I. Title by Capturea. Generally

i. CASE: Pierson v. Post1. Plaintiff hunting a fox with his dogs when defendant came along

and killed the fox. Plaintiff claimed possession by virtue of the chase and defendant sued

2. Ruling for defendant: theory that ferae naturae may be conferred onto a person by actual possession

3. John Locke’s Labor Theory: you gain possession when you mix a good with labor

ii. CASE: Keeble v. Hinkeringill1. Plaintiff owned a decoy pond to catch ducks; defendant shot his

gun near the pond and scared off the ducks. Plaintiff sued2. Ruling for plaintiff: a property owner has a right to employ land

for his pleasure and profit and any act hindering that pleasure/profitable is actionable

3. Neither party had a possessory interest in the ducks – case only dealt with interference with business enterprise

iii. CASE: Popov v. Hayashi1. Both intended to catch a valuable baseball. Plaintiff had it in his

glove when he was rushed by the crowd; defendant picked it up off the ground

2. Both the plaintiff and the defendant had an interest in the ball, as plaintiff had pre-possessory interest and defendant had actual possessory interest. The ball was sold, and the profits were split

iv. Doctrine of Accession1. If A takes B’s property and transforms it into a new product, A is

typically only responsible for damages from initial takingv. Doctrine of Increase

1. Offspring of animal belonging to A will belong to A, no matter who the father is

b. Fugitive Resourcesi. Oil and Gas

1. Fugitive resources as they move from place to place underground2. Capture rule: whoever gets it can have it

ii. Water1. Surface Water

a. Riparianism: every landowner has a right to use the water that abuts their property, subject to the rights of other landowners

b. Prior Appropriation: first person to capture water and put it to beneficial use has the rights

2. Groundwatera. English Rule: first to capture without regard to othersb. American Rule: first to capture, but wasteful/non-beneficial

applications are unlawful

II. When is Creation not Property?a. Commons: previously unowned land

i. Limited-Access: limits access and use of resources to select groupsii. Open-Access: no single group has a right to exclude

1. Leads to tragedy of the commons: need for government intervention to protect resources

iii. Move to private ownership to internalize externalities and maximize efficiency

b. Constituting Ownershipi. Ownership = bundle of rights

1. The right to exclude, etc.ii. CASE: Jacque v. Steenberg Homes, Inc.

1. Defendant wished to deliver a mobile home across plaintiff’s land. When plaintiff refused, defendant did it anyways

2. Court ruled for plaintiff, citing that the right to exclude is a necessary right to ownership of property

III. Intellectual Propertya. Types of IP

i. Copyrights: exclusive rights to literary works and artistic goodsii. Patents: inventions that are novel, useful, and non-obvious

iii. Trademarks: words or symbols that identify sources of goods or servicesb. Distinguishing Between Intellectual Property and Real Property

i. Non-excludable: once a resource has been created, people cannot be prevented from gaining access to it

ii. Non-rivalrous: the resource may be used by one person without preventing simultaneous use by others

c. Misappropriationi. CASE: Int’l News Serv. v. AP

1. The AP published news, INS took the news and published it as its own

d. Patentsi. Supported by the constitution “to promote the progress of science and the

useful arts”ii. Grants limited monopoly to patentee assuming he will use as incentive to

engage in socially useful enterprise for the 20-year patent termiii. Requirements: patentable, novel, useful, non-obvious, enableableiv. CASE: Diamond v. Chakrabarty

1. Respondent created a new type of micro-organism to aid in cleaning up oil spills and was issued a patent; petitioner challenged the issuance

2. Ruling for respondent: you are able to get a patent for living organisms if that organism is not found in nature

e. Copyrightsi. Holder has right to protect others from reproduction, distribution, etc.

ii. Requirements: originality, work of authorship, fixation

iii. CASE: Feist Publications, Inc. v. Rural Telephone Serv. Co.1. Respondent published a white pages for its subscribers, and

petitioner took the information from the white pages for their own, general purpose white pages

2. Court found for petitioner under Sweat of the Brow theory: the second white pages was sufficiently creative and original

iv. Copyright action if: (1) plaintiff holds a valid copyright, (2) defendant copied the work, and (3) copying was “improper appropriation”

v. CASE: Eldred v. Ashcroft1. Petitioners built a business through which they published

copyrightable material that had entered the public domain2. Congress passed an Act that established copyrights were valid for a

term of life plus 70 years, which retroactively applied to various copyrights

3. Court found that the Act did not violate the “Limited Times” portion of the Copyright Clause

vi. Fair Use1. Exploitation of some copyrighted work without permission

f. Trademarksi. Does not depend upon “work of the brain,” but simply something that

identifies goodsii. Prevent consumer confusion, encourages trademark owners to invest in

quality, and prevents freeridingiii. Requirements: distinctiveness, non-functionality, first useiv. CASE: In re Cordua Restaurants, Inc.

1. Cordua opened a restaurant called “Churrascos” and applied for a trademark

2. Trademark was denied and the Court upheld the denial, holding that the name was too generic as it simply referred to a type of restaurant/type of food

IV. Title and Possession of Findersa. Chain of Title

i. Q -> R ->1. Lost/misplaced – questionable title2. Stolen – no title to finder3. Abandoned – title to finder

ii. Depends on R’s mindset at the timeiii. CASE: Armory v. Delamirie

1. Plaintiff found a jewel in a chimney while cleaning it; he gave it to a third-party actor to have it cleaned and the third party took the stones

2. Court found for the plaintiff, held that “the finder of a jewel . . . has such a property as will enable him to keep it against all but the rightful owner”

3. True owner has best possessory interest, then subsequent possessors in order of possession

iv. Trover: monetary damages for conversionV. Bailments

a. Rightful transfer of good without transfer of titlei. Bailor transfers the good, bailee gets the good (delivery and acceptance)

ii. Voluntary or involuntaryiii. The standard of care that a bailee owes to a bailor depends on who

benefits from the bailment1. e.g. if bailor is the sole beneficiary, the bailee must only refrain

from damage due to gross negligence, etc.iv. CASE: Hannah v. Peel

1. Defendant owned property that was requisitioned for quartering during the war. Plaintiff, while there, found a brooch which he turned over to the police. The police could not find the original owner, so they turned it over to the defendant who sold it

2. Court finds for the plaintiff for return of the value of the chattel, because the defendant was not in possession of the property at the time the brooch was found

VI. Lost/Mislaid/Abandoned Property. (p. 130)a. Mislaid: owner intentionally placed it in some location and then forgot to retrieve

iti. True owner typically will win

b. Lost: owner inadvertently loses possession of iti. Finder typically will win

c. Abandoned: owner intentionally relinquishes all legal rights to it with no intent to confer rights on any particular person

i. Finder will wind. Treasure Trove: gold, silver, bullion, or money that has been concealed in a

private placei. CL: treasure to the King

ii. Modern US: treat it lost/mislaid, give ownership to the owner of the landVII. Gifts

a. Three Requirements:i. Intent: donor must intend to make a present transfer

1. Objective view of subjective intentii. Delivery: donor must actually hand over the property

1. Actual, constructive, or symboliciii. Acceptance: donee must actually accept the gift

b. Types of giftsi. Inter vivos: immediate transfer of a title “between living”

1. Irrevocable if three requirements are metii. Causa mortis: transfer chattel/property upon impending death

1. Revocable upon donor’s recoveryc. Generally

i. No revocation of gifts: upon delivery and acceptance, title transfers immediately

ii. Attempt to transfer a gift in the future is invalid

iii. CASE: Newman v. Bost1. Plaintiff was housekeeper of the decedent. On his death bed,

decedent gave plaintiff a bunch of keys and stated that she could have anything in the house (included insurance policy and furniture)

2. Court found mostly against plaintiff because the insurance policy could be manually delivered and the goods in the house could have been symbolically delivered. Plaintiff granted whatever goods that the keys opened, as they were constructively delivered

iv. CASE: Gruen v. Gruen1. Plaintiff claimed title to a Klimt that he stated his father gifted to

him, but his stepmother did not deliver. The father retained possession but sent the plaintiff a letter gifting the painting to him after his death

2. Court found for the plaintiff, stating that the father had the right to retain the painting until his death and made a valid inter vivos gift – the letter was a valid constructive delivery

3. “As long as the evidence establishes an intent to make a present and irrevocable transfer of title or the right of ownership, there is a present transfer of some interest and the gift is effective immediately.”

VIII. Adverse Possessiona. Can assert through action to quiet title or action for ejectment by landownerb. The Theoretical Policies

i. Avoidance of Stale Claimsii. Quiet Titles/Correct Title Errors

iii. Protection of Personal Attachmentsc. Basis: statute of limitations has run for property owner to bring action for trespass

i. MI: 15 yearsd. Elements: (1) actual entry, (2) exclusive possession, (3) open and notorious, (4)

hostile and adverse, (5) continuous and uninterruptede. Three theories: objective standard, good faith standard, and aggressive trespass

standardi. CASE: Fulkerson v. Van Buren

1. Appellant owned a plot of land where appellee’s church met from 1985 until 1994. In 1994 appellant asked them to leave; the church refused so he filed this action

2. Court found for appellant, stating that “a possessor of land does not possess adversely if he recognizes the ownership right of the title holder in the land”

f. The Open and Notorious Requirementi. A operates a business in cave under B’s land. B was unaware that the

cave was under his land and to find that out would have had to enter A’s land (where the entrance was located). Statute of limitations does not begin to run until B is aware of A’s wrong (Discovery Rule)

ii. Ad Coleum Doctrine: he whomsoever owns the soil also owns to the sky and the depths

iii. Color of Title: claim founded on a written instrument or ruling that is for some reason defective

1. Those with color of title have advantage over those who do notiv. Constructive Possession: actual possession under color of title of only part

of land covered by the defective writing is constructive possession of all that the writing describes

g. Boundary Disputesi. CASE: Hollander v. World Mission Church of Wash., DC

1. Appellant owned land next to a church. She had mistakenly been tending to land that belonged to the church, but which she thought was hers, for 15 years

2. Court ruled for appellant, who showed actual, hostile, exclusive, visible, and continuous possession for 15 years

ii. CASE: Howard v. Kunto1. Kuntos purchased property from the Millers, which was owned by

the McCalls before that; the land was actually owned by the Myers according to the original deed but the Myers had never tried to exert possession before this

2. Kuntos able to establish adverse possession on two grounds:a. Just because it was a summer residence does not mean they

could not show “continuous and uninterrupted” possessionb. Tacking: privity exists between the Kuntos and the

Millers/McCalls, so the Kuntos were able to “tack” their time as adverse possessors to their own

h. Adverse Possession of Chattelsi. CASE: O’Keeffe v. Snyder

1. Plaintiff had an art gallery from which paintings were stolen; defendant claimed that he purchased them and claimed adverse possession because the statute of limitations for replevin had run

2. The Court held that the statute of limitations should begin to run upon discovery of the stolen chattel in someone else’s possession

ii. Three Rules When Statute of Limitation Begins to Run1. Discovery Rule: diligent pursuit of the stolen goods may prevent

the statute of limitations from running2. Conversion Rule: SOL begins as soon as the property is converted3. Demand Rule: SOL begins as soon as the true owner demands the

propertyIX. System of Estates

a. Historical Duties Owed to Landsi. Services

1. Military: required tenants to quarter/provide soldiers for the crown2. Economic: intended to provide subsistence and maintenance to

overlords3. Religious: customary to bestow land onto the church

ii. Incidents1. Escheats: if tenant died without heirs, land would be returned to

the lordiii. Avoidance of Incidents

1. Substitution: leaving the land and appointing a new tenant2. Subinfeudation: often done without lord’s consent

iv. Statute Quia Emptores1. Banned infeudation in fee simple, largely ended feudal system2. Established free alienation of land and gave more land to the

crownb. The Fee Simple

i. Potentially infinite duration (due to inheritability and alienability)ii. Creation

1. Just say “from O to A”; no need to say “to his heirs”iii. Chain of succession (intestate): spouse, issue, ancestors, collaterals,

escheatc. The Fee Tail

i. “From O to A and the heirs of his body”ii. Once A and all his lineal descendants are dead, the land goes back to the

grantor or his descendantsiii. All fee tails have reversion and remainder clausesiv. If a will seems to create a fee tail but they are abolished in that state:

1. A fee simple is created in A, or2. If A’s death leaves no supervising issue, then a fee simple is

created in B as a divesting executory interestX. Life Estates

a. A can transfer life interest to B, but it still will end at A’s death and revert back to O

b. Followed by reversion, remainder, or bothi. CASE: White v. Brown

1. Lide owned a house which she willed to White with the caveat that it was not to be sold. White wished for a construction of the will holding that she had a fee simple

2. Court found a fee simple, stated that a will silent as to the condition of the estate to be transferred with the caveat that it was not to be sold was a fee simple, and so the caveat could not be enforced

3. Restraints on Alienationa. Disabling: withholds from the grantee the power to transferb. Forfeiture: if grantee attempts to transfer interest, it will be

forfeited to anotherii. CASE: Baker v. Weedon

1. Weedon was married three times; his will stated that upon death his land would go to his third wife and if she died without children then it would go to his grandchildren. The grandchildren worked

with the third wife and contracted to sell some of the land to the MS highway dept; later, third wife brought this suit to recover land

2. Court found that the third wife was not able to sell the land as she only had a life estate

XI. Defeasible Estates (p. 202)a. Estate that may terminate prior to its natural end pointb. Fee Simple Determinable (automatic termination)

i. Ends automatically when a stated event occursii. Durational language: “so long as,” “during,” “while”

iii. Possibility of Reverter: a future interest retained by the transferor of a determinable fee

c. Fee Simple Subject to Condition Subsequent (termination at election of transferor)

i. Does not automatically terminate, but may be divested at the transferor’s election when a stated condition happens

ii. Future interest in O is called O’s right of entry/terminationiii. Right of Entry: future interest retained by transferor to divest the FS

d. Fee Simple Subject to Executory Limitation (automatic termination)i. Similar to Condition Subsequent, but O creates a future interest in a third

party rather than themselvesii. Executory Interest: future interest created in the third party

e. Generallyi. CASE: Mahrenholz v. County Board of School Trustees

1. Huttons conveyed a fee simple to the school district and stated “this land to be used for school purposes only, otherwise to revert to grantors.” The school closed and the remaining property went to the Js, who transferred the title to the plaintiffs. Harry, the Huttons’ heir, transferred his interest to the plaintiffs as well

2. Court found that the deed did not transfer a fee simple subject to a condition and that Harry did not properly transfer his interest to the plaintiffs

ii. Notes on Mahrenholz1. Possibility of reverter and right of entry given to heirs, cannot be

transferred during lifeiii. CASE: Mountain Brow Lodge v. Toscano

1. RULE: The distinction between a covenant which restrains the alienation of a fee simple absolute and a condition which restricts land use and creates a defeasible estate was long recognized at common law and is recognized in California. Thus, conditions restricting land use may be upheld by the California courts even though they hamper, and often completely impede, alienation.

XII. Reversions and Remaindersa. Future Interests Retained by Transferor

i. Reversion

1. Interest left in an owner when he carves out of his estate a lesser estate and does not provide who is to take the property when the lesser estate expires

2. “The remnant of an estate that has not entirely passed away from the transferor”

3. Transferable during life and descendible/devisable at deathii. Possibility of Reverter

1. Occurs when an owner carves out of his estate a determinable estate of the same level

2. Right vested in the transferor of a fee simple determinableiii. Right of Entry

1. When an owner transfers an estate subject to a condition subsequent and retaining the power to cut short or terminate the estate

b. Future Interests in Transferees (decision tree p. 219)i. Remainder

1. A future interest in a transferee which is capable of (not required to) becoming possessory at the natural termination of the preceding estate and does not divest any one estate except the transferor

2. Vesteda. (1) given to an ascertained person and (2) not subject to a

condition precedentb. Vested subject to open: if one member of a class is

ascertained (e.g. children) and there is no condition precedent (i.e. later-born children entitled to share in what was vested to the first-born child)

3. Contingenta. (1) given to an unascertained person and (2) made

contingent upon some event occurring other than natural termination of preceding estates

4. A remainder is contingent unless it meets the requirements to be vested

ii. Executory Interest1. Divest the preceding interest

iii. Shortcut Rules (p. 223)1. LE + FI1 + FI2, and FI1 = CR (in FS), then FI2 = CR2. LE + FI1 + FI2, and FI1 = VR (in FS), then FI2 = EI3. LE + CR (in FS) + CR (in FS), then REV (in FS)

XIII. Executory Interest and Trusta. Executory Interests

i. A future interest in a transferee that must, in order to become possessory,

1. Divest or cut short some interest in another transferee (“shifting”), or

2. Divest the transferor in the future (“springing”)ii. Statute of Uses

1. Permitted the creation of a FS subject to executory limitation:a. A FS that, upon happening of an event, is automatically

divested by an executory interest in a transferee iii. Table of Future Interests on page 229

b. The Trusti. Trustee holds legal title in the trust property

1. Has power to sell assets and reinvestment proceeds2. Net income paid to beneficiaries; upon termination the property is

transferred to the designated beneficiaries 3. Subject to duties, such as loyalty to the beneficiaries

c. Rules Furthering Marketability by Destroying Contingent Future Interestsi. Destructibility of Contingent Remainders

1. Legal remainder in land is destroyed if not vested at or before the termination of the preceding freehold estate

2. Can also be destroyed through forfeiture or mergera. If the LE and next vested estate in FS come into the hands

of the same person the lesser estate is merged into the otherd. The Rule in Shelley’s Case

i. If (1) one instrument (2) created a life estate in land in A and (3) purports to create a remainder in persons described as A’s heirs and (4) the life estate and remainder are both legal or both equitable, then the remainder becomes a remainder in fee simple in A.

e. The Doctrine of Worthier Titlei. Inter vivos conveyance of land with a limitation over the grantor’s own

heirs either by way of remainder or executory interest, no future interest in the heirs is created; rather, a reversion is created in the grantor

f. The Rule Against Perpetuities

i.XIV. Creation and Termination of Joint Interest

a. Tenancy in Commoni. Tenants have separate but undivided interest in property; interest in each is

descendible and passed by deed or willb. Joint Tenancy

i. Right of survivorshipii. Four essential unities:

1. Time: interest must be acquired or vested at the same time2. Title: must acquire title by same instrument or joint AP3. Interest: separate but undivided shares and identical interests4. Possession: each must have a right to possession of the whole

c. Tenancy by the Entiretyi. Created only in married couples

ii. Like that of JT (4 unities plus marriage), survivorship rights, and the parties are considered to hold as one person under CL

d. Avoidance of Probatei. Probate: judicial supervision of the administration of the decedent’s

propertyii. Joint tenancy avoids probate

e. Generallyi. CASE: Harms v. Sprague

1. Plaintiff entered into a JT with brother; brother entered into an agreement with the defendant whereby brother used his JT interest to get a mortgage on the outstanding balance that defendant owed to a third party. Brother then died

2. Upon death of brother, plaintiff had sole ownership of the JT (right of survivorship). Once the brother died, the lien of the JT ceased to exist and the plaintiff was not responsible for the mortgage.

f. Partition: when parties terminate a cotenancy but cannot come to a voluntary agreement

i. CASE: Delfino v. Vealencis1. Plaintiff had 99/144 interest and defendant had 45/144 interest in

common. They decided to terminate the cotenancy; plaintiff wanted a sale and defendant wanted an in-kind partition

2. Court ruled for an in-kind partition because it was the fairest way to split up the land. A sale would weigh the plaintiff’s interests unfairly above the defendant

g. Sharing the Benefits and Burdens of Coownershipi. CASE: Spiller v. Mackareth

1. Spiller and Mackareth were cotenants of a building where their tenant vacated. Spiller then used the building as a warehouse to store his stuff; Mackareth sent him a letter demanding that he vacate half the premises or pay her portion of the rent

2. Court found for Spiller, held that in absence of an agreement to pay rent, a cotenant in possession is not liable to his cotenants for the value of his use and occupation of the property. To be liable in AL, the cotenant must have denied his cotenants the right to enter (basically, does not have to pay unless there is an ouster)

XV. Tenanciesa. Leasehold Estates

i. Term of Years

1. Estate that lasts for a fixed period timeii. Periodic Tenancy

1. Lease for fixed period of time that continues for succeeding period until either the landlord or tenant gives notice of termination

iii. Tenancy at Will1. No fixed period of tenancy, endures as long as the landlord and

tenant desire2. CL: end whenever you want; modern statutes typically require a

termination periodiv. Tenancy at Sufferance: Holdovers

1. Tenant remains in possession after termination of the tenancy2. Landlord can evict or consent to creation of a new tenancy

v. CASE: Kajo Church Square, Inc. v. Walker1. Walkers owned plot of land which they gave to Grace Church,

Grace leased it back to the Walkers. Grace sold the land to Kajo and Kajo signed paperwork acknowledging a “leasehold for life” in the Walkers, but Kajo terminated the lease

2. Court found for Kajo because a leasehold for life is not a thing and the lease would have been at will, so Kajo was right in termination

b. Selection of Tenantsi. Civil Rights Act/Fair Housing Act created basis for civil suits for housing

discriminationii. Need not prove discriminatory intent, just discriminatory effect

XVI. Assignments and Subleasesa. Assignments v. Subleases

i. CASE: Ernst v. Conditt1. Appellants leased a tract of land to Rogers, who built a Go-Kart

track. Appellee approached Rogers to buy the business; they both approached appellants and amended the lease to extend its duration and stated that appellee was a sublessor. The lease expressly stated that Rogers was still the lessee and was responsible for damages. Appellee did not pay the rent

2. Court held that the appellee was an assignee, not a sublessee. In CL, the party would always be a sublessee, but in modern law the court will look at the intent of the parties

ii. Two tests to distinguish between the sublease and assignment1. Formalistic: if the lessee transfers anything less than his entire

interest, it’s a sublease2. Intention: look at what the parties wanted

iii. CASE: Kendall v. Ernest Pestana, Inc.1. City leased space to Perlitches, who assigned their interest to

Pestana. Prior to assignment, Perlitches had subleased to Bixler, who sold his airplane service business to Kendall. Lease stated that written consent of the lessor was required to assign interest; thus Bixler needed the consent of Pestana, but they refused

2. Court found for Kendall, stated that Pestana needed to provide a legitimate business justification for refusal of Bixler’s request to sublease to Kendall (minority rule)

iv. Privity1. Sublease: no privity of estate between sublessee and landlord,

original lessee still responsible for obligations under K2. Assignment: substantial rights transferred from lessee to sublessee

to create privity between assignee and landlordv. Novation: express release from liability from a landlord

XVII. Duties and Rights of a Landlorda. The Tenant in Possession

i. CASE: Berg v. Wiley1. Wiley leased land to Phillip Berg, the leased stated that Phillip

would pay for costs of remodeling and make no changes to the building’s structure and that Wiley retained the right of re-entry if the lease was violated. Phillip assigned lease to Kathleen Berg, whose restaurant received numerous health code violations; when Kathleen failed to fix problems after two weeks, Wiley re-entered and changed the locks

2. Court held for Berg, ruled that a landlord cannot use “self-help” to retake possession. Self-help was allowed under the common law, but the Court adopts a modern approach stating that landlords can only retake through judicial means

b. The Abandoning Tenanti. CASE: Sommer v. Kridel

1. Defendant signed a two-year lease and paid first month’s rent and security deposit, but never moved in and told plaintiff he was vacating because he was unable to pay the rent. Plaintiff let damages accrue and did not attempt to relet, then sued for damages

2. Court ruled for Kridel, found that a landlord has an obligation to take steps to mitigate losses as a result of an abandoning tenant. Landlord should have put out ads/not denied another person from moving in

ii. Traditional options for abandoning tenant:1. Terminate the lease2. Leave premises abandoned, recover accrued rent3. Mitigate damages, recover any difference

c. Duty to Deliver Possessioni. American Rule: tenant’s responsibility to oust holdovers

ii. English Rule: landlord’s responsibility to oust holdoversd. Negotiable part of the leasee. Covenant of Quiet Enjoyment

i. Ability to enjoy your premisesii. Landlord must have a right to legal possession and the premises must be in

physically good conditionXVIII. “Leaving the Relationship”

a. Generallyi. CASE: Village Commons, LLC v. MCPO

1. MCPO leased space from Village Commons; contract stated that the landlord would be responsible for all equipment used in common and maintain leased space in good repair. The space began to leak and they found mold and a part of the leased space was unavailable; the landlord did a poor job in cleaning/fixing leaks, so MCPO vacated and the landlord sued for breach

2. Court found for MCPO, held that actual eviction occurred when the landlord told MCPO to refrain from using flooded areas; constructive eviction occurred due to repeated water intrusions. Due to these, MCPO was able to elect to vacate

ii. Constructive Eviction: (1) condition of leased premises amounts to a breach of the covenant of quiet enjoyment, (2) breach so substantial as to justify the tenant leaving, (3) tenant vacates in a timely fashion

b. The Implied Warranty of Habitabilityi. Really only in residential leases

ii. CASE: Hilder v. St. Peter1. Plaintiff moved into a new apartment that had a bunch of problems

that she fixed at her own expense. She paid all rent on time and paid a security deposit, which she never got back

2. Court ruled for plaintiff, found that a landlord is responsible for the habitability of the leased property, must make sure that the property is “safe, clean, and fit for human habitation.”

iii. Possible remedies for tenant:1. Remain in possession and bring an action for damages2. Rescind lease, permitting the tenant to vacate the premises with no

further obligation to pay3. Remain in possession and withhold all or part of rent4. Repair the defects and deduct the costs of the repairs from rent

XIX. Purchase of Real Estatea. Real estate Ks almost always executory – title does not pass immediatelyb. Implied warranty of marketabilityc. The Contract of Sale

i. SoF: (1) signed by party to be charged, (2) describe real estate, (3) indicate price

ii. Exceptions: part performance and estoppeliii. CASE: Hickey v. Green

1. Hickeys orally agreed to buy Green’s property, giving Greens deposit check. Hickeys agreed to sell their house to a third party – Hickeys made clear to Greens that they intended to sell their own property in reliance of the sale of Greens’ lot. Greens backed out

2. Court ruled for Hickeys, held that specific performance may be granted in favor of a non-breaching party when that party reasonably and detrimentally relied upon an oral agreement that did not satisfy the SoF (R(3)K § 129)

XX. Contracts and Deedsa. Contracts

i. Implied Condition of Marketable Title1. A title not subject to such reasonable doubt as would create a just

apprehension of its validity in the mind of a reasonable personii. CASE: Lohmeyer v. Bower

1. Bowers agreed to sell land to Lohmeyer, showing him an abstract showing good title. Lohmeyer agreed, but afterwards discovered that the property was in violation of a local ordinance; Lohmeyer sought rescission

2. Court ruled for Lohmeyer, found that the encumbrances on the property are enough to expose him to the hazard of litigation and make such title doubtful and unmarketable

3. Even though the deed contained a clause that “protected” the sellers from restrictions from easements and encumbrances, the implied condition or marketability still comes into play

iii. Doctrine of Equitable Conversion1. If there is a specifically enforceable contract for the sale of land,

equity regards “as done which ought to be done” – specific performance

b. The Duty to Disclose Defectsi. CASE: Stambovsky v. Ackley

1. Plaintiff bought a house which was well-known as a haunted house; defendant did not disclose any of this information to the plaintiff

2. Court ruled for plaintiff, held that caveat emptor did not apply to this case. In NY, caveat emptor generally applies unless there is:

a. A confidential/fiduciary relationship between partiesb. Active concealment/affirmative misrepresentation

ii. CASE: Johnson v. Davis1. Davis bought a house from Johnsons. Johnsons knew that the roof

leaked, but did not disclose2. Court ruled for Davis to rescind, found that sellers are under a duty

to disclose latent defects when those defects materially affect the value of the property

3. Materiality Test: a. Objective test of whether a reasonable person would attach

importance to it in deciding to buy, orb. Subjective test of whether the defect affects

value/desirability in the eyes of the buyerc. Implied Warranty of Quality/Skillful Construction

i. Exists in lieu of caveat emptorii. Does not impose strict liability

XXI. Mortgagesa. Buyer provides (1) a promissory note and (2) a mortgage to the bank to secure a

home loan

b. Alternative Security Device: Installment Land Sale Contracti. Buyer takes possession of land immediately but seller contracts to deliver

title only after the buyer has paid purchase price plus interestc. Title v Lien Theory

i. Title: mortgagee takes legal title and mortgagor has equity of redemptionii. Lien: mortgagor retains legal title and mortgagee has lien on property

d. Changes in the Mortgage Marketi. CASE: Murphy v. Fin. Dev. Corp.

1. Plaintiffs had a mortgage with defendant and were seven months behind. After attempting to work out a new plan, defendants foreclosed. At the auction, defendants were the only ones to bid and bought the house for very cheap and flipped it

2. Court awarded damages to plaintiffs after finding that the defendants did not act in good faith and did not exercise due diligence when conducting the foreclosure sale because they did not advertise the sale and a reasonable man would have adjourned the sale

ii. Two standards for invalidating foreclosure sale: (1) must be such a price that shocks the conscience of the court and (2) price must be “grossly inadequate”

iii. Acceleration Clause: enables mortgagee, upon transfer of mortgagor’s equity, to declare balance due and foreclose if not paid

e. The Mortgage Crisis!i. CASE: Commonwealth v. Fremont Invest. And Loan

1. Fremont issued thousands of loans to subprime lenders with little or no down payment and ARM payments, and then 2008 happened

2. Court held that these mortgages are “unfair” under MA statute because:

a. They were ARM loans with intro period of three years or less

b. Initial rate at least 3% below fully indexed ratec. Debtors’ DTI exceeded 50% when evaluated on fully

indexed rated. Substantial prepayment penalty

ii. CASE: US Bank Nat’l Assoc. v. Ibanez1. Mortgage-backed security issues, US Bank presented themselves

as the present holders when they had not been assigned the mortgages, and foreclosed upon Ibanez’s home

XXII. Recording Acts and Deed Descriptionsa. Title Assurance

i. Established through title search, title assurance, title covenantb. The Recording System

i. Types of Recording Acts1. Race: the first purchaser for value who records first, prevails

2. Notice: a subsequent purchaser for value who takes without notice of third-party interests in the land prevails, regardless of whether he records

3. Race-Notice: a subsequent purchaser for value who takes without notice of third-party interests in the land prevails only if he records before the prior instrument is recorded

a. MI is a race-notice jurisdictionii. Purpose

1. Establishes a system of public recordation2. Protects bona fide purchasers against prior unrecorded interests

iii. Indexes1. Grantee-Grantor Index: separate indexes2. Trust Index

a. Indexed by parcel ID number assigned for tractb. Must go back 40 years in MIc. Golden Search Rule: Search the grantor index for

each person in the chain of title, under his/her name, from the date of delivery of the deed to the person [date in] until the date of recording of the first conveyance from that person, of all of his/her interests, [date out]

iv. CASE: Luthi v. Evans1. Owens conveyed interests in oil and gas rights to T. The lease

specified seven specific tracts, but also contained a Mother Hubbard Clause that included all interests in Coffey County not specified. There was an eighth interest in the county that Owens had assigned to Burris

2. Court held that the Mother Hubbard Clause was invalid, found that in Kansas interests had to be specifically laid out in the written document for constructive notice to be given

c. Types of Recording Actsi. CASE: Messersmith v. Smith

1. Caroline Messersmith assigned her interest in land to a bunch of people and then died

2. As a general rule the recording of an instrument affecting the title to real estate which does not meet the statutory requirements of the recording laws affords no constructive notice.

ii. CASE: Board of Educ. of Minn. v. Hughes1. Defendant bought lot from Hoerger on May 17, 1906, recorded

Dec 16, 1910. Duryea bought same lot on April 27, 1909, recorded Dec 21, 1910. Duryea conveyed interest to plaintiff on Nov 19, 1909, recorded conveyance Jan 27, 1910.

2. Court found for defendant, held that the deed from Hoerger to Hughes became operative, although Hughes left his name off, when Hughes put his name in the blank space. Hughes is a BFP because at the time of conveyance/recording there was no record

showing any other interest in the Hoerger’s lot and Hughes recorded first

d. Persons Protected by the Recording Systemi. Generally does not protect devisees and donees (courts need more than a

peppercorn)ii. CASE: Lewis v. Superior Court

1. Lewises contracted to buy a house from Shipley. A lis pendas was filed against Shipley on Feb 24, recorded on Feb 29. Lewises paid down payment Feb 25, closed Feb 28 and paid remaining balance in March

2. Court ruled in favor of Lewises:a. Party can still be hurt even if they have not paid anythingb. Constructive notice not required before payment of every

installment, just prior to passing of titlec. Protects Lewises, punishes Shipley

iii. CASE: Harper v. Paradise1. “A deed in the chain of title, discovered by the investigator, is

constructive notice of all other deeds which were referred to in the deed discovered.” If the discovered deed mentions other deeds, the discoverer is on put on inquiry notice of those other deeds

e. Inquiry Noticei. Based on a purchaser’s duty to investigate relevant circumstances

ii. CASE: Waldorff v. Eglin1. Choctaw built condos and assigned a promissory note/mortgage to

Eglin. Waldorff entered into agreement for a unit and kept up with fees. Choctaw owed money to Waldorff; they agreed to waive what Choctaw owed if Choctaw waived fees owed by Waldorff. Eglin foreclosed upon condos

2. Court ruled for Waldorff, held that a purchaser has unequivocal title over a Bank in a foreclosure action if the purchaser provides constructive notice of occupation. Since Waldorffs had open and notorious occupation of the condo, Eglin was on inquiry notice to check out if they had title

f. Title Insurancei. Does not run with the land

ii. Generally covers (1) risk that title is held by someone else, (2) risk of a defect, lien, or encumbrance, (3) risk that title is unmarketable, and (4) risk that insured owner has no right of access

iii. CASE: Lick Mill Creek Apts. v. Chicago Title Insurance Co.1. Plaintiff bought property where chemical plants once stood, so the

soil was contaminated. Plaintiffs had to pay a bunch of money to clean up the soil and sought indemnity from defendants on a basis of unmarketability of title

2. Court ruled for defendants, held that the encumbrance did not affect the marketability of title. Even if the land value was affected, they still had good, marketable title

XXIII. Easementsa. Four Types of Servitudes:

i. Easement: a right to do something on another’s landii. Profit: a right to enter someone’s land and remove something attached to

that land (e.g. minerals)iii. Real Covenant/Equitable Servitude/Negative Easement: a right to restrict

an owner from using their land in a certain wayiv. Real Covenant/Equitable Servitude: a right to compel an owner to perform

some act on their own land/a right to compel an owner to pay money to maintain facilities

b. Easement Creationi. Affirmative: give holder the right to do something on another’s land

ii. Negative: forbid owner from doing things on their landiii. Appurtenant: easement attaches to the land/gives right because a person

owns that landiv. In gross: no connection to land ownershipv. CASE: Willard v. First Church of Christ, Scientist

1. McGuian owned lots 19 and 20 and allowed the church to park on lot 20. She sold lot 19 to Peterson; he later agreed to sell both lots 19 and 20 to Willard. Peterson bought lot 19 on the agreement that the church would have an easement to park during church hours. The easement was not recorded when Willard recorded the deed

2. Court ruled for the Church, held that McGuian and Peterson both intended there to be an easement for the church, and that McGuian would not have conveyed the land had she known that the easement would not have been upheld

vi. Deed Provisions:1. Reservation: provision in deed creating some new servitude that

did not exist before as an independent interest2. Exception: provision in deed that excludes from the grant some

pre-existing servitude3. Easement can be reserved, but not excepted, in favor of a third

partyc. Licenses

i. Oral or written permission allowing licensee to do some act that would otherwise be a trespass

ii. Irrevocable under rules of estoppeliii. CASE: Kienzle v. Myers

1. Van Duyne and Bauer, with knowledge they would have to join the public sewer line, both agreed that Bauer would run her line to Van Duyne’s property and they would connect to the public line via Van Duyne’s property. New people moved into their houses and the Kienzles brought this action for trespass

2. Court ruled in favor of Myers, held that Van Duyne and Bauer had created a servitude when the former gave the latter permission to build the sewer line onto her property

d. Easements: Scope and Terminationi. Implied easements: require a previously agreed-to use

ii. CASE: Van Sandt v. Royster1. Bailey owned three properties, and she connected her house at the

far end to the public sewage line at the other end, passing under two other lots. She conveyed these lots to others, and eventually Van Sandt purchased a lot. He brought suit for equitable relief claiming no implied easement

2. The Court found against Van Sandt, held that there was an implied easement from a prior existing use:

a. Initial unity of ownership, followed by severance of titleb. An existing, apparent, and continuous use of the servient

parcel for the benefit of the dominant parcel at the time of severance

c. Reasonable necessity to continue the prior use at the time of severance

3. Van Sandt was aware of the appurtenant easement at the time of conveyance, so the implied easement is valid

4. If the dominant and servient parcels come together again, the easement is extinguished and a new analysis will be undertaken to determine an implied easement in the case of re-severance

iii. CASE: Othen v. Rosier1. Requirements for an easement by necessity:

a. Initial unity of ownership, followed by severance of titleb. Strict necessity to continue the prior use at the time of

severance2. If the dominant owner of the easement finds another way to do

whatever the easement was doing, then the easement by necessity disappears

3. Requirements for a prescriptive easement:a. Adverse and hostile useb. Open and notorious usec. Continuous used. Use for the statutory period (usually the same as for AP)e. Use must not depend upon a like use/right of others

iv. CASE Brown v. Voss1. Defendant’s predecessors in interests gave an easement to the

plaintiff’s predecessors in interests for a road through defendant’s property. Plaintiffs bought the plot of land beyond their existing plot and started using the easement for that plot, even though the easement was for the initial plot

2. Court found that the plaintiffs misused the easement, but that defendants were not entitled to injunctive relief because there was no increase in traffic across the easement and the plaintiffs relied upon the easement in buying the new property and building their house

3. Court’s four-step approach to determine if an injunction is needed:a. Proceeding is equitable and addressed to the sound

discretion of the trial court;b. Trial court is vested with broad discretionary powerc. Actual and substantial injury sustainedd. Enforceability

v. Restatement (Third) of Property § 4.11: an easement may not be used in conjunction with a nondominant estate

1. Servient owner can change the location of the easement at his expense without the dominant owner’s consent if the change does not significantly lessen utility

vi. CASE: Presault v. United States1. Plaintiffs’ predecessors in interests had granted easements to the

railroad. In 1975 the RR took out all the tracks and the City took over the land for use as a public nature trail under the Rails and Trails Act

2. The Court ruled for the Presaults, found that the easements, if any, expired when the RR took out the tracks and ceased operations. The easements did not include operation as public nature trails in the first place, and so they were entitled to compensation

vii. Abandonment:1. (1) intentionality and (2) the present act construing intentionality2. Expiration: agreed to in document3. End of necessity: does not apply to express, written easements4. Merger: dominant estate merges with servient estate, so easement

disappears5. Estoppel: servient owner relies upon the statements of the

dominant ownerXXIV. Covenants

a. Future Covenants: general warranty, quiet enjoyment, further assurancesb. Present Covenants: c. Real Covenants

i. Enforceable at lawii. Must have privity of estate (e.g. landlord-tenant)

1. American courts allowed covenants to run in favor of and against successive owners (diagram on notes, April 1)

iii. Horizontal Privity1. Allows enforcement of a covenant against successors when the

covenant is created in conjunction with the transfer of some other interest in land

2. Required for the burden to run, but not for the benefitiv. Vertical Privity

1. Required for both burden and benefit to run2. Burden: covenant enforceable only against someone who has

succeeded to the same estate as that of the original promisor

3. Benefit: enforceable by a person who succeed to the original promisee’s estate or to a lesser interest carved out of it

v. Other Requirements1. Original constructors must have intended it to pass to successors2. Must touch and concern the affected land (no personal issues)3. Not enforceable against one who does not have notice of the

covenant4. See requirements chart, April 1 notes

vi. Requirements for a benefit or burden to run with the land1. Writing, notice, intention, touch and concern, privity

vii. CASE: Tulk v. Moxhay1. Tulk sold land to Elms, with a covenant that Elms would not

change the land and keep it in good condition. Elms sold the land to Moxhay without the covenant (though he knew about the previous covenant), and Moxhay intended to change the land

2. The Court ruled for Tulk, upholding the injunction against Moxhay. Even though the covenant was not appurtenant to the land, the Cout found that they must uphold the covenant even when the land passes hands

viii. CASE: Neponsit v. Emigrant1. Requirements for a Real Covenant:

a. It must appear that the grantor and grantee intended that the covenant should run with the land

b. It must appear that the covenant touches and concerns the land with which it runs

c. It must appear that there is privity of estate between the promisee and promisor

2. To determine if a covenant touches and concerns the land:a. Look at the effect of the covenant on the legal rights which

otherwise would flow from ownership of landd. Termination of Covenants

i. Merger: burden and benefit of the same personii. Release: written and recorded by the dominant party

iii. Acquiescence: when the plaintiff has failed to enforce the servitude against other breaches and then seeks to enforce the servitude against the defendant

iv. Abandonment: similar to acquiescence, but makes the entire servitude unenforceable rather than just on the one plaintiff

v. Unclean Hands: court will refuse to enjoin a violation of a servitude that the plaintiff previously violated

vi. Laches: unreasonable delay by plaintiff to enforce a servitude against defendant causing prejudice to the defendant

vii. Estoppel: if the defendant has relied upon the plaintiff’s conduct, making it inequitable to allow the plaintiff to enforce the servitude

viii. CASE: River Heights Associates L.P. v. Batten

1. Land was transferred in 1959 for use as a residential subdivision subject to a restrictive covenant that no commercial enterprises shall be build and operated on the land. A few transfers later, Woods wished to open a commercial business on the land and the neighbors filed for an injunction

2. The Court granted the injunction, held that the lots were still subject to the covenant despite “changed conditions” because the neighborhood/subdivision remained the same even if the surrounding area was commercialized over that period of time

3. Restatement allows a court to modify the existing servitudes to better fit within the bounds of the newly changed conditions

ix. CASE: Shelley v. Kramer1. A neighborhood in St. Louis created covenants on all property to

deny ownership to all people of color. Shelleys, a black family, purchased property and the neighbors filed for injunctive relief

2. The Court denied injunctive relief, held that the covenants were themselves constitutional, but that judicial action to enforce them violated the petitioners’ right to due process and equal protection.

x. CASE: Nahrstedt v. Lakeside Village Condo Assoc., Inc.1. Petitioner wanted to keep her cats in her condo in violation of

CC&Rs established for the condo community2. Court rules in favor of the condo association, held that there are

two types of CC&Rs: (1) those that existed with the master deed and (2) those that were incorporated into the community later by the Board. The former deserve more deference than the latter

xi. CASE: Rick v. West1. “Restrictive covenants in respect of land will be enforced by

preventative remedies while the violation is still in prospect, unless the attitude of the complaining owner in standing on his covenant is unconscionable or oppressive. Relief is not withheld because the money damage is unsubstantial or even none at all”

2. There lacked a substantial change to rule the covenant unenforceable

XXV. Land Use and Zoninga. Public way of controlling private land use as a result of degrading conditions due

to Industrial Revolutioni. CASE: Euclid v. Ambler Realty Co.

1. Euclid passed zoning ordinances that grouped land into categories based on approved usage from U-1 (residential) to U-6 (industrial). Ambler had a plot of land that included a bunch of different categories, and claimed that the ordinances deprived them of liberty and property without due process

2. Court finds ordinances constitutional because they work to prevent the evils that came about with the Industrial Rev’s effects on housing. They work to prevent the monopolization of air and space by industry at the expense of residential areas

3. Zoning must not be arbitrary – must accomplish some kind of goalii. Basis on police power:

1. Does the regulation concern public safety/welfare?2. Are provisions rationally related to the stated goals?3. Does it violate a person’s constitutional rights?

b. Using Zoningi. CASE: PA NW Dists., Inc. v. Zoning Hearing Bd.

1. Plaintiff opened an adult bookstore and four days later the zoning board passed an ordinance prohibiting adult entertainment facilities in that area, setting a 90-day amortization period for the plaintiff to move the store or change operations

2. Court found for plaintiff, held that the ordinance in question violated the US and PA constitutions because a property owner is allowed to use their property in any lawful way that is not a nuisance, including running a porn shop

ii. CASE: Anderson v. City of Issaquah1. Anderson wished to open a retail space in the City. Upon four

lengthy review sessions and various new proposals, the Development Commission denied his application because the design did not give the same “feeling” as the surrounding area as per the zoning ordinance. Anderson brought suit, claiming the ordinance was unconstitutionally vague

2. Court found for Anderson, held that the ordinance does not give effective or meaningful guidance to applicants, as the words used are not technical/commonly understood. A community must give clear guidance as to the standards they wish to promote, rather than relying upon a subjective analysis of the aesthetics

c. Achieving Flexibility on Zoningi. Variances

1. Set up to avoid undue hardships as a result of zoning ordinances2. Requirements: (1) variance necessary to avoid undue hardship on

the owner of the land and (2) the grant of the variance must not substantially impinge upon the public good and the intent and purpose of the zoning plan/ordinance

3. Runs with the landii. Special Exceptions

1. A use permitted by the ordinance in a district where it is not necessarily incompatible, but may cause harm if not watched

XXVI. Community Controla. Controls on Household Composition

i. CASE: Moore v. City of East Cleveland1. Moore lived in a house with her son and two grandsons; one of the

grandsons was the child of Moore’s deceased child. The City filed a criminal action, claiming that the grandson was an illegal resident in violation of the housing ordinance

2. Court found for Moore, held that when a city ordinance attempts to influence family dynamics, it needs to be scrutinized. Belle Terre allowed for cohabitation of those related by blood, adoption, or marriage, so this falls in line with that

ii. CASE: City of Edmonds v. Oxford House, Inc.1. Defendant operated a group home for recovering addicts in a

single-family zoned area, City brought action because the ordinance defined a family as “persons, without regard to number, related by genetics, marriage, adoption . . .” Defendant claims protection under the disability exception of the Fair Housing Act

2. Court found for the City, held that the FHA exception only applies in cases where the ordinance caps the number of individuals in a home, while this ordinance applies to family composition

iii. CASE: Village of Belle Terre v. Boraas1. A group of six University students, unrelated by blood, adoption,

or marriage, moved into a residential area and the City tried to kick them out for violation of a zoning ordinance

2. The Court found for the City, held that the zoning ordinance was permissible as it attempted to remedy the issues that boarding houses and urbanization can inflict on residential areas, such as increased traffic and noise. The “family” definition did not place a limit on number, but on composition

XXVII. Eminent Domaina. Takings Clause, US Const. amend. V

i. Private property shall not be taken for public use without just compensation

ii. CASE: Kelo v. City of New London1. The City was facing dire economic straits, so they authorized a

plan whereby a private organization/corporation would be funded to create a new park and new office space in hopes of attracting business by using the City’s right of eminent domain

2. Court held that the City’s use of eminent domain for land to be used as office buildings for private corporations qualified as a “public use” under the Takings Clause because economic development is a primary function of government, and the taking of private lands for this purpose would ultimately benefit the public as a whole, not just the corporations

3. Dissent – Three categories of takings that satisfy public use requirements:

a. Transfers of private property to public ownershipb. Transfers to private parties who make property available

for public use (e.g. railroads)c. Transfers to private parties as part of a larger program to

serve a public purposeiii. CASE: Loretto v. Teleprompter Manhattan CATV Corp.

1. NY enacted legislation whereby landlords were required to allow CATV companies to install on their property, setting one-time payment of $1 as “just compensation.” Plaintiff claims this is a taking authorized by the government without just compensation

2. Court ruled for the plaintiff, held that any physical occupation of property authorized by government is a taking. Installation interferes with property rights in three ways: (1) owner has no right to exclude others, (2) owner cannot make nonpossessory use of the property, and (3) destroys property value

iv. CASE: Penn. Coal Co. v. Mahon1. Mahon’s predecessor in interest had been sold the surface rights to

a plot of land; the coal company retained mining rights. State passed a law that outlawed mining that would lead to subsidence of homes like the Mahons’

2. Court rules for coal company, held that the Kohler Act amounted to a taking of the coal company’s rights and did not incorporate just compensation. Holmes Test: government regulation of a use that is not a nuisance cannot go forward without just compensation. Focuses on diminution of value for just the coal company (property owner)

3. Dissent: restriction imposed to protect public health and safety against nuisances (like in this case) do not amount to 5th Amendment takings. Must measure diminution of value to the whole of society, not just the coal company

v. CASE: Penn. Central Trans. Co v. City of N.Y.1. The City enacted the Landmark Protection Act, which gave the

owners of Grand Central (1) the obligation to keep the building in good repair, (2) have their design changes/additions approved by a commission. Owners wished to add office buildings to the top of Grand Central; the City rejected the development proposals

2. The Court found for the City, held that historical protection acts are similar to zoning ordinances. The Act did not interfere with the present economic use of Grand Central and was substantially related to the promotion of public welfare

3. Three-part ad hoc review of regulatory schemes:a. Diminution of valueb. Prevention of harm to the general publicc. “Average reciprocity of advantage”

vi. CASE: Palazzolo v. Rhode Island1. Petitioner held about 20 acres of wetlands he wished to develop

into a subdivision. His applications were all denied. The State passed a law declaring the wetlands protected areas and significantly restricted their development. Petitioner brought suit, claiming that the regulations deprived him of all economically beneficial use and thus amounted to a taking, to which he demanded compensation under the 5th Amendment

2. The Court found for petitioner and remanded, held that the claims could not be extinguished because he received title of the land after the regulations were promulgated as his corporation had the land prior to that. The Court remanded, finding that the petitioner did not have just “a few crumbs left” as the upland portion of his ;and holdings still held significant value

XXVIII. Government Extractionsa. Local government measures that require developers to provide goods and

services/pay fees to get projects approvedi. CASE: Nollan v. Cal. Coastal Comm’n

1. Nollans wished to purchase a property and demolish the existing structures to build a larger house, but to get the permit the board required that they grant the City an easement so that the public could get from the beach (at the front of the property) to another public area (behind the house)

2. Court ruled for Nollans, held that a City cannot impose an easement upon a landowner for a permit to be approved. Court held that land use regulation is not a taking if it substantially advances legitimate state interests and does not interfere with the economic viability of the property. The easement interferes with the right to exclude, so this is a taking

3. Nexus/Rational Relation Test: must describe the nexus between the condition at bar and the original purpose of the standard

ii. CASE: Dolan v. City of Tigard1. City had a zoning code that required (1) 15% open green space, (2)

new development save land for pedestrian paths, and (3) drainage to Fanno Creek Basin. Dolan applied for a permit and the City said they wouldn’t approve unless she conformed with the code

2. Court remanded, stating that the City did not show consideration of the “rough proportionality” of the exaction with the proposed benefits to the public. City must fully explain the connection between the code and the public benefit. Plus, the “easement” violated her right to exclude

iii. CASE: Koontz v. St. Johns River Water Mgmt. Dist.1. Koontz bought property that had a drainage ditch running along it.

FL passed a statute requiring any development that would substantially affect the public interests to get a permit. Koontz applied for a dev permit for 3.7 acres and offered to donate the remaining 11 acres; the management district countered with 2 options: (1) develop only 1 acre and donate the rest, or (2) build as planned but hire contractors for a Commission-led project elsewhere

2. Court ruled for Koontz, held that the onus placed on him by the district was excessive. The district tried to circumvent the nexus and rough proportionality requirements outlined in Nollan and Dolan, but just because the district denied the permit and it was a

monetary exaction/“choice” doesn’t mean they don’t still have to justify it