone. There should be no discretion for a Board to grant an exception to a legislative ordinance. That is a legislative question and should not be resolved by the Board.

Spot zoning is a legal conclusion….when you see rezoning of a small parcel of land, ask yourself, could this be a spot zoning problem…(1) small parcel of land, (2) establishes a use classification inconsistent with surrounding uses, (3) creates an island of nonconforming use within a larger zoned district, and (4) dramatically reduces the value for uses specified in the zoning ordinance of either the rezoned plot or the abutting property. Benefits a small number of people

State v. City of RochesterSupreme Court of Minnesota, 1978

Defendant City rezoned 1.18 acre tract of land from single-family residential use to high-density residential use. Plaintiff homeowner's association sued claiming that the act was illegal spot zoning.

P argues that this amendment should be viewed as administrative or quasi-judicial like a special exception, which it is not.

The city council rezoned.

A zoning amendment changes legislation that has the effect of changing the appearance of a space. Context matters…is it a significant deviation from existing use?

The more similar its use it to the buildings around it the easier it will fit into the comprehensive plan

More beneficial than detrimental to the community Will it be a significant drain on the public service? Is there a demand/need for this kind of use?

Legislative pronouncements are presumed valid unless unconstitutional or arbitrary. To attack zoning amendments litigant must prove the amendment is

unconstitutional or arbitrary.

Any detriments in this case? Bring down property values of neighboring houses Increased traffic

Rule of Law and Holding"Spot zoning" is a label applied to certain zoning amendments invalidated as legislative acts unsupported by any rational basis related to promoting public welfare. The burden of demonstrating that a particular zoning amendment is spot zoning rests with the litigant attacking the ordinance, and the usual presumption of validity attaching to zoning amendments as legislative acts applies.***********************************************5 th Amendment : No person shall …be deprived of life, liberty, or property, w/o due process of law; nor shall private property be taken for public use, without just compensation.

14 th Amendment : No State shall…deprive any person of life, liberty, or property, w/o due process of law; nor deny

Eminent Domain:

-the power to take private property for public use by the state, municipalities, & private persons or corporations authorized to exercise functions of public character with just compensation (fair market value has the seller been a willing seller and the buyer been a willing buyer)-typically considered an explicit confiscation of private property

Limitations are built into constitutionJust compensation is required. Most litigation is about the amount.When a govt entity pays for property, the $ comes from taxpayers, do it is redistributing the burden of the lossThe courts give great deference to the government choice of use in property.Public use used to mean something that a public would actually use and have access to, like roads.

Kelo v. New London-Is private taking ever permissible? Yes,-financially depressed area target for new development-the Supreme Court held that local govts have the right to seize private property and turn it over to private developers for economic developers-clear economic development plan benefitting the community as a whole-[seems to have components in common with spot zoning]-the smaller the parcel of land, the more suspicious the taking is-hard to argue a small parcel can benefit the community as a whole-In response, many states have passed statutes that define what constitutes a public use and do not include economic development-other states have held that govt justification of such a project must be reviewed under a stricter standard of review Regulatory takings-a govt regulates land in a way that makes the property valueless. The govt has effectively condemned the land and is required to invalidate the law or acquire title and pay just compensation

Always a taking if there is a physical invasion-Loretto v. Teleprompter Manhattan 1982 US Supreme Court-3.5 cubic space taken on top of apt building for cable is a taking

Always a taking if there is a deprivation of all economically viable use…95% not enough…must be all-Lucas v. South Carolina Coastal Council 1992 US Supreme Court

RemedyRescind regulation OR pay just compensation

Never a taking…-elimination of a nuisance

-Hadacheck v. Sebastian 1915-brick firing, noxious fumes, town spread out closer

-Mugler v. Kansas 1887-brewery in dry state

-Keystone Bituminous Coal v. DeBenedictis 1987-Supreme Ct held that land subsidence is a public health hazard

-impermissible under background principles of state law

-First Evangelical Lutheran Church-not allowed to rebuild camp after flash flooding-prevention of loss of life

Everything else is subject to the ad hoc-character of the governmental action balance test-economic impact

The more compelling the character of the govt intrusion, the more detriment will be allowed to be imposed on the individual property owner

Must be a nexus between the regulation and the goal it is trying to accomplish

Penn Central v. City of NY-one impact was air rights lost-still able to use existing structure as is stands-landmark law did not restrict current use-govt does not have a continuing obligation to pass laws to increase a business’ profits-offset provision

-even though you cannot build in this airspace, we will allow you to build taller on other properties

Land TransfersContract for sale

Warranties of title

General Warrantry Deed-Best-Warrantor warrants defects in title no matter who created them

Special warranty deed-Warrantor warrants defects in title created by person signing deed

Quit claim warranty deed-makes no promises at all-typically between family members

Present covenants of title in warranty deed covenant of seisen

o You own the propertyo You have the right to convey ito You are not a trustee on the deedo You warranty that there are no encumbrances that you have

not given buyer notice of

Future covenant Warranty of quiet enjoyment Further assurances

Foreclosure Action to recover the collateral that is promised in security

ESSAYSIRAC

The first issue is…The second issue is…The rules are…These facts tend to show outcome one which is…These facts tend to show outcome two which is…The most probable outcome is…