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Concept of Property

Process of Possession

First possession: 82–105______________________________________________________________________

To be in possession of something:1. There must be an intent to possess on the part of the possessor and2. His actual controlling or holding the property

Pierson v. Post Pursuing an animal does not give one rights of ownership. You have to actually be in possession or mortally wound it to own it.

Ghen v. Rich Possession of a whale begins when the bomb lance strikes the whale. Custom and usage can make the law—this process of whale capturing was standard within the industry.

Keeble v. Hinkeringhill D scares ducks away from P’s decoy pond. P constructed pond to lure ducks to hunt & sell them. Found liable bc the D interfered with the P’s taking possession of them. Ratione Soli—since he owned the pond, P had sufficient possession of the wild animals on the land to start a hunt for them & the right to pursue them while they were on his land.

Acquisition by Creation: 130–143, 150–161_____________________________________________________

Patents: Granted for novel processes or products

What is novel?Original, non-obvious, advancing the prior art

Copyrights: Protect the expression of ideas.

Trademarks: Protect words and symbols associated with a product or service.

International News Service v. Associated Press There is property in that which one has sown. You cannot reap what you have not sown bc that is unfair competition in business.

Trenton Industries v. A.E. Peterson Manufacturing Co. Case involving a patent for a collapsible high chair. The court ruled that to be recognized for a patent, a product has to be the result of the exercise of inventive faulty, not mechanical skill. In this case, the alleged novel feature of the invention was known and disclosed by prior patents products.

Accession: 161-190___________________________________________________________________________

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Addition of labor to another’s chattel in such a way that it cannot be removed from the original

Courts look at:1. Good faith2. Transforms into fundamentally different object, cannot be altered back into

original state3. Ratio of value: original value v. value after improvements

Policy: Compensate owner for original value bc it avoids windfall for the owner and encourages useful behavior.

Wetherbee v. Green W cut down G’s timber ($25) and converted into $700 barrel hoops. Courts ruled in favor of W bc he added significant value.

Ad Coelum

Edwards v. Sims The person who owns the land owns the cave beneath it

Accretion:

Nebraska v. Iowa Property lines changing bc of change in channel of river. If accretion (creek shifts slowly over time), leave the boundary at the center of the new channel. If avulsion (sudden and rapid change of channel), leave the boundary at the center of the old channel.

Fixtures: Chattel or personal property that, while retaining a separate identity, is so connected to the real property that the law considers it a part of the real property

Annexation—Is it attached to the property? It’s particular use or purpose tied to the essential function of the property Intention to annex: Objective interpretation of intent based on the facts

Strain v. Green If the K isn’t clear as to if certain items are part of the house, then personal property is considered a fixture to real estate based on above factors.

Adverse Possession: 190–220_________________________________________________________________

In addition to the 1. SOL having run, adverse possession must be:2. Adverse and Hostile; 3. Actual and Exclusive; 4. Continuous; 5. Open and Notorious.

Policy: Encourage true owners to monitor their property Reward the person who uses, works on, or improves property for a long time Evidentiary tool: long and visible possession and use becomes a substitute for

documentary proof of a lost / misplaced deed Structural purpose: facilitates the efficient transfer of property

1. Running of the Statute of Limitations

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a. The statute of limitations begins to run when the adverse possessor enters and gains possession (i.e. when owner first could bring suit).

b. After the statute of limitations has run, the adverse possessor becomes the legal owner, so the former owner has no further rights to the property and cannot claim damages

c. Two different rules(1) Demand Rule: Statute of limitations starts when you demand the return of the item

(2) Discovery Rule: The clock starts when you have a reason to know that it was stolen/someone else has it

O’Keefe v. Snyder It begins to run when the owner should have reasonably discovered the adverse possessor. Owner needs to take steps to find it.

Songbryd, Inc. v. Estate of Grossman Generally, the statute of limitations begins to run at the time of conversion—the time at which the actual possessor acts to exclude the rights of the true owner.

d. Disabilities of Owner(1) Two ways that disabilities can affect SOL

(a) Toll: Stop it in its tracks at the moment the owner becomes disabled and starts back up again when the disability is removed

(b) Add on period: Once the disability is removed, there is an additional period tacked onto SOL

(2) Categories are usually: Underage, insane, legally incompetent, in prison

2. Actual a. Of a type that a true owner would typically make of a parcel.

b. Purpose of the requirement:Gives notice to true owner and other who come to the propertyIndicates that the AP may be claiming the property and ousted all other peopleDate triggers the statute of limitations

c. Improvements to the land might fulfill this criterion

d. Title is gained only as to land actually occupied and controlled, if the AP enters with no color of title (a faulty deed). Partial occupation may give rise to constructive adverse possession of the whole tract where AP acts under color of title.

3. Open and Notorious Possessiona. So visible and apparent that it gives notice to the true owner if he checked his land that someone may be asserting an adverse claim to the land

b. Ex: buildings, fences, and crops

c. Met if true owner has actual knowledge of the AP’s claim

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Marengo Cave Co. v. Ross Court held that it wasn’t open an notorious bc the P didn’t know it the cave ran under his land —> no adverse possession

O’Keefe v. SnyderO’Keefe’s stolen painting turned up years later for sale in an art gallery. Issue was whether the painting hanging in a home and in privates showing was open and notorious. Court held that the SOL for recovery of personal property starts at the earlier of: 1) When the loss occurs (except when there is fraud or concealment)2) When the owner first discovers, or reasonably should have discovered the cause of action.PUBLIC POLICY: Encourages owners to report their losses and undertake reasonable investigation.

4. Exclusive a. Must exclude the true owner and other APs

b. If a group of APs join forces, they can become co-owners or co-tenants

5. Hostile or Adverse a. Lacking owner's permission

b. Relevance of state of mind and knowledge of the parties:(1) Objective test: The majority view is that an adverse possessor's state of mind is not important (mistake, good faith, or hostile intent). The possessor's actions and statements must simply look like a claim of right to the property.

(2) Subjective test: Some states say that the adverse possessor must have a good faith belief that she has title. A squatter or aggressive trespasser (knowing she lacks title) cannot be an adverse possessor under this test.

Carpenter v. Ruperto The court ruled that the P did not have good faith in adversely possessing the land because she knew that it wasn’t her own. Since it wasn’t a case of confusion or mistake, she does not get to claim adverse possession. Policy: This would encourage squatters’ rights

(3). The "Maine doctrine" for boundary disputes: a minority of jurisdictions hold that a possessor who is mistaken about the boundary line of his property but did not intend to claim title to adjoining property may not obtain title by adverse possession because adversity is missing.

(4) The New Jersey rule: New Jersey follows the majority rule now (the objective test), but when intrusion on a small area is not readily apparent without a survey, the possession is not sufficiently "open and notorious," if the owner has no actual knowledge of the encroachment.

(5) Courts sometimes resolve boundary issues by finding or implying the existence of an agreement between the parties about the location of the boundary line. The doctrines of "agreed boundaries," "acquiescence" and "estoppel" as applied to boundary lines do not rely on a finding of adverse possession.

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b. Color of Title: Most states do not require that the adverse possessor also act under "color of title" (defective deed or other writing that purports to deliver title). But the minority view is that "color of title" is required for adverse possession.

6. Continuous (uninterrupted) possessiona. Degree of occupancy and use that the average owner would make of the property. Intermittent occupancy may qualify as continuous possession if typical occupancy by a true owner would be intermittent

(1) Abandonment: If the adverse possessor intentionally relinquishes possession without the intent to return, for any period of time, continuity is lost.

(2) Interruption by the true owner: Interruption of the adverse possession by the true owner who reenters the land stops the statute of limitations from running.

Howard v. Kunto Court held that seasonally use of the property during the summer still counts as uninterrupted because use just has the be “as ordinarily marks the conduct of owners in general in holding, managing and caring for property of like nature and condition.”

b. "Tacking" of periods of Adverse Possession(1) In U.S. law, an adverse possessor may "tack" onto her own period of adverse possession other periods of adverse possession by preceding possessors if there is "privity of estate" among the adverse possessors (involving the voluntary transfer (written or oral) of an estate in land or possession of land).

Howard v. Kunto Court held that although the deed that was passed down described a different land, this would still meet the privity requirement as it is a method of tracing the succession of the property through the parties.

(2) There is no privity of estate between two possessors if one ousts the other.

(3) In English law, privity is not required for tacking

c. "Tacking" of ownership periods: Once adverse possession begins to run against the owner, it continues to run against all of the owner's successors in interest.

7. Interests Not Affected By Adverse Possession:Future Interests

1. Adverse possession runs against the owner and all successors in interest if entry is made while the owner retains full title.2. Adverse possession does not run against the owner of a future interest (remainder) if entry is made while a life tenant has possession.

Governmental Land: government land usually exempt from adverse possession (although statutes may create exceptions).

Sequential Possession: 220–241_______________________________________________________________

1. Lost:

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a. Property the true owner unintentionally and unknowingly dropped or lost. The owner does not relinquish the title to lost property.

b. Lost property belongs to the finder unless the true owner is located. A finder must:(1) Take control of the lost property

(2) Have the intent to maintain possession of the property

Armory v. Delamamirie A chimney sweep found a piece of jewelry and dropped it off at a goldsmith’s shop for an appraisal, but the goldsmiths’ apprentice removed the stone and refused to give it back. Court ruled that the finder has the right to keep it from everyone else but the OO.

Clark v. Maloney C sued to recover logs he had secured on the bank of a creek that had been found by M floating upstream. As long as the original owner does not relinquish his property rights over lost chattel, he has a right to reclaim them from finder. Original owner beats finder’s claim to property.

c. Courts treat some persons who do not have actual possession as having "constructive possession." Example: A landowner may have "constructive possession" of objects on his premises without being aware of them.

Fisher v. Steward F sued to recover value of swarm of bees that he had discovered in a tree on S’s land and then marked off and gave notice to S of their presence. F hasn’t done anything that gives him ownership—he basically trespassed. Since the bees are on S’s land, he has constructive possession —> his property.

d. In suits between finders and owners of premises over objects owned by neither of them, there are differences in opinion among courts. Some factors that courts mention in finding that an owner of premises should prevail over a finder are:

(1) Location in private home (rather than premises open to public)(2) Object buried or embedded in land

Goddard v. Winchell G sued to recover from W a meteorite that had fallen on G’s land. When the meteorite fell, G’s lessee allowed a guy to dig it up, who sold it to W. The court held that the landowner is able to repossess the meteorite bc it was annexed to the land through a natural process—it’s like the dirt on the land, it’s part of the land itself.

(3) Finder is employee, acting for the employer, or bound by a contractual duty (4) Finder is on premises for a limited purpose only(5) Finder is a trespasser

Anderson v. Gouldberg A sued to recover logs he had cut from land that he did not know. G took possession of logs on behalf of logging company, which claimed that it came from their land. A person may recover property despite that he improperly acquired it because the jury determined that the trees were not from the logging company’s land.

Hannah v. Peel H sued to recover a brooch that he had found on P’s property. P never occupied the premises. H found it, gave it to the police, but no true owner came, then the police gave it to P, who sold it. Court held that H should

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have had ownership although P owned the property, the brooch isn’t attached to it. Also, he never had possession of the house itself.

2. Mislaid:a. Property that the true owner intentionally placed in a given location and then left, or intentionally left intending to return for it. Mislaid property belongs to the owner of the premises or lessee unless and until the true owner is located.

b. Policy: The possessor of the real estate on which the property is found is in a better position to give the found property back to the true owner if the true owner comes back to look for it.

3. Abandoned:a. Property the true owner intentionally and voluntarily relinquished, with the intent to no longer own the object, and without transferring his rights to another person.

b. Elements:(1) Act of abandonment

(2) Intent to abandon—not presumed, must be proven

c. Abandoned property belongs to the finder

Abandonment & Destruction: 485–499_________________________________________________________

1. Abandonmenta. To abandon property, one must:

(1) Relinquish all right, title, claim, and possession

(2) The intention of terminating his ownership and not reclaiming it

(3) Without vesting it in any other person

Pocono Springs Civic Asso. Inc. V. MacKenzie P is suing to recover association fees on M’s lot. M argues that the property was abandoned (bad investment). Court held that M did not abandon property because they had recorded deed and perfect title—once good title exists, the abandonment action cannot succeed. Non-use and failure to pay taxes do not amount to abandonment.

b. Policy(1) State wants to collect taxes

(2) Protect society—the landowner should deal with the negative impact of their property

2. Destruction

Eyerman v. Mercantile Trust Co. M sued to prevent E from demolishing a house pursuant to decedent’s will. Court held that while a living person may dispose of his property as he sees fit even if it is economically wasteful, it does not extend to dead people. She doesn’t benefit from it bc she’s already dead.

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Policy: Demolition would be detrimental to estate and the surrounding property.

Estates in Land, the Right to Transfer, & Forms of Ownership

Present Possessory Interests: 500–508________________________________________________________

An estate is an interest in land that is or may become possessory. It is categorized according to its duration.

1. Freehold estates—conveyed by deeds(a) Fee simple absolute

(b) Life estate

(c) Defeasible estates (fee simple with conditions)

2. Non Freehold Estate—conveyed by leases(a) Leasehold estate: lasts for a fixed time or by other agreement between landlord and a tenant

(b) Elements(1) Term of Years

(2) Periodic Tenancy

(3) Tenancy at will

1. Fee Simple Absolute:(a) Estates with an infinite for perpetual duration—there’s no inherent end to the ownership

(b) The owner can sell it, give it away, devise it by will, or die without a will and have the property go by operation of law to his heirs—alienable, devisable, and descendible

Original owner

2. Life Estate(a) The owner has the property for life, or can be measured by someone else’s life

(b) Not devisable nor descendible but it is alienable within his lifetime

(c) If the grant doesn’t specify who takes the property upon the life tenant’s death, the original grantor (or his estate) takes the possession—the grantor has a reversion

(d) A grantor can name a third party to take the property after the life estate ends—they have a remainder

A diesReversion—O

O grants life estate to A

Remainder—B

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(e) Waste(1) Must deliver the property in essentially the same condition or use as when he took possession. It’s waste if the possessory life tenant permanently impairs the property’s condition / value to the future interest holder’s detriment.

(2) If not, the future interest holder can bring a suit for damages or injunction

(f) The document may not may the intent of the testator clear as to if he wanted to grant a fee simple absolute or a life estate to someone. In this case, judges will use rules of construction—suppositions that can be rebutted through evidence

(1) Testator intended to give away all his property through his will

(2) A testator conveys her full interest in the property unless the intent to pass a lesser estate is clearly expressed or necessarily implied by the terms of the deed / will

3. Fee Simple Determinable(a) An estate that would be fee simple absolute but for a provision in the transfer document that states that the estate shall automatically end on the happening of an event of a non-event

(b) Trigger words: So long as, during, while, unless, until

(c) There is a possibility of reverter—chance that the property right might return to the grantor is the condition subsequent happens

Event happensPossibility of reverter—O

O grants estate to A

4. Fee Simple Subject to a Condition Subsequent(a) The holder may hold the property forever, but could lose it entirely if the condition subsequent occurs

(b) The difference between this and a fee simple determinable, is that the grantor must assert his right of entry / power of termination. There's a possibility of a waiver of the conditi

(c) Trigger words: Provided that, but if, on the condition that, provided however

Event happensRight of entry/Power of termination—O

O grants estate to A

5. Fee Simple Subject to an Executory Limitation(a) The future interest is assigned to a third party, a party other than the grantor

Event happensExecutory Interest—B

O grants estate to A

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Future interests: 509–517_____________________________________________________________________

Interests retained by the grantor:(1) Reversion

(2) Possibility of Reverter

(3) Right of entry

Interests in third-party transferees:(1) Vested remainders

(2) Contingent remainders

(3) Executory interests

1. Reversion(a) Retained by the grantor when he transfers an interest less than the one he owners to another

(b) Follows a life estate, fee tail, or a lease and does not depend on the occurrence of a condition precedent

(c) Reversions are assignable, devisable, and inheritable

2. Possibility of Reverter & Right of entry(a) Both depend on a condition precedent

(b) Both are inheritable, in most states, they are assignable inter vivos (between 2 live people) and devisable by will

3. Remainders(a) Future interest in a third party that remains after the interest and estates prior to it end naturally that is created within the same document.

(b) Cannot divest or cut short the prior estate, or follow and interest that has been cut short by a condition subsequent—most commonly follows a life estate, but can follow a lease of a fee tail.

(c) Vested remainder: One that is owned by 1. An ascertained person and is 2. Not subject to a condition precedent. It becomes possessory upon the natural termination of the immediately preceding estate

1. Ascertained person: A person is ascertained if he or she can be specifically determined at the time a transfer or devise is effective.

2. Condition precedent: An event (condition) that must occur (or fail to occur) before an interest becomes vested (for a remainder) or possessory (for an executory interest).

3. Indefeasibly vested remainder: A remainder with no condition subsequent that is not a class gift subject to open. Ex: A gift “to A for life, remainder to B and her heirs.”

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4. Vested remainder subject to divestment: Key to distinguishing is whether the determinative condition is a condition precedent or a condition subsequent—if the divesting condition occurs with or after the clause granting the interest.

5. Vested remainder subject to open/partial divestment: When the granting clause refers to a class of people as grantees, such as “children.” Ex: “My son A for life then to his children.” If he has existing 2 sons, their interests are vested remainders but its subject to divestment bc A could have more children.

(d) Contingent remainder: One where either the owner is unascertained or the right to the current or future possession of the property is subject to a condition precedent.

1. Alternative contingent remainder: It results where one of two named persons (neither of whom is the grantor) takes to the exclusion of the other based on whether of not a condition precedent occurs.

(e) We distinguish bc a person holding vested remainders had rights to prevent waste by the present possessor.

4. Executory Interest(a) Future interest in a third party that takes effect only when the preceding interest is divested or cut short by a condition subsequent.

(b) Springing executory interest: Transfers following a gap in time

(c) Shifting executory interest: Follows an interest held by a third party that may be divested by a condition subsequent stipulated in the conveyancing document.

Present Interest Examples Future InterestFee Simple Absolute O grants Blackacre to M

O grants B to M in fee simple

O grants B to M and her heirs

None

None

NoneLife Estate O grants B to M for life

O grants B to M for life, then to N

O grants B to M for life, then to her adult children

O grants B to M for life, then to N if a condition occurs

O grants B to M for life, then to N but if C occurs, then to K

O grants B to M for life, then to her children

O: Reversion

N: Indefeasibly vested Remainder

Adult children: Contingent upon existence of themO: Reversion

N: Contingent remainder

N: Vested remainder subject to divestmentK: Executory interest

Children: Vested interest subject to open

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Fee Simple Determinable

O grants B to M as long as C occurs O: Possibility of reverter

Fee Simple Subject to Condition Subsequent

O grants B to M, but if C occurs, then O has the right to reenter and take the premises

O: Right of entry / Power of termination

Fee Simple Subject to Executory Limitation

O grants B to M as long as C occurs, then to N

O Grants B to M, but if C occurs then to N

N: Executory interest

N: Executory interest

Co-Ownership: 594–617______________________________________________________________________

Concurrent ownership occurs when more than one person owns the same interests at the same time.

1. Tenancy in Common: (a) Their legal interests are separate

(1) It is independently assignable, devisable, and inheritable—transferees become tenants in common with the remaining tenants in common.

(2) Can be attached by creditors of each individual tenant

(3) There’s no right of survivorship—the share of each tenant in common passes on death as part of his or her separate estate

(b) Their legal interests are undivided in all the property(1) Each tenant in common has the right to possess the whole property

(2) There’s no requirement that each co-tenant hold an equal share

(3) Each tenant has a right to possess the whole but their respective share of rent of profits will be determined by their separate percentage ownership

2. Joint Tenancy with the right of survivorship(a) It’s like tenancy in common except with a survivorship element

(1) A surviving joint tenant automatically acquires the interest of another joint tenant when the other tenant dies

(2) The deceased join tenant’s interest is extinguished

(b) Requires four unities at the time of creation(1) Time: Each interest must be acquired or vested at the same time

(2) Title: The join tenants must acquire title in the same deed or will—it cannot arise by intestate succession

(3) Interest: Each join tenant must own equal shares of the same estate

(4) Possession: Each must have the right to possess the whole property

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(c) Historically, a joint tenant could change his interest from a joint tenancy with right of survivorship to a tenancy in common by destroying any of the four unities. That absolute rule is no longer the case in many states.

(d) Straw man: A person who briefly takes legal title for the sole purpose of re-conveying the property back to his grantor to break the four unities and turn it into a tenancy in common or vice versa.

(e) Severing the joint tenancy(1) Leases:

A. Generally, a short-term lease by one joint tenant does not sever a join tenancy. The lease terminates with the death of the leasing co-tenant even though the lease hasn’t run its course and no notice of the lessor’s rights

B. Rationales: Lease ≠ freehold estate —> no severance of title. In a state that doesn’t require the four unities, they believed that the parties who intended to terminate the survivorship should manifest it more definitely

(2) MortgagesA. Majority of states are lien theory states: A mortgage provides security for a loan but the title remains with the debtor. Since the legal title remains with the joint tenant, it doesn’t sever the joint tenancy, unless it gets sold following foreclosure proceedings. This becomes an issue when the debtor joint tenant dies.

Harms v. Sprague H & his brother owner property as joint tenants. S didn’t have collateral for a loan to buy a different property so he asked H’s brother to co-sign and give a mortgage on his interest in the joint tenancy property. Harm’s brother died. The court held that a lien on a joint tenant’s interest in property will not effectuate of the joint tenancy and the mortgage no longer exists.

B. Dozen states are title theory states: A mortgage conveys legal title to the creditor. The creditor owns the debtor’s interest in fee simple determinable and it reverts back when the debt is retired. Some see this as breaking unity of title and thus severing the joint tenancy.

(3) Judgment liens: A levy and sale of a joint tenant’s interest severs joint tenancy.

(4) Unilateral and secret severances: Secret severance opens up the possibility of fraud

3. Tenancy by the Entirety(a) Joint tenancy that is limited to couples that are married at the time they acquire the property and must meet the four unities

(b) Own the property as a unit, not by equal shares

(c) One spouse cannot unilaterally sever the tenancy by the entirety nor seek judicial partition

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4. Rights and Obligations between Co-Tenants

(a) Possession, Ouster, and Payment of Rent(1) Since each co-tenant has the right to possess the entire property, the majority rule is that a co-tenant using the whole property, absent and ouster, does not owe rent to the other co-tenants

(2) Rule changes when there’s an ousterA. The occupying tenant acts to prevent the other co-tenants from using the property by changing the locks of making use of the property in a way that no other use can be made of any part of the property and refuses to make room for another’s useB. The ousted tenant makes a demand for the property and C. Is denied access

Harms v. Sprague π and ∆ owned land together as tenants in common. ∆ grazed his sheep and cattle on the land = exclusive use of the land. π sent a letter expressing her intent to graze her livestock on land. ∆ refused and said he would get an injunction. Court held that ∆’s actions met the standard for an ouster and thus π was entitled to rent.

(b) Contribution: A co-tenant who spends $$ for some matter related to the property sometimes may get reimbursement from his co-tenants

(1) Taxes, interests, & insurance: A. All co-tenants have a duty to contribute their share of taxes and interests on mortgages. In some states, insurance is a carrying charge, thus it is required.

B. If the paying co-tenant is the only one using the property, no contribution is permitted up to the fair rental value of the property. Since he doesn’t have to pay rent, he’s responsible for the carrying charges since he is the primary beneficiary.

(2) Mortgage principal: A co-tenant who makes a mortgage principal payment when due or past due may seek contribution, but it prepay, he cannot seek contribution.

(3) Repairs and maintenance: A co-tenant cannot get contribution because courts do not want to decide on a case by case basis which repairs were necessary, what type of repair was needed, and how much should have been spent.

(4) Improvements: A co-tenant cannot get contribution—no one has a duty to improve the property.

(c) An Accounting(1) An accounting occurs when a co-tenant maintains records as to income and expenses from renting the property to a third party

(2) Reduces how much of the rental proceeds he must distribute to his co-tenants by costs associated with generating and collecting the rent, advertising, management fees, actual amounts spent on repairs and maintenance and utilities.

(d) Final Settlement on Sale

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(1) When selling the property, a co-tenant who spent $ and hasn’t been reimbursed will be reimbursed from the sale proceeds.

(2) Improvements will be reimbursed on how much value added, not $ spent.

(e) Tax Sales and Foreclosure Sales: If a co-tenant purchases the property at the tax sale or the foreclosure sale, the majority rule is that the purchasing co-tenant is deemed to be acting in his fiduciary capacity as a co-tenant. The remaining ones can contribute or if not, the purchasing co-tenant will own the property out right.

(f) Adverse Possession: To being running the SOL, the co-tenant claiming by AP must give clear notice to the other co-tenants that he is claiming AP

5. Partition (a) Co-tenants (except for tenants by entirety) can demand partition of the property at any time for any reason.

(b) Partition in Kind: Physical Partition(1) Courts favor it because it offers the least upset to the original co-tenancy and does it force a person to sell who does not wish to do so.

(2) Courts decide the property into parcels of equal value and each co-tenant receives a separate parcel. If not all request it, the ones that do receive separate parcels and the others own the rest of the property as co-owners

(3) If a court can’t partition it into parcels of equal value, the court orders a money payment from one party to another to equalize the division—called a owelty

Delfino v. Vealencis: D owned land as tenants in common with V. D operated a garbage hauling business and lived there. V wanted to sell as subdivisions and demanded a partition by sale even though it would have been possible for a partition in kind. Court ordered partition in kind bc it’s practical under the circumstances (2 access rds, rectangular parcel, only 2 competing interests) and it served the best interest of the parties (V is in actual possession of the property and derives her livelihood from it).

(c) Partition by Sale: (1) The property is sold and the proceeds are split among the concurrent owners

(2) According to the court in Delfino, it should only be ordered when1. The physical attributes of the land are such that a partition in kind is impractical or inequitable and2. The interests of the owners would better be promoted by a partition by sale—the burden of proof I on the party requesting the partition by sale

Right to Exclude & Other Powers of the Sovereign Owner

Trespass: 1–5, 399–423_______________________________________________________________________

1. Trespass if

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(1) Enter the land in the possession of another or causes a thing or third party to do so;

(2) Remains on the land;

(3) Fails to remove from the land a thing, which he is under a duty to remove

(4) Don’t have to intend to trespass, only need intention to walk

(5) Policy: Society needs the right to exclude for economic development, privacy, personal autonomy, liberty, safety, and security

Jaques v. Steenberg Homes, Inc. Court awarded punitive damages against intentional trespasser who was moving a mobile home. State must protect ownership of property as it is in society’s best interest. Hinman v. Pacific Air Transport H sued P for flying his plane 100 ft over his house under the ad coelom doctrine, arguing that it gave him the right to prevent aircraft from flying above his land and such flights were trespasses. Court ruled that the ad coelom doctrine does not confer an unlimited right to restrict access to the airspace above one’s land—would result in absurd consequences.

2. Exceptions(a) Necessity

(1) Entails a shift from a property rule to a liability rule—the owner of the land still has the entitlement, but is no longer protected by a rule of exclusion

(2) The intruder under necessity can take the entitlement without owner’s consent but must pay compensation

Ploof v. Putnam A family on a boat was caught in a storm so they were forced to dock their boat at the π’s dock or they would have been injured. The court held that it was not a trespass bc the entry upon the land was justified by necessity.

State v. Shack Court held that immigration public servants were not trespassing when entering land against the will of the owner. Necessity, private or public, may justify entry upon the lands of another. A person’s property rights cannot infringe on the rights of another human being.

(b) Custom

McConico v. Singleton ∆ was hunting on π’s rural (unenclosed and unimproved) land after the π told him not to. There’s a long history of forests and the animal in them being held in common. Because of this long held tradition, court held for the ∆—there was no trespass.

(1) A license may be implied form the habits of the country

(2) Since there is a common understanding that people can wander, roam, and hunt over rural lands bc these activities are customary, they can do so until the owner prohibits it.

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(3) Mandatory v. Default RulesA. Mandatory: It’s the custom to allow the right to hunt —> the right to exclude can never interrupt someone’s right to hunt

B. Default: In the absence of a clear law that there is not a right to hunt, we’re going to presume that there was a right to hunt

(c) Public accommodation(1) Law distinguishes between property not open to the public and property that offers itself as a public accommodation. Owners of the first type of property have a right to exclude for any reason, but owners of the second one, have a more limited right to exclude.

(2) It became an issue for innkeepers and common carriers bc although it was private property, they had a monopoly

(3) Modern laws enforce mandatory non-discrimination for hotels, restaurants, entertainment establishments, and etc.

Uston v. Resorts International Hotel Inc. U was excluded from casino bc of card counting. The court held that the casino operators do not have a supplementary right to exclude.

(d) Anti-discrimination(1) There’s no legal principle that prohibits a homeowner or tenant from systematically excluding people of a particular race or other category from hiss property.

(2) However, there are restrictions against discrimination for public property

Nuisance: 938–982___________________________________________________________________________

Elements:1. An act or condition on the ∆’s land—usually an intangible invasion

Adams v. Cleveland-Cliffs Iron Co. A lived near a mine operated by C. There were tremors through the ground from the blasting, airborne dust, and noise —> homes were worthless on the market. The court held that the effects of the operation of the mine constituted nuisance, not trespass, because the noise and dust from the mine are intangible

2. Substantial and unreasonable interference 3. With the π’s use and enjoyment of π’s land** Note that intentionality does not play a role

2. Substantial and Unreasonable Interference(a) Substantial

(1) As members of the community, individuals must tolerate certain annoyances

(2) Determine using a reasonable person standard(b) Unreasonable

(1) In evaluating the harm to π, the court considers:A. The extent and character of the harm

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B. The social value attached to the π’s use or enjoyment

C. The suitability of the use in the character of the locality

D. Burden on the π forced to avoid the harm

(2) In evaluating the social utility of the ∆’s conduct, the court considers:A. Social value the law attaches to the ∆’s conduct

B. The suitability of the ∆’s activities or property condition to the character of the general locality

3. Injunctions and Damages(a) Injunction:

(1) Appropriate ifA. The harm to the π outweighs the social utility of ∆’s conduct

B. The ∆ can avoid the harm without undue hardship

C. The π’s conduct is suited to the locale and the ∆’s isn’t

(2) In many jurisdictions, a ∆ can escape an injunction only if the social utility of the ∆’’s primary activity benefits the public at large rather than merely benefitting the ∆ personally

(b) Damages(1) “In lieu” damages may be appropriate where the ∆ provides significant social utility and cannot prevent the nuisance

(2) Can be on top of an injunction

Campbell v. Seaman C had pine trees and other vegetation that were killed by S’s making bricks in his kiln. S’s property has been used as a brickyard for 25+ years and C knew that and the method that S uses is standard within the industry. Despite that, the court ruled in favor of C bc 1. It didn’t matter what was being damaged, whether it was an important necessity or a luxury, 2. Creating a nuisance on your land just bc it was there first and expecting others to just leave isn’t fair. Court ordered an injunction and damages.

Boomer v. Atlantic Cement Co. B sued A for causing significant amounts of particulate air pollution and sought an injunction. The court held that the operation of the plant should be enjoined only until A pays B for damages. The court doesn’t want to order a permanent injunction because it would deprive A of the benefits of operating the plant while giving only a slight advantage to B. Injunction until it reduces pollution is also a problem because the technology isn’t magic—you can’t just come up with something on the stop, takes time. Policy: weighing of the equities and the utilities

Spur industries v. Del E. Webb Development Co. S operated a feedlot for cattle when the area was largely rural. W began developing residential communities in the area but the smell and flies rendered the some of the homes unsellable and other residents complained. Court ordered an injunction bc S’s feedlots affect an entire community and state statute says flies =

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nuisance. However, W should indemnify S bc it knew of the potential conflict but decided to go along with it anyways.

4. Special Interests(a) Light and air

(1) No American doctrine accepts the English doctrine of ancient lights that allows English landowners to obtain rights to the free flow of light and air over their property

(2) Spite fence: Interfering with light and air of neighbors solely out of malice

(b) Lateral support and subjacent support(1) Right to have one’s land supported to the side and from blow

(2) If natural state, strict liability. If supported land was improved so that the land needs more support, then it one must find negligence(3) Usually has to do with mining and water

A. Landowner can remove water only to the extent that it can benefit his property

B. Water is jointly owned by all surface waters—only take your portion

C. No limit on how much water you can pump as long as it doesn’t affect other landowners’ beneficial use of the water.

D. Apply negligence standard that holds landowner liable if he withdraws water in a manner that negligently damages or destroys land of others.

Licenses and Bailments: 449–457, 464–485____________________________________________________

1. License(a) Permission from an owner of an asset to another person allowing the latter to gain access to the asset on certain terms—waiver f the owner’s right to exclude

(b) Characteristics:(1) Temporary

(2) Revocable

Wood v. Leadbitter A license is by its nature revocable and thus can be revoked at any time, even if it constitutes a breach of contract. Wood was evicted from a race course bc he had been involving in fixing races. The court held that the owner was at liberty to remove time despite that Wood had a contractual license (a ticket), but the owner was liable for damages for breach of K.

Hurst v. Picture Theatres, Limited H sued after he was thrown out of a theater operated by P despite having paid for a ticket. The court held that the theater was not justified in ejecting H under the revocable license because the ticket was an agreement to allow Hurst to see a particular movie from beginning to end.

Under these 3, landowner ≠ liable for the subsidence of neighboring land

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2. Bailment(a) Transfer and delivery by an owner or prior possessor (the bailor) of possession of personal property to another (the bailee):

(1) Whose purpose in holding possession is often for safekeeping, repair, transportation, or for some other purpose more limited than dealing with the object or chattel as would its owner, and

(2) Where the return of the object or chattel in the same, or substantially the same undamaged condition is contemplated

A. Actual: Physically hands over the property

B. Constructive: One gives the keys to a safe deposit box or similar sit

C. Symbolic delivery: Bailor gives the bailee a thing symbolizing the object of the bailment—something associated with the object or a written instrument

(b) Result of a contract or an agreement, express or implied, or the conduct of the parties.

(1) A bailment requires the bailee’s acceptance of the delivered property—can be constructive if comes into possession by mistake or finds lost / mislaid property

(c) A failure to deliver renders the bailee strictly liable—doesn’t matter if he was not at fault

(d) Standard of care for lost, stole, or destroyed goods(1) When the benefit of the bailment to the bailee is slight, the care required of the bailee is slight. The bailee is only liable for gross negligence. This is typically a gratuitous bailment: taking care of an object for a neighbor, one created by mistake, or involving a finder.

(2) If the bailment benefits both parties and is equally beneficial to both, the standard of care imposed on the bailee rises and he is liable for negligence and has a duty of reasonable care under the circumstances.

(3) If the bailment benefits the bailee (like a borrowed object), the bailee’s standard of care rises again and the merest neglect or any damage renders the bailee liable. This also applies to certain commercial bailees like transport companies and repair shops.

Allen v. Hyatt Regency-Nashville Hotel A sued after his car was stolen from a parking garage operated by H. The court held that Allen parking the car in the garage created a bailment bc he left his car in an indoor lot with a single exit that was monitored by an attendant and guards run in conjunction with a hotel.

Cowen v. Pressprich C delivered the wrong bond to P, a stockbroker. Upon discovery of the wrong bond, he sent it back but with the wrong person —> bond was lost. The court held for C—strict liability for misdelivery because 1. It was an easily anticipated problem, 2. Introduced 3rd party that only the bailee had control over (cheaper cost avoider), 3. Cowen had no way to protect himself from P’s stupidity and 4. P’s status is treated as an involuntary bailee.

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The Winkfield Two ships, the Winkfield (troops) and the Mexican (mail ship) collide on the open seas, resulting in the sinking of the Mexican. The court holds that in an action against a stranger for loss of goods caused by his negligence, the bailee in possession can recover the value of the goods, although he would have had a good answer to in an action by the bailor for damages for the loss of the thing bailed

Easements: 982–1025_________________________________________________________________________

(a) RP § 450: An easement is an interest in land in the possession of another which(1) Entitles the owner of such interest to a limited use of enjoyment of the land in which the interest exists

(2) Entitles him to protection as against third persons from interference in such use or enjoyment

(3) Is not subject to the will of the possessor of the land

(4) Is not a normal incident of the possession of any land possessed by the owner of the interest

(5) Is capable of creation by conveyance

Baseball Publishing Co. v. Bruton The writing in question says that π has a right to maintain advertising sign on the wall and leaves wall in possession of the owner —> not lease. It’s also not just a mere license bc “exclusive right and privilege to maintain which conveys an interest. It should be seen as an easement.

1. Easement appurtenant(a) An easement that belongs to a parcel of land—it is conveyed when the land itself is conveyed bc it runs with the land

(b) Servient estate: Property burdened by the easement

(c) Dominant estate: Property benefited by the easement

(d) If it isn’t clear as to whether it was an easement appurtenant or in gross, courts favor appurtenant

(e) The holder of an easement appurtenant, by subdividing and selling parcels of the dominant estate, transfers the easement with each parcel—each resulting parcel becomes a dominant estate as long as it doesn’t overburden the servient estate.

2. Easements in Gross(a) Easement that belongs to a particular grantee

(b) Most courts still hold that it’s not transferable or inheritable

3. Profit a prendre(a) Right to enter on the land of another in order to extract something of value

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(b) Governed by the same rules as easements appurtenant

(c) It’s an implied license to enter the land for purposes of carrying out the profitable act and it remains irrevocable as long as the profit continues to last

4. Affirmative v. Negative(a) Affirmative easements permit the easement holder to perform some affirmative act on the land of another that would otherwise by a trespass or an invasive nuisance

(b) Negative easements permits the easement holder to demand that the owner of the servient estate desist from certain actions that might harm the dominant estate—most of the time, this is done through covenants

5. Private v. Public(a) Private easements authorize specific named parties to use land for designated purposes

(b) Public easements authorize the general public to use land for designated purposes—usually public access rights for recreational purposes

6. Grant(a) Need to deliver a deed to the property of the grantee

(b) Since it’s an interest in land, the Statute of Frauds applies so it must be in writing

7. Estoppel(a) This arises bc an express easement didn’t fulfill the SOF or never wrote it down. However, if there was a verbal agreement, it’s a license. A court of equity will sometimes enforce this license as an easement by estoppel.

(b) Elements(1) Agreement: Owner of the servient estate consents to the dominant estate holder’s use of his land

(2) Reliance: The servient estate owner knows or should know the dominant estate owner will materially change his position, believing the permissive use will not be revoked

(3) Improvements: The dominant estate holder, reasonably believing the permission would continue, substantially changes his position by investing in improvements on either the servient or the dominant estate.

Holbrook v. Taylor The π buy a parcel of land next to ∆’s and decide to construct a house. The workers use a road that has been used by a variety of people over the years to get there and after construction, the π use it everyday. The court found that there was an easement by estoppel—here was actual consent or at least their tacit approval during the whole process and the π also improved and maintained the road way.

8. Implication from Prior Use(a) They arise when a use was in place at a time a single parcel of land was severed or divided into two adjoining parcels, leaving one parcel benefitting the other in some way, even though the seller and the purchaser did not discuss of even think of it when they bought & sold the land.

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(b) Remedies oversight and permits courts to reach results reasonably parties would have reached had they discussed the matter, emphasizing the parties’ likely intent at the time of severance.

(c) Elements(1) The unity of ownership was severed (2) The use was in place before the severance

(3) The use was visible or apparent at the time of the severance

(4) The easement is (reasonably) necessary for the enjoyment of the dominant estate

9. Implication from Necessity(a) Usually for landlocked property

(b) Elements(1) A common owner severed the property

(2) The necessity for egress and ingress existed at the time of the severance

(3) Ingress and egress are strictly necessary for the landlocked parcel—not for mere inconvenience

Schwab v. Timmons Doesn’t satisfy the common owner element bc even if the US government owned all the land in the past, the lots weren’t landlocked when the government sold them. Geographical barriers alone are not enough to say a property is landlocked. Necessity isn’t a manner of convenience. Policy: The owners sold the potion of the land making themselves landlocked. He should’ve considered it.

10. Prescription(a) A person can gain an easement by prescription by a long-continued adverse use.

(b) Elements(1) Actual use

(2) Open and notorious useA. Open and visible enough that the landowner will or should notice it

B. Night time or concealed use doesn’t satisfy it

(3) Hostile and adverse use—without permission

(4) Continuous and uninterrupted use

(5) Exclusive use—not necessary in most jurisdictions

(6) Prescriptive period: The time a claimant must use the property before a court will award an easement by prescription. It’s usually the same as the SOL for AP

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Warsaw v. Chicago Metallic Ceilings, Inc. W & C owned adjacent lots of land. After building a huge warehouse, C realized that the small road they left wasn’t big enough for their trucks, so started using the empty space on W’s land and did so for 7 years. There were failed negotiations and then W graded the land to build another warehouse in the empty space that C used, C sued. The court held that an easement by prescription existed. Since W built the warehouse after the commencement of the suit, it should be forced to tear down the warehouse without compensation.

(c) Only affirmative easements can be gained by prescription

Fontainebleau Hotel Corp. v. 45 25, Inc. Appellants are appealing an injunction against them constructing a wall that would block sunlight into the appellee’s hotel. Trial court said that no one has the right to use his property to the injury of another. However, this court held that only legal injury counts—the English doctrine of Ancient Lights has never been accepted in the US. Policy: Acknowledging the right to air and sunlight would wreck havoc and halt beneficial construction.

11. Scope of Easements—the extent of use an easement holder may make of the servient estate

(a) Location(1) Location of an easement must be identified and described at its inception. Once it’s established, the easement owner must remain within in it.

(2) If it’s unspecified, usage can establish location

(b) Intensity of Use—reasonably necessary, does not overburden, foreseeability

(c) No benefit allowed to the non-dominant party

(d) Improvements, Maintenance, and Repair(1) Easement holder has the right to improve the easement as long as the improvement promote the use of the easement, are within its scope, and do not unreasonably burden the servient estate owner’s use or enjoyment of her property.

(2) The easement holder has the duty to maintain and repair the easement and liability for negligence.

Penn Bowling v. Hot Shoppes P is overusing its easement 1. In a way that interferes with H’s use and 2. Using it to get equipment not on dominant estate. Court issued an injunction until P stops overusing— using an easement beyond its scope is a continuous trespass and usually the remedy for trespass = injunction. Mistreatment of an easement is not sufficient to constitute a forfeiture, waiver, or abandonment.

12. Termination(a) Release: An agreement to terminate by the two estates

(b) Expiration

(c) Abandonment: The holder demonstrates intent to discontinue the easement

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(d) Merger: When one owner gets title to both dominant and servient estate

(e) Markedly changed circumstances in the dominant or servient estate:(1) No longer necessary

(2) Estoppel: No longer used so the servient state takes action in reliance

(3) Prescription: Servient estate reclaims it

(f) The government exercises eminent domain or the land is condemned

Real Covenants & Equitable Servitudes: 1025–1062____________________________________________

Real covenants and equitable servitudes are agreements, promises, or deed provisions that related to real property and that bind or benefit subsequent owners of the respective properties solely because they own the property. They benefit and obligate subsequent owners

1. Real Covenants(a) For benefits to run with the land:

(1) Touch and concern(2) Intent for the burden to run(3) Vertical privity

(b) For burden to run with the land:(1) Touch and concern(2) Intent for the burden to run(3) Vertical privity(4) Horizontal Privity

2. Touch and concern(a) Payment of homeowner’s association fees satisfies touch and concern bc it’ll be spent maintaining the property

(b) Insurance—apply proceeds to rebuilding is a sufficient connection

Neponsit v. Emigrant Industrial Savings Bank Property association tried to enforce a covenant in which owner of property in the community had to pay an upkeep fee. It was clearly intended to run with the land. Test to touch and concern is whether the covenant imposes a burden upon an interest in the land, which on the other hand, increases the value of a different interest in the same / related land. Court holds that T&C requirement is satisfied bc the grantee obtains a right to common enjoyment of the community areas. Finally, the corporate nature of the Association should be a barrier to enforcement bc Association is made up by homeowners.

Eagle Enterprises, Inc. v. Gross G bought land through a chain of transactions from E. In the original deed there was a covenant providing that the purchaser would pay an annual fee for water operated by the subdivision people. G’s deed made references to it, but did not state the terms of the covenant expressly. Court held that the covenant did not T&C the land—the agreement for seasonal supply of water doesn’t relate significantly to the ownership rights. It looks like a personal K rather than one attaching to the

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property. Policy: Courts tend to disfavor these covenants bc of their potential undue restriction on alienation.

3. Intent for the burden to run(a) Ascertained from the deed

(b) Trigger words: “heirs and assigns,” “ this covenant shall run with the land, “ this covenant is appurtenant to the land.”

4. Vertical privity(a) Relationship between an original promisee or promisor to the K and subsequent purchasers

(b) Requires that transferee succeed an original party’s entire estate or ownership interest in the property—leases don’t work

5. Horizontal privity(a) Relationship between the original parties to the agreement measured at the time of the covenant

(b) The parties share some interest in the subject land—landlord and tenant, holders of mutual easements, etc.

(c) Does not exist if two property owners simply agree to restrict the use of their respective property

Sanborn v. McLean S sued M when M tried to build a gas station in the empty area in her lot on the grounds that there was a reciprocal negative easement to use the land only residentially. Elements: 1. Parcels of land affected were sold by the same original owner 2. Original owner imposed restrictions on one with the intention of benefiting the other. Fulfills elements, M is enjoined from building the gas station

6. Equitable Servitudes(a) Requirements:

(1) Touch and concern(2) Intent for burden to run(3) Notice to subsequent owner

(b) Privity is not required in equitable servitudes

7. Notice(a) Notice can be actual or constructive (gathered from land records), or inquiry notice (gathered from viewing the premises and surrounding properties).

(b) Notice only applies to the burdens, not the benefits

(c) Policy: Fairness & unjust enrichment—the purchaser probably got the land at a lower price bc of it

Tulk v. Moxhay There was a covenant to maintain and not build on the garden. He knew about the covenant when he bough the property. Court held

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that it will enforce the covenant bc the buy had notice of the covenant when he purchased it —> he took advantage of the lower price.

8. Termination(a) By the terms of the covenant

(b) Merger

(c) Release: Owners of the benefitted property can grant a written release to the owners of the burdened property—must satisfy the SOF

(d) Rescission: Mutual release

(e) Unclean hands: Courts won’t allow a benefitted owner to violate a covenant and at the same time to enjoin another landowner from violating it

(f) Acquiescence: Intentional tolerance of a covenant’s violation—waiver—passively endure multiple violations of a covenant

(g) Abandonment(1) Requires proof that prior violations have eroded the general plan and enforcement is therefore inequitable.

(2) It must be habitually and substantially violated—a few do not satisfy it

Peckham v. Milroy P brought a suit against M seeking an injunction because was operating a home day care and a neighborhood covenant prohibits home businesses. M argued that the covenant was terminated due to abandonment (since other people were running home businesses) and was against public policy. The court held that 4 out of the 38 to 40 were running home businesses ≠ habitual or substantial bc it’s a very small percentage.

(h) Laches: Wait too long to bring a suit(1) Knowledge or reasonable opportunity to discover that the π has a COA v. the ∆

(2) An unreasonably delay by the π in commencing that action

(3) Damage to ∆ resulting from the unreasonably delay

Peckham v. Milroy P brought a suit against M seeking an injunction because was operating a home day care and a neighborhood covenant prohibits home businesses. M argued P waited too long and it caused damages to M. Since the remodeling was done for family use and then later became a day care, they cannot prove damages.

(i) Estoppel: A benefitted owner cannot act in a way indicating he does not intend to enforce a covenant and then enforce it

(1) Admission statement or act inconsistent with the claim asserted afterwards

(2) Reliance on that statement / act

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(3) Injury

Peckham v. Milroy P brought a suit against M seeking an injunction because was operating a home day care and a neighborhood covenant prohibits home businesses. Court held that there was no act or statement by P—silence doesn’t count. There wasn’t reliance either bc M talked to city, county, and state reps.

(j) Changed conditions: (1) If conditions change so much so that the benefit is no longer substantial enough to justify the burden

(2) If enforcement would be inequitable and oppressive

(3) If the changed conditions rendered the purpose of the restrictions obsolete.

Bolotin v. Rindge π owned an unimproved lot which had a covenant restricting its use to single, private, residences with the front on a N-S street. The neighborhood changed significantly to a point where a commercial building would be greatly profitable. The court held that the covenant would be enforced even though the unrestricted use of the property would be more profitable.

Public Land Use Controls

Takings: 1219–1245, 1267–1302, 1314–1347_____________________________________________________

(a) Governments have the power to force unwilling persons to sell property to them for reasonable compensation if for public use—eminent domain through the 5th amendment

(b) Conventional condemnation: The state admits it’s taking private property and goes through the process of condemnation

(c) Inverse condemnation: When a state occupies or invades private property without initiating condemnation, includes regulatory takings & exactions

1. Categorical or Per Se Takings (a) Physical invasions: government has no defense, LO just has to prove that it was physically invaded or occupied

(b) Loss of all economic value (nuisance control measure is never a taking)

(c) Public use

Kelo v. City of New London State was buying property to sell to a pharmaceutical company to bring more revenue into the city. The court held that just because the property was transferred immediately to the private party does not negate the purpose of the taking. Economic rejuvenation doesn’t happen on a piecemeal basis and promoting economic development is a traditional and long accepted function of government

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(b) Just compensation(1) Fair market value(2) If only a portion is taken, fair market value of that portion

2. Regulatory Takings(a) If a regulation goes too far, it’ll be considered a taking—“too far” based on:

(1) Character of the government’s action—government can use its police power if it prevents harm to the public or noxious use of the property

Miller v. Schoene Ceder trees v. apple trees in Virginia where apple growing is one of the prime agricultural pursuits. The court held that if the choice is unavoidable (the government must favor one over the other), destruction controlled by reasonable public policy does not involve denial of due process.

(2) The economic impact of the regulation on the burdened LOA. Does it wipe out economic value?

Pennsylvania Coal Co. v. Mahon New law restricted Penn coal’s right via land deed to mine coal—now have to leave coal columns to prevent collapse. The court held that the regulation constituted a taking because it made it commercially impossible to mine certain coal = appropriating / destroying property right. Also, no public health and safety problem bc the LO had notice. Government should’ve used eminent domain instead of trying to sidestep the problem.

Lucas v. South Carolina Coastal Council A statute prohibited L from building houses on his beachfront land. SC enacted it to prevent erosion of the coastline. The court held that it amounts to a taking because it prohibited all economically beneficial use of his land and bc his use ≠ nuisance.

B. How it affects existing use

Penn Central Transportation Co. v. NYC To determine if the regulation constitutes a taking, focus on the character of the action and on the nature and the extent of the interference with rights in the parcel as a whole. Since the NY law doesn’t interfere with the present uses of the land nor restrict all construction, it is not a taking and thus, no compensation is needed. Also, π wasn’t the only one—not singled out by the government

C. The extent to which the regulation has interfered with distinct investment backed expectations of the owner

Lingle v. Chevron USA Chevron claimed that the new statute’s rent cap was a taking bc it does not substantially advance legitimate state interests. The court held that Takings clauses challenges to regulations have to be based on the severity of the burden that the regulation imposed on property rights, not the effectiveness of the regulation in furthering the governmental interest.

3. Exactions

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(a) Conditions imposed by the government that a LO or developer must meet before the government will issue a permit—could be a dedication of land to public purposes, a restriction on development, or a required improvement

(b) Must further a legitimate state interest(1) Essential nexus—relationship between the end and the means must be close enough that the exaction substantially advances the state interest

(c) Proportionality test(1) Must be relevant in nature and extent

(2) Courts determine whether there is an essential nexus

(3) If it exists, courts then determine whether there is rough proportionality between the condition exacted and the projected impact of the LO’s proposed development