Incentivize A to record ownership (can lose your land otherwise)•Prevent B from being innocent (can check the record)•Create less of a sense of risk to the general public (provides land market stability)•

Recording Acts

Common law said first in time taker = ORace Statute - bright line rule - first to record is the owner - the gov't administrator puts a time stamp on it, so it is undisputed - very few jurisdictions follow this

Paid valuable consideration (first in time will stand over someone who received Black acre as a gift)

1)

***Note: there is no recording requirement in this jurisdiction***

Must have been without notice of the previous transaction2)

Notice Statute - two requirements:

Must be a purchaser for value1)Without notice of previous owners2)Duly recorded3)

Value - even black acre as collateral for a loan can be sufficient•

Actual notice - B sees the previous deed or recordation or someone tells B about it

Constructive notice - A's deed was recorded - had B looked for it, B would have seen it

Inquiry notice - sufficient evidence of someone else occupying black acre to make B ask questions - ex - A is living there - who are you? I own this place, but A hasn't yet recorded

Notice•

Can mean taxes paid, sealed, notarized, etc

If the notary's seal is expired and everything else is OK, A can still be seen as nothing but a trespasser

Recordation•

Ambiguous Terms:

Race Notice Statute - three requirements:

Hypotheticals:

OA, no recordOX, has notice of OAX recordsA recordsXZ, Z has no notice (actual, inquiry or constructive) of OA (Z checked after X recorded and before A recorded? Or only checked for X in grantee index - the search is expensive and not necessarily always comprehensive - we are assuming that this jurisdiction had a Morse search requirement)Z records

Race jurisdiction: Z wins (Z took from X, who recorded first)Race/Notice: Z wins - X recorded first, and Z had no notice (depends also on when Z records)Notice:

Note* Z is not punished for X's bad faith

Woods search - search each grantor from the time of recordation of their ownership until the present, to make sure that that no grantor double conveyed the property before it was duly recorded - more expensive and disincentivizes timely recordation, but is more complete

Morse search - search each grantor until the first instance of a transfer and then switch to the person sold to as the next grantor - still timely and expensive, but less so, but less complete

A wild deed - someone changes their name after taking title in property and sells under the new name - makes it impossible to follow the chain of title

Did Sabo take without notice of the prior conveyance to the Lowerys?

LH, recordedOL

Out of chain of title is often taught through this case…someone named Lowry lives in Alaska and files for acquisition of land held by the US gov't, so he files for a patent (gets a FSA from the gov't), seeking ownership (he has met all of the requirements to secure a patent from the US for that land), but he conveys this land to the Horvaths this land before he acquires it, showing them that he is going to get the land. Then, the gov't conveys the patent to Lowery, who then conveys his interest to the Sabos.

NOTE: if you have land that covers more than one county, then you must record in all of the counties where your land lies* None of the recording acts apply to subsequent takers who receive Black acre as a giftBUT, first in time takers can receive black acre as a gift, because they received it when there was still something to give

OA, no recordOX, no noticeX recordsA recordsXC, C has actual notice of OAC records

C gains protection based on X's innocenceC will still get it in a contest between A and CThis is the shelter rule - C is being sheltered by X's good faith because we want to give X the benefit of the power of transfer, b/c he satisfied all the requirements

This is an example of the relativity of innocence and the concept of ownership

In a race jurisdiction, as soon as X recorded, X won

Recording ActsThursday, December 17, 20092:47 PM

Property Outline Page 1

OLLSWho recorded first? Was recordation sufficient to find it?

C would have had to have looked at A as a grantor before A got black acre, which is outside the chain of title.

Court decided that C was not charged with searching A as a grantor before A became a grantee

At the time that Lowery was applying for the patent, a utility company was applying for easements to hang wires across the property - they approached Lowery directly, and he said okay. Lowery then conveys the underlying fee simple absolute to Sabo - does C have the encumbrance of the easement? Did Sabo have notice? Sabo could not have known - the utility company may have to pay C and go back to try to get its money back from A

-

What can B do? RERECORD - the Horvaths should rerecord the LH record after OL promptly to prevent the second in time scenario in both race and notice jurisdictions (B seems less innocent than C, because B could have prevented this)

-

Property Outline Page 2

Cannot control derivative works-

Protects 70 years past the death of the author-

Copyright Law - protection for original works of authorship - published and unpublished - literary, dramatic, artistic

Can be limited (ex - can't trademark the color that is used to mark euthanasia for safety reasons)-

Must renew every 10 years to ensure that you are still using it, but you get perpetual protection-

Can prevent dilution of trademark by someone else (McDonald's was able to get McSleep hotels to change their names, b/c could reflect poorly on McDonald's trademark)

-

Can't trademark something that is functional - just an end run around patent law, and we want to eventually allow for competition and innovation

-

Trademark Law - the longest protection - allows consumers to identify a product as from a specific company (to avoid confusion)

Rewards the creativity of the original innovator, but eventually allows for imitation and competition

-

Patent Law - the shortest - 20 years

Copyright, Trademark, PatentThursday, December 17, 20092:55 PM

Property Outline Page 3

Damages can be measured in the value of the chattel at the time of conversion or the value of the plaintiff's interest, taking into account the odds of the true owner coming back and trying to get the possession back (this is a lower value usually).

Bailment - the rightful possession of goods by a person (the bailee) who is not the owner. (The owner of the good is known as the bailor.) E.g. giving your car to the valet - you are the bailor and they are the bailee. If someone steals the bailment from the bailee, and the bailee gets damages for it, the true owner (bailor, you, in this case) cannot have an action against the present possessor (because they already paid damages).

Replevin - a lawsuit to obtain the return of goods, not just damages for their value.

Right to Exclude

Lost, Mislaid and Abandoned Property

Abandoned - then, it's up for grabs (property), but it's hard to know when someone has abandoned a legal rightFinders have a property right against everyone else except the original ownerSeparate lost an mislaid as conscious v. unconscious act - probability of someone coming back for it is greater in mislaid, b/c may remember where it was left

Lost, Mislaid and Abandoned PropertyThursday, December 17, 20092:57 PM

Property Outline Page 4

Adverse Posession

Actual entry1)

AP says they have a right to exclude - putting up a fence, running after trespassers with a pipe, etc

i.Exclusive -2)

What the owner subjectively would think1)

Open - if the owner drove by, he would notice and come it to see who was occupying his land

i.

What the community objectively would think1)

Notorious - the community at large is aware of the occupation by the AP - acting like an owner (not just a visitor)

ii.

This is all w/ reference to standard uses of the land in that area•But the AP might have to do more than a standard person in the community to show that they are acting like an owner (most ppl might not develop/build more, but the AP has to do something to show that he is an AP)

•

Some jurisdictions require the APer to pay taxes (this can get rid of mistakes on titles, although some jurisdictions have clean up rules for that) - also, shows "sweat equity"

•

Some hold that if possession is unequivocal and visible, then there is a presumption of open and notorious; others say if an encroachment is small (less than several feet), then there is no presumption

•

Open and notorious3)

Does not have to mean hostility - just adverse to the owner's right1)A tenant who pays rent is not adverse2)A tenant who stops paying rent can be held to be adverse, but some jurisdictions hold that if you entered under permission, then you can never be adverse

3)

Adversei.

Focused on the intention of the AP, not the owner1)BUT, the AP's intention does not necessarily matter as much as the actions the AP takes - depends on the jurisdiction whether mindset matters (see prescriptive easement below)

2)

Also, this depends on whether we care about the AP making improvements (and taking the risk of being ejected) or if we care about owners sleeping on their rights

3)

Claim of rightii.

Adverse and under a claim of right4)

Statute of limitations - begins at time of actual entryi.

If the owner dies and passes the land on to a 2 yr old, the heir, the ownership will not begin until the heir reaches the age of the majority. If the AP entered before the original owner's death, then the SOL begins at entry, but if the AP enters after the death and before the heir reaches majority, then the clock won't start running until the heir reaches the age of majority

Also depends on the status of the ownerii.

Numbers 1-4 are all part and parcel to actual entry - you can't start the clock until you've established all 4

iii.

Can record through a quitclaim deed (which does not say that the title is clear, but shows the extension of the AP)

1)

In this case, both O and AP1 can sue AP2 - no privity b/w AP1 and AP2 and AP1 has a relativity of claim to possession over AP2 (and O is the owner)

a)

If another AP runs the first AP off the land, the time does not tack (unless you are in England, who cares more about owners sleeping on their rights than about the APers)

2)

APs can tack their time together iv.

What if 50% are summer occupiers and the rest live there all year? 1)Must know the nature of the community - this is very fact specific2)

Continuous - depends on what is normal for that area (if it's summer homes and AP lives there only during the summers, that is sufficient - owner should be checking during normal living times, even if they don't normally live there during those times - conversely, if AP lives there during winters, the AP will not be able to claim continuous, b/c not the normal occupancy period)

v.

Continuous for the statutory period5)

This is a deed that shows that you have some right to be there (does not have to be recorded - that is just to prevent confusion with future purchasers)

Color of title is required in order to be an APer1)Color of title will shorten the SOL for APs if they have it2)

Different jurisdictions:

Color of title

For color of title problems, see class notes 9/15/09

For tacking and disability problems, see class notes 9/17/09 and class notes 9/21/09

Adverse PossessionThursday, December 17, 20093:06 PM

Property Outline Page 5

Color of title will shorten the SOL for APs if they have it2)There will be less onerous requirements on the AP if they have it3)

Allows APer to show the exact extent of the claim (so will not have to occupy every square inch that they claim to own, because they have the dimensions in writing)

If there is color of title to the land and the APer does not occupy all of it, then they can claim the rest under constructive adverse possession

This is only a right of way (like in Manillo v. Gorsky and the stairs over the property line), not an FSA

Do not have to exclude the owner, just everyone else (exclude owner to get ownership )

If just an easement and you rip up the steps, you can't put them back in, but if you get an FSA, then you can reconfigure the steps

From the owners perspective, this can be just as damaging as an FSA, b/c now they will have to try to sell the land with this encumbrance on it - lowers property value

Mistake does not create AP

Objective acts = claim of right as long as those acts reveal intent

Does knowledge of a small encroachment matter? Depends on the jurisdiction

If possession is unequivocal and visible, then presumed O&N

Then, the APer would have to prove actual knowledge

If encroachment is less than several feet, no presumption of O&N

Open and notorious? Depends

In a court of equity, if ripping out the steps is too high of a burden, they could convey and prescriptive easement, but require the APer to pay for it

AP and Prescriptive easement

See O'Keefe Case

Discovery rule - SOL only begins when the lost chattel is found, as long as the original owner is giving due diligence to finding it

Some jurisdictions hold that you must find it, request it and then be rebuffed before SOL begins

Europe - if a painting is sold on the open market, where anyone can buy it, then the subsequent purchaser (not the thief) can keep the painting, and the artist can sue for damages

AP for Chattels

Property Outline Page 6

Gifts

This is a matter of fact to be determined by a juryi.

Dominion and control over the gift1)The relationship of the giver and receiver (legally special relationships might create a greater presumption of intent)

2)

Things to look at:ii.

Intent1)

This is a matter of lawi.Actual - manual1)Constructive2)Symbolic3)For a gift causa mortis, only actual delivery will be allowed, unless that is impractical, and then constructive delivery must still be made (symbolic will not be sufficient)

•

Can delay delivery of entire inter vivos gift (can have a present title interest and a future possessory interest)

•

Delivery2)

Acceptance (which is generally assumed based upon the delivery)3)

Inter vivos gift

Generally only has to be one witness (b/c done on deathbed), but will be construed more narrowly and strictly because of the lower standards

Gift causa mortis

Testamentary gift or transfer

Require:

GiftsThursday, December 17, 20093:09 PM

Property Outline Page 7

Estates, Lands and Future Interests

To A and successors and assigns (when giving to an organization)FSA: To A and his heirs

This is a life estate to A with a remainder to B. •To A for life.

Absolutely vested remainder (AKA indefeasibly vested remainder)i)

B is an ascertained person1)There are no conditions precedent to B taking interest upon A's death

2)

to A for life, then to B and his heirs

Vested remainder subject to open (AKA vested remainder subject to partial divestment)

ii)

To A for life, then to A's childrenA has a child, B, but A is still alive and could have more childrenB has a vested remainder subject to open or partial divestment b/c it could be partially divested by future siblingsThe open class must close w/in the RAP period or B could lose everythingVested remainder subject to complete divestmentiii)To A for life, then to A's children, BUT IF C passes the CA bar, then to CA's children hold a vested remainder subject to partial divestment and complete divestmentC holds an executory interest subject to a divesting interest

Vested remainders1)

Contingent remainders 2)

there is a condition on the remainder or 1)there is an unascertained person2)

Either:

Note: you can have alternative contingent remainders, but it is not called that if there are two contingent remainders and one can vest and then be divested by the other

Remainders:

This would be interpreted as a life estate to A with a reversion in an FSA to O. •

Life estate: to A for life, then to B and his heirs.

Defeasible fee simple can be destroyed or forfeited by a condition broken

NOTE: SOL clock on AP starts running as soon as the condition is broken, so O must monitor, otherwise can become FSA to A b/c of AP

•

Fee simple determinable with a possibility of reverter (to O): To A AS LONG AS [condition], AND IF NOT, then shall revert to O and his heirs

1)

This creates a right of re-entry - SOL does not start as soon as the condition is breached -only when O re-enters and re-claims and is rebuffed

•

Fee simple subject to condition subsequent: To A, BUT IF/PROVIDED THAT [condition], then O or heirs has the right to re-enter and reclaim

2)

Note: some jurisdictions will only allow the possibility of reverter to be transferred to a third party and not the right of re-entry - it depends

The future interest is held by a third party (can be applied to either of the two above)•To A AS LONG AS [condition], AND IF NOT, then to BThis is a fee simple subject to an executory interest plus a future interest held by B in a FSA. •Note: fee simple DETERMINABLE means it reverts to the grantor •To A, BUT IF/PROVIDED THAT [condition], then to BThis is a fee simple subject to an condition subsequent and the right of entry is held by a third party executory interest - usually, this is not allowed - generally, the right of entry is only allowed to be held by the grantorSpringing executory interest - the future interest divests the grantor•Shifting executory interest - the future interests divests a grantee•

Fee simple subject to an executory interest3)

Only allows the land to pass to future heirs - basically each owner only has a life estate with the remainder to future family heirs

•

Most jurisdictions today no longer allow it•DE, ME, MA and RI are the only states that still do allow it, and they allow someone to disentail it during their lifetime, by conveying to a strawman and then buying back as a FSA

•

Fee Tail

Try to follow the intent•BUT, if ambiguous, go with the largest possible estate (see White v. Brown)•

Interpretation of ambiguous language

Remember, all invalid language will be stricken

Language:Remember, modern presumption is when language is ambiguous, interpret to give the largest estate possible

Remember, gaps are called reversions, and during that time, O (or O's estate if O is dead) is responsible for the land

CA does not distinguish b/w FSD w/ PoR and FSSCS - both have a SOL of 5 years upon breach of condition

If you need more help, see Estates System: Freehold Interest Handout

For details and practice questions on fee tail, see pages 188-9 in the text book.

For state of title practice, see class notes 10/1/09

Remember, if there is a gap between a life estate and the next future interest holder (with a reversion to O in between), then it is not a remainder - it is an executory interest.

Typically, in the event of forfeiture, if there is a vested remainder, it will go to that person (rather than a reversion to O), unless there is language that indicates otherwise.

Subject to open only applies to vested remainders (not contingent remainders or executory interests)

Estates, Lands and Future InterestsThursday, December 17, 20093:22 PM

Property Outline Page 8

Inalienability is not valid•

EXCEPT to nonprofits (some say only charities)

When a restriction limits marketability to the point that no one would logically buy, then it is also not valid

•

Requirements for illegal activity are invalid•Requirements against public policy (affecting autonomous rights, etc) are invalid•

Remember, all invalid language will be stricken

Affirmative waste - actual deterioration (can be required to get to the point where you can no longer pay taxes)

•

Ameliorative waste - the current interest holder is doing something the future interest holder doesn't like (some jurisdictions will allow this claim, even if the change is economically profitable) - decided on a case by case basis by the state

•

If a current interest holder is putting your future interest at risk, then you could use a waste cause of action to intervene

Give the trustee everything in FSA w/ the provision that they will act in the best interests of the beneficiaries - the trustee can sell, rent, etc - whatever is w/in the testator's intent - may avoid a lot of litigation costs and the risk of the court ruling differently than what the actual intent was

•Sometimes a trust is your best bet

Executor does not have a duty to notify recipients - just to pay off debts, make account of all assets

Could say all payment goes to present interest holder•Could argue that the burdens on the present interest holder make the land actually cost them money (not make them money), so everything should go to the future interest holder

•

Could argue that the possibility of it ever getting to the future interest holder was very small, so the money should stay with the present interest holder

•

Or could argue that the future interest is in a FSA, which is very valuable, so the future interest holder should get the money

•

Condemnation and just compensation when there are present and future interests

Present possessory interests are already vested, so the RAP does not apply•Does apply to executory interests, open classes and contingent remainders•If it is not valid at the time of the creation of the interest (when an inter vivos gift is given or when a testator dies), then it will be struck from the document

•

NOTE: just has to VEST, not be completely transferred!

We don't need to know that it will vest, just if it will vest or fail w/in the period•

If there is an open class and the class will not definitely close w/in a life in being plus 21 years, then it is completely invalid and no one in the class gets the conveyance

•

RAP does not apply when all parties are charities•A right of first refusal (preemptive right) generally does not have the RAP against it, even though it could be argued that it is a restraint on alienation

•

If you are in a wait and see jurisdiction, you can use an unrelated measuring life (of a person, like a baby who is likely to live a long time, but not a Galapagos turtle or a redwood)

•

Saving statute will assume that you did not intend to violate RAP where language is ambiguous, BUT, if there is a clear violation w/ no ambiguity, it won't help - some courts will use their equity to reform the document, so cut off the part that violates the RAP (without striking the entire interest)

•

Sometimes, you can write a savings clause into the document, but again, this only helps with ambiguous language

•

Some jurisdictions have the uniform use statutory RAP, which says that if it violates the common law RAP, it will give you 90 years to wait an see if the interest vests or fails instead (if after 90 years, it still hasn't vested or failed, then it is invalid)

•

Rule against perpetuities - no interest is good unless it must vest if at all, not later than 21 years past a life in being at the creation of an interest

If you don't remember this, see example here

When going through a conveyance, bracket each interest holder to determine which to flag as subject to the RAP

Property Outline Page 9

Co-Ownership

Separate but undivided interests in propertyi.Interest is descendible and may be conveyed (separable) by deed (inter vivos), will or intestacy - NO SURVIVORSHIP RIGHTS (when one dies, the other doesn't get the entire property)

ii.

Each has a right to divide the interests and have the property partitioned by the courtiii.

Tenancy in common - this is the modern presumption, unless stated to the contrary1)

Each owns the undivided whole, so each has survivorship rights - if one dies, the other gets it all

i.

Time - must have acquired or vested the interest at the same time1)Title - must have it under the same title or by the same AP2)Interest - must have equal, undivided and identical interests, even if they contributed unequal amounts to the purchase, maintenance, etc

3)

Possession - must have a right to possession of the whole (although, one is allowed to give exclusive possession to the other)

4)

4 unities:ii.

Can make a request not to divide (against the other's wishes) if it is a reasonable restraint on alienation - e.g. I want it to be held for 5 years until the market value goes back up

1)Each has a right to divide the property if they choose by contract or courtiii.

Can convey interest ONLY during life, and can be done w/o consent or even notice to the co-owner (which will create a tenancy in common)

iv.

Since there has to be unity in title, if one of the joint tenants owned first and then wanted to share, it used to be that the original owner had to convey to a straw who would then convey back to both, so there would be a unity in title, but that is generally no longer required (you can just write a grant to yourself and your co-owner)

i.

Joint tenancy can never arise by intestate succession - if someone gets property through intestacy, it will be a tenancy in common unless specified otherwise in a will

ii.

Creating a joint tenancyv.

May still require conveyance to a strawi)Or conveyance in the form of a trust to someone who promises to convey it back (or to whom you choose) upon your death

ii)

Some require recordation (b/c otherwise, I could convey to myself to break the tenancy, but destroy the conveyance if I hadn't recorded it if my co-tenant dies first, so that I still get everything - these jurisdictions say you can't have it both ways)

iii)

If the jurisdiction does not allow these, and it's not discovered until your death, then your co-owners will maintain their survivorship rights and get everything if you die first

iv)

Used to be the same way with severing - if one wanted to sever (which you do not have to give notice to your co-owner), then they had to convey to a straw who would re-convey back - broke the unity of title, but now, some courts allow you to convey to yourself directly

1)

A's grantee will have 1/3 interest and B and C will own 2/3 equally and indivisibly - this is fine - tenancies in common do not have to have equal shares

i)

If there are three joint tenants, and A conveys his interest to another party, this breaks the joint tenancy w/r/t A, but B and C according to common law still have a joint tenancy w/ right of survivorship between them

2)

Title theory - some jursidictions hold that a mortgage is like handing over your title - in that case, the mortgage would break the unity - however, some courts have still held that you still hold the title against everyone else except the creditors, so it does not sever the joint tenancy

i)

Lien theory - the title remains in the owner's hands until the end of the expiration period, so unless the expiration period ends and the debt is still not paid, the joint tenancy has not been severed - this is what was held in Harms v. Sprague

ii)

Does a mortgage break the unity of title?3)

Generally, no - see Swartzbaugh v. Sampsoni)Remember, during life the joint tenants have the same rights as a tenancy in common - but renters from a joint tenant should be aware of the risk of

ii)

Does a lease break unity of title?4)

By Unitiesi.Severing a joint tenancyvi.

Joint tenancy2)

A habendum clause will only overrule granting language if the language is ambiguous.

To A and his heirs. To A - words of purchase - whom the land is going toAnd his heirs - words of limitation - to clarify the type of estate being conveyed

Co-OwnershipWednesday, December 16, 200911:40 AM

Property Outline Page 10

in common - but renters from a joint tenant should be aware of the risk of partition or death, but the lessee during his term of years has the same rights as the co-tenant, unless the contract limits themBUT, if a co-tenant leases the whole of the property and does not allow the other co-tenant the right of enjoyment, that co-tenant can recover a reasonable value for the loss

iii)

The court can ignore all of the unities arguments above and look at whether the co-tenant intended to sever joint tenancy

1)By intentii.

This is a life estate with a contingent remainder in a FSA1)They could release their future interests to the present possessory holder, merging the interests and creating a FSA. This would destroy the grantor's intent, but it would prevent one from taking unilaterally, which is more likely to happen in the language below.

2)

It is harder to destroy the right of survivorship here than below. 3)

To A and B as joint tenants for their joint lives, remainder to the survivor. i.

This is a FSA1)Remember that courts err on the side of larger ownership2)

To A and B as joint tenants, with a right of survivorship, and not as tenants in commonii.

Granting languagevii.

Only between a husband and wifei.Cannot unilaterally pass the interest to anyone else - no right to divide (w/o divorce)ii.Has all of the unities of joint tenancy PLUS the unity of marriage (if you divorce, then it becomes a joint tenancy)

iii.

If people buy before marriage w/ intention of tenancy by entirety and then get married soon after, some courts have a clean-up rule to allow this, but strictly speaking it will not be more than a joint tenancy

iv.

Hawaii extends this to parent/child holdersv.

Tenancy by the entirety3)

If something can be conveyed during life, then creditors can reach iti.Tenancy by the entirety is out of the reach of creditors unless both tenants are held for whatever loan/credit it is

ii.

Common law rule - creditors can reach half (if one out of two tenants is in debt)i.Fractional rule - creditors can reach up to the fraction that the tenant in debt contributed to the purchase

ii.

Objective intent? Contribution plus language of the conveyance1)Some jurisdictions hold that there must be unequal contributions PLUS intent2)

Intent rule - creditors can reach only the amount that the joint tenant intended to own (ex - mom and daughter - intended to give to daughter - mom's intent was 0), but not so simple - must show intent

iii.

Carve out rules - some jurisdictions have held that debts will survive the death, so that loaners get their money, even if there was a joint tenancy

iv.

Some courts hold judgment liens (imposed by the court, ex b/c of a tort) should survive the joint tenant's death, but contract liens (like through a mortgage) should not

1)

See above re: mortgages - if it is held to sever the unity of title, then the creditors can reach it upon debtor's death - if it did not, then the creditors are out of luck

v.

Joint tenancyiii.

Creditor reach4)

There can be a reasonable restraint on alienation (ex. Waiting until they get rid of certain clouds on the title, like an APer, etc)

i.

Joint tenants always have a right to partition - not allowing that right would be an unreasonable restraint on alienation

i.

Only if physical attributes of the land make it impracticable or inequitable AND it will better promote the interests of the owners

i.

If the court fears that the co-tenant will be the only bidder and this is cheaper than buying the other co-tenant out, they can set a minimum bid

1)Usually, this is done through an auctionii.

By saleii.

If the partition in kind cannot be done evenly b/c of the nature of the land, it can still be done in kind with the co-tenant receiving more being required to pay an owelty - a one time cash-out for the difference

i.

An in-kind order can set out the bargaining chips for a settlement, but once a by sale order is made, there is no turning back

ii.

In equity, the court can divide as they see fit, while trying to incentivize the parties to work it out between themselves.

iii.

In kindiii.

Who is occupying the land (if it is occupied at all)i.The sentimental value of the landii.If partition in kind will diminish the value of the land as a wholeiii.Some courts will make ppl draw lots (can't necessarily keep the land you are living on)iv.

When deciding how to partition, courts consideriv.

Partitioning a joint tenancy5)

If you need a more detailed example on joint tenancy and creditor reach, see class notes 10/8/09.

Remember, creditor reach during life is not creditor reach after death

Courts prefer in kind partition

Property Outline Page 11

Some courts will make ppl draw lots (can't necessarily keep the land you are living on)iv.

Partition the land owned jointly over the period of time of the lease1)In kindi.

THEN, the original lessee gets back all of the money spent on improvements

i)

BUT, the lessee, must still pay out the remaining rent owed to the lessor

•

THEN, the remainder is split between the lessee and the unhappy co-tenant

ii)

Sell the lease through an auction (which anyone, including the lessee, can bid on)

1)By salesii.

Partitioning a lease that was created in a joint tenancyv.

Must show that the co-tenant is preventing the other co-tenant from use/enjoyment of land

i.Through adverse possessioni.

Only allowed if preventing entry and usei.Majority - absent an ouster, the co-tenant in possession does not owe rent to the co-tenant out of possession - could say that this encourages occupation

ii.

Intent of the partiesi)Whether the space is commercial or residential - although rental residential properties blend the two

ii)

So, when would it be fair? Courts look at1)

Minority - even without ouster, the co-tenant in possession owes rent to the co-tenant out of possession - you owe for the part that reflects their possessory interest (1/2, 2/3, etc)

iii.

If rent is owed, ousted or non-occupying co-tenant should look at the amount of rent being received - if it appears to be FMV, then they should demand rent from the co-tenant, but if it appears to be half of that, then they should demand rent from the person paying the rent in the first place

iv.

Through liability of occupying co-tenant for rent to other co-tenantsii.

Ouster6)

Generally, the occupying co-tenant is required to do the repairs, but whoever puts them in can get a cash-out during the partition

i.

Improving co-tenant gets the value added of the improvement, and then the original value is split equally between the co-tenants

1)

Jurisdictions who follow this generally don't like the risk of major changes•

Improving co-tenant gets the cost expended of the improvement, and then the remaining value is split between co-tenants

2)

If improved, there are two options:ii.

If the "improvement" turns out to lower the value, generally, the only who made the change will get half MINUS the value lost (so if it's worth $50,000 less, then they will get half minus $50,000, which will then go to the co-tenant who did not make the change)

iii.

Improvements upon the land7)

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If you say that you can change your mind, then this is a license, and that is a contract interest, not a property interest

Affirmative easements - the right to go onto someone else's land which cannot be revoked, unless a time period expires

From blocking your windows1)From interfering with air flowing to your land in a defined channel2)From removing support for your building3)From interfering with the flow of water in an artificial stream4)

Negative easements - a right to constrain another person's land

generally, courts don't like personal in gross easements (where it is burdened by a bunch of ppl), b/c it is a restraint on marketability, and if it is hard to track down everyone who has access to that easement, it will be hard to buy it out

But, in a commercial in gross easement, you know exactly who to go to to buy out the easement

Appurtenant easement attaches to the land (whoever is my neighbor can cross), while an easement in gross goes to a specific person (the railroad company can cross) -

Grantee◊

What the right is◊

Where it is located◊

How long it should last if not indefinite◊

Should list:

Be sure to not make this look like a FSA!

Some courts will consider intent, but it must be on BOTH the grantor AND the grantee side

◊

Others won't if the granting language is not ambiguous◊

Can clarify which you mean by a statement of intent

It is okay to grant an easement in FSD - so long as A maintains the road used for the easement

Granting language: To A as owner of Purple Acre, a right to cross Black Acre to get to highway one.

Easements should be granted expressly in writing to avoid the statute of frauds - all easements shown below are exceptions, but not ideal.

Granting language: To A and his heirs, subject to an easement of right of way reserved for the grantor to cross Black Acre to get to highway one

If it is not there, it will go to equitable servitudes - implied reservation (which is frowned upon), and they must show that it was so open and obvious, that they assumed it would be continued and/or they just forgot to include it or it must be held to be STRICTLY necessary

Generally, if the easement is being held by the grantor upon the subdivision, it has to be expressly stated in the grant, b/c the grantor is aware of it

There is an implied grant as long as it is apparent, continuous and necessary in character

If the easement is being given to the grantee, the courts are less strict about it being expressly written, since the grantor was aware of it when selling, and it can be presumed that it was going to continue

If O owns all of the land and sells Black Acre to A, and then wants to sell Maple Acre to B with an easement across Black Acre to get to Highway One, what can O do?

◊

Some courts will allow a reservation to a third party if it is justifiable◊

If O has not yet sold to A, O can sell Black Acre to B, who can then re-sell to A with a reservation for the easement for B

1)

OR, before O sells Black Acre to A, O can include a pre-existing easement in the grant as an exception, making it an appurtenant easement to the land (so it will go to whomever live on Maple Acre) (or can then sell the easement to B)

2)

Others require a two step process:◊

This is sticky - some courts do not allow it, b/c it breaks privity of contract - see picture to the right

Granting an easement to a third party:

Quasi easement - you cannot have an easement across your own land for yourself, but when you burden one part of your land (quasi servient tenement) for the benefit of another part of your land (quasi dominant tenement), this is a quasi easement, which can turn into a real easement if you subdivide the land

Easements

Black(A)

Purple(O)

Maple(B)

Highway One

When ambiguous language, court prefer an easement to a tiny FSA strip (which hurts marketability)

EasementsWednesday, December 16, 200911:50 AM

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easement to the land (so it will go to whomever live on Maple Acre) (or can then sell the easement to B)

If they are working under the servient tenement's permission and nothing else, that is a revocable license

With an easement, it lasts indefinitely unless there is some express time limitation on the easement

◊

An irrevocable license only lasts as long as the conditions remain the same which maintain its purpose - if the house burns down, the conditions have changed and the irrevocable license will disappear

◊

Sometimes, courts will grant an irrevocable license instead of an easement -what is the difference?

Easement v. irrevocable license

Expressly in writing - this is best1)

Actual Entry1)Open and Notorious2)Adverse and Under a Claim of Right3)Continuous for the statutory period4)

Like adverse possession, but most (not all) jurisdictions do not require exclusive use

i)Prescription2)

Permission1)Reasonable reliance on that permission2)Improvement, relying on that permission that would create3)Injustice to now require it in writing4)Note - there is no SOL here - the permission can be made and the improvement can happen the next day

•

Elements:i)Estoppel3)

The buyer is said to have inquiry notice, b/c if he checks the records, he will see that it was previously one plot that was subdivided

a.

Use must be apparent - knowledge on both sides (actual or constructive)

1)

Intent on both parties' parts2)Prior use of the easement3)

If the use is being held by the grantor, must be STRICT necessity

a.

If the use is being held by the grantee, must be REASONABLE necessity

b.

The necessity must have existed at the time of the creation of the easement, does not have to exist now (but if someone re-buys all of the plots and then re-divides, they will have to re-create the easements)

c.

Whether the claimant is the conveyor or the conveyee1)Terms of the conveyance2)Money paid for it3)Whether the claim is made against a simultaneous conveyee

4)

How necessary it is5)Whether there are reciprocal benefits to the conveyor and conveyee

6)

How the land was used prior to the conveyance7)Whether the prior use was known or could have been known to the parties (actual/constructive knowledge)

8)

Other jurisdictions instead hold that there only must be reasonable necessity, but they will weigh the following factors:

d.

Necessity4)

Elements:i)Implied from prior use4)

Unity of ownership b/w dominant and servient estates1)Necessity (not mere convenience) - if the necessity goes away, so does the easement

2)

Necessity which existed at the time of the severance3)

If implied for grantor, then there must be:i)

Landlocked by virtue of subdivisionii)

Implied by necessity5)

How can one grant an easement?

Subdivision of the easement or assignment (servient tenement can complain that there is an increased burden)

1)Scope of easements

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Generally, you should try to foresee any potential changes/increases and expressly limit it in the grant of the easement itself

i)

However, courts will still usually limit it to the extent that was granted by the original parties

ii)

that there is an increased burden)

Usually, the courts will view this as a misuse of an easement, which is a trespass - trespasses are ENJOINED

1)

If it is only seen as a scope problem, then damages can be awarded2)If you need that easement for the neighboring property, condemn a private right of way and pay for it

3)

Generally, an adjacent piece of land cannot be bought and then claim to have rights to the easement next to it - cannot extend in that way

i)Extension of an easement (Brown v. Voss)2)

Change in the use of an easement (Presault)3)

Release by the owner of the easement - this is usually required in writing1)

Also, can occur at the breach of a condition of a defeasible easementi)Also, if the necessity changes for an easement implied by necessity, then it will no longer be held to have that easement (although this is not technically a termination)

ii)

Expiration - at the end of a stated period that the easement was allowed for2)

Merger - if the easement owner also becomes the owner of the servient estate3)Estoppel - if the easement owner reasonably relies on statement from the user4)

Prescriptive easement of abandonment - for non-use over the SOLi)

Abandonment - if the user takes active steps to show they are leaving it (this can happen overnight)

5)

Condemnation - the gov't takes the land through eminent domain and no longer can allow the easement - this generally will require just compensation

6)

Prescription - owner wrongfully and physically prevents use for the SOL7)

Arguments for termination: easements are burdens, so it hurts marketability

◊

Arguments against: would be unfair to the dominant tenement who is relying on it, even if the land had been sold, they could still maintain their easement

◊

Note: a tax foreclosure will not terminate an easement on the land foreclosed•

Termination of Easements:

All you need is notice for an easement, b/c it is a contract embedded in a property right

•

Injunctive relief1)Specific performances2)Monetary Damages3)

If there is a breach, remedies include:•

For the benefit/burden to run…

Granting language: have to be careful to not make this look like a covenant

•Usually by express grant1)

Implied by prior use (ex - solar panels)2)Estoppel (neighbor says don't worry, I won't block your view and you build relying upon that promise, etc)

3)

How does one create a NEGATIVE easement

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Heirs and assigns also implies and intent to run, but better to expressly say that

Sometimes, you can make a covenant that benefits a third party, but it depends upon the jurisdiction

Granting Language: For the consideration of $x, Grantor A covenants to Grantee B, his heirs and assigns, that A will keep the trees trimmed on Black Acre (A's property)

•

Injunction1)Specific performance2)Monetary damages3)

Remedies for a breach of a covenant that runs with the land:

Intent to run1)Notice2)

Has to deal with something physically on the landa)Only worthwhile if it creates more economic value than not burdening at allb)Generally, obligations to pay money for maintenance are not direct enough to T&C, but some jurisdictions hold that they are

c)

Won't usually allow tying arrangement - homeowners assoc that require money for gyms, golf course, etc that are in the communal area

d)

Touch and Concern3)

Vertical Privity - relaxed (an AP only after quieting title)4)

Benefit to run

Intent to run1)Notice - much more important on the burden side2)Touch and Concern (see above)3)

This is usually established by a developer creating the burden and then conveying to neighboring plots or by a grantor selling part of his land and putting the covenant in the grant to the grantee

•

If neighbors want to create a covenant, they must convey to a straw who will convey back to them if they want it to run with the land

•

Horizontal Privity - strict4)

An AP even after quieting title might not be held to have strict VP here, but you don't want to go against the original intent, so it might be held that the AP is responsible for the burden

•

Vertical Privity - strict (whoever is being sued owns the exact estate that was burdened)

5)

Burden to run

1st Restatement•

Intent to run - if you don't do convey to a straw, you should make intent explicit in the grant1)Notice2)

Have to refrain from doing something•

Negative (restrictive) covenants - VP just has to be that you are connected to the covenant in some way (not an arbitrary person suing)

1)

Have to actually do something - these are more onerous, but they can get •Affirmative covenants - must have VP (at least relaxed)2)

Divides Between:a)Relaxed vertical privity (AP, tenant, etc could sue)3)

Restatement 3rd•

Covenants that run with the land - a contracted promise that will continue to bind any future owners of the same land

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Have to actually do something - these are more onerous, but they can get blurred

•

The covenant was to repair, maintain or render services to the property OR

1)

If the benefit could be enjoyed by the AP without diminishing the value to the owner in title and without increasing the burden on the burden side

2)

What about an AP before quieting title - can they sue? ONLY when•

Tenant from a lease - might make sense to have the burden run on things that otherwise the landlord would have to invade the tenant's privacy to maintain, but not for major, expensive maintenance

1)

Life tenant - is liable for the burden but only up to the value of the life estate, so O or the remainder may have to deal with super expensive changes

2)

APer - if is in possession, will be liable for affirmative covenants3)Can still run, even if the benefit is in gross, as long as it is fair4)

As long as it is fair for the burden to runb)

Can't be arbitrary, spiteful or capriciousa)Can't unreasonably burden a fundamental constitutional rightb)Can't be an unreasonable restraint on alienationc)Can't be an unreasonable restraint on trade or competition (can be found sometimes in no compete clauses)

d)

Can't be against public policye)Generally, obligations to pay for maintenance and tying arrangements to homeowners associations are OK b/c there is notice

f)

Even if it puts a slight, but not complete restraint on alienation, this can be okg)

Valid4)

By expiration (can expressly state in the grant that it is only good until a certain time or must be renewed and re-recorded at that time)

1)

Release - usually done for payment to the benefit side2)Abandonment - where the benefit holder makes unequivocal acts w/intent to abandon3)Merger - if the burdened side buys up the benefit side4)Estoppel5)By prescription (AP the burden and let SOL run, and you'll clear it out)6)

Ex - prop owner's assoc does not enforce against A - next week B can claim that they waived/abandoned right to enforce it against entire tract

This tends to make these associations more assertive to enforce, so that there won't be a claim of waiver/abandonment of a right to enforce

By abandonment/waiver of right to enforce - if a benefit holder does not enforce a covenant, the burdened side can claim that they waived their right to enforce (this doesn't have to be over SOL)

7)

Condemnation - eminent domain8)

Sometimes does not even have to be unanimous - if a homeowners assoc says only a certain percentage vote - can show the power of a holdout if it does have to be unanimous

a)Through the consent of all interested parties9)

If changes have made the intention of the servitude impossible, then the court can change the servitude to re-assert the original intent (and if it can't be modified, then the court can reward compensation to the beneficiaries who lost out)

1)

If changes can still maintain the benefits, but the location of the servitude is no 2)

Restatement Third says: a)

Changed circumstances - this is HIGHLY limited - must show that change has occurred w/in the covenanted tract and that the benefit no longer remains at all

10)

Termination of covenants•

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If changes can still maintain the benefits, but the location of the servitude is no longer suitable, they can modify the servitude as long as they don't take away the benefits

2)

Disability - something that prevents an individual from carrying out ADLs

Race

Class

Family status

NOT marriage status, viewpoints, sexual orientation

Only helps protected classes

Discriminatory intent - nothing will be valid that was made with the intent to discriminate against a protected class

1)

Disparate impact - even if it was not the intent, but the outcome is discrimination, it will not be allowed as long as there can be...

2)

Reasonable accommodations - this is very fact sensitive, looking at the people and places on a case-by-case basis

3)

If you are protected, there is:

Federal Fair Housing Act•

Remember, all of these requirements are only SUPER important if you want monetary damages -otherwise, if you fall short, you can go to equitable servitudes and still get injunctive relief or specific damagesIn first restatement, if the benefit is in gross, the burden will not runCovenants generally cannot create a property interest in a third partyWhen ambiguous, courts favor not burdening landIf you don't remember changed circumstances, see Western Land Co. v. Truskolaski

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Note: landlord/tenant is considered sufficient horizontal privity (like grantor/grantee)

Novation - an explicit contractual release from the obligation - note, only a landlord can release the tenant, not the replacing subtenant

◊

Then the landlord can only sue the new tenant for any breaches - under privity of estate

◊

Assignment? New tenant completely replaces old tenant

The T1 tenant can be sued under privity of contract•Then the landlord could sue the new tenant OR the old tenant for breaches◊

OR Sublease? There is an incomplete taking

Intent (modern rule)◊

Anything less than everything = sublease (ex. Hold back one day)•Everything = assignment•If there is no express reversion or right of re-entry, the majority will find an assignment, but a growing minority will find a sublease

•

What did you transfer? (Common law rule)◊

Depends on the jurisdiction - can look at:

Note: even in jurisdictions that don't recognize third party beneficiaries, there will still be held an obligation to pay rent, b/c too important and can adversely affect all of the other tenants (but might not uphold affirmative covenants, like to fix things on the property

Question:

Especially important public policy now in an increasingly urban society◊

But this might not be held to be AS important in residential dealings◊

But sometimes there is a leniency for residential contracts, assuming that they are less sophisticated

◊

The law favors alienability

But this is often overridden by estoppel or waiver•Majority: Can arbitrarily refuse if it is in the contract◊

Minority: cannot arbitrarily refuse◊

Common law: lessor are permitted to have contractual restrictions, including a right to withhold consent

Restatement second: cannot withhold arbitrarily unless that was a freely negotiated part of the contract

Mitigation requirements - if a landlord is going to make it hard to replace a tenant, they must help look for a tenant, and the tenant will be liable for the cost of the search and rent until they are replaced

Arbitrary refusal + no mitigation - all tenant's responsibility - old rule1)Arbitrary refusal + mitigation requirement (tenants don't know how to pick tenants)2)No right of arbitrary refusal + no mitigation requirement (similar to #1 - puts responsibility on tenant)

3)

No arbitrary refusal + mitigation - most tenant-friendly, but could be seen as paternalistic - also, is most likely to keep the land in use, which is good

4)

For residential properties, it usually ends up being one of the following:

Can a landlord unreasonably withhold consent to sublease or re-assign?

Covenants w/r/t landlords and tenants•

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Can be protected by injunction or specific performances, but NOT monetary damages-

Intent1)Notice2)Valid3)

Requirements:-

Equitable servitudes - a promise that does not meet all of the technical requirements of a covenant that runs with the land

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Nuisance1)Trespass - only allowed for a physical invasion2)

Importance of the right to exclude

You will get damages if you can show the mere fact of an invasion, regardless of intent

Nuisance requires much more balancing and might end up not getting relief

Why choose trespass over nuisance?•

Zoning - often can preemptively avoid incompatible uses3)Environmental regulatory agency rules4)Covenants - best only for small things between private parties5)

Incompatible Uses

Incompatible UsesWednesday, December 16, 20097:37 PM

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Can require ongoing damages until harm stops - can induce nuisance to modify their actions

Permanent damages may be like licensing a wrong and may not induce behavior change, or it could be that the damage was done and the permanent pay -out will suffice b/c no one will live there anymore

Damages

If there is social utility, this might not be the best option, but it does create a bright line rule, which may prevent future litigation, or you could just feel that the harm is too great or the nuisance is too rich that monetary damages would have no effect or this could just be the jurisdictional rule in certain situations and this is the only option

But, this is like licensing a wrong

Parties can also choose to do this privately, and that would not be licensing the wrong w/o their consent, but their can be transaction costs, holdouts that put the nuisance out of business, etc

Nuisance to pay harmed party for the injunction◊

Or say that the injunction is only until they can negotiate a tolerable level b/w the parties

◊

Or say injunction is only until they can come up with technological advances that eliminate the problem

◊

Although it can be a start to bargaining if you allow

Also, could incentive ppl to complain to the legislature, which would get regulatory agencies to take over, which is good

Injunction

Complaining party must pay the nuisance to move

Combination

Social utility

Ability to prevent the harm and still operate

How to decide? Weigh

Remedies:

Although this might not be the best starting point, b/c then it will be weighed twice - here and in the remedies

Also, tends to favor big business and disfavor private landowners, etc.

Social utility - balance to see which use has more social utility

Sometimes this is reflected in the property values at the time of moving towards the nuisance

Coming to the nuisance argument

Is this a highly sensitive complainant?◊

Substantial - frequency of occurrence, degree of harm, some jurisdictions say $100 worth of harm

Some jurisdictions say acting with the purpose of creating the harm (narrow)

◊

Others say acting knowingly, even if there was not harmful intent (broad)◊

Intentional

So, the harm gets weighed doubly - here and in substantial

only looking at the degree of harm to the plaintiff - no cost/benefit analysis

1)

Benefits provided by the defendanta)Cost to the defendant of preventing the harmb)Plaintiff's role in reducing the harmc)

Balancing the degree of harm with2)

Unreasonable - this is

Substantial, intentional, unreasonable - this is usually the starting point - see decision tree

Remember, if there is a ramping up, then there is a new nuisance claim

Who is a nuisance?

Nuisance

Substantial ?1.

Yes

Unintentional

Reckless or negligent? (or ultrahazardous) -could look at moving to the nuisance or poor site choice

No

No liability, so no remedies

Intentional

Unreasonable?

No

No liability, so no remedies

Yes - maybe poor location choice, among other reasons

Remedies

Yes

Remedies

NuisanceWednesday, December 16, 20097:38 PM

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Damages

Injunction - this is most likely if something is characterized as an intentional trespass

Remedies:

Trespass - a physical invasion

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Cumulative zoning began in Village of Euclid v. Ambler Realty Co - allowed, even though property value decreased by 75%

•

Variance - an allowance to get a lower use in a higher use area•

Generally, zoning is considered a public purpose, so it's alloweda)There is no authority to engage in the taking at all - not a public use/purpose1)

Generally, zoning is characterized as nuisance control, which does not have to be compensated (as opposed to the provision of a benefit)

a)Gov't won't pay just compensation for it2)

Zoning can be unconstitutional if:•

Generally, there is a lot of deference to the legislatures on zoning and eminent domain to maintain separation of powers

But, maybe there should be stricter scrutiny, b/c of legislators' tendency to act w/ a short-sightedness b/c of voting cycles

Also, look at the standard of judicial review•

Hadachek - entirely devalued his property and business, which were specific to THAT land - still not considered a taking

•

Zoning and Eminent Domain Claims

Zoning and Eminent Domain ClaimsWednesday, December 16, 20097:38 PM

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Public use/purpose1)

BUT, permanent can be ambiguous1)

Categorical rule of characterization of the taking - if there is a permanent, physical occupation by a third party, then it is a taking - hurts the right to exclude

i.

Was the area already open to the public? If so, generally you can't exclude, but you can regulate time, place and manner (Pruneyard, State v. Shack)

ii.

Distinct investment backed expectations?iii.Conceptual Severance v. property as a whole?iv.Extent of diminution?v.Is it land or coal/clay?vi.Is there an unfair burden on a private party on behalf of the public? vii.Is it 100%?viii.

If the gov't had to pay for everything, we wouldn't be able to afford to provide anything

1)Did the gov't go too far?ix.

Are there reciprocal benefits and burdens?x.

Degree of harm to public land and resources or adjacent private property by claimant's activities

1)

Social value of these activities and their suitability to that location2)The relative ease w/ which harm can be avoided by actions taken by claiment, gov't or neighbors

3)

THEN - if it is 100% - nuisance only = common-law nuisance4)

Did the regulation take away 100% of its value, even if there is no actual taking? Consider:xi.

Was there a taking?2)

Preventing a nuisance/w/in police powers? - no compensation requiredi.Providing a good? - then, must compensateii.

AT THE TIME of the announcement of the taking (not after all the litigation, when the market value will have already dropped) - although, even the announcement will drop the value

1)Fair Market Valueiii.

Replacement value - how much would it cost you to come back and buy the same square footage? - no standard, b/c hard to take into account indiv. characteristics, sentimental value, etc - ppl who willingly sell w/o litigation are likely to get more $

iv.

Transferrable Development Rights (TDRs)v.

Just Compensation3)

Generally, it is a reasonable basis review/rational review (coupled with the deference to lower courts provides a LOT of leeway to gov't)

i.

Although, corporations are liable to their shareholders - not reasonable to expect them to stay at a loss to their shareholders

1)If it were higher, it could work back around and help gov't to hold promisors accountableii.

Standard of review4)

Kelo (Pfizer in New London)

Loretto (cable lines)

Causby (overflight)

Kaiser Aetna (dredged lagoon)

Pruneyard Shopping Center (annoying pamphleteers)

Yee v. City of Escondido (rent control - can't evict to raise the rent - no taking b/c not permanent - you can stop renting or they can move out)

Andrus v. Allard (eagle feathers - right to sell was not so valuable a right that removing it was considered a taking)

State v. Shack (migrant farmworkers)

City of Euclid v. Ambler Realty (75% loss to zoning - no taking)

Hadacheck (loss of brick making - no taking)

Pennsylvania Coal (conceptual severance - taking 100% of support estate)

Kestone Case (overrules PA Coal - says regulating a nuisance)

Penn Central (landmarks and TDRs)

Lucas (SC island restricted bldg)

Cases

Eminent Domain Remember that the gov't has the right to eliminate nuisance w/o paying, but private actors do NOT

Nuisance?

Yes

100% loss?

Yes No - no taking -no compensation

What type of nuisance is it? (redefinition at this point)

A nuisance that violates common law nuisance regulation - no compensation

A nuisance that does not violate any prior common law nuisance regulation -compensation

Regulatory takings

Physical Invasion

Third party/gov't invasion? Yes - this is like taking landKaiser AetnaCausbyLoretto

Yes, BUT, you invited them in - this is not a takingPruneyard Shopping Center - said you can't keep them out b/c you invited the public in, and they are part of the public, but you will be allowed to regulate time, place and manner

Non-nuisance regulation -not a common law nuisance in the 100% taking cases (w/o physical invasion)Penn Central CaseThen, you have to look at factors:Reciprocity of benefitDiminution in valueWhat is the gov't seeking to accomplish?What is the burden on the owner?Reasonable investment-backed expectationsBalancing test that doesn't always win

Nuisance (gov't will always claim they are preventing a harm)Is it less than 100% taking?If it is less than 100%, and it truly is a nuisance, then there is no takingIf it is 100%, then we look at background law (common law rules), and if it is a nuisance under the common law rules, then there is no takingIf it is 100% and it is not a common law nuisance, then it goes back to the Penn Central balancing test of non-nuisance regulation (Lucas)There will also be pressure on the definition of property (interests) in determining %age of loss

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