Property II Outline – Spring ‘09

LANDLORD – TENANT LAW

A. Duties of Tenants to Landlords – if T fails to follow lease, LL can evict and sue for damages

i. How to evict – if T defaults can LL retake property without ct. permission (“self – help”)?

1. Majority Rule: only if self-help “peaceable” and not “forcible” – otherwise LL must go to court

a. Ex: lockout “forcible” if violence might have erupted if both parties present (“history of vigorous dispute” between them)

b. When is lockout OK under this test? Not very often – abandonment, where lockout is essentially consensual

2. Florida Rule: NO SELF – HELP – LL should sue to evict instead a. If LL unlawfully uses self – help, T gets damages

i. Why? 1. Avoid fights and take law into your hands2. Peaceable is too hard to define3. LL always has an alternative

ii. Damages 1. Mitigation – what if T abandons premises without paying rent?

a. Majority rule: T must pay damages under lease, but LL has duty to mitigate

i. Nature of duty: make “reasonable efforts” to mitigate1. Assumption 1: lease is a K2. Assumption 2: K victor has duty to mitigate

damages3. Conclusion: LL has duty to mitigate damages

ii. Factors:1. LL’s efforts to advertise2. LL’s showing apartment to tenants3. If T rejected, was there a good reason?

iii. Tenants have a duty to avoid waste 1. Modern trend: T not liable for ameliorating waste where value is

increased (if possession has been for a long period of time)2. Permissive waste: tenant has a duty to make ordinary repairs, LL has

duty to make substantial repairs

a. T must report the need for such repairs to the LLB. Tenants Rights

i. Major right is right to enjoyment of premises 1. Covenant of quiet enjoyment: LL promises that he nor anyone else will

interfere the tenant’s quiet enjoyment of the premises2. Breached by “constructive eviction” where premises becomes

“substantially unsuitable” for their purposea. Ex. No heat, sewage back up, etc…b. Constructive eviction - wasn’t really evicted, but it’s so bad, it’s

like I was evictedi. Material breach by the LL which violates the tenant’s

implied covenant of quiet enjoyment and renders the premises uninhabitable

c. How continuous must problem be? Need not be permanent, 24/7 as long as recurring

d. T must leave premises to claim constructive evictioni. Departure must be within “reasonable time” – can be

years if LL keeps reassuring T problem will be fixed, though

ii. Once gone, T may cease paying rente. Can be waived, but:

i. Waiver must relate to defect known to Tii. Waiver invalid if LL reassures T problem will be fixed

f. Rights waived if:i. They stay OR do not leave within a reasonable time

g. A tenant satisfying all of the elements is relieved of the duty to pay rent

3. Breached by unlawful eviction OR “actual partial eviction” (when LL excludes T from part of premises)

a. T doesn’t have to pay rent even if she stays on premises4. Breached by violation of implied warranty of habitability: premises must

be “safe, clean and fit for human habitation”a. When violated? When premises substantially violates housing

codes or involve “health and safety” issuesb. T doesn’t need to leave, unlike CE

i. Pro-tenantc. T can’t waive claim, unlike CE (so irrelevant whether defects

patent or latent)i. But T still has to give LL notice of defect

ii. Pro-tenantd. No exemption for patent, outright defects

i. BUT latent defect may bar a CE claim

e. Punitive damages are an option (unlike CE)f. LL must have had reasonable time to fix problem and did not do

itg. Remedies

i. Withholding rent (so defense to action for back rent)ii. Repair and deduct cost from rent

iii. Damages – difference between value of dwelling as is and dwelling in OK condition

iv. Punitive damages – if LL “willful”5. Why does CE still exists after the creation on IWH?

a. Because IWH not always applied to all tenancies i. most states don’t apply to commercial, agricultural

property b. Where there are exceptions to IWH, CE still viable

C. Civil Rights Law and LL/T Relationshipi. Major statute is Fair Housing Act: 3 types of discrimination:

1. Discriminatory intent – intentionally discriminating based on sex, race, family status, etc.

a. 42 USC 3504 (a) – discriminatory refusal to rent. 3 part test:i. P has to show prima facie case – unfavorable outcome,

membership in protected classii. D then has to show legitimate nondiscriminatory reason

iii. P has to show D’s “reason” a pretext for discriminationb. 42 USC 3604 (C) – discriminatory statements or advertisements

that show “tacit preference” to exclude may violatei. Facially discriminatory ads (ex. “no children allowed”) of

course illegalii. What about facially NON - discriminatory statements?

(e.g. asking “are your children noisy?”) Again, issue is whether nondiscriminatory reasons for statement are a pretext

1. Bottom line: in discriminatory intent case, everything about intent

2. Discriminatory effect (“disparate impact”) – even if no discriminatory intent, D’s policy violates FHA if had adverse impact on protected class AND was not otherwise reasonable

3. Failure to reasonably accommodate – LL must reasonably accommodate disabled tenants (applies primarily to disability discrimination)

a. Accommodation is reasonable if there is no undue burden on the LL

REAL ESTATE TRANSACTIONS

A. Professional Ethics Issuesa. Bar discipline – you must explain transaction to adverse party if :

i. Adverse party unrepresented andii. Transaction one sided

b. Must explain to buyer and seller if representing them bothc. Private cause of action – if you break disciplinary rules or are very negligent you

can also be sued for negligence/breach of fiduciary dutyd. FL wrinkle: ordinarily duty to keep sellers secrets, but not buyers

B. Issues Relating to Real Estate Contractsa. Statute of Frauds

i. Basic concept – real estate contracts (other than short term leases) must be in writing, not oral

1. Must include essential terms of K2. Must be signed by party against whom enforcement is sought

ii. Key exception – “part performance”1. Florida rule – requires payment (at least partially), possession

by buyer, AND improvements to land by buyer2. Majority rule – possession by buyer plus payment OR

improvements3. More controversial exception – estoppel (reliance on oral K)

i. Remedy can be damages instead of K enforcementC. Between Contract and Closing

a. Implied Warranty of Marketable Title – if the seller cannot convey something called “marketable title,” buyer can rescind contract before closing

i. If defect is discovered by the B before closing, must describe in detail defect to S and give him a reasonable time to cure the defect

1. If S fails to cure, B can back out, sue for damages for breach of land sale K or get specific performance with a reduction in the purchase price to reflect the defect in title

ii. What is marketable title? 1. Not perfect title, just title reasonable person would accept2. Violated by “substantial” defects

iii. Zoning and marketable title – if property violates zoning law at time of purchase, warranty of marketable title violated

1. But no violation if buyer merely wants to use property in way that violates zoning laws

i. At time of closing no violationii. But buyer wants to change property after closing in a

way that creates violation

2. Restrictive covenants – mere EXISTENCE of restrictive covenants affecting property violates warranty.

iv. Waiver – implied warranty may be waived (though waiver must be specific)

1. What about waiver saying “property subject to restrictions of record?”

2. If some covenants exist, but not being violated, this waiver OK3. If covenants actually being violated at time of contract, more

specific waiver needed; this language ineffectivev. Zoning restrictions and land use restrictions DO NOT render title

unmarketableb. Risk of Loss – what happens if property damaged between contract and closing?

i. Common law (and still majority rule, and rule in Florida) – “equitable conversion”

1. That is, risk of loss passes to the buyer at time of contract2. But parties can (AND USUALLY DO) contract out of this3. Insurance proceeds from loss follow loss itself

i. so if risk of loss on seller, seller gets proceeds (but has to make sure loss repaired)

c. Fraud/Nondisclosure i. S liable for fraud or concealment of defectsii. What about willful nondisclosure?

1. CL rule: Caveat emptor (no liability without affirmative misrepresentation)

2. Modern modifications: S liable for fraudulent nondisclosure if:i. Condition known to seller

ii. Materially impairs value of contract to reasonable buyeriii. Unlikely to be discovered by prudent buyer

3. Waiver of modern rule - possible but limitedi. B can’t waive latent defects

ii. Waivers read narrowlyiii. Unintentional nondisclosure – is S ever liable if doesn’t know of defect?

1. Yes, there is “implied warranty of habitability” that makes S liable for some defects, but limitations:

2. Only applies if house of “merchantable quality” – so smaller defects irrelevant (e.g. ghosts)

i. Homes, not commercial structuresii. Only new houses (and even then only actions by first

buyer), not old homes OR nearby improvements (e.g. seawall)

D. At Closing; Transfer of the Deeda. Types of deeds :

i. General warranty deed 1. Contains “typical warranties” in deeds2. Warranting against defects in title

i. e.g. – that seller doesn’t own property ii. Quit claim deeds – warrants nothing

iii. Special warranty – in between1. usually warrants against title problems that are the seller’s fault

b. Covenants in the general warranty deed i. “Present covenants” – violated, if at all, at time of delivery of deed

(which means that statute of limitations starts as soon as deed delivered)

1. Covenant of seisin – that S actually owns (“is seised of” what S is selling)

2. Covenant of right to convey – pretty similar, except in unusual situations

i. By the grantor that he has the right to convey property3. Covenant against encumbrances – that there are no interests

limiting what B can do with landi. Examples: mortgages, liens, non-fee interest like life

estates and tenancies, easements and restrictive covenants

ii. Is violation of environmental/land use regulation an encumbrance?

i. Often not, if latent and unknown to seller (unlike implied warranty of marketable title – so zoning violation allows B to rescind contract BEFORE closing, but does not always allow B to sue for damages AFTER closing).

iii. Sometimes breach cannot be based upon the existence of an easement or profit known to the grantee or which was open, obvious, and notorious

i. Existence of a public way does not constitute a breach

ii. Future covenants – violated at time problems arise (e.g. B evicted)1. General warranty and quiet enjoyment (technically 2 separate

covenants but basically the same) – Seller will compensate if buyer evicted

i. No violation of this until possession actually interfered with

ii. Further assurances – that seller will do all he can to make sure title good

iii. Guarantees that no third party has a lawful claim of title and agrees to defend against such claims

c. When is a deed validly delivered? i. Depends on grantor’s intent, as determined by objective circumstances

1. Physical transfer not necessaryii. Elements: intent, delivery, acceptance

iii. Key factors: physical delivery of deed, physical occupation – donee’s actions (did donee act as if she owned property?)

iv. Conditional delivery – valid if deed given to third party with instructions to give to grantee if X happens.

1. Attempt to create conditional delivery to grantee (as opposed to third party) creates unconditional delivery

i. deed valid, condition not2. Note: lots of complexities where third parties involved. We

won’t learn in this course but if you’re curious read LS 125 – 31E. At Closing, Part 2: The Mortgage – a security interest signed over to lender

a. Provides for the performance of a duty or the payment of a debtb. If buyer signs over a mortgage to lender, the lender can take the property

(foreclose) if buyer doesn’t payi. 2 options:

1. Call the property to be sold and keep the proceeds2. Or assume title

c. Mortgagor: landowner and debtord. Mortgagee: creditor and holder of the mortgagee. What if multiple mortgages?

i. First lender has priority (assuming both foreclosed)f. Foreclosure sale – lender sells property

i. Can be set aside by court if inadequate price (nominal consideration) plus inequitable conduct by seller

ii. If sale valid, landowner can go after buyer for “deficiency judgment”1. gap between how much buyer owes and amount from sale

g. Three theories:i. Lien

ii. Title (CL)iii. Intermediate

F. Title Issues, Long After Closinga. Recording statutes – when O sells property interests to different buyers at

different times, who has priority?i. If no statute relevant – “First come first served” first interest always

wins. FIRST IN TIME FIRST IN RIGHTii. Types of statutes (“recording statutes”):

1. Race statute: whoever records first wins, period

i. Adopted by 2 statesii. Policy: simpler and encourages people to record

2. Notice statute: 2nd grantee wins if a BFP – that is, has no notice of first transaction and paid consideration

i. 2nd grantee wins if no notice before 1st recordsi. Doesn’t matter whether 2nd grantee records or

notii. adopted by about ½ the states, including Floridaiii. Policies: prevents unfairness to 2nd buyer, encourages 1st

buyer to recordiv. only matters if 2nd grantee gets property before 1st

grantee records – so 1st buyer can protect self by recording

v. why it matters: two buyers, A and B:i. A buys 1/3/08, B purchases without notice

2/1/08. A records 8/30/08Race statute: A wins b/c A records firstNotice: B wins b/c no noticeRace notice: A wins, just as in race

3. Race – Notice: 2nd grantee wins only if:i. BFP AND ii. records 1st

iii. Policies: advantages of race statute and of notice. Encourages BOTH buyers to record AND avoid unfairness to 2nd buyer

i. counterargument: race notice no more effective than notice since 2nd buyer always thinks they are 1st anyhow

iii. Technical details of recording statutes:1. Must acknowledge the deed2. Acknowledgment over phone is not good enough, must sign in

front of a notary3. Acknowledgment must apply to the deed that was actually

recorded, not an earlier or substitute deed4. If first buyer has defectively acknowledged the deed, can still be

notice to buyer if not obviously defective5. Buyers name must be in the deed

iv. What does it mean to be a subsequent BFP?1. What’s a purchaser? Someone who pays more than nominal

considerationi. What if 2nd buyer has made some but not all payments

before getting notice?

i. Majority rule – 2nd buyer a BFP to extent payments made but no further – usually gets money back

1. or fractional interest, or 1st buyer gets remaining payments from 2nd – depends on equities of case

ii. Florida rule – 2nd buyer a BFP as soon as “irrevocably bound”

1. i.e. as soon as contract signed ii. Can creditor (ex. holder of judgment lien) be purchaser?

i. Most states, NO, Florida says YES2. When is someone “bona fide” (i.e. without notice):

i. Generally: constructive notice enough to exclude buyer from BFP status, actual notice not required

ii. Quitclaim deed no obstacle to BFP statusiii. If 2nd buyer’s deed refers to earlier deed (even

unrecorded), 2nd buyer on “inquiry notice”i. In this situation, not a BFP UNLESS diligent

inquiry madeiv. Possession by 1st buyer also creates “inquiry notice”

b. What if you are the loser under recording statutes? Will anyone reimburse you for lost land?

i. Remember the deed covenants 1. unless you have a quitclaim deed, you might be able to recover

from seller who goofedii. Marketable title acts

1. statute of limitations for recording statutes = if interest old enough it can’t defeat existing interest

iii. Title Insurance 1. buy title insurance and the title insurer will reimburse you

i. but beware, title insurance contracts have lots of exclusions

ii. Beware: concepts that may look familiar may be interpreted narrowly. Some courts like title insurance companies!

VARIOUS FORMS OF LAND USE REGULATION – HOW DO YOU PREVENT OTHERS FROM MISUSING THEIR LAND?

A. Private Land Use Regulation

a. Nuisance – regulation by tort suiti. Nuisance is the substantial, unreasonable interference with another’s

land 1. ex. Big smelly factory2. Suppose BSF a major regional employer. Is it still a nuisance?

a. Probably not, because not “unreasonable” in that situation

ii. Failure to provide lateral/subjacent support: really a species of nuisance1. Lateral – support for land next to you

a. Land in its natural conditionb. Absolutely and strictly liable if lateral support is

withdrawn2. Subjacent – support for land above you

a. Support from underneath the surface of the land as distinguished from the sides

b. Support for land in its natural state AND any artificial structures that existed when other party gained rights

c. Usually natural resource situations – coal company owns underground, homeowner above ground etc…

3. Both governed by same rules a. you have duty to provide such support for nearby land

to prevent cave - insb. How can duty be violated?

1. Usually through digging, blasting, etc. 2. strict liability for D who causes cave – in

c. What if D’s activity and P’s combine to cause cave – in?1. D liable only for negligence

b. Servitudes : right to use or restrict another’s land – usually created by contract or implication

i. affirmative rights to use land:1. Easement – interest in land possessed by another that permits

holder of easement to have LIMITED use of landa. Types of easements (by function):

1. Negative: entitles dominate owner to preclude servient owner from doing an act on the servient land

1. Appurtenant – benefits specific parcel of land (“dominant tenement”) at expense of another (“servient tenement”)

a. So benefits landowner in way that cannot be separated from rights in land

b. Example: easement to travel across neighbor’s land to reach your own

i. dependent on fact that you live near servient tenant

c. requires two pieces of land that are owned by two different persons

2. In Gross – easement holder benefits without any connection to residence

a. Requires only one piece of land (servient tenement)

b. Usually involves utilitiesc. PROFITS USUALLY IN GROSS –

EASEMENTS USUALLY APPURTENANT

i. Put another way: would original easement holder benefit from easement even if lived in Bosnia? If yes, in gross; if none, appurtenant

2. Affirmative: allows a physical act on another’s land

3. Why does it matter whether easements appurtenant or in gross?

1. Easement app. runs with the land – when dominant tenant transfers land, new owner gets easements.

a. Not true with easements in gross

b. categorizing easements by means of creation 1. Express – by contract

1. Statute of Frauds applies here, which means oral attempt to do this = license not an easement

2. Implied –

1. Easement implied from prior use (aka “quasi easement”, “easement implied from prior use”) – exists when (PACN):

a. Prior Use - owner uses one part of land for benefit of another part AS IF O had easement, and conveys either part to another

b. O’s use “Apparent” – grantee should be aware of something resembling easement

c. O’s use “Continuous” – fairly regular

d. O’s use reasonably Necessary for enjoyment of land – O has significant benefit (e.g. shorter commute)

e. doesn’t matter anymore whether O has easement or is burdened by easement (“grant/reservation” distinction at CL, don’t worry about it)

2. Easement by necessity – elements:a. same person owned both

dominant and servient land at one time

b. strict necessity – that is, someone REALLY needs easement to get to public roads (as opposed to “reasonable necessity”)

c. necessity existed at time land split up by original O

3. Prescription – like adverse possession for easements

a. idea is that you used easement for a long time without permission, so you get easement through extended use

b. elements almost same as adverse possession (open/continuous/hostile)

except need not be exclusive (b/c the nature of an easement is to share with the owner)

i. but not enough hostility if you’re using it but land gated off from general public, b/c this means permission

ii. in Florida 20 years for easements by prescription, as opposed to only 7 for adverse possession (but no color of title or tax payments required)

iii. tacking allowed, but still must be something like privity

c. Scope of easement – Just because you have easement doesn’t mean you can abuse it

1. Test: is use of easement reasonable (was it reasonably foreseeable at time of creation? How much does it burden servient estate? How much does it benefit dominant estate?)

d. Termination of easement – most litigation over whether easements abandoned

1. Mere nonuse not enough; must be acts showing intent to abandon

1. ex. Tearing up RR tracks2. need not perform every conceivable act

showing intent to abandon, just something more than nonuse

2. Profit a prendre – similar to easementa. But holder of profit removes part of land or products of

the land, as opposed to just being able to travel on land1. Ex. Right to drill for oil and gas, hunt animals

b. Easement = just travelc. Profit = easement + taking stuff off landd. Requires compliance with the Statute of Fraudse. Non-possessory interest

3. License – like easement, but usually created orally and revocable

a. Permits one person to come onto the land in the possession of another without being a trespasser

b. Not an interest in land, but a privilegec. exception: license by estoppel

1. when holder of license has spent significant amount of money relying on license, license becomes irrevocable even though it was originally revocable

d. exception: license coupled with interest 1. if someone has license to enter property to pick

up his/her own personal property, license irrevocable until property recovered

c. Affirmatively restricting how others use their land – restrictive covenants and equitable servitudes

i. Nearly always created by contract, so issue isn’t whether covenant exists, just interpretation and whether covenant runs with the land (ex. binds future landowners).

ii. Basic requirements for covenants to run with the land IN AN ACTION FOR DAMAGES:

1. intent for covenant to run i. ex. Requiring grantee to “permanently maintain”

property, reference to “heirs and assigns” being boundii. notice of covenant

2. “touch and concern” – covenant must touch and concern landi. i.e. be “logically connected” to parties interests on landii. borderline case: paying homeowner dues (majority rule

is this T&C)3. vertical privity – parties to lawsuit successors in title to parties

to original covenant i. nearly always exists, at least when everyone has fee

simple i. some complexities where lesser estates

involved that we aren’t getting into4. horizontal privity – (unlike vertical privity we know if it exists on

day of contract) original parties EITHERi. “mutual interest”: both have interest in relevant land at

same time i. e.g. landlord/tenant, dominant/servient estate

as in Moseley v. Bohn ORii. have “successive” relationship – one grants land to

another, (grantor/grantee)

i. ex. Classic homeowner association scenario – developer contracts with buyers

iii. When NOT met?i. When parties are neighbors (so key point: if

parties neighbors, no damages recovery, just equitable servitude)

iii. Equitable servitudes – a separate theory of recovery 1. Restriction on the use of land enforceable in a court of equity2. if requirements are met P can get injunction but not damages

i. easier and more important, because most of the time people complaining about covenant problems will want injunction

ii. Basic difference: no privity required (just notice/intent/T&C)

3. What is required for covenant to run as equitable servitude (i.e. be enforceable as injunction?)

i. intent for covenant to runii. constructive notice (e.g. servitude recorded or

referenced in deed) or actuali. cannot be enforced against a BFP

iii. touch and concern – anything affecting value of landiv. Writing complying with the Statute of Fraudsv. Privity not required

Bottom Line: same as in damages action, EXCEPT no privity required

iv. termination of covenants – changed conditions may terminate1. but existence of SOME tolerated violations not enough; must be

so pervasive that covenant useless i. e.g. covenant restricts land to single family houses, but

land worthless as housesii. so even if most landowners want to waive covenant still

good2. change in economic conditions

i. if covenant “of real and substantial value” still enforceable (even if alternative uses more valuable)

3. existence of contrary zoning i. terminates covenant if uses prohibited by covenant

MANDATED by zoning, but not if merely ALLOWED by zoning

ii. So if covenant requires single family homes, but zoning allows both industry and houses, covenant still valid

4. If covenant is one enforceable by many, release by the original covenantee (subdivider) will NOT affect the rights of the others in the subdivision to enforce it against the party who received the release

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C) Condominiums – condo restrictions valid unless against public policy. In deciding whether restriction violates public policy

I) category I – “in the declaration” (restrictions at start of condo) – valid unless “arbitrary”

II) Category 2 – passed by the board later – “reasonably related” to a valid purpose

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B. Zoning: Government Regulation of Land Usea. Basic concept : government separates uses, allowing apartments in one area,

industry in another, homes in another (“Euclidean or single use zoning)i. Upheld in Euclid v. Ambler Realty in principle, but specific applications

can violate due process if arbitrary or political favoritismb. Role of comprehensive plan (general document setting forth land uses in less

detail) i. nonbinding in most states, binding in Florida

1. so if zoning violates comprehensive plan its invalid unless compliance unreasonable

c. Ways of making zoning more flexible i. Variances – zoning code ignored for this particular owner (not in the

code)where applying zoning ordinance creates “undue hardship” AND minimal harm to public, municipality can grant variance

1. What is undue hardship?a. Must be specific to individual owner, not hardship

affecting everyone in areab. Not O’s fault – must not be created by individual O or

his/her specific circumstances 1. must apply to any person owning that specific

piece of propertyc. Must be severe hardship (e.g. unbuildable/useless

without variance) not just reduction in value2. Even if undue hardship, no variance if “negative criteria” not

met a. variance would somehow harm public interestb. More likely to be a problem for person requesting

variance in use variance (as opposed to area) case

1. Area regulation: numbers – how many SF, parking spaces, etc…

2. Use regulation: e.g. Euclid – what activities can be performed on the land

ii. Rezoning – changing zoning code to allow proposed use or density 1. Changes rules, doesn’t just waive them

a. Standard of review: “legislative” (i.e. courts defer to municipal decisions, valid unless arbitrary and capricious)

1. By contrast, for variances and special use permits, burden of proof on city to show its decision supported by substantial evidence

b. More likely to be upheld if new use consistent with nearby parcels of land, less so if “spot zoning”. (to be invalidated as spot zoning, ALSO has to harm neighbors’ property values)

1. EXAMPLE: suppose area rezoned from one unit per acre to 10 units per acre. Likely to be upheld if borders another 10/acre neighborhood, spot zoning if in the middle of farmland

iii. Special use permit – provision in code saying “you can do X, but only if the city council votes to allow it”

1. As opposed to normal zoning “you can do x”2. In reviewing city council’s decision to grant or deny SUP, ct.

doesn’t defer to city a. much more clearly about specific individual b/c city

applying law not making itd. Constitutional limits on zoning - NOT JUST substantive due process (discussed in

Euclid – basically just rationality review) but also…i. First Amendment – government cannot go too far in restricting signs

1. Even if regulation content – neutral (e.g. “no signs in front of houses”), government loses if individual’s alternative methods of communication inadequate

a. Ex. If sign’s best way of expressing your views, government can’t prohibit them

2. Also: zoning can be used to limit adult businesses but not to exclude them completely

ii. 14th Amendment – civil rights and zoning1. Equal Protection Clause: government provides “equal

protection of the laws” to peoplea. Similarly situated landowners are to be treated similarly

b. Purpose – to bar racial discriminationc. No racial discrimination but what about discrimination

by income (“exclusionary zoning” – zoning to keep out lower income people)?

1. OK under federal Constitution, minority of states say no

iii. Takings Clause of 5th Amendment: No taking for public use without just compensation

1. Public Use Clausea. EVEN IF compensation paid, taking must be for public

useb. So what’s public use?

1. Midkiff – “public purpose” (even if private beneficiary) – legislature’s belief only has to be rational

2. Kelo agrees but Kennedy concurrence (swing vote) narrows a bit

1. NOT JUST objective public benefit from taking, BUT ALSO there cannot be reason to suspect political favoritism

a. e.g. procedural irregularities vs. lots of formal procedure, beneficiary known in advance vs. unknown beneficiaries who can’t buy people off, absence of serious public need vs. high public need

i. e.g. city wide depression

2. Florida MUCH more restrictive a. almost no eminent domain power except utilities and

government uses3. DISSENT CRITIQUE OF KENNEDY

a. multifactor test too vague, rewards city that knows how to generate paperwork

4. Just compensation clause a. if government does take it, must compensate,

regardless of strength of public purpose – basically FMV5. What is taking? Key issue: when is a regulation a “taking”? –“

inverse condemnation”

a. Permanent physical invasion mandated by government always a taking, even if private person does the invading

1. Requiring landowner to allow private third party on land is invasion just as much as government employees invasion

b. Complete deprivation of all economically beneficial use always a taking (unless necessary to stop nuisance)

1. Lucas rule doesn’t apply even if 95% loss, has to be 100%

2. Temporary moratorium on development NOT a total taking under Lucas, but governed by balancing test

c. What if regulation merely reduces property value? Government balances interest based on 3 part test:

1. A harm to P – how much did regulation reduce property value?

2. Reasonable investment backed expectations – how much did government harm expectations?

1. IBE can exist even if P somehow got property after regulation

a. e.g. if P had an interest or expected to have an interest before regulation

2. But timing of when P got property still matters

a. so if P had no link to property before regulation passed, IBE favors government defense

3. No IBE if P should have reasonably foreseen regulation

3. Character of govt. action – how strong is the state purpose justifying regulation?? (apparently according to O’C concurrence)(and according to FL case law)