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Property I Professor Parker Fall 2010 New Property Outline General Information Six Property Rights 1.

Right to use the your property 2. Right to exclude a. One of the most important rights in property BUT it is not absolute b. In specific cases, legal rules limit the right to exclude these rights of others are called Rights of Access 3. Power to alienate (sell) 4. Right to bequeath 5. Right to be immune from damages 6. Right from govt. seizing the property #1 Sources of Limitations on the Right to Exclude Common law Limits The more an owner has opened her property to the public, the more likely it is that the courts will find public rights of access to the property. 1. Trespass: An unauthorized intentional intrusion on property possessed by another (both above and below the surface) i. INTENT not necessary to show that the trespasser intended to violate the owners legal rights. 1. Ex: Mistaken entry onto anothers land is considered a trespass 2. Courts look at the right to exclude v. the right to reasonable access A. 3 Different Forms i. Physical entry onto anothers land ii. Through an agent such as an employee iii. Object such as a building which extends over the land of another B. 3 Exceptions (i.e. not considered a trespass when) i. Consent: when the owner has consented to a person being on that property ii. Necessity: Entry is justified by necessity to prevent a more serious harm to persons (or) property (prevent a crime, or save a life) iii. Public Policy if trespass is encouraged by public policy paying respect to gravesite. 1. State v. Shack (1971) : Ds entered upon private property against order of the owner to aid migrants employed and housed there. a. Rule: Real property rights are not absolute; and necessity, private or public, may justify entry upon the land of another. b. Sic utere tuo ut alienum non laedas= Use your property in such a way as not to harm others. (Rights are relative and there must be an accommodation when they meet). Property owner cannot exercise his right to exclude if it means harming someone else. c. Factors at play (Holding): i. Property rights serve human values. There is a social good/goal at hand. ii. Welfare of migrant workers, an underrepresented group.

Property I Professor Parker Fall 2010 iii. Necessity of providing legal counsel and medical services to migrants justified the entry. iv. Migrant workers allowed visitors of their choice (w/i reason), government workers, and journalists if they choose. v. Right to privacy too fundamental to be denied in support of property rights. vi. Owner still has a right to the operation of his farm without interference. vii. Court holds that under NJ common law no trespass occurred. Law of trespass was meant to protect landowner interests from unprivileged intrusions, but entry of legal aid lawyers did not violate these interests. Under the NJ law the right to exclude in referring to private property is super ceded by the idea that these people were migrant workers and the defendants were aid workers and they have a right to come on to the property to observe the migrant workers in their natural environment viii. There are limits on when and how aid workers can come onto land. ix. Public policy argument: the right of individuals supersede property rights; exercising property rights would render federal law ineffective, property rights serve human values x. In the end, there is no trespass b/c the owner had no right to exclude this particular group of people (govt workers). xi. Trespass by necessity/good of public policy is no trespass at all. xii. This case is an example of an exception to trespass for public policy reasons xiii. The legal basis for the decision is a federal statute/Act of Congress d. Issue: Does an owner of real property have the absolute right to exclude all others from that property? e. Broad Holding: No. The employer may not deny the worker his privacy or interfere with his opportunity to live with dignity and to enjoy associations customary among our citizens f. Narrow Holding: Ownership of real property does not allow the owner to prevent access to aid workers seeking to provide help to migrant workers on land g. Tedesco can still exclude people, impose reasonable restrictions, but you may not use damages and security as a pretext to gain a monopoly on your workers. 2. Desnik v. ABC (PG. 108) Eye Center Case a. Logic similar to State v. Shack, no interests were violated in either case of the owners of the property b. The plaintiffs are claiming that the defendants trespassed and committed fraud, and gained access by false promises c. Holding: Ds conduct does not necessarily amount to fraud because if they had revealed their true identity, ABC would have been treated differently. The court compared this to a food critic. d. Rationales: Desnik wants patients and ABC really did come in as patients and because its a public place, they can document the procedure without

Property I Professor Parker Fall 2010 the doctors consent. The law gives legal effect to consent procured through such types of fraud. There was no invasion of any of the specific interests that the tort of trespass was designed to protect; it was not an interference with the ownership or possession of land. Nor were any embarrassing details of anyones life publicized. 3. Uston v. Resorts International Hotel (Card Counting Case) a. P was well known for his ability to count cards so he was excluded from casino. (At the time he was not counting cards though) b. Issue: Do owners of property open to the public have the right to unreasonably exclude particular members of the public? c. Holding: No. Uston did not come to the casino to disrupt the activities going on there, nor was he a security risk. Resorts had no legitimate interest in excluding Uston from a place to which the public is invited. d. Proprietors of amusement facilities, whose very survival depends on bringing the public into their place of amusement, are reasonable people who usually do not exclude their customers unless they have a reason to do so. (pg. 122) e. Note: the old common rule said that owners of public places were given the absolute right to exclude members of the public but then the Civil rights amendments were made and subsequently prohibited owners from excluding based on race and so these rights have continued to limit the right to exclude. C. Remedies i. Damages 1. Nominal always payable, even if no harm has occurred 2. Compensatory if trespasser has caused harm to the property measured by the cost of restoring the property or by the depreciation in market value 3. Punitive form of punishment through damages works to deter outrageous and malicious behavior ii. Injunction 1. Forces the wrongdoer to cease the wrongful conduct (or) correct any harm to the property caused by the trespass iii. Declatory Judgment iv. Decision of the court stating the legal rights of the plaintiff against the other party (migrant workers in State v. Shack could ask for a Declatory judgment on top of an injunction) Public Accomodation Statutes: D. Civil Rights Act of 1964 i. You cannot discriminate on the basis of race, color, religion, or national origin good services, facilities, advantages and accommodations. This statute does not cover sex, age, disability, or sexual orientation. ii. All persons are entitled to the full and equal enjoyment of goods, services, facilities, privileges, advantages and accommodations of any place of public accommodation E. Place of Public Accommodation if operations affect commerce, (or) is supported by state action i. Inn, Motel or other Lodging establishment (unless it contains 5 rooms or less and the owner lives in the house as well bed and breakfast doesnt count)

Property I Professor Parker Fall 2010 ii. Restaurant, Cafeteria (or other facility principally involved in selling food for consumption (on) the premises) including, but not limited to food sold on retail premises and gas stations iii. Theatre, Concert Hall, Sports Arena any place of entertainment even if located in an inn with less than 5 rooms. iv. Note it does not need to a be attached to a fixed parcel of real-estate (Little League liable for discrimination against girls, even though they are not located to a fixed place) F. The act does not create a private right of action, you cannot sue an establishment, you have to file a complaint with a governmental agency G. EXCEPTIONS to this act: i. Private Establishments provision do not apply to private clubs or establishments not open to the public (except) to the extent they are made available to the public with regards to the above categories ii. Courts look to two factors to determine this 1. 1) Selective if organization is selective in who they accept 2. 2) Limits if there are limits to the number of members H. Additional Notes i. Note that Civil Rights of 1866 only regulated race discrimination and allowed for damages (private action) ii. 14th Amendment prohibits that segregation be supported by State action iii. Each state has their own public accommodation statutes when these are deemed to be ambiguous (without determinative language), look to a) legislative history, b) circumstances surrounding the enactment, and c) the purpose the statute is suppose to serve. iv. Federal public accommodation statutes trump any contrary state accommodation law (although state law may extend further if it is not inconsistent with federal law) I. Spirit Murdering the Messenger (1987): black woman prohibited from entering a NYC retailer at Christmas. i. Stores using buzzers to keep out undesirables 1. The issue of undesirability revealed itself to be primarily a racial determination. 2. After some controversy the buzzer system remains as a necessary evil that is a mere convenience compared to the risks of being murdered. 3. The author tries to enter a store and the attendant mouths closed. She sees other white customer inside. 4. She was not allowed in and had no recourse. 2. New Jersey Law Against Discrimination A. Law Constitution is a floor and states cannot fall below that floor but can reach beyond it B. NJ law v. Federal: New jersey is more comprehensive grounds for discrimination far exceed that of federal law and is intended to be liberally construed. C. Note: Just remember that New Jersey was very progressive in their fight against discrimination. D. Dale Boy Scouts of America *Homosexual Boy Scout Case i. Dale was expelled from his membership in the Boy Scouts of America on the basis that he was a homosexual. ii. Issue: Do all person have the opportunity to obtain all the accommodations, advantages, facilities and privileges of any place of public accommodation without discrimination on the basis of their sexual orientation? iii. Holding: Yes. BSA is a public accommodation since it maintains close relationships with federal and state bodies and with other recognized public accommodations. It does not

Property I Professor Parker Fall 2010 satisfy the distinctly private exception since it does not employ genuinely selective criteria, nor does it limit its membership to individuals who belong to particular religion or subscribe to a particular set of moral beliefs. The BSA violated the statute by revoking Dales membership.

Federal and State Constitutional Free Speech Access Lights 1. The US and State constitutions have different provision and clauses for the protection of free speech a. Supremacy Clause Federal Constitution trumps state statutes that are in conflict with each other b. Free Speech Rights are typically in conflict with Owners Rights to Exclude in Property a. 1st amendment (declaring rights of access to public centers for free speech) vs. 5th and 14th amendment rights (protecting the right to exclude on private property, and not to have their property taken for public use without just cause) 2. The First Amendment does not guarantee that you can exercise your free speech rights anywhere you would like. a. Lloyd Corp., Ltd v. Tanner (pg. 153) *Handbill Case i. Tanner (D) distributed political handbills in the interior of a privately owned mall. ii. Issue: Is a privately held shopping center so dedicated to public use to allow private parties the right to exercise their First Amendment rights on premises? iii. Holding: No. The mall is not the functional equivalent of a municipal use because its services are not so broad to simulate the function of a city government. Since the mall is not a state actor, Lloyd is entitled to exclude handbillers from its private property. iv. Dissent: the balance between free speech and the right to control private property must be stuck in favor of free speech. #2 Nuisance DEFINITION a substantial and unreasonable interference with the use and enjoyment of land o Different from Trespass trespass is a physical intrusion on your land and nuisance is nontrespparary interest where how I use my land harms the property interest of another. o Different from Negligence negligence focuses more on the conduct and the motives behind the unreasonable conduct, where as nuisance looks at the result p. 273 1. The conflict between free use and security (land use conflict) are resolved in 4 ways FACTORS GOVERNING RESOLUTION 1. Defendants Privilege (Common Enemy defendant has the right to expel unwanted water, unless actions constitute a nuisance) courts make this ruling when the plaintiff has failed to make a claim enforceable under law, and thus is not violating any legal duties owed to the defendant. 1. (Result) - situation where the defendant is allowed to continue engaging in the harmful activity. 2. Damnum Absque Injuria: Damage without legal redress 3. Defendant Is free to inflict this type of particular type of injury and the plaintiff can neither recover damages to compensate for the injury nor obtain an injunction ; plaintiff has no legal right to protection from the defendants harmful activity. 2. Plaintiffs Security (Strict Liability Natural Flow Rule plaintiff entitled to natural force, flow and amount of water governed by land) if the conduct engaged in by the defendant is prohibited under law, the plaintiff has an absolute right not to suffer any harm 4. Plaintiff must prove that the action is prohibited conduct, and that the action caused the damages to the property

Property I Professor Parker Fall 2010 5. (Result) Plaintiff entitled to damages and an injunction 3. Reasonableness Test this is the middle-ground, it allows for the defendant to engage in the activity if it is deemed to be reasonable, but not if the conduct or harm caused is deemed to be unreasonable. 1. May be based on many factors a. Extent of property harm to the plaintiff and the social utility of the plaintiffs activity b. The social benefits of the defendants activities measured by what society would loose by preventing the defendant from freely engaging in the harmful activity. c. The overall social costs and benefits of the conflicting land uses of the plaintiff and defendant d. The availability of alternative means to mitigate or avoid the harm and which owner can do so at the lowest cost. e. The defendants motive (profit may constitute a legitimate motive while spite or malicecommitting the act for the sole purpose of hurting the plaintiff-may not f. Prior use: Which use is established first (with greater protection some times given to prior uses). Eg. Farmers have the right to operate their farms free from nuisance liability, if they were established before surrounding homes g. The harm must be substantial in that owners should not have to bear the burden for the good of society h. Right thing in a wrong place (Pig in an ice cream parlor instead of a barn) i. Unusually Sensitive- defendant will not be liable if the complaint made by the plaintiff is unusually sensitive 4. Prior Use: Sometimes legal entitlements are awarded to the person who established the first use. 2. 4 Remedies 1. Dismissal of the Complaint defendant can make a motion to dismiss for failure to state a claim upon which relief can be granted 12(b)(6) o No substantial harm and positive social utility, then dismissal o If there is substantial harm and positive social utility and it would put the defendant out of business, then dismissal a. Note positive externality is when the defendant cannot afford to pay plaintiff but the social utility is greater than the harm caused. 2. Damages plaintiff may ask the court for damages to compensate for the harm already done (most common are damages for the cost of restoration and depreciation in marker value) o Damages awarded if there is substantial harm but there is social utility 3. Injunction Order by the court for the defendant to stop doing certain things Plaintiff must expressly state to the court what he/she wants done 1. Injunction awarded if there is social harm but negative social utility 4. Purchased Injunction an order by the court for the defendant to stop doing the harmful activity on the ground that its social benefits are substantially outweighed by its social costs 1. If there is substantial harm and there is negative social utility but the plaintiff comes to the nuisance = Purchased Injunction 2. However it is unfair to make the defendant pay for the stoppage (in cases where they were there first) thus an order is made by the court requiring the plaintiff to pay if he wants the activity stopped 5. Inalienability Rule plaintiff has no right to commit the harm, even if an agreement between the two parties is reached (or) the plaintiff has the right to engage in the protected activity, even if the two parties have contracted against it.

Property I Professor Parker Fall 2010 Flooding and Diffuse Surface Water Diffuse Surface water is drainage water from rain, melting snow, and springs that runs over the surface of the earth but does not amount to a stream. 1. Civil Law Rule (Natural Flow Rule) - You have the right to not have interference of surface water on your property. You have absolute security any interference will give you the right of action (Pro plaintiff)(Antidevelopment) 2. Common Enemy Rule- Surface water is common enemy. You can expel it from property and there is no redress from harm. (Pro defendant) (Pro development); very extreme but adopted in most states 3. So Many exceptions were made to these Rules that the reasonableness test was adopted. 4. Armstrong v. Francis Corp- Water draining Case a. Facts: D drained odd excess water from his property which caused sever injury to plaintiffs property b. Possessor of land is not privileged to discharge upon adjoining land, by artificial means, large quantities of surface water in a concentrated flow otherwise than through natural drain ways, regardless of the means by which the surface water is collected and discharged; Dwas liable to fix his drainage system c. This case illustrates shifting to Reasonableness test from Common Enemy Rule Factors that the case looked at 1. The amount of harm caused 2. The foreseeability of the harm which results 3. The purpose or motive with which the possessor acted d. Policy Arguments include: i. Freedom of Action v. Security: Weighing the freedom of action with the security of the party affected to enjoy their rights ii. Competition v. Secure Investment: you want to encourage our free market economy but no one would invest if their property rights were not secure iii. Predictability v. Justice in the individual case: Flexible standards are best suited to provide justice in individual cases but they cannot be mechanically applied (unpredictable); basically rigid rules v. flexible standards. Pollution and Interference With Light and Air Nuisance Per Se: activity that is unlawful regardless of the context or scale Nuisance per accidens: an otherwise lawful activity that becomes a nuisance based on the way that activity is conducted. Page County Appliance Center v. Honeywell, Inc.(T.V. static case) Honeywell (D) places a computer in a business adjoining Page County Appliance Center (P) that interfered with Pages business of selling television sets. Issue: Does lawful activity constitute a nuisance if it unreasonably interferes with anothers enjoyment of his or her property? Holding: Yes. A defendant only needs to show that the aactivity was unreasonable in the context it took place. It is unlikely that the presence of a television set constitutes a hypersensitive use. Court says there is no hypersensitive use, having a television is a perfectly normal use of property.

Property I Professor Parker Fall 2010

If defendant has substantially interfered with ones use and enjoyment of land, How do we determine if that harm is unreasonable? o In determining this the courts balance fairness and welfare analysiss o Fairness Analysis Character of the harm- aesthetic harm will be viewed as less serious than health or safety concerns. Distributive considerations- is it fair to make an individual owner bear the costs of defendants socially beneficial activity or should those costs be spread around to the owner causing the damage and its employees and customer? Fault: Is one of the owners engaged in a disfavored activity? Is the conduct appropriate for the area? Is the plaintiff come to the nuisance? o Welfare Analysis Costs and Benefits- the costs and benefits of allowing the harmful conduct must be compared with the costs and benefits of prohibiting it. Incentives- what effects will liability or immunity have on incentives to engage in the respective activities? How will the distribution of the burdens and benefits of conflicting land use affect incentives to invest in safety or to engage in desirable economic activities? Lowest Cost Avoider- which party can more cheaply avoid the cost? Should this party also bear the burden of paying that cost?

Fontainebleau Hotel Corp. v. Forty-Five Twenty-Five, Inc. (pg. 284) *Light and Air Case Forty-Five Twenty-Five, Inc. (P) sought to enjoin the Fontainebleau Hotels (D) construction of an addition that would block all sunshine from Forty-Fives hotel. Issue: Is there a legal right to the free flow of light or air from an adjoining parcel of land? Holding: No, there is not legal right to the free flow of light and air. Nuisance law states that one property holder cannot use his property right to harm the lawful rights of an adjacent landholder. No American jurisdiction or court has ever found that a property owner has a legal right to air or sunlight. The only way to have a cause of action for light and air would be if it were included in a contractual relation. o Laches: Eden Roc never asserted their rights, and then decided to at a much later time o Negative Easement: When a property owner is trying to restrict what someone else does on his or her own land. Contracting Light and Air: o Majority of courts hold that in the absence of a prior agreement, owners have absolute rights to their property without liability concerning the neighbors interest in light and air o EXCEPTION spite fences structures erected for the sole purpose of maliciously harming the neighbor are not permitted Law and Economics o Economic analysis of law is nothing more then cost/benefit analysis: whether a change from one legal rule to another will increase or decrease social wealth. Market transactions give economists a way to measure costs and benefits. Transactions include three elements 1. An initial distribution of property rights 2. An offer price by a non-owner 3. An asking price by the owner

Property I Professor Parker Fall 2010 If we assume that homeowners initially have a right to be free form pollution, we ask what amount of money the factory owner would be willing and able to pay the homeowners to pay to induce them to agree to allow the factory to continue to pollutethis is the factory owners asking price. Costs are measured by the homeowners asking price and benefits are measured by the factory owners offer price. o Definition of Efficiency: efficiency is one way to view the goal of increasing social utility, or the general welfare by satisfying human wants at the lowest possible cost 1. Pareto Optimality: where no further exchanges (changes in allocation) can be made without harming others, or making them worse off then before does not look at the entire pie 2. Kalder Hicks Wealth Management : change in allocation of resources (OR) a change in allocation of entitlements make some people better off and others worse off if benefits of the change outweigh the costs (essentially if the winners of the change could fully compensate the losers and still be better off than before) losses to the individuals are less then the gains to those who are better off o Externalities: Unless you make corporations pay for the costs they impose on third parties, the corporation will not have to take into account this cost in determining whether its operations are profitable. Basically the court wants the corporation wants the corps. to hold themselves accountable by internalizing the costs.

The Coarse Theorem: Ronald Coarse criticized the argument that property owners should internalize their external costs in this theorem. o To avoid the harm on the homeowners would inflict harm on the factory owner; to avoid the harm on the factory owner would inflict harm on the homeowners. The costs are reciprocal o The problem of externalities arises because two conflicting activities are located near one another. o 6 Ways to Measure Efficiency under the Coarse Theorem (when there is a difference between asking and offering prices) 1. Fair Market Value attempts to maximize the market value of both parcels of land looks at their price on the open market 2. Auction Looks at how much the property is worth to each person and how much they could pay 3. Status Quo must assign the entitlement to the current owner, and see how much the other party is willing to pay for it 4. Redistribution existing allocations are unfair, and need to be reallocated 5. Reverse Auction Which party would ask the most to give up the entitlement how much would the other party have to offer in order for you to give up this righ 6. Social Welfare harms and or benefits to the prevention of the activity to the community Prah v. Maretti (pg. 302.) *Solar Panel Case At early American common law, sunlight was valued for the aesthetic purposes only, and it was left that an adjacent landowners ability to use his land as he wished outweighed this aesthetic value, and no easement of light and air was recognized. Prah (P) sued to enjoin Maretti (D) from building on his land so as to block the flow of sunlight to Prahs solar heated house. Issue: Does the doctrine of prior appropriation apply to the use of sunlight as a protectable resource? Holding: Yes. Because of the development of technology allowing the practical use of solar energy, sunlight has taken on an enhanced value. Given this new technology, sunlight must be regarded as a

Property I Professor Parker Fall 2010 valuable resource and the doctrine of prior appropriation applies to protect those who first exploit the resource. A factual question is presented whether Prahs use was reasonable. Therefore summary judgment should not have been granted. Rationale: The use of sunlight is no longer only aesthetic; it must now be regarded as a valuable resource.

# 3 Prescription: Rights that accrue over time Relativity of Title: An individuals title is not absolute but relative; it may good as against one person, but not as against another who has a better claim (QUESTION) who has a better claim to title? (Title holderpeaceable possessor trespasser)

Tapscott v. Lessee of Cobbs (pg. 97) *Peaceful Possessor Case Lewis, who never had title to the land of which she was in possession until her death, bequeathed that land to Cobbs (P). Without any pretense of title, Tapscott (D) took possession of the land. Cobbs sued to eject Tapscott. Issue: Can one in mere possession of land without title maintain an action against another also without title who attempts to take possession away? Holding: Yes. Cobbs, as possessor, had the right to possession against all except him who has the actual right to the possession. The defendant, who without title or authority to enter and who attempts to oust the prior possessor, cannot defend his action on the ground that title is outstanding in another. Instead, to successfully defend, Tapscott had to show he had either title or authority to enter under the title. Being heir to Lewis possessory interest, Cobbs was presumed to be in rightful possession at the time she was ousted by Tapscott even though there was no evidence of Lewis being in possession.

#4 Adverse Possession Adverse Possession Definition: a process through which a person who uses property for a statutorily determined period of time becomes the owner of the property and defeats all rights of the person with legal or record title. Title vs. Possession (Color of Title vs. Claim of Title) o Claim of Title- A true owner can assert himself as the true title holder. When this can be done, there is claim of title. o Color of title- an individual acquires color of title when a written conveyance appears to pass title but does not do so, either from want of title in the person making it, or the defective mode of conveyance. o The adverse possession doctrine transforms trespassers into owners if they have had possession according to the specific guidelines (and) for the required time as set out by the states statute of limitations o Beneficial because it tends to prevent valuable resources from being left idle for long periods of time

Property I Professor Parker Fall 2010 o Holmes says these rules developed to protect the rights of the adverse possessor in his investment made

6 Requirements for Adverse Possession (A ECHOS) o Actual possession show improvement or the building of structures o Exclusive the use must be exclusive to the trespasser so that courts know who to give title too o Continuous doctrine rewards continuity of possession basis for transfer of title must be consistent with the nature of the land could be seasonality Nome 2000 v. Fagerstrom (pg. 187) *Summer Cabin Case o The Fagerstroms (D) used a parcel of land owned by Nome 2000 (P) for various purposes from 1944 to 1987 but did not build a house on it until 1978, thereby defeating their adverse possession claim, according to Nome. o Issue: Does a claim of adverse possession depend on the existence of significant improvements, substantial activity, or absolute exclusivity? o Holding: No. Whether a claimants physical acts upon the land of another are sufficiently continuous, notorious and exclusive does not necessarily depend on the existence of significant improvements, substantial activity, or absolute exclusivity. Use consistent with the use by any similarly situated owner is sufficient to establish claim by adverse possession. The land in question is rural and thus has a lower requirement of use. The Fagerstroms occupied the land sufficiently that their occupation was visible in 1977. The various structures erected and the feeling of the community that the Fagerstroms were the owners of the property meets the statutory requirement of continuous, notorious exclusive and hostile possession. o RULE: Whether a claimants physical acts upon the land of another are sufficiently continuous, notorious and exclusive does not necessarily depend on the existence of significant improvements, substantial activity, or absolute exclusivity. o Hostile (Claim of Title) must claim the property as your own This is the key any kind of permissive use by the true owner to the trespasser would void the adverse possession claim, as the possession no longer becomes hostile, but is permitted by the true title holder permissive use destroys the adverse possession element o Open and Notorious done in order so that if the title holder was reasonable, they would be aware of your trespassing o Statutes: Must meet the time required by the statute of limitations (different for each state)

Rule: The doctrine of tacking allows parties claiming adverse possession to use their predecessors conduct on the property to meet the time requirements of adverse possession. The relationship necessary to allow tacking is called privity. Privity occurs by contract of sale, gift, or inheritance.

Property I Professor Parker Fall 2010

Brown v. Gobble (pg. 179) *Two-Feet Piece of Land Case Brown (P) and Gobble (D) disputed ownership of a two-foot-wide tract of property on the boundary of their properties. Issue: Does the doctrine of tacking allow parties claiming adverse possession to use their predecessors conduct on the property to meet the time requirements of adverse possession? Holding: Yes. In the case at hand, the requisite period of time for adverse possession is ten years. The principle of tacking has long been recognized in adverse possession cases. This principle allows different adverse possessions to make up the requisite time for holding such possessions, so long as they are connected by privity of title or claim. Thus, although Gobble had personally adversely held the property for only nine years, the adverse possession by the prior owners of the property, who are connected to him through the title to his property, helps satisfy the elements of adverse possession, Gobble would meet the time requirement.

Rule: An indefinite and uncertain description of property in a deed may be clarified by subsequent acts of the parties. Romero v. Garcia (Color of title case) Deed lacks a signature, it is defective, so plaintiffs lack color of title Romero (P) brought suit to quiet title to land she and her deceased husband bought from his parents. Issue: May an indefinite and uncertain description of property in a deed be clarified by subsequent acts of the parties? Holding: Yes. The evidence of Romeros activities in living on the land and paying taxes on that land made it clear to the surveyor, combined with other extrinsic evidence, where the boundaries of the land in dispute lye Everything acquired during the marriage is jointly owned between husband and wife. Analysis: the main dispute here evolved around the sufficiency of the deed for adverse possession because it failed to adequately describe the particular parcel of property. 1) Extent of Land Acquired by Adverse Possession Without color of title An adverse possessor who enters with no color of title takes possession only of land actually occupied or controlled. With color of titleconstructive adverse possession- A good faith claimant who actually possesses some significant portion of the land under color of title (e.g., a defective deed) is in possession of the entire property described in the instrument; i.e., she is in constructive adverse possession of the part of the tract she does not actually possess Adverse Possession of chattels-Title to personal property may also be acquired through adverse possession. However, difficulty arises in determining when adverse possession of the owner knows, or reasonably should know through exercise of due diligence, where the goods are.

Property I Professor Parker Fall 2010 Stolen goods- A bona fide purchasers claim to stolen goods is subordinate to the owners claim unless the statute of limitations has run

#5 Servitudes Easements (Appurtenant and in Gross) Definition of Easement: A right of use over the property of another 2 kinds 1. In Gross v. Appurtenant o Easement in Gross: is an easement benefiting a person whether or not the person owns any specific property So not in connection with the ownership of land No dominant estate involved (held by an individual) Does not pass with the land, but continues to be in the individual Ex- if Dolores (dominant) buys an easement in gross from Jacob (servient), even if she sells her house to Roger, she still owns the easement because it runs with the individual o Easement Appurtenant: Serves the owner of the dominant estate (owner of the easement) in a way that cannot be separated from their rights in the estate Always need to be neighboring land Rights attached to the estate itself, passes along with title when sold- not severable May not be assigned separately Passes with the property it benefits Ex- Dolores buys an appurtenant easement from Jacob, when she sells her house to Roger, Roger now owns the easement because he now owns the land 2. Affirmative v. Negative o Affirmative- the right to do something on someone else's land No affirmative easements to act on the one's own land Traditionally law of easements did allow creation of an affirmative obligation to do something on someone's own land for the benefit of other owners, such as a duty to build a structure or pay a monthly fee to a condo association o Negative- The right to restrict a property owner from using their land in certain ways Right to lateral support Right of air flow Right to light (duty not to block light or easement holders windows) Right to channeled water flow View easements (duty not to block view) Right to solar (access to solar energy), Conservation (historical/scenic views) Law is hostile toward Negative prescriptive easement- someone else's right to use their property is restricted Just because one property owner hasnt done something for a long time doesnt mean doesnt mean the neighboring land owner accrues rights over time to restrict them from ever doing it (i.e-fountain blue case)

Property I Professor Parker Fall 2010

Law is hostile because in affirmative you can actually see them and know they are there, but with negative easement, how do you know someone is accruing rights by you not doing building or doing something on your land Harder to show the result of something you didnt do as being something that should be protected

Types of Easements: o Express o By Estoppel o Implied o By prior use o By necessity o Prescriptive

Express Easements: Easements resulting from an express grant or express reservation in a deed
Requirements to create express easements: Must be writing o Express easements are created by agreement of the parties (deed with an emphasis on the intent of grantor for interpretation purposes) o Must be in writing to be enforceable under the statue of frauds o Exceptions- prescriptive, by estoppels, implication, necessity, and constructive trust. Easements in Third Parties o Many states traditionally held that a grantor may not sell a parcel of property to A while reserving an easement over As property in B. o To get around this rule, the grantor can simply convey the property to the party who is intended to own the easement, that party then conveys the property to the ultimate grantee, reserving an easement over the property for herself.

Easements by Estoppel: an easement which the servient estate granted for a specific purpose that is not in
writing. o Most courts use an easement by Estoppel theory concluding that under the facts, the servient estate holder cannot deny the existence of the easement. o Broadly applied, an easement by Estoppel will result every time a person uses anothers land and a court finds that person would be inconvenience if he is stopped.

Implied Easements:
o The servient owner did not give permission for the dominant estate owner to use her property in all likelihood the two land owners did not even discuss one parties use of the others land Elements for Implied easement by prior use (all are necessary) 1. The unity of ownership is severed (i.e.- it was one piece of land, broken into two) 2. The use was in place before the parcel was severed (i.e.- the common owner must have engaged in the use before the severance) 3. The use must have been visible or apparent at the time of the severance. (still includes underground pipes etc) 4. The easement is necessary for the enjoyment of the dominant estate Elements of Implied Easements by Necessity

Property I Professor Parker Fall 2010 The common owner severed the property The necessity for egress and ingress existed at the time of the severance (the severance caused the necessity) 3. The easement is strictly necessary for egress from and ingress to the landlocked parcel
1. 2.

Prescriptive Easements: Means is accrues over time


o Obtained through long, continued, adverse use (6 elements) o 6 elements (same as Adverse Possession substituting possession for use 1. Actual use , 2. Exclusive use (only in a minority of states) 3. Open and notorious use, 4. Continuous use, 5. Hostile use, 6. And for the period defined by state statute o Difference from AP- Prescriptive easement doesnt have to be exclusive because you are not vesting title in holder of easement. Law of many jurisdictions will hold that general use of the public wont give individuals prescriptive easement

Running With the Land


1. For the burden to run (when the servient estate sells) o Writing o Intent o Notice Binding only if they have notice (kinds) Actual- must know there is a burden on the property Constructive- if the deed conveying the title is in the proper registry then the buyer is expected to know there is an easement Inquiry- where courts will hold you to the duty of looking around the property you buy so as to determine whether or not an easement exist (infer) 2. Benefit to run o Intent (of grantor)

Cases Dealing with Easements


Green v. Lupo (pg. 350) *Motorcycle Case (Appurtenant)

Property I Professor Parker Fall 2010 Green (P) granted Lupo (D) a deed release upon the sale of his property on the condition that when Lupo acquired title he would grant Green an easement. Green turned his land into a motor home park, where residents of that park used the parcel of land (easement land) for a motorcycle run way and D got mad and blocked the easement. P sued to enforce easement. Issue: Is an easement personal if there is anything in the grant to suggest that it was intended to be tied to the land retained or conveyed. Holding: No. There is a presumption against personal easements. The written instrument granting Lupo his easement states the easement would be granted to Green for ingress and egress to their property. Thus the easement was granted to gain access to a particular piece of land and is thus appurtenant and not personal. Cox v. Glenbrook Company (pg. 353) *Road Widening Case (Appurtenant) Glenbrook (D) owned land subject to an easement for access from Coxs (P) land; the parties contested the extent of the easement. Issue: Where the grant is unclear, must the extent of the easement be construed as broadly as necessary? Holding: Yes. As broadly as necessary for one family use as defined originally in the easement by the person holding it rather than the land it benefits. The grant was intended to give ingress and egress to the land. This intent does not support doubling the size of the road and paving it. The easement is limited to the size and nature at the time of the grant. (Can pave the road but not widen it)

Henley v. Continental Cablevision of St. Louis County, Inc. (pg. 358) *Wires and Cables Case (In Gross) Henley (P) granted the telephone company the right to construct and maintain telephone and electrical systems that Continental Cable (D) licensed in order to install cable services. P sued to for injunction to prevent and compel removal of Ds cables Issue: Are easements in gross freely transferable? Holding: Yes. The easement granted by Henley was not tied to a dominant estate and was thus in gross. The easement ranted was exclusive to the telephone company, and thus the owners of the servient estate could not affect how the rights are exercised. Because the rights are exclusive they are also alienable, consistent with the use for which the easement was granted. The addition of cable wire falls into the same electrical and telephone wiring and is no more burdensome on the servient estate. The easement should be broadly construed to allow the addition of cable wire. Courts look at 3 factors to determine the scope of the easement o Burden the use causes o Whether the easement is alienable (transferable) o Type of use proposed

#10- Covenants (pg 365-394) I. Covenants A promise by one person to another to do something or refrain from doing something. The covenantee (to whom promise is made) can enforce at law on covenantor (one who made promise) I. Real and Equitable

Property I Professor Parker Fall 2010


o

Restatement (third) (combining real covenants and equitable servitudes) Abolishes distinction between real covenants and equitable servitudes Privity is not required to obtain damages for breech of contract Covenants are likely to be enforceable today either by damages or injunction as long as 1. In writing 2. Intended to run with the land 3. Notice 4. Touch and concern

Creation of Covenant by Express Agreement o CASES: Davison Bros, Whitinsville Plaza


o

REAL COVENTANS: Running with the land (remedy- damages) Benefit- owner of dominant estate receives some benefits as a result of the agreement with the servient estate Burden- associated with servient estate- the owner of which must either do or refrain from doing something.

To show if benefit runs (to bind subsequent parties) 1. Form of covenant (an agreement in writing) 2. Intent of benefit to run In language of deed 3. Touch and concern When it enhances the enjoyment of one parcel of property by burdening the other 4. "relaxed" vertical privity- A doesnt transfer all to B

Ex- landlord/tenant- landlord (A) gets place back after certain amount of time

Show if burden runs 1. Form of covenant (agreement in wiring) 2. Intent of burden to run 3. Touch and concern 4. Horizontal privity (relationship between original covenanting parties) Exists only when the restrictions are created in conjunction with the original initial transfer (no HP if deed created after original sale of land) 5. Strict vertical privity (relationship between promisor and assignee) Vertical-Denotes the relationship between an original party to the covenant and her successors in interest Strict- transfer of entire estate from A to B No vertical privity for an adverse possessor Ex- if A conveys a covenant to B, and C adversely possesses from B, no VP between B and C Horizontal privity-

Property I Professor Parker Fall 2010 1. Mutual privity- exits when two owners have a simultaneous interest in the same parcel of land Ex- landlord-tenant relationship- landlord has future interest and tenant has present possessory interest Missing when one owner sells land to another and the grantor retains no interest in the land being sold 2. Instantaneous privity- a covenant intended to burden one parcel of land for the benefit of another can become attached to both parcels if it is created at the moment the owner of one parcel sells the other parcel A covenant containing in a deed of sale transferring a property interest will satisfy horizontal privity Covenant in a lease or mortgage satisfies it

Relationships that do not satisfy horizontal privity ( 2 most important) 1. Agreements between neighbors that aren't part of a simultaneous conveyance of another property right 2. Agreements between grantors and grantee that aren't made at the some time as the conveyance of the property interest burdened or benefited by the covenant

Vertical privity1. Strict- transfer of entire estate from A to B 2. Relaxed- A doesnt transfer all to B Ex- landlord/tenant- landlord (A) gets place back after certain amount of time

Excluded from vertical privity ( 3 most important situations) 1. Successors in interest who have an estate of lesser duration than the prior owner 2. Neighbors who are intended benefices of the covenant but aren't successor owners or possessors of the parcels owned by the contenting parties 3. Owners who derive their title form the grantor who imposed the restriction but who purchased their land before the sale of the parcel burdened by the covenant. Equitable Servitude (Injunction)
o

For Benefit to run


Form Intent Touch and concern Form Intent Touch and concern Notice

For Burden to run


Property I Professor Parker Fall 2010


Davidson Bros., Inc. v. D. Katz & Sons, Inc. (pg. 367) *Supermarket Case Facts: Davidson, a supermarket operator in N.J. opened a store on George Street. Then Davidson sells the land to D. Katz, a rug merchant. The deed contained a covenant prohibiting its use as a supermarket. The city acquired the land from Katz and attempted to procure another supermarket. The housing authority leased the C store for one dollar a year on the condition that they make certain improvements. Davidson brought suit to enforce the covenant. The trial court applying a reasonable test, determined that a covenant prohibiting the use as a supermarket of property in downtown new Brunswick was unenforceable. Issue: can a covenant be sustained if it is inconsistent with the public interest or detrimental to the public good? Holding: no, no covenant can be sustained it is inconsistent with the public interest or detrimental to the public good. The closing of the George Street location created an extreme hardship on the residents of downtown News Brunswick. Experts and testimony was introduces to show that many persons had no access to motor vehicles and that lack of markets in downtown areas make food more expensive for inner city residents.

Outline Section 11 Interpretation of Ambiguous covenants; changed conditions; undue hardships; statutory regulations Blevins v. Barry Lawrence County Association for Retarded Citizens- INTERPRETATION OF COVENANTS, INTENT OF GRANTOR a. Quick Facts: There was a restrictive covenant for a subdivision that said that the property (lots) was only to be used for single or double family dwellings. A group home tried to move into the subdivision and a neighbor sought to enforce the covenant because the group home consisted of 8 unrelated mentally retarded persons. Whats being decided is whether the 8 people constitute a single or double family dwelling b. Holding: by plain terms, the courts declared that those words apply only to the structure not the use of the property. Since the house still meets the standards in regards to structure, the covenant has not been violated. More formally, the courts held that restricting property to single family dwellings was intended to regulate architectural style rather than the relationship among the persons occupying the structure. c. Point of this case: When there is ambiguity or substantial doubt as to the meaning, restrictive covenants will be read narrowly in favor of the free use of property. 2) Presumptions a. Traditionally the policy basis is to promote the free use of land, the rights of the owners to be free from control of others, and the free alienability of land. b. Today the touchstone for interpretation of covenants seems to be the intent of the grantor. 3) Residential v. Commercial Use a. Restrictive covenants limiting real property to residential use have caused much litigation over whether and under what circumstances a group home constitutes residential or commercial use. b. Courts have taken into account whether or not rent is being paid to determine whether the group home is residential or for business purposes. 4) Structure v. use: like Blevins, the court decides whether the restrictive covenant is meant to restrict the architecture of the rather than the relationship among the persons occupying the structure. 5) Group Homes as Families: The Blevins court never got to address whether or not the 8 mentally retarded people constituted a family a. Shaver v. Hunter held that the term family in the context of a covenant restricting occupancy to single family dwellings meant nuclear or extended families and did not

Property I Professor Parker Fall 2010 include a group home consisting of five unrelated women since they were unrelated by blood, marriage, or adoption. 6) Several courts have held that although the operation of group homes violates covenants limiting property to single family dwellings, those covenants are unenforceable because they violate strong public policies prohibiting discrimination against persons with disabilities. a. Thurgood Marshall excluding group homes deprives the retarded of much of what makes for human freedom and fulfillment, the ability to form bonds and take part in the life of a community. 7) Antidiscrimination statutes: restrictive covenants that discriminate against persons with disabilities may violate federal civil rights statutes including the Americans with Disabilities Act of 1990. Modifying and terminating covenants Changed conditions Relative hardship Other equitable hardships

Property I Professor Parker Fall 2010 El Di, Inc. v. Town of Bethany Beach CHANGED CONDITIONS Quick Facts: this was an appeal from a permanent injunction granted form the court of chancery upon the petition of the plaintiffs, town of Bethany beach, prohibiting the def EL from selling alcoholic beverages at Holiday house, a restaurant in Bethany Beach. On Appeal, it was undisputed that the chain of title for the Holiday House lot included restrictive covenants prohibiting both the sale of alcoholic beverages on the property and nonresidential construction. This issue here is whether or not the conditions of the Bethany Beach have changed a sufficient amount to negate the restrictive covenant. A court will not enforce a restrictive covenant where a fundamental change has occurred in the intended character of the neighborhood that renders the benefits underlying imposition of the restrictions incapable of enjoyment. The appellate court decided that they dont need to determine a change in character of the entire restricted area in order to assess the continued applicability of the covenant to a portion thereof (because just a portion of the land had substantially changed was still enough to break the covenant) The town has changed from a church affiliated residential community to a summer resort visited annually by thousands of tourists. Also the towns decision to zone restricted property on which holiday House is located (owned by El Di), is additional evidence of changed community conditions. 5.4.4.1 Changed Conditions Doctrine 1) Changed conditions: conditions will not be enforced if conditions have changed so drastically inside the neighborhood restricted by the covenants that enforcement will be of no substantial benefit to the dominant estates. a. Ex- People were already brown bagging in Bethany beach, so why not let them sell it. 2) Restatement of Property 564: the change must be so radical as to defeat the essential purpose of the covenant or render the covenant valueless to the parties. 3) The test is stringent: Relief is granted only if the purpose of the servitude can no longer be accomplished (such as in Blevins when the quiet, Christian community originally intended by the grantors was no longer feasible) 4) Some statutes also require covenants to be of actual and substantial benefit in order to be enforceable. The Restatement (third) 1) The restatement alters the changed conditions doctrine in several crucial ways. a. It extends the doctrine to easements b. It uses termination rules to substitute for controls that had traditionally been applied through the touch and concern test. c. It suggests modification of the covenant in lieu of termination if modification will allow the covenant to serve its original purpose. Ways to Terminate Covenants 1) Language in instrument: Many subdivisions or condominiums associations are subject to covenants that terminate within a stated number of years unless they are periodically renewed by the homeowners association or condominiums owners association

Property I Professor Parker Fall 2010 2) Merger: As with easements, if the burdened and benefited estates come under the ownership of the same person, the covenant will terminate 3) Release: all parties affected by the covenant both burdened and benefited estates may agree in writing to terminate the covenant or release the property from it. 4) Prescription: Open and notorious violation of the covenant without permission for the statutory period may terminate the covenant by operation of the statute of limitations. 5.4.4.2 Relative Hardship Unlike the changed condition doctrine, which focuses on whether the covenant remains of substantial benefit to the dominant estate, the Relative Hardship doctrine focuses on the servient estate. A covenant will not be enforced if the harm caused by the enforcement, that is, the hardship to the owner of the servient estate will be greater by a considerable magnitude than the benefit to the owner of the dominant estate. (cost benefit analysis) If the benefit of the covenant is substantial, the courts are unlikely to apply the doctrine even if the hardship to the servient estate is also substantial. o Ex: in Lange v. Scofield there was a covenant that required consent by neighbors when you wanted to build a house and this lady wanted to prevent her neighbor from building so she refused to sign it because she thought if another house was built it would lower property values. The court found that any benefit received by her would be negligible in comparison to the hardship that the enforcement would cause to the person wanting to build. (hardship outweighs benefit) The third restatement treats the relative hardship doctrine not as a basis for terminating or modifying servitudes, but, rather, as a factor to consider in determining the availability and selection of appropriate remedies. 4. Other Equitable Defenses (pg 417-419) o General equitable doctrines that may result in non enforcement of a servitude Acquiescence, abandonment, or unclean hands: The complaining party may be barred from enforcing the covenant if he has tolerated or failed to object to other violations of the covenant. This may occur if the plaintiff: 1. Has violated the covenant himself (unclean hands) OR 2. Has tolerated pervious violations of the covenant by owner of the servient estate (acquiescence) OR 3. Has tolerated violations of the covenant by owners of other restricted parcels in the neighborhood covered by the covenant (abandonment) Estoppel An owner of a dominant estate who orally represents to the owner of a servient estate that she will not enforce the covenant may be estopped from asserting her interests in enforcing the covenant if the owner of the servient estate changes his position in reliance on the oral statement. (if owner of dominant estates says you can ignore covenant and owner of servient estate does so, owner of dominant estate is estopped from asserting her interests) Laches If the covenant has been ignored or breached for a substantial period of time- but less than the time necessary to establish prescriptive

Property I Professor Parker Fall 2010 rights- the court may find that unexcused delay in enforcing the covenant prompted investment in reliance on the failure to object to the violation and that enforcement of the covenant would be unconscionable. 4. Marketable title acts Statutes that terminate restrictive covenant if they are not re-recorded after a specified period of time 5. Statutes (pg 419-424) o Many states have marketable title statues that terminate restrictive covenants if they are not re-recorded after a specified period of time o Other states place rigid time limits on the enforceability of covenants and do not let them be continued simply by re-recording them CASE: Blakely v Gorin pg 420 The restriction in this case gets lifted and the court takes notice of the high tax base It may not be a fair result, and it overrides the covenant, but Mass. Allows courts to do that. Facts Summary: Blakeley wanted to build a hotel to be connected by a passageway over an alley with an existing structure owned by him. Gorin, who owned an 8 story apt. building adjacent to the vacant lot objected, alleging that it would infringe on light and air rights. Gorin also alleged that the new construction would violate the no mercantile restriction and the 16-foot distance requirement as contained in the original deeds in Mass. Issue: Will building restrictions be specifically enforced when they convey an actual and substantial benefit to the person seeking enforcement if they impede reasonable use of the land for its most suitable purposes. Holding: No, building restrictions will not be specifically enforced, even when they convey an actual and substantial benefit to the person seeking enforcement, if they impede reasonable use of the land for its most suitable purposes. The legislature may provide that outdated or unnecessary building restrictions may be denied specific enforcement by the court. Specifically in this case, the court found that restrictions were no longer valid since they would impede on the most reasonable use of the property. Normally, if any of the following conditioned exist, building restrictions/covenants may be avoided Change in the neighborhoods character rendering the restriction unfair/unnecessary Conduct of the party imposing the condition constituting waiver The party claiming enforcement owns no land in the parcel subdivision and the restrictions are not required to achieve a common plan and/or The restriction serves no public/private interest and would inhibit growth of the neighborhood and/or best use of the land.

Common Ownership of Residential Property

Property I Professor Parker Fall 2010 Varieties of Common Ownership Tenancy in common (most common)

Property I Professor Parker Fall 2010 Each tenant in common, no matter how small her fractional interest, has the right to possess the entire parcel unless all the co-tenants agree otherwise by contract. Each cotenant has an undivided interest, meaning that each owner has the right to possess the whole property; the fractional amount is important only in such questions as how the purchase price will be divided when the property is sold. When a cotenant dies, his interest goes to his devisees under his will or to his heirs under the state intestacy statue if he has not left a will or otherwise disposed of the property.

Joint Tenancy Each tenant has the right to possess the entire parcel Unlike tenants in common, joint tenants have traditionally been required to possess equal fractional interests in the property Right of survivorship when a joint tenant dies, her property interest is immediately transferred to the remaining joint tenants in equal shares. o If a joint tenant tries to devise her interest, her will would have no effect; she has no right to devise her interest (unlike in Tenancy in common where you can will your portion) Formalities of creation certain formalities are traditionally required to create a joint tenancy. Four Unities o Unity of time: the interest of each joint tenant must be created at the same moment in time o Title: all joint tenants must acquire title by the same instrument o Interest: all joint tenants must possess equal fractional undivided interests in the property and their interest must last the same amount of time o Possession: all joint tenants must have the right to possess the entire parcel Severance the right of survivorship is highly contingent because a joint tenant who transfers her property interest can destroy the right of survivorship of her fellow owners. o If A and B own property as joint tenants, each owner has the right to obtain full ownership of the property when the other cotenant dies. o Severance occurs only between the selling owner and the remaining owners; it does not change the relations of the remaining owners among themselves Ex: A, B, C, own property as joint tenants and A conveys his interest to D, the result is that D owns a 1/3 interest as a tenant in common with B and C, who each own a 1/3 interest as joint tenants with each other Tenhet v. Boswell (Joint Tenancy) FACTS: Johnson, a joint tenant with Tenhet leased his interest in the joint tenancy property to Boswell for a term of years and died during this term. After an unsuccessful demand on Johnson to vacate the premise, Tenhet sought to establish her sole right to possession of the property as the surviving joint tenant. Wanted to declare the lease invalid that her co-tenant agreed to. Issue #1: Does a lease entered into by a joint tenant sever the joint tenancy? No. A lease entered into by a joint tenant does not sever the joint tenancy. A joint interest is one owned by two or more individuals in equal shares partial alienation of one of the joint tenants interests does not breach any of four unities because it only conveys, at most, a life estate por autre vie, thus is only valid during joint tenants lifetime Does a lease entered into by a joint tenant expire upon the death of a tenant?

Property I Professor Parker Fall 2010 Yes. A lease entered into by a joint tenant expires upon the death of that tenant, a joint tenancy must be expressly declared by a written instrument or tenancy in common results (i.e. is default) joint tenants did nothing to sever joint tenancy, Johnson conveyed life estate pur autre vie, this interest in property dies with joint tenant and so he cant give any rights that he doesnt have. Note: Some courts view the lease as equivalent to a sale, and thus severs the joint tenancy

Tenancy by the entirety A from of joint tenancy available only to married couples. Has been abolished in the majority of state, but is still available in about 20 states. Its current form is similar to joint tenancy, except: o The co-owners must be legally married o The property cannot be partitioned except though divorce proceeding o In most states, the individual interest of each spouse cannot be sold, transferred, or encumbered by a mortgage without the consent of the other spouse, with the result that the right of survivorship cannot be destroyed by transfer of the interest of one party o In most states creditors cannot attach property held through tenancy by the entirety to satisfy debts of one of the spouses. (Majority of states): a creditor can foreclose on the tenancy by the entirety property only if both spouses are liable for the underlying debt or both have executed a mortgage. Pg. 588 in the book and Pg. 192 in the E&E Historically, husband and wife were considered a sole entity and so the woman had no legal identity because the male in the household typically was the only person Once women entered the workforce and thus started making money, women began making more decisions regarding the property as their legal identity grew. Sawada v. Endo (Possible fraudulent conveyance case) FACTS: Sawadas who were injured when struck by a car driven by Endo and unable to obtain satisfaction in their judgments from Endos personal property, sought to set aside a conveyance by Endo and his wife of some land which had been held by them as tenants by the entirety. Issue: Can creditors come after property held in a tenancy by the entirety to satisfy oue cpouse debt? Holding: The interest of one spouse in real property held in tenancy by the entirety is not subject to levy and execution by his or her individual creditors absent both spouses. After Married Womens property Acts, in tenancy by entirety, neither husband nor wife has separate indivisible interest in property that can be conveyed or reached by execution Indestructible survivorship, broad immunity from separate creditors, and inability of one spouse to alienate interest. Dissent: said wife could alienate estate and either creditor should be able to levy against property So Endo conveyed land to kids to avoid being held liable, and this was NOT fraudulent Transferability of Co-tenancy Interests (difference between what happens in a JT and TIC) Joint tenants and tenants in common are free to transfer their interests without the consent of their coowners. Tenants in common may leave their interests to devisees by will; joint tenants cannot do this because their interests will automatically go their surviving joint tenants when they die.

Property I Professor Parker Fall 2010 o When a joint tenant transfers his interest, the right of survivorship is destroyed and grantees interest is held as a tenancy in common with the other owners. Partition Tenants in common or joint tenants with right to survivorship are not obligated to continue in a concurrent ownership and they are not required to sell just their interest a separate themselves from the co- tenancy. o 2 ways to break ties Instead, joint tenants or tenants in common have the power to file a lawsuit for judicial partition of commonly held property. In these proceedings, the court may order the property physically divided among the co-owners. If this is not feasible or appropriate, the court will order the property to be sold and proceeds divided among the co-owners in proportion to their ownership shares. Co-owners may also agree among themselves to partition the property, either though physical division or by sale; this called voluntary partition o Fiduciary obligations of cotenants or joint tenants to share the benefits and burdens of ownership Sharing the benefits of ownership Each co-owner has the right to possess the entire parcel. If one co-owner chooses to live in the commonly owned property and the other co-owner chooses not to live there, the general rule provides that the tenant in possession has no duty to pay rent to the non-possessing tenant. Joint tenants and tenants in common do have a duty to pay rent to their co-owners if they ousted them. Ouster refers to an explicit act by which one co-owner wrongfully excludes others form the jointly owned property. Constructive Ouster Sole possession by a cotenant does not constitute constructive ouster without an affirmative act Could have ouster with and without fault Needs based approach Some courts adopt constructive ouster doctrine to require separated spouses to pay rents Other courts reject constructive ouster and hold affirmative act with notifying spouse of intent to exclude o Some courts hold that co-owners in possession have a duty to pay rent if the property is too small to be physically occupied by all the co-owners because the co-owners out of possession have been effectively excluded from the property. Co-owners have the right to share any rents paid by third parties who are possessing the property. A cotenant has the right to lease his interest without obtaining the consent of the other cotenants. Sharing the burdens of ownership Basic Expenses

Property I Professor Parker Fall 2010 Co-owners generally have a duty to share basic expenses needed to keep the property, including mortgage payments, property taxes and other assessments, and property insurance, in accordance with their respective shares. Major Improvements Cotenants have no duty to share the costs of major improvements, such as adding a new room on a house, unless they agree to do so. Some courts will hold that co-owners also have a duty to share basic maintenance and necessary repairs. Accounting In many states, co-owners can bring a judicial proceeding for an accounting to require their co-owners to pay their portion of maintenance expenses or to force co-owners to hand over the requisite portion of rents earned from third parties who possessed the commonly held property.

Adverse possession and ouster Difficult to Obtain Since each cotenant has the right to possess the entire co-owned property, one co owner cannot obtain adverse possession against another unless the possessing tenant makes clear (usually notice must be in writing, ouster will not suffice to start the statute of limitations needed for adverse possession) to the non-possessory tenant that he is asserting full ownership rights in the property to the exclusion of the other cotenants.

Co- Ownership Olivas v. Olivas FACTS: Caroline and Sam Olivas were divorced by partial decree in 1984 but district court did not enter final order dividing property until 1987. Sam Olivas argued constructive ouster and requested rent value of home from time of initial separation until division of prop (3 year gap) The Olivass held property as community property (all property acquired by each spouse is jointly owned wife has 50% of property) during marriage, after dissolution, held as tenants in common until property judicially divided Husband vacated premises Side Notes: Ouster typically suggests an affirmative physical act. But constructive ouster can occur when emotions of divorce make it impossible for former spouses to continue to share marital residence. Thus, Spouse would normally be obligated to pay. Husband bears burden of proving ouster and in this case, Mr. Olivia didnt leave because of hostility between the spouses, but because he had girlfriend o Not pushed but pulled o ALso claim for rent came late (husband had been gone too long to now come back and claim rent because the wife had no reason to think that he was going to come back and want rent) HOLDING: NO constructive ouster Carr v. Deking (Dad entering contract w/o consent of son)

Property I Professor Parker Fall 2010 Facts: George Carr, owner of a parcel of land with his son, Joel Carr, as tenants in common executed a written lease agreement with Deking without Joels authorization. Joel commenced action to declare no valid lease existed. Issue: can cotenant lease interest in property to another without consent of the other tenant and without his joining the lease? Court held cotenant may lawfully lease his own interest in the common property of another without the consent of the other tenant and without his joining in the lease (this is really shitty though because the lessee now has the same rights as the co-tenant who leased him the property which is access to the WHOLE property) Each tenant in common may use, benefit from, and possess the entire property subject only to equal rights of other co-tenant Remember NON-joining cotenant is not bound to lease with first co-tenant and third party Lessee steps into shoes of first cotenant and is tenant in common for duration of lease Cotenant not in lease may not demand exclusive possession but only co-possession o Carr cannot eject Deking o Proper remedy if not co-possession is partition (division of property held by coowners granting sole ownership to his/her share of land) o Until land partitioned Deking entitled to farm land pursuant to terms of lease Holding: Deny Carrs Want of Eviction

Kresha v. Kresha (Mom kicking out son case) Facts: Adolph Kresha and Rose Kresha (husband and wife) co-owners of 2 tracts of land. Adolph, by written instrument and without Roses consent, leased land to their son Joseph for 6 year period. Within these 6 years, divorce and dissolution decree awarded lands to Rose. She advised Joseph she was terminating lease. Issue: Are lands awarded to a spouse subject to previous arrangements that she was aware of but did not consent to? Narrow Holding: Yes, Wife cannot set aside her sons lease; she was aware of the encumbrance on the property and she was previously a tenant in common. Broad Holding: Pursuant to divorce proceeding where one party is awarded entire ownership of certain lands, those lands are subject to leaseholders interests in the ex-spouses former ownership interest.

#7 Landlord- Tenant Relations

Property I Professor Parker Fall 2010

Conflicts About Rent Landlords Right to Receive Rent 3 Main rights in Landlord/ Tenant Relationship 1) The right to receive the agreed-upon rent and 2) The right to have the premises intact and not damaged (tenants duty to not commit waste) 3) Landlords reversion or right to regain possession at end of lease term Landlords Remedies When Tenant Breaches and Refuses to Leave: Possession and Back Rent if tenant wrongfully stops paying rent or breaches other material terms in the lease and continues to occupy the premises, the landlord may sue for back-rent (rent already due but not paid) and for possession (to evict and re-rent) Holdover tenant and renewal of the tenancy if tenant wrongfully holds over after the end of the lease term and continues to pay landlord may choose to accept new tenancy relationship o most states hold that new tenancy is periodic o tenant who holds over is obligated to pay rent to landlord for term of occupation

Property I Professor Parker Fall 2010 May also regard as tenant at sufferance or a holdover tenant and sue for possession o Can landlord keep rent until eviction proceeding? Some states hold that the acceptance of rent check creates new tenancy Landlord may have to follow steps for month-to-month eviction process Or, could avoid by immediately suing for possession and by either 1) refusing to accept checks 2) cash checks but write on back not agreeing to new tenancy Self-help (Landlord handling matter outside of court) Most states hold that Landlord must evict the tenant through court proceedings Issue when tenant breaches the lease and refuses to leave is whether the landlord is entitled to engage in self-help to remove tenant o Landlord must evict tenant through court proceedings peaceable rather than forcible example of changing locks of restaurant in violation of covenant summary procedure Summary Process (When the landlord uses the court system Most states have statutes providing for summary process Tenants now have a lot of defenses (implied warranty of habitability) and now court is necessay and summary process is how courts deal with these disputes Proceedings allow for relatively fast judicial determination of the landlords claim of a right to regain possession of her property Limit issues that can be addressed in lawsuit, formerly did not let tenants raise defenses SC has still held that although the landlord does something to offend the warranty of habitability, the renter still owes money. The tenants duty to the landlord is independent from the landlords actions. Landlords Remedies When Tenant Breaches and Leaves Landlords duty to mitigate damages A different set of problems ensues if tenant breaches lease for a term of years by ceasing rent payments and moves out before end of lease term Right to sue for possession is of no use since tenant gave up and so the remedy sought by landlord are the following Three remedies 1) Accept the tenants surrender o If LL accepts T leaving LL agrees that the tenant will not be legally obligated to make payments o Back Rent Does not mean though that tenant is relieved of all financial liability because landlord may still choose to sue for back rent owed but not paid before time tenant leaves Damages for breach of the lease (different from the amount of the future rent) Landlord can sue immediately for damages Damages are usually calculated by amount that is not the remaining rent but agreed-upon rental value minus fair market value price The theory is that a landlord can re-rent the apartment but if he can only re-rent it for less, then the renter who broke the lease can be held responsible for the difference including advertising and search costs. If rental price is same as or below the market price, damages = zero 2) Re-let on the tenants account

Property I Professor Parker Fall 2010 o The landlord may refuse to accept surrender, Instead the LL may, after notice to the tenant, actively look for a new tenant to re-let apartment on tenants account o when new tenant found, landlord may sue former tenant for the difference between old rental price and new rent received from new lessee, if new rent is lower than the original o new rent must be reasonable though cannot charge $5 and sue Problem: how does landlord make clear that she is refusing to accept tenants pro-offered surrender of the lease? Some states view re-letting as accepting surrender of lease Some say act of re-letting does not preclude landlord from asserting she did not accept the surrender In others, must notify of re-letting Significance of accepting surrender o Situation in which 1 yr lease tenant moves out, and finds new tenant month-to-month and moves out too, leaving 2 months left and cannot find new tenant If accepted 1st tenants surrender, cant sue for last 2 months rent If did not accept surrender, can sue very first person in the lease 3) Wait and sue for rent at end of lease terms versus mitigate damages o Traditional rule is that the landlord may do nothing, wait for the end of the lease term and then sue the tenant for the remaining unpaid back rent. o To sue for entire rent itself landlord must wait until lease term ends Most states now reject this option Instead started to apply contract doctrine that requires aggrieved party to mitigate damages Policy Argument: By sitting around and waiting to sue, landlord is increasing damages that could have been avoided by re-letting to new tenant Mitigate damages = act reasonably to seek another tenant If the landlord fails to mitigate damages by finding another tenant and waits til the end of the lease to sue for the accumulated back rent, the amount of damages will be reduced by the amount that would have been avoided had the landlord mitigated and found new tenant if landlord does mitigate, he can still recover from tenant (1) the reasonable costs of finding a new tenant, (2) the rent for the premises while the premises were vacant and the landlord was looking for a new tenant, (3) and the difference between the rental price and the new rent paid by the replacement tenant if it is lower than the original rent Sommer v. Kridel FACTS: Sommer (P) did not attempt to re-let the premise he leased to Kridel (D), even though the opportunity to do so existed and Kridel has specifically informed Sommer that he was unable to go through with the leasing for personal reasons and asked for acceptance of his surrender. Sommer just never responded and did not make an attempt to re-let even when a third party inquired about the apartment. Instead the landlord just brought suit to collect damages for breach on contract and backrent. ISSUE: Must a landlord make a reasonable effort to mitigate damages by attempting to re-let the premises when a lessee surrenders ? HOLDING: YES. If a lessee has affected a surrender of the leased premises, the landlord is under an obligation to make a reasonable effort to mitigate damages by attempting to re-let the

Property I Professor Parker Fall 2010 premises. Such mitigation of damages is his duty when he seeks to recover rents due from defaulting tenant. #17 Tenants Right to Habitable Premise The Covenant of Quiet Enjoyment Implied term, which need not be in writing, in which the landlord promises not to disturb the tenants quiet enjoyment of the property This includes a wide array of things including no insects When the landlord breaks this, the tenant may have cause action against the landlord. Balckett v. Olanoff (pg 703)- (noisy bar next door case) Tenants alleged that the landlord breached his covenant of quiet enjoyment as a defense to an action for rent after the landlord rented nearby property to a noisy bar forcing the tenants to vacate Issue: Can a constructive eviction be found where the landlord permits a third party to substantially impair the rights of other tenants? YES Rationale: where the landlord permits an activity to continue, which he can control, that causes significant impairment of the rights of other tenants, this constitutes a breach of the landlords covenant The Structure of landlord-tenant litigation Landlord Initiating Lawsuit o Most lawsuits involve claims by the landlord against the tenant based on the tenants failure to pay rent or some breach of the lease agreement o The landlords complaint may seek either: Payment of back rent owed to the landlord or Possession of the premises (eviction) o The landlord may also claim for damages resulting from the breach o The tenant can answer each of these claims by: Denying that he has breached the lease or He may raise defenses to these claims o The tenant may also make counterclaims against the landlord including Claims for damages resulting in the landlords breach of lease May result in rent abatement (reduction in rent) or amounts measured independent of the rent value All courts will allow the tenant to recover damages if the landlord acted negligently and physical harm resulted Tenant may also claim injunctive relief to fix the apartment of end the lease, etc. Tenant Initiating Lawsuit o Rather then waiting for the landlord to sue the tenant, the tenant may sue the landlord initially with the tenants claims. Such lawsuits ordinarily ask for damages resulting for the landlords negligence maintenance or compensation from injuries resulting from the landlords failure to comply with the housing code or an injunction ordering the landlord to fix the apartment to comply with terms of lease or housing code. Landlords Complaint Actual eviction

Property I Professor Parker Fall 2010 If the landlord breaches the lease by physically barring the tenant from the property, the tenants obligation to pay rent ceases Landlord physically forces tenant off property or no longer allows tenant to enter property Ex-changing the locks Partial actual eviction- Landlord bars tenant from part of property constitutes a breach of the lease and provides the tenant with ample justification to move out before the end of the lease term Minjak Co. v. Randolph (pg 701)- (dusty loft case) Tenant of a property withheld rent payments because their loft was constantly covered in dust and water damage from construction, causing him to abandon part of the premises. Landlord (Minjack) sued for nonpayment and tenant (Randolph) counterclaimed for breach of warranty of habitability. Issue: May a tenant assert the defense of constructive eviction for the nonpayment of rent, even if the tenant is still living in a portion of the property? YES Rationale: Tenant had to abandon the portion of the loft due to landlords wrongful acts Traditionally in constructive eviction you have to leave (old concept) Here you can claim partial constructive eviction and withhold rent even though you dont leave the premises- traditional rule was too harsh on tenants

Tenants Complaint (defense) Constructive eviction Theory: when the landlord allows the conditions in the apartment to deteriorate such that living in the apartment is either impossible or uncomfortable, her actions are functionally equivalent to physically barring the tenant from the premises Occurs when the landlord substantially interferes with the tenants quiet enjoyment of the premises The defense of constructive eviction allows the tenant to stop paying rent and move out before the end of the lease term Traditionally, the tenant can raise the defense of constructive eviction only if he moves out within a reasonable time period If the tenant stays, then this can be used as evidence for the landlord that the interference is not sufficiently serious to justify allowing the tenant to stop paying rent or ending the lease Partial constructive eviction: tenants can show that the landlords actions have substantially deprived the tenant of the use and enjoyment of a portion of the property Landlords liability for acts of other tenants Traditional rule" provides that constructive eviction may be shown only if the landlord has acted in a way that interfered with the tenants interest in quiet enjoyment Under this rule, the landlord isn't responsible for acts of other tenants unless the lease specifically includes an obligation to control the conduct of other tenants Some courts have found that the landlord has a duty to control neighboring land and tenants in proximity from interfering with their tenants quiet enjoyment.

Property I Professor Parker Fall 2010

Implied Warranty of Habitability Before 1970s most courts held that LLs had no implied duty to keep habitability, only had to fix latent defects Courts held that contractual obligations between landlord and tenant were independent rather than dependant- meaning the parties obligations to perform were not contingent on the other parties performance Now, In recent years, most states have repudiated both the lack of a duty to repair or maintain and the independent covenants rule for residential housing Some states measure the landlords obligation by reference to state or local housing codes, however others measure their obligations independently of the applicable housing code, holding that the landlords have an obligation to conform with "general community standards of suitability for occupancy" Remedies: Various remedies are available to vindicate the tenants rights under the IWH including: 1) Rescission- the right to move out before the end of the lease term 2) Rent withholding 3) Rent abatement- reduction in the rent 4) Repair and deduct- tenant pays for repairs themselves and deducts the cost form the rent 5) Injunctive relief, or special performance- ordering LL to comply with the housing code 6) Administrative remedies 7) Criminal Penalties- including fines and imprisonment for LLs who fail to fix dangerous and unlawful conditions 8) Compensatory damages CASE: Implied Warranty of Habitability Javins v. First National Realty Co. (pg 709)- (housing code violations case) Javins and other tenants refused to pay rent due to approx 1,500 housing code violations in the building. Landlord brought suit to recover possession and past due rent. Issue: Do leases of urban dwelling units contain an implied warranty of habitability, the breach of which gives rise to the usual remedies for breach of contract? YES Legal Question: Whether hosing code violations during a lease have any effect on tenants obligation to pay rent. Rationale: Common law recognizes the LL's obligation to keep the premise in a habitable condition. Districts housing codes also require an implied warranty of habitability. Tenants obligation to pay is dependant on the LL's performance of his obligations.

Retaliatory Evictions (tenants defense in response to an eviction) The removal of a tenant from possession of property of property due to the tenants complaints or other conduct to which the landlord is opposed. When a landlord evicts a tenant in retaliation for tenants action in complaining to -tenant laws in many states forbid such evictions if proper channels are taken to lodge the complaint. Factors for deciding whether a tenant has established a defense of retaliatory eviction from Hillview*(Landlord needs to prove that he did not evict our of retaliation) (a) The landlords decision was a reasonable exercise of business judgment (b) The landlord in good faith desires to dispose of the entire leased property free of all tenants (c) The landlord in good faith desires to make a different use of the leased property

Property I Professor Parker Fall 2010 (d) The landlord lacks the financial ability to repair the leased property and therefore, in good, faith, wishes to have it free of any tenant (e) The landlord was unaware if the tenant's activates which were protected by statue (f) The landlord didnt act at first opportunity after he learned of the tenants conduct (g) The landlord's act was not discriminatory Hillview Assoc. v. Bloomquist (pg726)- (trailer park altercation) Facts: Tenants of a trailer park contacted their state rep regarding concerns over physical condition of their trailer park. At a meeting with managers escalated to a physical altercation between one tenant (Davenport) and a manager. Hillview tried to evict some of the tenants from the meeting and tenants raised the defenses of retaliatory eviction and waiver. Issue: May tenants organize and join a tenants assoc. and participate in activities designed to legitimately coerce a LL into taking action to improve living conditions without fear or retaliation? YES Rationale: They may participate in these activities, however, engaging in physical threats or violence is not a legitimate method of coercion and termination due to this sort of activity will not be deemed retaliatory (for Davenport.) Other tenants have established their affirmative defense of retaliatory eviction based on factors above. Imperial Colliery Co. v. Fout (Retallitory Eviction) Facts: Fout worked for Milburn Colliery Co as a coal miner. For 6 yrs he had a month-to-month lease in a dwelling owned by Imperial, an interrelated company. After several extensions, Imperial instituted an eviction proceeding that Fout claimed was in retaliation for his participating in a labor strike and a violation of his first amendment rights of speech and assembly; he also counterclaimed seeking injunction from them evicting him and damages because they kept annoying and inconveniencing him. The company who owned his lease also was the company he worked for because this was a mining town. Issue: 1. May a resident tenant who is sued for re-possession of his property, eviction, assert retaliatory eviction as a defense? YES 2. Must a retaliatory eviction defense relate to the tenant's exercise of rights incidental to the tenancy? YES Holding: 1. A tenant shouldn't be punished for claiming benefits afforded by health and safety statutes or for requiring a LL to fulfill his duties to perform maintenance and repairs to make dwelling habitable. A defense of retaliatory eviction may be asserted as a defense against summary judgment 2. Fout raised his retaliatory eviction defense in the contest of his union activities and labor strike. He claims that Imperials motive for eviction proceeding are in violation of this rights to free speech and assembly because he was involved in a protest. These rights don't arise from the tenancy relationship, which is instead based in contract law. Any alleged violation of those rights may be addressed in an independent action, but cannot provide the basis for a retaliatory eviction defense. a. Retaliation claim has to be related to your tenancy for it to apply # Property and Sovereignty Regulatory Takings Law

Property I Professor Parker Fall 2010

Defining v. Defending Property Rights: How can the states both define property rights and be limited by them? Property Rights: Property rights are limited to protect the legitimate interests of other owners and of non-owners who may be affected by the exercise of those property rights The state must have the power to pass laws regulating and limiting the use of property to protect public health, safety, and welfare th The 5 Amendment prohibits the federal government form taking private property for public use without just compensation This limitation on governmental power has been held to apply to the state governments through the 14th Amendment prohibits the states from depriving persons of property without due process of law Because property rights must be limited, the state must have the power to DEFINE the scope of property rights so as to establish the scope of the basic framework of legal relationships in the marketplace Property rights must be defended from illegitimate encroachment by the state Police Power: Encompasses the original power of the state governments to pass legislation regulating private conduct to protect the public health, welfare, and safety Ex- law limiting speed on public highways, enviro protection legislation, housing codes No compensation required Eminent Domain: Power of the states to take or condemn private property and transferring the property to some use designed to further public welfare Ex- state taking private property to build a highway Just compensation required Takings hinges on the characterization of a regulation as police power or eminent domain power Takings clause mediates between the police power and the eminent domain power by defining when a purported exercise of the police power has gone "too far" in infringing on private property rights without adequate public justification, constituting an exercise of eminent domain power, needing compensation. The takings clause had 3 separate elements: (a) A taking (b) For public use (c) Without just compensation Per Se takings and the Ad Hoc test Ad Hoc (Case by Case basis) Courts generally look at the "particular circumstances" of each case, "engaging in essentially ad hoc, factual inquires," focusing on 3 major factors (from Penn Central) The character of the government action The protection of reasonable, investment back expectations and The economic impact of the regulation on the particular owner Ad Hoc test places the concepts of fairness and justice at the heart of the takings clause Per se (Exceptions where you dont even need to use analysis to determine the case, because it is a taking via a bright line rule)

Property I Professor Parker Fall 2010 The court has attempted to develop a number of per se tests to identify types of regulations that constitute categorical takings where compensation is required regardless of the importance of the public interest. Per Se categories are an application of the general rule; they merely identify particular circumstances that are almost certain to be classified as regulatory taking. Per Se Takings (5 categories of regulatory action) Government mandated "permanent physical invasion of property (Loretto) and Regulations that "completely deprive an owner of all economically viable use of her property unless background principals of nuisance and property law independently restrict the owner's intended use of the property (Lucas) Deprivation of certain core property rights or estates in land (Babbitt- right to transfer property after death) Retroactive deprivation of vested rights belonging to owners who invested reasonable reliance on a prior regulatory authorization Required dedications of property imposed as conditions on land use development permits when those dedications do not substantially advance the same interests that land-use authorities asserted would allow them to deny the permit all together (Lingle, Nollan, Dolan)

Cases that use the Penn Central Test to Analyze Ad Hoc Takings Pennsylvania Coal Co v. Mahon: (subsidence v. surface rights, taking) FACTS: Penn Coal contracted surface rights to Mohan, who then brought suit for an injunction, under the Kohler act (which says you cannot mine where is would disrupt the surface rights) when Penn tried to mine under his property, effecting the substantial structure underneath that held up the property. There are three rights in question: the surface area, the coal, and subjacent support, (below ground surface structure). Mohan only contracted for the rights to the surface area, and if the Kohler act were to be applied, it would be a "taking" of the rights to the underground surface structure from Penn. The trial court allowed an injunction to prevent def from mining under P's surface land, Penn appealed. ISSUE: Whether the Kohler Act as applied to the property in question constitutes an exercise of the police power, requiring no compensation, or of eminent domain, requiring compensation; The Kohler Act as applied to the property in question constitutes an exercise of eminent domain, requiring compensation RULE: The Court ruled that whether a regulatory act constitutes a taking requiring compensation depends on the extent of diminution in the value of the property. RATIONALE: Majority (Holmes) General rule that while prop may be regulated to a certain extent, when it goes to far then its a taking (doesnt say what constitutes too far). The damage done by the activity is prohibited by the act is a private, not a public nuisance; there is no public safety justification for the statute, as notice before mining would suffice to protect public safety. The Extent of the diminution is great Important that the Coal company specifically contracted for the underground rights to mine the coal. Mining of Coal is an important resource and so by not allowing the coal company to mine, you are restricting this valuable resource. Dissent (Brandice)

Property I Professor Parker Fall 2010


The regulation is in fact a nuisance law, there is a threat to the public welfare so common law of Pennsylvania can act and not compensate Just because some homeowners are benefited in some disproportionate way doesn't mean it not in the interest of the public In response to argument that notice would be enough, he says the court isn't in the business of coming up with an alternative of the legislature of Pennsylvania (clearly the legislature is the one that made the Kohler Act) In response to the magnitude of the taking being great, restrictions do not become invalid just because it restricts value (remember the majority talks about how valuable the coal is) Just because they los their coal doesnt mean they need to be compensated

Penn Central Transport Co. v. New York City (landmark regulation, no taking) FACTS: NYC's Landmark Preservation Law provided for a commission to designate a building as a "landmark" and allowed the property owners to seek judicial review of the decision. Although it opposed designation of its Grand Central Terminal as a landmark, Penn Central (P) didnt seek such judicial review. There was a subsequent decision to not allow the building of a multi story office building over the terminal. The building project was part of an agreement w Union General Prop under which they were to contract the office building and lease it for $3 mill a yr, also paying $1 mill during construction. Two proposals denied because they change the aesthetics of the structure. Penn Central brought suit in state court claiming that failure to permit construction of the building had severely limited its use of its property. ISSUE: If an owner is restricted in the exploitation of his property because it had been designated as a "landmark" under a landmark preservation statue, has there been a "taking" of his property for a public use within the meaning of the 5th amendment? NO HOLDING: Majority: Creation of Ad Hoc Test Ad hoc- factual inquiry 1. Character of govt action (reason behind the action): land mark restriction 2. Economic impact of regulation: NY making money via tourism v. Penn Central having to preserve this landmark 3. Interference with distinct invest backed expectations: they has a railroad before, and they still have a rail road. You cannot say that a taking is established by simply showing the Penn had been denied the ability to exploit a property interest that they had believed was available for development, nor can diminution in prop value alone establish a taking Average Reciprocity of Advantage: Penn is not solely burdened and unbenefited, (not arbitrary and Penn argued it was) the preservation of landmarks being of benefit to all citizens of NY. There are many (53) landmark buildings and the burden is shared Investment Backed Expectations: Penn's use of the air and space above the terminal has not been totally denied- look at property as a whole. There is not 100% diminution in value. They still have original use and transfer development rights. Penn Central the property to build a rail road and there is STILL a railroad DISSENT: Comparing Landmark regulation to zoning regulations is inappropriate because zoning places all prop. owners in an area under similar restrictions for their common benefit as well as for the benefit of the municipality but such ARA is absent in this case. (Dissent feels that a few property owners are bearing the burden associated with the citys desire to preserve a limited amount of landmarks) The dissent does not think that PC should bear the burden any more than their neighbors and taxpayers of NY that are benefiting from the regulation.

Property I Professor Parker Fall 2010


Thinks the majoritys rule that a taking only occurs where the property value is zero is ambiguous and hard to define. Dissent feels that the court needs to examine if TDRs are full and just compensation for their burden.

Miller v. Schoene (pg 957)- (cedar trees case, no taking) FACTS: A Virginia statute provided for the destruction of cedar trees, infected with cedar rust, which were located within a certain radius of an apple orchard. The statue allowed compensation of $100 to the owner of the trees to cover removal expenses and permitted him to use the timber. ISSUE: May a state constitutionally decide upon the destruction of one class of property in order to save another, which, in the judgment of the legislature, is of greater value to the public? HOLDING: Yes, one of the features of the police power as it affects property is the preference of the public interest over the private property interests of an individual. Since far greater public interest is attached to the preservation of the apple industry, the statue is constitutional. Not deprived of all economically viable use given use of the infected lumber. Per Se Takings #1 Physical Invasions: Pruneyard Shopping Center v. Robins (pg. 976) (Political material on private property case, no taking) FACTS: Robins (P) and others handed out political materials on retail property owned by PruneYard (D). D removed them from the property. P filed suit, contending that he has a constitutional right to distribute his lit. there. The Cali Supreme court rules that, under the Cali constitution, the right to distribute literature existed. D appealed, contending that this ruling deprived him of his property rights, in contravention of the 5th and 14th amendments. (Taking away property right to exclude). ISSUE: May a state constitutionally mandate that a private property owner allow political activity on his property? YES RATIONALE: It is true that the right to exclude others is one of the inherent elements of property rights, so long as the property's value isn't so diminished that the owner has suffered a taking. There is not evidence here that D has suffered any diminution in property value, so no taking has occurred. Applies Penn Central Test Under this standard there hasnt been a taking Value and use isn't unreasonably impaired Conflict of First and Fifth Amendment, the Fed Const. gives the floor for the First amendment, States may raise First Amendment rights to Fifth Amendment ceiling In a state, you may exercise your First Amendment right so long as you dont infringe on Fifth Amendment rights of others. Pruneyard claimed that this was a physical invasion which is a per se taking, the court said this was a NOTE: slight physical invasion but it wasnt enough to fall under the exception so we must use Penn Central to determine the amount of diminution in value, the physical invasion is not viewed as determinative. Loretto v. Teleprompter Manhattan CATV Corp. (pg. 979) - (cable box on roof case, taking) FACTS: D installed its cable TV equipment on a building subsequently purchased by Loretto (P). The Equipment was permanently fastened to the building and was placed there under authority of the previous owner and the state. NY legislature required landlords to attach these cable boxes to their building to prevent the landlords from gouging their tenants for cable. P sued the cable company and the city of NY, claiming that the legislation was unconstitutional (violating the Fifth Amendment). The trial court said it was not a taking, as cable TV served an important public interest. P appealed from the entry of summary judgment and the appeals court affirmed.

Property I Professor Parker Fall 2010 ISSUE: Is a permanent physical occupation of property authorized by government a taking, regardless of the interests served? YES RATIONALE: Although substantial regulation of use is not necessarily a compensable taking, an actual physical occupation, no matter how slight, must be considered a taking and requires just compensation. If there is a permanent physical occupation by the government, it is a taking without regard to social interest. Permanent physical occupancy cuts into all of your bundle of rights, i.e. right to convey, right to exclude If the law requires a specific manufacturers cable box to be on your property it is a taking (as is the case here), but requiring any type of cable box to be on your property would just be a police power. DISSENT: (Blackmun) Contrary to established precedent; the Court announces a per se taking test arising out of physical occupation. Notes and questions 1013-1016 The physical invasion rule: SC often repeats that a per say taking occurs when a law authorizes a permanent physical invasion of property Although Loretto tires to establish a clear rule, not all physical invasions of property by the state are takings of property and that the rule announced in Loretto is very narrow. Loretto opinion tired to distinguish from Pruneyard, because there wasnt a permanent physical occupation. Court says in Pruneyard, prop. was open to public and state constitution in Cali didnt prevent owners from setting reasonable time, place and manner, for people to distribute pamphlets. Here the property is private and the invasion is permanent rather than temporary. #2 Deprivation of Core Property Rights: Conceptual Severance- the practice of identifying particular strands or sets of strands in the bundle of rights that may characterize property, holding as severable and identifiable property interests for the purpose of takings analysis This strategy hypothetically or conceptually severs from the whole bundle of rights just those strands that are interfered with by the regulation, and then construes those strands in the aggregate as a separate whole thing. Babbitt v. Youpee, (pg. 63) (Deprivation of right to pass property after death, taking) FACTS: Congress passed the Indian Land Consolidation Act to ameliorate the fractionation problem attendant to an outdated allotment policy that yielded multiple ownership of single parcels of Indian land. The court invalidated section 207 of the ILCA in Hodel v. Irving on the basis that it constituted a taking without just compensation. While the suit was pending, Congress amended this section. As amended, the interests in this case would escheat to tribal governments unless willed to another current owner. The descendants of Youpee brought suit challenging the constitutionality of the provision. ISSUE: may congress legislate in such a way as to abrogate the right of persons to pass on property to his heirs? NO HOLDING: (Ginsburg) as amended, the section still severely restricts the right of an individual to direct the descent of this property. Allowing a decedent to leave an interest only to a current owner severely restricts the number of potential successors. DISSENT: (Stevens) the federal government has a valid interest in removing impediments to the development of property. No taking. Notes and questions 1013-1016

Property I Professor Parker Fall 2010

Andrus v. Allard The Eagle Protection Act prohibited the sale of eagle feathers, including those acquired before the act was passed The court held that the statute didnt effect a taking or property without just compensation despite the total ban on sale "the denial of one traditional property right doesnt alwa ys amount to a taking. At least where an owner possesses a full "bundle" of prop rights, the destruction of one "strand" of the bundle is not a taking, because the aggregate must be viewed in its entirety." Is Allard consistent with Babbitt? No. Future interest and covenants: courts ordinarily dont find a taking when statutes retroactively alter the enforceability of covenants by modifying the changes condition or relative hardship doctrines.

#3 Deprivation of Economically Viable Use: 2 Categories of regulatory action as compensable without case-specific inquiry in public (Loretto) Regulation that compel the property owner to suffer a physical "invasion" of his property (Agins/Lucas) where regulation denies all economically beneficial use of land Expectations to loss of economically viable use If the state deprives you of all economic use they have to compensate, EXCEPT when your title didnt allow you to do those things in the first place Nuisance is part of implied limitations when you buy property- if the state exceeds these limits then the state must compensate (if act would not constitute a nuisance and the govt. deprived owner of all economically viable use, then it is a taking) Agnis v. City of Tiburon (Handout) (Cali zoning ordinances, no taking) FACTS: California state law required the city to prepare a general plan governing both land use and the development of open space land. In response, the city adopted two ordinances that modified existing zoning requirements. After appellant acquired 5 acres of unimproved property with the intent of building a large residential community, the zoning ordinances were modified placing their land in a residential planned development and open space zone, which said they could only build between 1 and 5 homes on this land. The Appellants sought damages for inverse condemnation and a declaration that the ordinances were unconstitutional because their land was taken without compensation. Appellants claimed that their land had greater value than other land in California because of the views and the rezoning prevented development for the purpose that they had planned, therefore completely destroying the value of the property. ISSUE: Does the enactment of zoning ordinances constitute a taking? NO HOLDING: They have not taken without just compensation. He is still able to build on the property, just not to the extent that he wanted. Test for determining if the zoning ordinance is constitutional o Must substantially advance a legitimate state interest and o Not deprive owner of all economically viable use In this case o The enactment does advance state interest o Doesnt deny him economically viable use of his land, can still submit a plan of building. No guarantee that you can use your property in the most viable way

Property I Professor Parker Fall 2010 RULE: 5th Amendment is violated when land-use regulation does not substantially advance legitimate state interests or denies an owner economically viable use of his land Here, he was not completely denied economically viable use of his land. Not a taking Lucas v. South Carolina Coastal Council (100% diminution in value= taking) FACTS: In 1986, Lucas (P) brought two residential lots near the ocean for $975.00.00 with the intention to build single-family homes. In 1988, South Carolina (D) enacted the Beachfront Management Act, which sought to counteract coastal erosion. Originally, places in the "critical area were allowed to be built on. The law restricted new development of beachfront areas and barred Lucas from building homes on the lots. Lucas brought suit contending that the Act was an unconstitutional "taking" of his property. The trial court rules that the act deprived him of any reasonable economic use of the land and was an uncompensated taking. The South Carolina Supreme court reversed, holding that the regulation was designed to prevent serious public harm, and it didnt constitute a taking (consistent with Miller) ISSUE: Must a state compensate a landowner when a regulatory action denied an owner of economically viable use of the land? YES HOLDING: A regulation that denies all economically beneficial and productive uses of land is the equivalent of physical appropriation and must be compensated under the Takings clause. The court had previously acknowledged the regulations that restrict nuisance-like uses of land may provide an exception to the general rule on takings (which is not the case here). The Beach management act deprived Lucas's land of all economically beneficial use and restricted uses which were previously permissible. Therefore, it was an unconstitutional taking. What the opinion stands for: the state must compensate when it deprives owner of all economically viable use (per se exception to Penn central test) except where the regulation does no more than state nuisance law. In this case, if S Carolinas common law of nuisance said you cant build on the beach front property and the regulation says the same, they dont have to compensate When the regulation exceeds what nuisance law says then it has to compensate Palazzolo v. Rhode Island (Handout) (purchase of prop after regulation, not a Lucas exception, analyze under PC) FACTS: In 1959, Petitioner Palazzolo and business associates, operating under the name Shore Gardens, Inc. (SGI) purchased three undeveloped parcels on the Rhode Island coast. Prior 1971 owners of coastal land required a permit from the Rhode Island division of Harbors and Rivers in order to erect structures on coastal lands. In 1971 RI enacted legislation creating the Coastal Resources Management Counsel, charged with protecting the states coastal properties (wetlands). Petitioner Palazzolo eventually became the sole shareholder of SGI and bought land upon their default, personally becoming the titleholder of that land resulting in the title changing from SGI to Palazzolo in 1978. Palazzolo began efforts to redevelop the land by submitting parceling plans to the town. As the land required significant filling, Petitioner Palazzolo submitted applications for permits from the Division of Harbors and Rivers, which were denied. In 1983, Petitioner Palazzolo again attempted to develop the land, submitting several permits, all of which were rejected. He also challenged the Council's determinations as contrary to the principles of state administrative law, but the courts affirmed the Council's actions. Petitioner Palazzolo sued in Rhode Island courts for inverse condemnation. Eventually, the Rhode Island Supreme Court rejected his claims. Palazzolo argued under the authority of Lucas, claiming that he had been denied all economically viable use of his property. ISSUE: Is the claim ripe and does a claimant waive his right to challenge a regulation as an uncompensated taking by purchasing property after the enactment of the regulation challenged? NO HOLDING: The Court held that the Rhode Island Supreme Court erred in holding that Petitioner did not have standing to sue because he acquired the property after the enactment of the regulations. The Supreme Court of Rhode Island rejected his taking claim for 3 reasons:

Property I Professor Parker Fall 2010 1. The court held the claim was not ripe for decision 2. Palazzolo had not been deprived of all economic value because he could develop the upland property away from the water 3. The court noted that at the time Palazzolo acquired title to the property from the prior owner the law regulating the development was already in place, holding that he could not have reasonable investment backed expectations The Supreme Court of the US reversed the 1st and 3rd findings, and reserved judgment on the 2nd 1. Ripeness- The claim is ripe when its able to go to court. If you havent exhausted all administrative appeals the claim is not ripe. The SC rejects this notion, says the claim is ripe. 3. Post regulation acquisition of title RI says because the regulation was already in place, you cannot claim a taking under Lucas, or Penn Central o This is a timing issue- implicit in Lucas, state may not put an expiration date on the right to claim a taking, if timing made the basis it matters whether you were positioned before the law came into effect or after it came into effect. Owners before the law can claim a taking if govt. tried to restrict use but owners who acted after the law was passed couldnt claim a taking. US SC disagreed- timing should not be the basis (no expiration date on a takings claim) RESULT: Remanded to lower court to be determined under the Penn Central Test because Lucas isnt applicable. Relating Palazzolo to Lucas: Lucas says owners who buy before the law is made can claim a taking and those who buy after the law is made (and therefore aware of the regulation) cannot claim a taking. Palazzolo says making the timing the basis of whether or not something is a taking would be prejudicial because it would differentiate those who buy after the law came into effect and those who buy before the law came into effect. Court distinguishes from Lucas something does not become a background principle because of a title change Background principle regulation or common law rule cannot be background principle for some owners but not for others Does not fit under Lucas Tahoe-Sierra Preservation Council v. Tahoe Regional planning Agency (Handout) (Temporary Deprivation, not Lucas exception, analyze under PC) FACTS: California and Nevada created the Tahoe Regional Planning Agency (TRPA) to plan the development of the basin of Lake Tahoe. Between 1981-1984 the TRPA issued two moratoriums on virtually all residential development within the basin. The first moratorium lasted roughly 24 months and the second lasted about 8 months until the TRPA had adopted its comprehensive land-use plan. The plaintiffs in the case are a group of persons who own real estate within the jurisdiction of the TRPA and were therefore subject to the moratoria. The plaintiffs are challenging the law on the grounds that the moratoria issued by the TRPA were in fact takings as described by the Takings Clause of the US Constitution in the Fifth and Fourteenth Amendments and that therefore they should receive just compensation. ISSUE: Does the enactment of the moratorium deprive the plaintiffs of all economic viable use of the property, therefore entitling them to compensation (falling under the Lucas exception)? NO HOLDING: A temporary taking is not a deprivation of all viable economic use, cannot use the Lucas exception (but can be looked at through the Penn test). Lower courts say that it was partial taking and therefore a taking under the 5th Amendment and appellate court overrules saying it wasnt permanent and therefore should not be considered a taking. RATIONALE: (Justice Stevens) Moratorium did not constitute a taking

Property I Professor Parker Fall 2010

Discards the petitioners assertion that the enactment of the moratorium deprived the plaintiffs of all economic use of the property and therefore requires compensation. Case law does not support, and in fact, rejects the idea that a temporary moratorium invokes the Just Compensation clause. The text of the Fifth Amendment itself, he argues, creates a distinction between physical takings and regulatory takings, specifying that only physical takings of private property for public purposes require just compensation. Dismisses the precedent of Lucas, saying that logically, the property at issue in the present case cannot be considered to have lost all economic value since as soon as the moratorium is lifted it will recover all economic value. Fluctuations in property value he said cannot be considered constitutional takings. There is an inherent difference between the acquisition of property for public use and the regulation of property from private use. This regulation should be classified as a regulation of property from private use. (POLICY) If governments are required to compensate landowners every time a moratorium is put into place in order to plan the development of an area, then officials will either rush through the planning process or skip it altogether fostering growth in the community that is either ill conceived or inefficient.

Summary of Takings thus far: Court has said in recent years that jurisprudence has Ad Hoc factors: Three factors for ad hoc inquiry from Penn central test Character of government action More likely to be held as police power if govt. action is considered to be regulation of property use as opposed to forced occupation (Loretto) or interference with contracted rights (Penn Coal) Police power is designed to protect community from harm as opposed to extracting benefit Economic impact of regulation Courts are reluctant to engage in conceptual severance Will look at extent taken to property owners entire interest for extent of deprivation Where the regulation results in diminution of value they consider whether it confers an average reciprocity of advantage Does it take and give benefits to everyone If so, it mitigates any diminution of the value Diminution of value alone cannot transform a regulation into compensable taking if there's strong public interest (Miller) Interference with investment back expectations Designed to limit relief of compensation of holders of exiting rights and interests Unlikely to be found a taking if it interferes with future or speculative rights of property Exception to exception in Lucas, Existence of a regulation before you invest property doesnt automatically negate that your investment backed expectations have been interfered with (Palozzolo) Per say exceptions to standard of Penn Test Permanent Physical occupation Loretto- physical occupation is a taking without regard to public interest Pruneyard - its a temporary occupation, doesn't count Loretto Yee- changing business regulation, doesnt count under Loretto Denial or deprivation of all economically viable use Agins and given strength in Lucas

Property I Professor Parker Fall 2010 Exception to exception- background principals and state laws of nuisance Temporary deprivations dont count Regulations that deprive prop owner or certain core property rights (limited and specific) Court may buy conceptual severance Babbitt-Right to transfer property in death Even though analyzed through Penn, this right cannot be impinged upon without compensation Distinguished between Andrus v. Allard(reg on eagle feather sale) can take away right to alienate property

#4 Linkage/Exactions When govt. is conditioning property building based on a condition that you do something. We are going to let you do something, if you do this These cases involve scrutiny of exactions requirements in order to ensure that there is a certain fit between exactions and the states goals measuring burdens imposed by regulation and consequences of activity Rationally related vs. roughly proportionate; allowing an exception to a regulation as long as they follow a condition. The condition becomes a taking when it isnt related to the purposes of the original regulation. In exaction cases, regulation is already considered constitutional and not a taking so now we look to see if the exaction imposed by the government are constitutional via essential nexus.

Nollan v. California Coastal Commission FACTS: The Nollans submit a permit to build a bigger home. State said Nollans may build their house but they need to give the public an easement exchange. Courts require this condition on the permit because new house would increase blockage of view of ocean and contribute to wall of residential structures and would prevent the public from psychologically realizing that they have right to go to the beach. Also, increases private use as homes get bigger, government feels this could be offset by requiring dedication of the easement. ISSUE: Must be an essential nexus between regulation and legitimate state interest that the regulation on the property supports? (must there be a connection between this condition (of making the Nolans grant this easement) and the regulations purpose (the state interest of not letting houses be built above a certain point so people are not aware that the beach in front of the big houses is public. ) Parkers Example: if the easement is not related to the original purpose of the regulation, it would be like letting someone shout fire in a crowded movie theatre if they pay the movie theatre $100. HOLDING: Yes, there needs to be a nexus but in this case, the nexus does not exist between the condition set by the government and the original purpose of the regulation. If point is we want public to have full psychological access would make sense to say cant build of certain height or width or ban on fences, or could have viewing spot on property and the easement does efficiently do that. Impoverishing for the public because the public has the right to the beach What is essential nexus?

Property I Professor Parker Fall 2010 Essential nexus = only evidence of a nexus Was no more than a rational relationship o Rational relationship = deferential standard of review o Has to be irrational to be overturned o A little more here than rational relationship In Dolan SC disagreed NOTES ON THIS CASE: If CA had said to Nolans give easement across property = taking under Loretto But this is a condition to land use permit (not straight forward easement here) . Dolan v. City of Tigard FACTS: Tigard developed a comprehensive plan called Community Development Code sought to cut down on auto traffic and flooding. Dolan applied for permit to increase size of her electronics store. The government granted application but w/conditions. The condition included dedication of portion of property within floodplain for storm drainage improvement as well as dedication of a strip of land as a pedestrian bicycle pathway. Commission said that to further their Code, pathway would reduce auto traffic and floodplain drainage would manage flow w/increase of impervious surface area ISSUE: Is there a reasonable relationship between the proposed development and the requirement to dedicate land for a specific use? Holding: The court says go farther then Nolan; must do a two prong test: (1) Is there an essential nexus? (2) whether or not the degree of the exactions required by the permit condition bears the required relationship to the projected impact of the proposed development.( exaction in each case must be in rough proportionality). In applying this test, the court that the first condition was satisfied. However, the court ruled that the city failed to make an individualized determination that the required dedications are related, in both nature and extent to the proposed impact (the second prong of the test.). The court held that the requirement for a public greenway (as opposed to a private one, to which Dolan would retain other rights of property owners, such as the right of exclusive access), was excessive and that the city failed to meet its burden of establishing that the proposed pathway was necessary to offset the increased traffic which would be caused by the propsed expansion. Variance, is essentially a quid pro quo but what the state asks foe has to be connected in what they are granting. POLICY: Adjudicative decision on an individual parcel of property and the conditions were not only a limitation on use, but a requirement that a portion be deeded to Tigard. You have the right to do whatever you want and if you should be required to give something up it should bear proportionality to what YOU the owner are doing on your property, not the plan of the government at large.

Lingle v Chevron FACTS: Hawaii enacted a limit on the rent oil companies could charge dealers leasing company-owned service stations. The rent cap was a response to concerns about the effects of market concentration on gasoline prices. Chevron argues that this was a taking of its property. District Court held it was a taking because it did not substantially advance Hawaii's asserted interest in controlling gas prices. The court cited Agins v. City of Tiburon, where the Court declared that government regulation of private property is "a taking if it does not substantially advance legitimate state interests." The Circuit court affirmed. ISSUE: Does a regulation amount to an unconstitutional taking if it does not substantially advance legitimate state interests? CONCLUSION: (OConnor) No. The Court needed to correct course and make clear that the substantially advances formula put forth in Tiburon was inappropriate for determining whether a regulation amounted to a taking. The court here says the taking clause challenge to regulations must be based on the severity of the

Property I Professor Parker Fall 2010 burden the regulation imposed on the property rights, not the effectiveness of the regulation in furthering the governmental interest. The Court insisted that its ruling did not disturb any of its prior holdings. HOLDING MORE CONCRETE: When a regulation falls short of an entire deprivation of economic use or a permanent physical invasion, the Court has struggled to provide meaningful standards for determining when a regulation has effected a taking. In Agins v. City of Tiburon Court declared that government regulation of private property effects a taking if it does not substantially advance legitimate state interests. In the majority opinion in Lingle, Justice OConnor determined that the Agins test is no longer appropriate for determining whether a taking has occurred (its seen more as a due process inquiry than a takings inquiry). In its place, an aggrieved party must assert either a physical taking, a Lucas-type total deprivation regulation, a Penn-Central style taking, or a land-use exaction that acts as a taking (see, e.g Nolan and Dolan) Kelo and Midkiff challenging idea of Public Use for Eminent Domain Power Kelo v. City of New London: STATEMENT: Landowners brought suit against City of New London alleging that condemnation of their property by use of eminent domain was illegal taking in violation of the 5th Amendment FACTS: Kilo has lived in this home that has been a part of her family for over 70 years and she is being told by the City of New London that she needs to convey the house to them and she is going to receive just compensation but she doesnt want to sell her house, its her home. The City of New London is forcing private landowners to sell their property in order to create space for a national pharmesuetical company. There was a Naval base on this land, but the US Navy pulled out, and people lost their jobs turning the land into a depressed area. In response the City of New Londons Plan to revitalize economy involved building a research facility on property, which is Pfizer. 9 people (including Kelo resisted) alleged their property was not condemned because it was blighted (unlivable, ghetto) but because it was located within this redevelopment plan area and the government needed people to turn over their homes in order to create this facility. Issue: Is this a proper exercise of eminent domain in furthering public use? HOLDING: Public use is really public purpose and economic development (which the pharmacy is intended to enhance) has always been said to be furthering public purpose. Success of plan has nothing to do with constitutionality do not have to be reasonably certain that that public benefits will actually flow RATIONALE: This is not an instance in which municipality is taking property and giving it to private person. Nor is this an instance where condemned land is being opened to public. This is a case where the Court must determine if the transfer of condemned property somehow diminishes the public purpose of the taking DISSENT: Nearly any lawful use of private property can be said to generate some public use, and todays holding will expand the use of eminent domain to the point where pretext alone will determine a propertys fate

Hawaii Housing Authority v. Midkiff (land condemnation from owner to lessor to lessee, not a taking) Facts: The HHA discovered that there's excessive concentration of land title in a few holders. Hawaii legislature passed Act 2570 saying the Hawaii Housing Auth can condemn title in property taken from a lessor and transferred to lessee in order to reduce the concentration of land ownership. The landowner would lease the land, while the land was leased, the govt. would condemn the land, the lesee would then pay the lessor a fee for transfer. Suit brought to challenge the regulation saying that it fails to meet public use component. Issue: Was there a legitimate state purpose behind the regulation, making the condemnation a legitimate exercise of eminent domain? YES Holding: The Court held that the HHA enacted the Act not to benefit a particular class of individuals but to attack certain perceived evils of concentrated property ownership in Hawaii, which was a legitimate public purpose, and that condemnation was not an irrational power to achieve that purpose. Rationale:

Property I Professor Parker Fall 2010 Hawaii's act to regulate the oligopoly was seen as a classic exercise of the State's police powers, and a comprehensive and rational approach to identifying and correcting market failure and satisfied the public use doctrine. Land did not have to be put into actual public use in order to use eminent domain. It is the taking's purpose, and not its mechanics that were important. Here, eminent domain was used to provide an overall market benefit to the wider populace. Judicial deference: The decision suggested that a judicial deference to the legislature was involved. If the legislature determines there are substantial reasons for the exercise of the taking power, courts must defer to the legislature's determination that the taking will serve a public use. Though the regulation was unsuccessful, success of legislation is not part of the test of its constitutionality Affirmed by Lingle and Kelo

IX Initial Acquisition

19. Conquest Government Distribution of Lands ISSUE: process by which the property and sovereignty of Indian nations is transferred to colonial nations then to U.S. Johnson v. MIntosh Pg. 4 FACTS: Title dispute between 2 parties both claiming that they have title to the same land. One of the parties, Johnson, claims title through transfer through native American groups, and the other party, McIntosh claims title through transfer of title granted by the U.S. Relativity of Title: Something related o In a contest between someone deriving title from US government and someone deriving from Native Americans one deriving from US governs o We are not going to get into abstract justice of whether Indians can convey title do something more specific, follow rules our society has prescribed HOLDING: Discovery gives U.S. title and courts can only recognize this title. Whoever discovers land gets it, first in time, yet relative to other potential discoverers! Sovereignty has been vested in European countries and exert this exclusive power to grant soil even though soil is in possession of natives, can grant title subject to Indian right of occupancy, which can be extinguished if unpeaceful inhabitants thus extinguishing rights. What about Indians title? Legally, cant sell what you dont own, Indians do not have title which they can convey in same way that U.S. government can convey. Indian title gives Indians the right to occupy/convey land but the conveyance will not be recognized by the US government. Possible protection of Indian land? Protecting the Indians from swindling. Rule is trying to say only title from government is going to be recognizable. So if youve tried to swindle some chief to convey lands for nothingyou have nothing!!! In a theoretical perception: Lockean v. Positivistic o Lockean Theory: Locke belies that when you mix your labor in with the land, the land is essentially yours. In this case, the court doesnt buy Lockean theory and says we arent going to enter into abstract possession of property rights. Courts that are creatures of the state can do nothing else but recognize title from state and nothing else. o Positivistic Theory- You can only derive rights, and therefore title, from the state. This is essentially the court saying We are courts of the conqueror and we must therefore recognize

Property I Professor Parker Fall 2010 title that our courts have given to people. Property title comes from state, not from laboring on the land. This concept = NOT ABSTRACT JUSTICE

Tee-Hit-Ton Indians v. U.S. FACTS: The Tee-Hit-Ton Indians claimed that they had exercised property rights in the Alaskan territories since time immemorial. Before the Russians came to Alaska, the Tee-Hit-Tons communally owned the land, occupied its expanse, and passed ownership rights through the female line. When the Russians came, they occupied the same land with the indians permission. Russia then sold the land to the U.S.(keep mind the indians a re still occupying this land) when the U.S. colonized. The U.S. contracted to start selling timber in the Alaskan territory and the Tee-Hit-Ton Indians claimed that this contract constituted a taking of their property, because the U.S. was profiting off land they felt was theirs. ISSUE: Does mere possession constitute ownership for purposes of the 5th Amendment? HOLDING: Mere possession doesnt constitute ownership for the purposes of the 5th amendment. The TeeHit-Tons claimed that their use of land differed from other native Americans because they claimed tribal ownership and this constitutes ownership requiring compensation. The Alaskan Indians use of land might be more substantial than that of other N American Indian tried, but to gives rise only to the level of sovereignty, not ownership. The U.S. constitution doesnt require compensation without a showing of a property right. The Tee-Hit-Tons do not show ownership, and thus their claim must be denied Idea of physical conquest: court recognizes this as important NO PHYSICAL CONQUEST (Eurocentric Perspective: Court says they only have evidence of Russians conquering the land and there is no evidence that the Indians conquered the land (this is bullshit btw) Native Americans have no 5th Amendment rights unless they title in property, which has already been recognized by the Government. The law creating its own foundations here

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