Property - Overton FINAL

8/13/2019 Property - Overton FINAL

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THEORETICAL JUSTIFICATIONS FOR PROPERTY

I. What is Property?i. Not a thing: A set of limited legal rights and entitlements that a property owner has, with

respect to something1. Property is how societies should allocate scarce resources in relation to each other.

Its how society decides who has rights to things.b. ow property rights originate: Property originates through first possession but also through

cultural considerations such as race!assimilation, labor put forth to de"elop the land, go"ernment

redistribution, effects social policy!economic de"elopment, morality ". pragmatism, culturalcontingency, rights recogni#ed by courts and the state ma$es the rights legitimate.c. PropertyRights% a legal entitlement to an indi"idual or an entity, but the e&tent of the legal right

is determined by rules1. Point is for efficiency and fairness'. (imited to ensure that property use and ownership do not unreasonably harm the

legally protected personal or property interests of others). *wners ha"e obligations as well as rights+. ltimately you must rely on the state to enforce your property rights-. mergencies!necessities are e&ceptions % can infringe on someone else/s property

ii. Property rights in the bundle of stic$s1. Pri"ilege to use property 0 use'. o alter!change the property % alter or change). 2ight to e&clude others % e&clude+. Power to transfer title to the property % con"ey-. Immunity from ha"ing the property ta$en or damaged!destroyed without consent %

immunity from lossd. Theories of Property theories are tools to decide what the rules will be, sometimes rules and

theories o"erlap and sometimes they conflicti. Traditional Native American Conceptions of Property

1. It is not possible to own land in the way that non0Nati"es thin$ of ita. 3piritual "iew of land

'. Nati"e Americans de"eloped systems that were based on communal land use andsharing

ii. Positivism and Legal Realism

1. 2ights are created through laws, unrelated to morals, based on public policy'. 2ules are intended to protect indi"idual rights, promote the general welfare,

increase social wealth, and ma&imi#e social utilitya. herefore, 4udges should follow rules to create consistency in 4udgments.

). ow members of a group allocate scant resources: how to resol"e competingclaims o"er limited resources

iii. Justice and Fairness

1. here are always gaps in laws and they should be interpreted in a manner thatprotects indi"idual rights, promotes fairness, or ensures 4ustice

a. 2ights theorists: 3ome rights are morally superior to all generalconsiderations.

b. Natural rights: these rights are in the nature of human beings and humanrelationships

c. ni"ersalists: all rights should be uniformly enforceable in all similarsituations.

'. 5ertain indi"idual rights cannot be sacrificed for the good of the communityiv. Lockeian Theory

1. 3ocial contract theory

1


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'. (abor is the foundation of property % if you wor$ on land, you may establishownership

a. ncourages producti"ity and stimulates commerceb. 5ontrol o"er a resource is what ma$es us human

). Wide property distribution is necessary to get e6uitable results 7distributi"e 4ustice8v. tilitarianism! social "elfare and efficiency

1. 9ocuses on the how to ma&imi#e social utility or welfare.a. (oo$ing for economic efficiency

'. enefit of standards as opposed to rules is that it encourages fle&ibility to achie"ema&imum efficiency.vi. #ocial relations

1. Property plays a role in defining social relationsa. his "iew is ta$en by 9eminists, critical race , critical legal,

communitarianism etc.b. 5ertain people and claims are the norm, and others are the e&ception, and

law should be conscious of how this effects society.II. 5ompeting 5laims to Original Acquisition

a. ;ohnson ".


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i". 3tate ". 3hac$ 7N;, 1>1, 9ederal rights and N; statute8 % migrant labor legal aid memberstried to help two employees. *wner demanded they lea"e, and the wor$ers were chargedwith trespass when they refused under N; law.

1. 5ourt chose to decide this under N; state criminal statute and 5ommon law anda"oided constitutional issues so the case couldn/t be re"iewed.

a. With these types of state laws, ha"e to as$ if a federal right!law trumps it.'. 2ule: employer can@t deny his migrant wor$er employees!tenants their basic rights

and needs on the basis of protecting his real property from trespass. argaining

power, the harm casued by the need being denied, and the person trying to entershould all be ta$en into account.a. his case does not mean that these farms are public places.b. itle to real property cannot include dominion o"er the destiny of persons

that the owner permits to come upon the premises). his case was decided under a realistapproach property rights ser"ing human

"alues+. Policy:

a. alance property rights w!free access. 9reedom of action of onew!producti"ity of the other.

b. edesco/s right as an owner % security to enforce on his property forhimself and for his employees, his ability to farm!be producti"e

i. the migrant wor$ers could go to the aid wor$ers to get the info.c. 2ights of migrant wor$ers % not a party here but they/re the primary focus.

9undamental rights: 2ight not to be isolated, recei"e aid fromgo"ernment!charities, right to be able to recei"e "isitors, li"e w!dignity anden4oy customary rights among citi#ens, pri"acy.

i. Where do we draw the line here?d. 5an the mar$et regulate this? *n the one hand a bad owner won/t attract

wor$ers. *n the other, there is not e6ual bargaining powerc. Is there trespass on public property?

i. Minority2ule: ston ". 2esorts International otel 7N;, 1>', N; law8 % = e&cluded Plfrom his casino because Pl was counting cards. Pl sued = for access. No statute in N;against card0counting

1. When a property owner opens his land to public use for his own profit then hecannot e&clude people for no reason.

a. as to be reasonable e&clusion, li$e safety reasons or he/s being disrupti"e'. ston is effecting an economic right, but he still cannot be e&cluded). nder the minority, 5asino owner is different than 9arm because the 9arm is not

open to the general public.ii. Majority2ule: usinesses open to the public ha"e an unrestricted right to e&clude, e"en

unreasonably, e&cept common carriers and inn$eepers or "iolations of ci"il rights. 5ane&clude whoe"er they want.

1. 9arm and the 5asino are the same because neither is a common carrier.

iii. Policy for 5ommon carrier e&ception1.


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a. Majority Rule:(loyd 5orp. ". anner 735*3, 1>', 9ederal const.8 % = handed out protestflyers in Pl/s mall. = was as$ed to lea"e by security. = left and later filed suit see$ing in4uncti"erelief and declaratory 4udgment.

i. 5ourt balances the -th and 1+th amendment right limiting go"t ta$ings 7in this case of theright to e&clude8 of property rights against the 1st and 1+th.

1. 1+th amend doesn/t apply to indi"iduals, only to go"ernment.'.


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d. 35 held in Pruneyard 7and (ogan Balley8 that -th amend right not to ha"e your property ta$enwithout 4ust compensation is not "iolated by the - states that allow free speech on pri"ate property

i. 3o in these mall cases, -th and 1st are not in conflict, it is states" choice.1. (abor organi#ations ha"e increased rights of access from the National (abor

2elations act. Property owners ha"e to allow access for pic$eting.

ADVERSE POSSESSION% ow trespassers become ownersI. lements0 they o"erlap some.

a# Actual Possessioni.


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f. 9or a period defined by state statutei. 3ome states lower the number of years re6uired to obtain ad"erse possession when the

owner has color of title. his means that a written con"eyance appears to pass the title, butfails to actually do so.

ii. 9or 9ee simple determinable 793=8 the cloc$ starts running as soon as the condition occurbecause its automatic. 9or 9ee simple sub4ect to condition subse6uent, it doesn/t startrunning until the real owner asserts ownership in some way

g. he ma4ority of 4urisdictions ha"e a higher than normal burden of proof, ma$ing it clear and

con%incingand not preponderance of the e"idencei. Public policy reason for this is that it is not 4ust money damages, it is changing possessionof a piece of land without a transfer of money.

++# ,order -isputes

a. rown ". Cobble 71>>, WB, state law8 %9acts: Pl and = disputed ownership of a two foot widetract of property on the boundary of their properties. he pre"ious owners had ad"erselypossessed for more than the 1J year statutory period

i. his case "alidated tac$ing, but in the end it wasn/t necessary because of the pre"iousowner/s fulfillment of the 1J year period

ii. 5ase also established the ma4ority clear and con"incing standard of proof for ad"ersepossessions claims:

+++# &acant .and

a. Nome 'JJJ ". 9agerstrom 71>, Alas$a, state law8 % standard, mandated by state =/s used Pl/sland for "arious purposes from 1>++ until 1>. hey put a trailer on the land for the summer in1> and built a reindeer pen, had outhouses for a long time in the Northern part.

i# =efendants show all the elements of Ad"erse Possession here because their use wasconsistent with the typical use of that *ind of landwas

1. he southern part was not used enough and not ad"ersely possessed.ii. he goal here is to $eep land in constant use because it is a limited resource.

+ Prescripti%e $aseents

a. An easement is an interest in one of the stic$s in the bundle.b. As opposed to ad"erse possession, which is trying to get ownership, easements are 4ust for one

use.i. Parcels are often connected to each other as ser"ient and dominant estates through

easementsc. Ac6uiring an easement through prescription is similar to ac6uiring ownership through the doctrine

of ad"erse possession.i. Prescripti%e $aseent% Ac6uired through long0standing use 7for a particular period of

time81. 3ame as ad"erse possession re6uirements, e&cept no e&clusi"ity re6uirement

because this is 4ust one used. 5ommunity 9eed 3tore, Inc. ". N.. 5ul"ert 5orp. 71>> B8 0 Pl claimed a prescripti"e easemen

o"er a portion of a gra"el area used by its deli"ery "ehicles to turn around, but actually owned bythe =.

i. 2ule: /eneral consistent useis sufficient to establish a prescripti"e easement % do notneed to pro"e with absolute precision but must show general outlines consistent withpattern of use throughout prescripti"e period with reasonable certainty.

1. his isn/t the same as other easements which are gi"en with permission.ii. Ac6uiescence $Community Feed #tore%0


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'. 9or other courts: (and owner must ha"e kno"nabout use, and passi"ely allowed itto continue without formally granting permission.

iii. No Negati"e Prescripti"e asementse. Warsaw " chicago metallic ceilings % Pl built a building without enough space for big truc$s in th

dri"eway. e decided to use =/s property and did so for se"en years. At that point d wanted tobuild on that property.

i. he statutory time for prescripti"e easement was years so the Pl won his claim toestablish the easement.

1. his case is a good e&ample of why intentshould matter. he Pl $nowinglytrespassed on d/s land because of negligence in his own building construction.a. his is bad faith and at the least Pl should ha"e to pay.

9or e&am:

Arguments for Ad"erse Posession in general:

o tility, efficiency, producti"e use of land might generally support Ad"erse Possession

o =iscourages the concentration of wealth sometimes

o 2eliance by ta$ing roots!settled e&pectations and stability 7fairness8

o Incenti"es to loo$ after property % property should ser"e human "alues and ob"iously the real

owner is not using the property to not $now there/s an Ad"erse Posessor on it

ACAIN3 AP:

o If the Ad"erse Posessor "alues the property then they should ha"e to pay for ito Not fair to the original owner

o itle should ha"e meaning to a"oid lawsuits 0 K and time

o A personal attachment to the land

o Inefficient % ris$!cost of AP putting labor into the land, owner shows up and the labor was for

nothing

LIMITS ON THE RIGHT OF USE

I. 3olutions to (and se 5onflicts between Neighbora# (uisance: Non0trespassory interference with another/s property rights through use of your own

property

i. Pri"ilege to use one/s property is limited by the legal rights of other owners to be protectedfrom unreasonable harm to their use or en4oyment of their own property.

b. 9our ways to resol"e these conflicts:i. -"s pri%ilege0 =efendant/s pri"ilege to engage in the acti"ity, e"en thought it harms Pl/s

property interest1. here/s no "iolation of legal duties here, so = can cause this in4ury

ii. Plaintiff"s Security% Pl has a right not to suffer the harm, so if he can pro"e that =engaged in that conduct, then = will owe damages

1. his is strict liabilityiii. Reasonablenesstest 0 = may engage in harmful acti"ity if it is deemed to be reasonable

but not if the conduct and!or harm caused by it are deemed unreasonable.

1. his is a moral!policy 4udg balancing the following factors:a. &tent of harm to Pl and social utility of Pl/s acti"ityb. 3ocial benefits of =/s acti"ity, measured by what society would lose by

pre"enting = from freely engaging in harmful acti"ityc. A"ailability of alternati"e means to mitigate or a"oid harm 7cheapest cost

a"oider8d. =/s moti"ee. Which use was established first

i". Prior 0se% ntitlement is awarded to the person who established the first use.


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c. he reediesa"ailable are:i. =ismissal of the 5omplaint % If solution to conflict is =/s pri"ilege! court will grant

motion to dismiss the Pl/s complaint.ii. =amages % Pl/s security L can as$ for damages. -, N; common law, adopted from restatement8 =, upstreamsubdi"ision de"eloper caused ma4or increase in drain flow from its land, flooding and eroding Pl/sland. he harm is not disputed, it/s 4ust who is responsible for it.

i. 5ourt decides to use reasonablenesstest and considered the amount of the harm, theforeseeability of the harm, utility of =/s use and the =/s purpose

1. (oo$ to see if utility of possessor/s use of land outweighs the gra"ity of harm.


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ii. = would rather use the 5ommon nemy 2ule& It has more social utility: it is not efficientto ha"e to thin$ about what will happen to e"ery single landowner downstream.

iii. Pl uses the Natural 9low Argument % upstream owners should be responsible and shouldbear the costs of what their land does to downstream owners. Pls cannot use their propertyas they used to % no en4oyment, erosion, nearing septic tan$.

i". Policy1. here are problems with natural flow % discourages de"elopment, shortage of

housing.

'. Problems with common enemy % Would render e"ery property downstream uselessbecause their rights would be totally unprotected.c. Ceneral policy concerns here and different perspecti"es to use:

i. Rights: freedom of action "s. security.1. ;ustice in social relationships 0 landowners can use land but don@t ha"e the right to

use it in a way that in4ures others'. 2ights as freedom of action 0 right to use property as one wishes regardless of how

it interfered.). 2ights as security 0 right to protect property from harm. A perosn can use prpoerty

until it infringes on security or harms another@s property.+. Balue 4udgments 0 decide which claims are legitimate and decide which to protect.

ii. Social utility: competition "s secure in"estment.1. Promoting the general welfare by enacting appropriate incenti"es 0 creates rules to

get a particular socially desirable outcome.'. Promoting competition 0 promote de"elopment and impro"ement. y shielding

owners from liability.). Protecting the security of in"estment 0 pro"ide security from flooding or

obstruction of a "iew by creating rules and consistency with a land in"estment.*therwise de"elopers 4ust e&ternali#e their costs onto nearby landowners

iii. 3hould these be rigid rules or flexible standards.1. Predictability "s. 4ustice in the indi"idual case'. 2ules 0 ma$es consistent results.). 3tandards 0 more fle&ible than rules.


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f. Page 5ounty Appliance 5enter, Inc. ". oneywell, Inc. 71>+, Iowa statute8 9acts: = tra"el agentplaced computer in his office that interfered with Pl/s long0time B sales business. Problem wascaused by radiation lea$ing from computer.

i. he rule for nuisance is that it has to be unreasonable, which means the manner, place,circumstances, priority, character of neighborhood and nature of the wrong and themagnitude of in4ury are balanced against the utility.

1. Who was there first 7first0in0time8 0 9irst0in time not an absolute defense if the areachanges e"en if polluting first

'. urden on the person harmed to a"oid the harm). his would ha"e come out differently if Bs were seen as ultra sensiti"e.ii. Policy:

1. here was no way to a"oid the damage to Bs e&cept to mo"e shop. here was afi& for computers.

'. his is an emerging technology and we should protect it, or not protect it and ma$eit li"e up to high standards

). Would putting the cost of these computers on one owner be fair?g. $ntitleents0 hree types of remedies, property rule, liability rule, inalienability rule.

i. Property rule0 fi&es an absolute entitlement to engage or be secure form the harm.1. Pl can in4unction against d. If d wants to commit the harm he has to pay Pl.'. = can get the complaint dismissed. (egal right to commit the harm. Pl can offer d

money to stop.ii. .iability rule0 prohibit each party from interfering with someone else@s interest unless

they@re willing to pay damages1. Pl can get damages but no in4unction. = can $eep going is he@s willing to pay.'. Pl can stop d@s beha"ior if he@s will to pay damages for lost profit

iii. +nalienability rule0 entitlements are assigned to parties and they can@t be sold ore&changed

1. = can@t commit the harm and there can be no agreement between pl and d otherwis'. = can commit the harm and no agreement will alter that.

h# Reedies

i. oomer " Atlantic cement 1>J 0 court found a cement factory that spewed dust andpollution only had to pay damages to the residents bc the factory@s benefit outweighed thecost. he harm was greater than any indi"idual should ha"e to bear, but worth it forsociety.

ii. Pl can obtain an in4unction against = when =/s conduct causes more social harm than gooand causes substantial harm to Pl 7it/s unreasonable8

iii. Pl can obtain damages but no in4unction if the conduct causes more social good than har,but the harm to Pl is substantial and its unfair to burden Pl with costs of this reasonableacti"ity.

i". Pl is not entitled to a remedy if:1. he harm to Pl isn/t substantial'. =/s conduct is reasonable and its fair to impose the costs on the Pl.

). Imposition of damages would put = out of business and it/s important to a"oid thati. 9ontainbleau otel ". +-'- 7den 2oc8 79(, common law 1>8 % den 2oc sought to en4oin

9onotainbleau/s construction of an addition that would bloc$ all sunshine from den 2oc/s hotelpool and beach in the winter.

i. here is no legal right to light and airH 5ourt was not willing to create a new propertyright, as it would be tantamount to 4udicial legislation % this is a 4ob for the legislature.

ii. "en 2oc tried to use ancient lights theory that says that there was an implied easement oflight and air en4oyed by the Pl and its predecessors for more than 'J years.

iii. Cood faith is not a factor in nuisance cases.

1J


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i". Policy:1. his is a good decision because den roc could/"e purchased the easement, but

didn/t. It/s trying to e&ternali#e its cost.'. It/s not for 4udges to legislate, let the legislature pass a new law that affects the

whole area.). his is not an in4ury to a legal right, and the rule protects lawful rights of all others

not any possible way someone can be in4ured+. his construction is bringing economic de"elopment.

-. his is a bad decision because the goal of nuisance is to be adaptable and fle&ible. he fountainbleu is being allowed to build in a way that ta$es away den 2oc/sfinancial "iability without ha"ing to compensate. At the least, there was aprescripti"e easement here.

. *ne of them should ha"e to pay the other.j# .a3 and econoics

i. It promotes adopting laws w!the goal of efficiency and wealth ma&imi#ation 7Posner8.ii. ses the mar$et to weigh costs and benefits

iii. Pros of law and econ:1. ncourages predictability and stability.'.


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). Pl could/"e bought an easement and attached it to the land. Pl is as$ing for 4udicialegislation to decide that solar energy is more important than property rights.

iii. he ajorityof states are with the dissent, unless it has been legislated=octrinal approaches to settling nuisance claims:

Pl %eto rights Reasonableness doctrine or

iddle position

-ef pri%ilege danu absque

injuria

asement for lateral support ofland Nuisance doctrine 5ommon enemy rule 7water8

Prior appropriation of water 7firstuser has "eto rights8

Negligence 7lateral support ofstructures8

No easement for light and air

Natural flow doctrine for surfacewater

2easonable use doctrine forwater

9ree use or absolute ownershipfor ground water


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1. Affirati%e% gi"e easement holder the right to use or access another/s land7e&ample: cable cord for your tele"ision8.

'. (egati%e% gi"es easement holder the right to restrict the use of owner/s land7e&ample: light and airH you cannot build and bloc$ the pool. Cenerally frownedupon.

a. (OT$: Negati"e easements and real co"enants can o"erlap e"en thoughthey/re not the same thing, each ha"e some distinctions 7the restatementtreats them as the same8. he distinction is usually in the form in which it/

created.). Prescripti%e $aseent: ac6uired by necessity or long standing use. 2ecall, it isli$e ad"erse possession but you don/t need e&clusi"ity.

iii. asements came first, but the court sought to limit them so as to not limit the use of land.3o land owners made co"enants, and courts started policing them. 6uitable ser"itudeshappen when e6uity courts starting hearing these cases.

1. Allows for stic$s to be di"ided among people. *ne person gets certain stic$s e"enthough the owner controls most of the bundle.

i". ) ways to create an easement:1. he normal way by express grant7must be in writing8 0 e&press easement in

writing with the terms of the transaction'. ipliedeither

a. by prior use 7as part of a land transfer8H ) elements, see belowi. 5ommon ownership % ' parcels that used to be owned by one perso

ii. 5ommon owner used the se"ered parcel before the con"eyance inthe way the easement is claimed

iii. he easement is reasonably necessary and beneficial to en4oymentof dominant/s land.

b. *r by necessity 7landloc$ed8). by prescription% similar to ad"erse possession

b. An easement is an interest in the land. 3tic$ in the bundlec. A co"enant is a condition on the ownership, could be a stic$ in the bundle 7negati"e8, but might

not be 7affirmati"e8i. People don/t come on to your land from a co"enant.

++# +plied and $xpress $aseents

a. Implied by prior use: Cranite Properties ". 8: 5on"eyor owned - lots. econ"eyed one of them to =. Pl had always used the dri"eway for his supermar$et truc$s to turnaround and as an entrance to his apartment building. = see$s to pre"ent Pl from using itseasements. = L ser"ient estate.

i. 2ule: Absolute necessity to grant easement is not re6uired here. If pre"ious use iscontinuous and apparent, the degree of necessity re6uired to create an implied easement isreduced.

1. 2e6uiring the truc$s to enter the front of the store, or cutting the par$ing spaces inhalf to build a dri"eway are both possible, but "ery unattracti"e.

'. =ef claims that because there is no easement on the deed, then there shouldn/t bean implied easement since pl is con"eyor

). Pl says the easement was open and ob"ious, and he wouldn/t of con"eyed withoutthe easement

ii. Applying the eleents of prior use easeent:1. Pl owned both parcels originally'. he dri"eways were used before con"eyance to access the apartments and the

supermar$et). It is reasonably necessary 7though not absolutely, as in a landloc$ed situation8

1)


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iii. An easeent by necessity:1. *ne tract!piece of land before con"eyingH'. ou really ha"e to need it % not 4ust it would ma$e your life easier 7as seen in

reasonably necessary of prior use8H). No prior use necessary

b. (ecessity0 An easement by necessity may be granted to the owner of a landloc$ed parcel o"erremaining lands of the grantor to obtain access to the parcel

i. 9inn ". Williams 7I( 1>+18 = con"eyed +J acres to Pl out of a former 1+J acre lot. hat

lot traditionally used =/s roads, but he is not permitting it so no ingress or egress ispossible1. 2ule: Where an owner con"eys a portion of his land which had no outlet e&cept

o"er the land of the grantor or of strangers, an easement by necessity e&ists o"er thretained land of the grantor.

a. (ecessityis strict in these cases'. Policy:

a. Pro easement: We =o not want land to become useless, and though thecosts get put on the = it should ha"e been foreseen

b. Against easement: Possibly better for the legislature to re6uire the land0loc$ed owner to apply to a public entity and pay for the easement 7alwaysget it 4ust ha"e to pay8

i. his can go wrong because the Pl needs the easement, the = cancharge whate"er he wants for it

ii. At the same time, the law is protecting those without foresight % Plsshould ha"e put an easement in the original deed. A gamble to relyon generosity lasting fore"er.

c. 2ight!fairness in predictability of ha"ing an easement in writing ". socialutility to allow access to land to be used

). +ntent of the /rantor& "ery important in most 4urisdictions. No easement ofnecessity will be recogni#ed if it is clear that the grantor intended to sell, and thegrantee $new she was buying a landloc$ed parcel.

a. *ther courts $such as 9inn ". Williams% disregard the intent of the grantor,to promote the de"elopment of property.

c. .iitson negati"e easements: the right to lateral support of one@s building, right to pre"ent thebloc$ing or light and air, right to pre"ent interference with the flow of an artificial stream.

i. hese can be co"enants, but not easements1. 5o"enants can be wiped out 7easements can@t8 through the doctrines of changed

conditions and undue hardship. he restatement )rd ma$es both co"enants andeasements sub4ect to these doctrines.

+++# $aseents Running 1ith the .and < $aseents +n /ross

a. ig Ouestion for Written asements: =oes enefit of the asement 2un with the (and?i. 2uns with the land means that it is as if it were attached to that parcel so that any future

owner of the parcel is benefited or burdened by the easement

1. Appurtenant easement 0 runs with the land'. asements in gross 0 doesn@t run with the land.). Eey is the intent of the grantor. 5ourts will loo$ at the writing and policy

considerations if that is not clear.ii. hey run 3ith the land if:

1. In writing'. *riginal grantor intended it). here was notice to subse6uent owners of the ser"ient estate 7actual notice, "isual

signs, constructi"e notice

1+


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iii. asements created by iplication' necessity or estoppel runwith the land if that was theintention and they@re necessary for the en4oyment of the dominant estate.

i". All of this applies to easements and real co"enants.". 5ourts are more willing to find easements to run w!the land if it is a commercial, not

personal, entity1. Note: It is possible that burden can run with land while benefit will not.

"i. Creen ". (upo 71>' WA8 Pl con"eyed part of their land to = with an ntrance!e&iteasement. = built a trailer par$ and some residents were noisy with their motorcycles

1. Is the easement personal or appurtenant 7meaning to grantee or anyone on theland8? Appurtenant. An easement is not personal if there is anything in the grantto suggest that it was intended to be tied to the landretained or con"eyed.

'. his easement is appurtenantbecause it will be useful to anyonewho owns theparcel 7i.e. not 4ust the =s can use it 7personal easement in gross8, they can con"eyit to whoe"er is li"ing on their land8.

). Policy:a. Presumption for appurtenant easements 7it ma$es land more useful8

i. asements in gross can be held by anyone and create uncertainty.ii. Appurtenant means it/s held by the land and its occupiers.

b. If in gross, there is usually a designation of the named indi"idualsc. Note: A ser"ient owner is entitled to impose reasonable restraints on the

right of way to a"oid a greater burden on his estate than was originallycontemplated in the easement grant, so long as such restraints do notunreasonably interfere with the dominant owner/s use.

i. 5an/t totally bloc$ e&it!entrance but can restrict to 6uiet use."ii. 5o& ". Clenbroo$ 5ompany 7Ne"ada, 1>'8 = granted an easement to original owner of P

7de"eloper/s8 land. =e"eloper wants to subdi"ide the J acres, but the only entrance isfrom the resort/s easement. he resort has closed access to one of the roads, and refusedrepairs on the other. asement 4ust said ingress and egress.

1. Clenbrro$ is see$ing to widen the road, but that depends on if the easement isappurtenant 7applies to any occupant of the land8.

'. 5ourt found that this was appurtenantbecause the language was directed at theoriginal J acre estate and not the owner at the time.

). 2ule: 5ourt found that easement was liited to 3hat 3as actually necessaryfor3hat the easeent intended. *wner of easement may prepare, maintain,impro"e, or repair the right of way in a manner and to an e&tent reasonablycalculated to promote purposes for which it was created. 5annot cause undueburden on ser"ient estate.

a. 3o far there/s no proof of undue burden because the de"elopment has notbeen built yet.

b. +ntentionsof parties at the time of the grant controls % here, this means thewidth of the road is limited but not the amount of traffic.

c. Policy:

i. =oes not ha"e to be reasonably consistent with the use to which theser"ient property is employed or contemplated in the original grantwhich was a single family occupancy.

1. 2easoning is that the = could ha"e protected itself whengranting the easement: 6ualify it for single family use, madeit in gross, etc.

ii. Necessity may e"entually pre"ail o"er intent 7what the easementwas when it was con"eyed8. *nce the subdi"ision is built, safetyconcerns of all those cars on a 10lane road may trump intent.

1-


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iii. ndue burden, howe"er, possibly on the Pl to ha"e the subdi"ision,all the traffic % use the facts.

"iii. enley ". 5ontinental 5able"ision 7-8 Pl had gi"en the phone company and theelectric company an easement in gross 7meaning its attached to the companies, not to land8to come onto his land. 5able company comes onto his land too.

1. 2ule: +f an easeent is exclusi%e =and in gross> it can be di%ided up by thedoinant estate and gi%en to others#

'. ere, the type of use proposed by cable company issimilar to the original intent o

grantor % phones lines were for communication as is cable. It also would not be anundue burden on Pl to let cable company on.a. If ser"ient owner 7home owner8 retains pri"ilege of sharing benefit

conferred by easements it/s non0e&clusi"e and not apportionable. Crantorsrights diminish if grantors share w!others. If e&clusi"e, presumeapportionability because grantor suffers no loss

b. .oo* to deed: if grantor reser"es right, then not apportionable. Presumeapportionability without e&plicit language

). Policy:a. 5able didn/t e&ist before but it is the same idea 7communication8 as the

other companies, so it should be included.b. he other companies had to pay, so why shouldn/t this company ha"e to

pay to get this easement.i&. erminating asements % - ways

1. y writing 7release8'. ime limit in the original easement).


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i. 1riting% has to be in deed or declaration. 3ome courts use e6uitable estoppel to pre"entmisleading oral representations, others won/t.

ii. (otice1. Actual $nowledge % when buyer or lessee is actually told about co"enant'. In6uiry % buyer or lessee is on in6uiry notice if any condition of the premises

indicated that the property was burdened by the co"enant.a. &amples: A right of way. Purchasing a split of a parcel from someone

running a discount store

). 5onstructi"e %if the co"enant was recorded in the registry of deeds or title.i.


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e. Note: 3ome 4urisdictions 7and under the 2estatement8 do not re6uirehori#ontal pri"ity for the N9I to run with the land. It is only re6uiredfor the 2=N to run, but not for the benefit.

). Bertical Pri"ity %the relationship b!w the original co"enanting parties and thesubse6uent owners of each parcel.

a. 3trict Bertical Pri"ity(grantor does not retain any future interest in the land&ample: an outright sale.

b. 2ela&edBertical Pri"ity(urden and benefit are on any subse6uent user,

e"en lessees. *riginal co"enanting party can retain some interes.i. 2estatement accepts this % does not re6uire strict "ertical pri"ityc. People who are e&cluded under strict "ertical pri"ity:

i. Neighbors who are not owners, but who benefitii. *wners who got their title from the grantor of the restriction, but th

restriction was granted after they already purchased their land.d. Note: Bertical Pri"ity: 3ome 4urisdictions allow for rela&ed "ertical pri"ity

on the N9I side. 3till re6uire strict "ertical pri"ity for the 2=Nside.

+. hird parties are sometimes allowed to enforce e6uibale ser"itudes without pri"ityif it was the intent of the co"enant ma$er. ut most courts don/t allow co"enantenfocement.

"i. he ,enefit can run' e%en if the burden does not7e"en if burden is Fin grossG, ie notheld by ad4acent property owner8

1. 3ome states say that the burden can run e"en if the benefit is Fin grossG, but the2estatement prohibits this. nder the restatement, for the burden to run with theland, both benefit and burden must touch and concern the rele"ant parcel.

e. Whitins"ille Pla#a ". Eotseas 7> 9acts: Eotseas 7=8 owned two ad4oining properties.Eotseas con"eys one parcel to rust with a co"enant that Eotseas would not build a competingdiscount store. rust con"eys its Parcel to Whitins"ille Pla#a 7Pl8. Eotseas leases to 5B3 whodecides to put a discount store in "iolation of the co"enant.

i. 2ule: 2easonable co"enants against competition may be considered to run with the landbecause they fulfill the fi"e elements abo"e. he tric$y elements were notice, touch andconcern and pri"ity.

1. (otice: here was actual notice bc 5B3 was told about it. here was alsoconstructi"e notice because it was in the chain of title

a. A minority of states would say there wasn/t constructi"e notice herebecause it wasn/t in the direct chain

'. Touch and )oncern% his co"enant has an economic effect on both parcels, so ittouches and concerns.

a. a"e to address this for both burden and benefit.). Pri%ity: there is no "ertical pri"ity between these parties, because Eoteas and 5B3

ha"e a lease.a. An injunctionis a"ailable against Eotseas, but no damages.

b. here is "ertical pri"ity between Pla#a and rust, and hori#ontal pr"itiybetween rust and Eotseas. ;urisdictions don/t allow for rela&ed "erticalpri"ity on burden side, only on benefit side.

E 7Parcel , burden8 Q 7Parcel A, benefit8R 7lease only8 R5B3 P

1


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++# +plied Reciprocal (egati%e Ser%itude

a.


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. 2ecording of a declaratione. 2iley ". ear 5ree$ Planning 5ommittee 75A, 1>8 9acts: Pl were told by sellers that their lot

would ha"e restrictions, but they were ne"er placed in the deed. here was a declaratory statemenlater, that Pl ne"er signed. Pl/s want to build a snow tunnel in "iolation of the restrictions one"eryone else/s lot.

i. 2ule: Restricti%e co%enantsare N* enforceable when the restriction is not contained inthe original deed and filed the after con"eyance. Planning committee cannot enforce therestriction.

1. he planning board was lac$ing a writing in this case.'. his goes against 3anborn, which says that if most are restricted, then it doesn/tmatter if there/s no restriction on that one.

ii. 5A later holds that as long as the declaration is recorded before the deed, it doesn/t ha"e tobe in the deed

iii. Policy:1. It was ne"er in their deed, so they/re not burdened. Perhaps they wouldn/t ha"e

bought it, or would ha"e as$ed for reduction of price if it had been in the deed.'. hey were on notice and e"eryone else is bound. here is no way for his

neighbor/s ne&t buyer to $now that he is not bound. e can ruin the neighborhoodfor e"eryone.

). here/s been reliance here by the other buyers, so there/s an estoppel argument.III. Terinating )o%enants:


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iii. *n the other hand, in 3halimar assoc " =*5 enterprises a golf course was forced tocontinue operating according to a co"enant, despite the fact that it wasn@t profitable.conomic conditions weren@t enough to get rid of the co"enant.

c. Acquiescence% if Pl has tolerated pre"ious "iolations of the co"enant by the owner of the ser"ienestate, the co"enant may be terminated

d. 0nclean ;ands% if Pl has "iolated the co"enant himself, it may be terminatede. Abandonment % if Pl has tolerated "iolations in the co"enant by owners of other restricted parcels

in the neighborhood co"ered by the co"enant

f. $stoppel% if dominant owner promises not to enforce the co"enant, she can be held to it ifser"ient owner relied on promise.g. .aches% if the co"enant is ignored for a long time, but not long enough to ma$e it a prescripti"e

easement, the court may allow you to end the co"enanth. Mar*etable title acts% many states ha"e statutes that terminate restricti"e co"enants if they are

not re0recorded after a specified period of timei. .anguage in instruent% language in deed says co"enant will end after a certain period of time4. Merger% if the burdened and benefited estates come under the ownership of the same person, the

co"enant will terminate$. Release% All parties may agree to end the co"enantl. Prescription&open and notorious "iolation of the co"enant for the statutory time

IB. Restraints on Alienation0 he transfer of property or an interest in propertya. 5o"enants restrain alienation. he greatest ownership interest is fee simple, and there are no

alienation restraints on that.i. )d restatement says that reasonable limits on alienation are allowed, li$e in orse Pond.

b. 9i"e types of limits:i. -irect restraintson transfer

ii. Ser%itudesrequiring the consentof either grantor 7de"eloper8 or association 7generally4ust right of first refusal8 to transfer

1. hese are frowned upon because they are held in gross, unless the de"eloper hasnot sold all lots yet.

iii. 2ights of first refusali". .easing restrictions". 2estraints to *eep housing affordable.

c. hese cases in"ol"e whether these restrictions should be enforced. (ots of P*(I5d. Alienability is efficient 7and a huge stic$8 and supports free mar$et "alues. It/s about people

whereas easements are about how the property de"eloped.e. Arguments against limitations:

i. Pre"ent dynasties,ii. Allow for distribution of ownership,

iii. Promote the autonomy of current owners,i". Note efficient uses and transfers of land

f. 9or limitations:

i. he ability to limit who your property goes to encourages owners to sell.ii. his is a property right that should be protected for current owners.

g. orse Pond 9ish D Came 5lub ". 5ormier 7N 1>>J8 unting club used a straw man to create arestraint on alienation, that re6uired 1JJU "ote of its members plus dissolution to lea"e that land.Pls registered as a charitable trust. hey now want to swap lands to be more rural, ut = "otedagainst it because he li"es ne&t door. Pl wants the restriction "oided as an unresabonle restraintagainst alienation.

i. 2ule: he reasonable restraint rule that leans toward eliminating alienation restrictionsdoesn@t apply to charitable organi#ations. Alienation restrictions stand for charities

'1


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unless it can be shown that there was an unforeseen circumstance and the sale is now in thbest interest of the charity.

1. est: A restraint is "alid if reasonable. ere, it is unreasonable 7"oid only ifunreasonable8

ii. Policy:1. his is one reason that courts frown on co"enants in gross, because though there is

no dominant estate, and one member is claiming the right of one dominant in grossowner to 6uash the desire of the rest.

a. his is silly because the hunting club should go where there/s hunting.b. his = is not the beneficiary the club had in mind when it created thisco"enant.

'. As an in gross holder of this easement, = has a right to compensation at the least,and to hold his co"enant.

). If this club is found to be a charity, then it/s important that this be enforced toensure that people donate their land to charities and can be assured they/re used forproper purposes.

h. NW 2eal state 5o. ". 3erio 7'>8 =e"eloper sold lots in fee simple with a restriction onalienation for fi"e years. *wner tried to sell his land to 3erio, one year after buying it, without thede"eloper/s consent.

i. 2ule: his restriction is repugnantb!c it is inconsistent with a grant of fee siple. herestriction was designed to depri"e 3erio.

ii. Policy:1. Crantee $new what he was getting into when he purchases with the restriction %

bought it at a certain price. If he wanted to sell sooner he should/"e boughtsomewhere else

'. hese sorts of limitations protect the de"eloper to ma$e sure he creates a certaintype of neighborhood.

). his will hurt home de"elopment because it will tell de"elopers they won/t ha"econtrol of their neighborhood once they sell one house.

+. his is not what a fee simple is. he de"eloper is 4ust trying to $eep this as awealthy neighborhood and will re4ect based on class and race.

i. 2iste ". astern Washington ible 5amp, Inc. 7WA, 1>J8 = sold land to Pl/s parents with arestriction that they could only sell the land to those who subscribe to conduct consistent with the= and are appro"ed by the grantors. (and con"eyed to their son, Pl. Pl wants to sell it withoutrestrictions.

i. 2ule: A restricti"e restraint on the sale of fee sipletitle is a "iolation of public policy7repugnant to the state and to fee simple8. he restriction in the deed clearly pre"ented thePl from selling land he purportedly recei"ed in fee simple.

ii. Policy:1. (imits on alienation ma$e it harder to sell. If you want these limitations, you can/t

put the deeds in fee simple. ut it in some other estate.'. =ecreases property "alue to ha"e these limits.

). his is 4ust discrimination.4. 3helley ". Eraemer 735*3, 1>+, 5onstitution8 Pls bought parcel in an area where many of

the homes contained a restricti"e co"enant based on race. he parcel they bought had a co"enantbut the seller wanted to sell anyway.

i. 2ule: 5o"enant alone does not "iolate the 1+thamendment, but the purpose of theco"enants was secured only byjudicial enforceentin state courts. he enforcement bya court that triggers the 1+th amend, and ma$es enforcing this co"enant a "iolation ofequal protection#

1. 5ourt/s action is 4ust li$e racial discrimination in 4uries.

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ii. Policy:1. his is a case about the essence of property, which it the power to control resource

in a way that the state will enforce.'. his is the court protecting people/s rights under the constitution. Its better that the

court in"alidate these than collude in discrimination.). It is better to ha"e had these co"enants in"alidated by the legislature. his is

4udicial acti"ism at its worst. he 35*3 should ha"e deferred to the statecourts.

+. 35*3 chose not to find the co"enants unreasonable, because that was against


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1. When the future interest in a defeasible fee belongs to someone other than thegrantor, the present interest is called a fee siple subject to executory liitationand the future interest in the third party is an executory interest.

d. .ife $states% an estate that e&ists only for the life span of the original grantee.i. (ife estates can act li$e fee simples. hey can be determinable, sub4ect to condition

subse6uent and sub4ect to e&ecutory limitation.ii. A con"eyance of ) to A for life creates a life estate interest in A % A owns property during

his lifetime. When he dies, he loses control.

iii. 5urrent interest L life estatei". 9uture interest L 2e"ersion if it is in the grantor". 9uture interest L remainder if it is in a third party

1. )ontingent reainder: the remainder ta$es effect only upon the happnening of ane"ent that isn/t certain to happen 7ie, until & graduates college8 *2 if the remainderwill go to someone who can/t be ascertained at the time of con"eyance 7to a yetunborn child8

a. eware of the rule of perpetuitiesb.


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ii. =oes it depend on a person yet to be determined? If yes,unascertained person.

iii. =oes it "iolate the rule against perpetuities?

Present

+nterest:

1ords =used to

create the

interest>:

2uture +nterest

in /rantor:

2uture +nterest

in 7rd Party:

9ee simpleabsolute Fto GFto and herheirsG

0 0

9ee simpledeterminable

Fso long asGFwhileGFduringGFuntilGFunlessG

Possibility ofre"erter7automatic8

0

9ee simple

sub4ect toconditionsubse6uent

Fpro"ided thatG

Fon conditionGFbut ifG

2ight of entry

for conditionbro$en 7orpower oftermination8

0

9ee simplesub4ect toe&ecutorylimitation

Funtil 7or unless8. . . then to . . .GFbut if . . ., thento . . .G

0 &ecutoryinterest7automatic8

(ife estate Ffor lifeG 2e"ersion

7automatic8

2emainder

7automatic8

II. Interpreting Abiguous )on%eyancesa. A(WA3 loo$ to the language of the deed to determine intent.b. *rder of preference to interpret 7reasoning page -'), last full 8:

i. 5ourts would rather see it as creating an intended purpose not a binding future interest.1. his is because it pre"ents change of ownership.

ii. here@s also a preference for a co"enant o"er a future interest.1. Eeeps the title with the current owner

iii. 9ee simple sub4ect to condition subse6uent is preferred to fee simple determinable.

1. ecause the current interest isn@t automatically forfeited and for the time beingownership stays.i". A fee simple is preferred o"er a life estate.

c. Policiesbehind presumption against forfeiture 0i. nforcing restrictions promotes the interest of the grantor in contrrolling future use. he

presumption against the grantor/s interest would enforce the rights of the current ownersand promotes economic efficiency.

ii. owe"er not enforcing restrictions if they@re "ague can also encourage grantor@s interest bcif he@d wanted to grant he would@"e made it super clear.

'-


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d. Wood ". oard of 5ounty 5ommissioners 7W, 1>8 Pl claimed that a grant of land to the5ommissioner of 9remont 5ounty 7=8 was sub4ect to a condition subse6uent 7or 93=8 that theland be used as a hospital % sold Ffor the purpose ofG constructing and maintaining a countyhospital as a memorial. ospital shuts down, 5ounty tries to sell the land, Pl wants land bac$.

i. 2ule: A grant of fee simple determinable must clearlystate that the estate will terminate ifnot used in accordance with the grant. ere, language did not create such an interest.(anguage used could ha"e been so long as, during 793=8 or on the condtion that, pro"idedthat 7933538

1. his case is an e&ample of the preference against forfeitures7i.e. propertyswitching hands8'. 5ourt prefers fee sipleconstruction.

ii. Policy:1. We should only gi"e people future interests if they are 5(A2 in wanting it 0 we

want $eep land in the hands of current owners. his encourages efficiency'. his is the grantor suing, so he $new what he granted, and the court is going

against some language in the instrument that said this was =efeasible.e. 5athedral ". Carden 5ity 5ompany 7N, 1>>>8 3tewarts sold land to the church with as a

defeasible fee, as long as it was used for church acti"ities. It also said it couldn/t be sold. heheirs con"eyed their possibility of re"erter or right of entry 7its unclear which it was8 to the5ompany in 1>1. Now church wants to sell

i. 2ule: 5ourt finds this to be a 93353, which was a contract right that wasn/t assignable in1>1, defeating the 5ompany/s claim.

ii. he court also bases its ruling on the purpose of the con%eyance, which was not to burdenthe church, but help it.

1. he church says, it would help if sold and money was freed up.'. he company would be entitled to damages if it could show any.

iii. 5ourt used policyto interpret this as reentry of possibility of re"erter.f. dwards ". radley 7BA, 1>+8 ;ones inherited the land from her mother, with a limit that the

land not be encumbered or sold, and if it was, then the grand$ids would get it. ;ones wants to sellthe farm so she attempts to get her children to con"ey their future interests bac$ to her. *nedaughter 7radley8 does not consent. In her will, ;ones e&cludes radley and orders the farm soldradley says that this is part her farm now, and doesn/t allow it

i. 2ule: he original will created a .ife estate. 5ondition prohibiting alienation of "estedfee simple estate is repugnant. 5ondition on limitation upon life estate is "alid. 3o wherethe intent of the original grantor 3as clearly not fee siple absolute , then it will beseen as a life estate.

1. he will mentioned fee simple times, but not when gi"ing ;ones this land, anddirect language is not re6uired in BA

'. his is an e&ception to the general rule that fee simple is preferable to life estate.ii. Policy:

1. his is more accurately a 933( and the mother didn/t "iolate the conditions, so itshould be hers to di"ide as she wishes.

'. his is a life estate because the grandchildren were the future interest holders andthat/s who the grandmother had the clear intent to protect.

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III. Rule Against )reation of (e3 $statesa. 5ourts generally follow a rule against the creation of a new estate. A con"eyance that does not fit

in with any of the established categories must be interpreted to create the most closely analogousestate.

i. 9ormally % means grantors must put their con"eyances in a recogni#able form if they wantcourts to recogni#e the pac$age of rights they ha"e intended to create.

ii. 3ubstanti"ely % certain pac$ages of rights will not be recogni#edb. ;ohnson ". Whitton 7)8 5ourt construed a con"eyance that does not fall into a recogni#ed

category of estate as a fee simple absolute b!c it would be the most fair!most analogous. hiscon"eyance tried to create a new estate, but court struc$ it down.IB. Rule Against Perpetuities0 In"alidates future interests that may "est too far into the future,

a. he 2ule Against Perpetuities: A future interest is not %alidunless at the time of its creation, weare sure that it will "est within '1 years after the death of any person ali"e at the time of creation.

i. If there is AN remote possibility that it will "est later than '1 years after the death of anyperson ali"e at the time of creation, it is INBA(I=. =oesn/t matter how remote thepossibility, the future interest is no good.

1. (oo$ for a "alidating life, this is a person within whose lifetime the interest iscertain to "est.

a. 5orporations aren/t li"es in being.'. he interest is created at the time of con"eyance or the moment the testator dies or

the moment the trust document is signed 7or when a trust becomes irre"ocable8). Best is when the contingency occurs that ma$es the interest holder certain to come

into possession.a. 9or e&ample, 9or e&ecutory whene"er the condition occursb. 9or contingent remainders, it is "alid when the contingency happens, li$e @o

to a for life then to b if b graduates from law school@. It "ests when bgraduates from law school.

c. 9uture interests of grantors are granted from the moment they@re created.ii. echnically '1 years and > months 7baby concei"ed 4ust before the father/s death8 % 5(

addition.1. No interest is good

a. unless it must "est, if at allb. no later than '1 years after the deathc. of some life in being at the creation of the interest

b. Policy reasons:i. (imits dead hand contro, promotes mar$etability of property, ma$es property more

efficiently used.ii. A compromise between the liberty of the past owner and the present owner.

c. Interests to which the rule applies:i. 5ontingent remainders

ii. &ecutory interestsiii. Bested remainders sub4ect to open

i". *ptions to buy, preempti"e rights, rights of first refusal are all sub4ect to the rule.d. Interests to which the rule =*3 N* apply:

i. Absolutely Bested remaindersii. Bested 2emainders 3ub4ect to =i"estment

iii. Any future interest in the grantor 7re"ersions following life estate, possibility of re"erter orright of entry following defeasible fees8

e. 9irst, Identify the 9uture Interest, then if the rule applies, use it7as$ yourself if this could happen i-JJ years8. if there/s a "iolation, stri$e the offending language which will lea"e you with a 93=or 93A

'


28/46

f. N*: nder &ested Reainders Subject to Open0 2( *9 5*NBNIN5 % * to A forlife, then to the children of where already has one child. nder the rule of con"enience, thecourts will close the class when A dies, so that the children can ta$e possession after A/s death:they will not ha"e to share the property with any after0born children.

g. 3ome states ha"e modified the rule, but gi"ing a >J year limit rule on "esting interests, withmar$etable title acts, some use the wait and see doctrine, to see if the interest e"er does "est andonly in"alidate it if it "iolates the rule then

B. 1aste

a. (aw of Waste: life tenant can use property, but waste implies neglect or misconduct resulting inmaterial damage to or loss of propertyi. =oes not include ordinary depreciation of property due to age and normal use o"er a

comparati"ely short period of time.b. Any future interest holder can bring waste claims 7including a lessor8.

i.


29/46

a. he fractional interest is only important in terms of profit when land is sold'. When a tenant in common dies, his interest goes to his de%iseesunder his will or

to his heirsa.


30/46

iii. 3haring the urdens: 5o0owners ha"e a duty to share basic e&penses to $eep property,including mortgage, ta&es and insurance. No duty to share costs of ma4or impro"ementsunless they agree to do so.

i". *ne cotenant cannot obtain ad"erse possession against another%# Tenancy by the entirety

1. A"ailable only to married couples. 5an@t sell the interests, can@t di"ide the propertye&cept in di"orce.

'. 5reditors of one spouse can@t touch this property

"i. 5ommon ownership of commercial property through partnership.c# Marriagei. *li"as ". *li"as 7N>8 the couple separated in 1>) and were di"orced in 1>+, but

the final property distribution did not happen until 1>. e wants rent money 71!' ofreasonable rental "alue of home8 from time he left house until time of final propertydistribution.


31/46

a. ;urisdiction specific % some ;s the lease would ha"e created a permanentse"erance or temporary se"erance 7because there was no clear indicationthat either ;oint enant desired termination of the estate8

i. Permanent L selling the interestii. emporary L the interest is se"ered while the lease is in place, and i

one dies, then it stays se"ered. After the lease is o"er it reunifies18 If its se"ered, then the property would go to heirs

because it would now be tenancy in common.

b. ecause ;oint tenancies can only be created by clear intent, they can only bended with clear intent.c. ;oint tenant inherits the property free of all encumberances, including

lessees and mortgages.'. Policy:

a. his is awful for third parties and the law should se"er and protect themb. hird parties ha"e to do title chec$s and this would lea"e the 4oint tenant

3*( for the thing that he had e&plicitly bargained for). ow could lease ha"e sur"i"ed ;ohnson/s death?

a. ;ohnson could ha"e been e&plicit that he was brea$ing the ; 7sold it fore&ample8.

b. If Pl had died first and then ;ohnson died % ;ohnson heirs would ha"e gottethe property "ertically encumbered and so the lease sur"i"es.

b. -i%orceVi. Eresha ". Eresha 7N8 usband and wife had 4oint ownership in property and husband ha

leased the property to their son. =i"orce made husband and wife enants in common.=i"orce awarded the leased land to the wife who then tried to terminate her son/s lease ofthe property.

1. 2ule: usband had full right to enter into this lease as a tenant in common, so thelease is "alid. When wife too$ that property from the court in the dissolution, she$new it was encumbered by the lease, and now she must honor it.

a. .eases sur%i%e dissolution of arriage, but not death.b. his is li$e buying property $nowing there/s a lease on it. the lease still

stands.c. Ceneral policy issues:

i. When co0owners disagree, it creates two problems:1. resol"ing rights of co0owners

a. *ften neither choice will ma$e either party happy, can effect relationshipsthough there is the bac$0up remedy of partition

'. resol"ing rights of third partiesa. An innocent party % purchasers are e&pected to chec$ title but maybe too

much of a burden on rentersd# )reditors

i. 3awada ". ndo 7I1>8 3awadas in4ured in crash by


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iii. attempted con"eyance by either spouse is "oid and the estate can@t bsub4ect to the debts of one spouse.

i". the right of sur"i"orship can be alienated to pay debts, but the useand profits can@t be.

b. awaii chooses ).i. his is mostly a public policy decision about protecting families at

the e&pense of creditors, particularly tort creditors, li$e here.ii. 5reditors should re6uire the signatures of both spouses.

c. =issent says separate interests should be alienable!sub4ect to creditors. hilaw was e"entually created to shield women from men/s actions, but nowthey should both be e6ually affected

LANDLORD-TENANT LAW

I. (easeholds 0 a way of di"iding property interests o"er time 7it is a future interest, li$e a life estate8a. .ease% landlord transfers possession of property to tenant for a specified period in return for

periodic rental paymentsH (andlord retains the right to get the property bac$ at the end of the rentaperiod. 5an be personal as well as real property such as an automobile.

b. 2esidential "s 5ommercial % courts are more li$ely to adopt common law rules to regulateresidential leases b!c commercial tenants are assumed to ha"e sufficient bargaining power ande&pertise while residential tenants ha"e less

c. 9our types of enancies:i. Ter of ears

1. lasts for a specified time determined by the partiesa. can be terminated based on an e"ent or condition stated in the lease

'. (andlord/s 9uture Interest: re"ersion). hird Party/s 9uture Interest: remainder, only if at the time the lease is signed,

landlord ma$es clear that this will happen+. =eath of either (andlord or tenant does not terminate tenancy

ii. Periodic Tenancy1. 2enews automatically at end of specified time, unless one party chooses to end it.

&: month0to0month'. Notice is re6uired to end tenancy). =eath of either (andlord or tenant doesn/t terminate tenancy

iii. Tenancy at 1ill1. 3imilar to periodic, e&cept no notice is re6uired to end tenancy'. =eath of either (andlord or tenant will terminate tenancy).


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+. reach or "iolation of reasonable rules, that were accepted in writing in the leasea. Biolates co"enants where right of reentry is the conse6uence

-. (andlord see$s to permanently board up or demolish premises bc of code"iolations, tries to comply with code "iolations but can@t, tries to correct illegaloccupancy, is a go"t agency ready to change the land use.

. *wner wants to permanently retire the building as residential.. (andlord changes terms of a new lease which tenant refuses to accept.. (andlord is con"erting from rental to condo, etc. &cept against senior citi#en

whose tenancy is protected.>. It/s a condition of a condo buyout, small time landlord see$s to occupy or sell to anew occupant.

1J. enant@s occupancy was conditioned on employment, and employment has ended.e. Bas6ue# ". Classboro % 7N; statute, and common law8 After Bas6ue# was fired as a migrant

farmwor$er, he was not allowed to stay o"ernight in the barrac$s until he found alternate housing.hey $ic$ed him out e"en though there were "acant spaces. Bas6ue# did not spea$ nglish andthe contract he signed to wor$ for Classboro was in nglish..

i. 2ule: When a migrant farmwor$er is fired, he may be e"icted only by ajudicialproceeding# Self?helpcannot be used by employer here

1. he court didn/t want to e&tend landlord tenant law here, because it is e"en li$e asuperintendant type relationship

'. "en though he was not a tenant, the court implied a pro"ision into the pri"ate Efor a reasonable notice and process 7time8 before he could be $ic$ed out of thebarrac$s.

). had he been a tenant 7and not a trespasser, li$e landlord claimed8, he would ha"ebeen entitled to some notice and some process whereas landlords can usereasonable self0help to get rid of trespassers.

ii. Policy:1. 5ourt found that this was a contract of adhesion, written in only in nglish with

huge bargaining power discrepancies. 7Professor ale8a. 9ollows 3tate " 3hac$ line of protecting migrant wor$ers

'. It is bad for public interest to let employer use self help and deny this personhousing with no pay, no shelter, and no tic$et bac$ to P2

a. 5ourt is enforcing these contracts, so it has a role 7ale8). his is ruining the freedom of poorer people to enter into contracts because it send

a message to employers that courts will meddle with their contracts. 7professor3chwart# article8

+. Word of mouth can protect these wor$ers as those who come bac$ to P2 will tellothers not to wor$ for Classboro. 73chwart#8

-. his is a problem for the legislature, not for courts 73chwart#8. he P2 department of (abor supported these contracts and they should/"e

protected the wor$ers at formation, and not left it to courts here.II. 5onflicts About Rent

a. .andlord"s Rightsi. he right to recei"e the agreed0upon rent

ii. he right to ha"e the premises intact and not damagediii. he (andlord/s re"ersion % the right to regain possession at end of lease term

b. (andlord/s ReediesWhen enant reaches 7fails to pay rent, or brea$s co"enant in lease8 andRefuses to .ea%e:

i. Possession and ac$ 2ent % landlord may sue for rent already due but not paid 7bac$ rent8and for possession 7e"iction8

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ii. If tenant wrongfully holds after lease period and continues to pay rentVlandlord maychoose to accept new tenancy relationship or sue for possession

1. 9or possession, must refuse to accept rent chec$s, or mar$ them that this doesn/tcreate new tenancy agreement

c. (andlord/s ReediesWhen enant reaches and .ea%esi. =uty to


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III. Sublease %# Assignent7the co"enant here is to pay rent8a. Sublease% enant retains some future interest, or the right to control the property in the futureH

co"enant does not run with the land, so no %ertical pri%ityi. (andlord can only go after original tenant 7not subleasor8 in a sublease for damages 7can

go after subleasor for an in4unction % some courts allow this8.b. Assignent% enant assigns all remaining interestH co"enant runs with the land 7li$e a real

co"enant % - elements neededH no pri"ity of E but pri"ity of estate8, so %ertical pri%ityi. (andlord can go after tenant or assignee 7second tenant8 in an assignment for damages 7an

an in4unction8.ii. he original tenant has the right to be reimbursed by the new tenant for the amount owedto (andlord if the (andlord chose to sue the original tenant.

c. here are three different situations in"ol"ing the tenant"s right to transfer:i. he lease is silent % can sublease

1. 5ourts want to promote the policy of alienability.ii. 5an sublet or assign but only with (andlord/s consent % can sublease w!consent

1. Ouestion is whether a criterion of FreasonablenessG should be implied in the phraseFno subletting w!o landlord/s consent.G

iii. Prohibit it altogether % cannot subleased. Eendall ". rnest Pestana, Inc. 75A8 5ity leased hangar to Perlitches who entered a lease with

bi&ler, and then Perlitches assigned to Pestana. Eendall bought i&ler/s business. oo$ on thecommercial lease 7renting hangar space8. (ease includes co"enant Fno assignment withoutconsent of the (andlord.G (andlord won/t consent to the transfer e"en though Eendall has goodbalance sheet.

i. 2ule: 5onsent may be withheld only if there is a coercially reasonable reasonforwithholding of consent.

1. Illustration of whether or not to add in a reasonableness re6uirement to the E whenit 4ust says no consent w0out permission of lessor

'. his is the inority rule, applies only to commercial leases, and imposes areasonableness re6uirement e"en where there is none.

ii. Policy1. (essor has made a commercially sound choice of who will owe him rent and court

shouldn/t impose someone else on hima. 2esponse:


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i. 2ule: In residential leases, landlord may refuse arbitrarily or unreasonablyto gi"econsent. Not an unreasonable restraint on alienation. his is the ma4ority rule.

1. 5ommercial space is different because it is more limited'. (andlord of commercial space is using unreasonable means to get increases in rent). (andlord might li"e in te building+. 5ommercial leases are -01J years, where residential are 10'.

IB. 2ights to ;abitable Preisesa. istorically, common law "iewed leases b!w landlords and tenants as independent % 4ust b!c

landlord didn/t deli"er her promise, didn/t mean tenant could breach one of his promises.i. Important e&ception was that the (andlord could not breach a co"enant not to disturb thetenant/s 6uiet en4oyment of the tenancy. his e&ception gradually de"eloped into thedoctrine of constructi"e e"iction.

b. )onstructi%e $%iction0 *ccurs when landlord interfereswith tenant/s 6uiet en4oyment so muchthat tenant can 4ustifiably stop paying rent and mo"e out before the end of the lease. his is aphysical e"iction and the interference with the 6uiet en4oyment must be the (andlord/s fault.

i.


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'. Policy:a. enants should ha"e had to bring a nuisance claim, because if landlord

hadn/t owned both areas, that would ha"e been the remedy, and thatshouldn/t entitle the tenants to depri"e the landlord of rent

b. his isn/t intentional action by the landlord. e/s 4ust doing his business,and its not his fault. his increases the burdens on (andlords and ma$es itless profitable and fle&ible to be in business.

c. his is a legislati"e issue.

d. (andlord shouldn/t ha"e leased to the lounge or should ha"e enforced thenoise control co"enant he had with the lounge. e is in the position ofcontrol and ends up causing harm to his pre"ious tenants.

ii. ) approaches to third party distrubances:1. Traditional =.egal> Approach: (andlord not responsible for the actions of third

parties e"en when there is an e&press pro"ision.'. (o Pro%isionin the (ease: there is an implied duty not to interfere with the 6uiet

en4oyment that the tenant has and cannot "iolate this pro"ision of the other tenantsIf the tenant breaches this implied duty the (andlord can e"ict the noisy tenant.

a. 2estatement focuses on conduct that can be legally controlled by the(andlord. "en if no clause for noisy parties, constructi"e e"iction defensemay be allowed.


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a. If we ha"e a housing code, it ma$es sense that landlords should be re6uiredto $eep up with it during the time of the lease. If tenants can/t stop payingrent, there/s no way to enforce that obligation

b. here aren/t enough housing inspectors to go around and this enforces thehousing code effecti"ely.

i. 5odes are minimal and co"er only important thingsc. Poor people should be protecti"e from careless and fraudulent landlords by

being able to withhold rent.

d. his was not a decision for the court. he legislature should ha"e added thiinto the housing code if it was necessary to protect tenants/ rights.). 3hould parties be able to contract outof the warranty of habitability?

a. No because you can/t contract away basic rights. he person doing thiswouldn/t really understand what they/re doing. hey/re sacrificing theirlong term health and well being for short term financial gain. hat is not inthe best interest of societ

b. es because that/s what freedom of contract is all about. 5ourts can ma$esure that these tenants really understand, but with a shortage of affordablehousing, courts should allow for freedom to gi"e away some rights toencourage more housing for the "ery poor.

". Reedies for breach of habitability:1. rescission0 the right to mo"e out before the lease term is o"er'. rent withholding % landlord must be notified of the problem before withholding ren). rent abatement 0 reduction of rent+. In4uncti"e relief or specific performance-. Administrati"e remedies 0 local housing inspectors, remedies in local admin courts. criminal penalties. compensatory damages

e. Retaliatory $%iction0 he remo"al of a tenant from possession of property due to the tenant/scomplaints or other conduct to which the landlord is opposed. (andlord can terminate lease andend of term for no reason.

i. ill"iew Associates ". loom6uist 7Iowa statute8 enants of a trailer par$ tried to form atenants association to address deteriorating conditions. - tenants 8 Pl owned a coal mine and ga"e housing to wor$ers

for 1K a month. e instituted an e"iction proceeding against =, who claimed the e"iction

)


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was in retaliation for his participation in a labor stri$e at his coal0mining 4ob.


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* then con"eys to , who has doesn/t $now about * to A pre"ails o"er A e"en though does not record the deed from * to . also pre"ails o"er A e"en if A later records her deed from * to A before records herdeed from * to .

c. Race?(otice Statutes: A subse6uent purchaser pre"ails o"er prior unrecorded interests only if she18 had no notice of the prior con"eyance at the time she ac6uired her interestsH '8 records beforethe prior instrument is recorded.

i. sed in about X the states

ii. Ad"antages!Problems: same as with Notice 3tatues.iii. &ample: * con"eys to A, A does not record.* then con"eys to . has no $nowledge of the earlier con"eyance from * to A.A recordsH then records.A pre"ails o"er because, e"en though had no notice of A/s deed, A recorded first.

d. 3helter =octrine % Protects the middle man bona fide purchaser from not being able to sell becaushe later finds out there was an earlier con"eyance

e. 3abo ". or"ath 7Alas$a 1>8 (owery owned land which re6uired a patent. (owery to or"athwho recorded before the re6uired patent was issued. After the patent was issued, (owerycon"eyed again to 3abo, who recorded. or"ath/s deed is wild because it was before the patentwas issued. 3abo did a title search, found nothing, so he records.

i. 2ule: Alas$a has a 2ace0Notice statute. A deed outside of the chain of title is notconstructi"e notice and a subse6uent recorded deed will ta$e priority, if recorded withoutactual or constructi"e $nowledge 7need one of these8.

1. 2ace0notice see$s to protect a bona0fide purchaser who records, e"en if there hasbeen a pre"ious con"eyance in a wild deed.

a. his protects diligent second purchaser, who searches and finds nothingb. Wild deeds, li$e or"ath/s deed, which was recorded outside of the chain

of title, did not put 3abo on constructi"e notice of the con"eyance toor"ath.

c. he grantor inde& would ha"e shown 3 to (owery in 1>), and or"athrecorded a deed before 1>).

i. ad or"ath recorded after 1>), before sale to sabo, 3abo wouldha"e been on notice.

d. Policy:i. 5an/t re6uire chec$s for wild deeds because its too cumbersome.

5reates uncertainty.ii. or"ath should/"e re0recorded after the patent was issued.

iii. Ouitclaim deed L unusualH in"ol"es gi"ing whate"er the owner hasbut does not include warranty. 3hould ha"e put 3abo on in6uirynotice of a possible wild deed.

1. owe"er he did title search, can/t as$ for more.i". 3hould use a tract inde&, not grantor grantee because they follow

e"erything that happens with a particular tract, easier to

follow,e&pensi"e and not used in many places.e. stoppel y =eed: here (owery con"eyed without ha"ing it. when this

happens, as soon as lowery were to get title, it would be con"eyed.'. Cift: 5on"eyances that ha"e been purchased ta$e precedent o"er those that ha"e

been gi"en as gifts. If the same piece of property is gi"en to two donees, the first torecei"e it first wins it 7first in time, first in right8.

TA@+(/S

I. 2egulatory a$ings

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a. he 2ifth Aendent% prohibits the federal go"ernment from Fta*ingG pri"ate property Fforpublic usewithout 4ust compensationG.

b. Allows go"ernment to acquirepri"ate property for public use for compensation. 2e6uiresdetermining that the proposed use is publicand determining what constitutes 4ust compensation

i. Applies to the 3tates through the 2ourteenth Aendent, which prohibits the state fromFdepri"ingG the citi#ens of property Fwithout due process of lawG

ii. When states operate within their police power, they may create in4uries but they arewithout legal redress. his is not a ta$ing.

iii. minent domain is when the state ta$es or condemns pri"ate property, pays owner mar$et"alue, and uses for the furtherance of public welfare.1. his has been broadened o"er the years.

c. Regulatory ta*ings0 when a regulation strips a property owner from using their property li$e afactory can@t operate under en"ironmental statutes.

i. he goal here is to loo$ for fairness and 4ustice, ma$ing sure that a fe3 indi%iduals arenrequired to bear the burdenof public good for all people.

d. he court has also tried to create cases of per se categoriesto find regulations that constitutecategorical ta$ings and re6uire compensation no matter what.

i. go"t mandated peranent physical in%asionsof property always re6uire compensationii. regulations that depri"e an owner of all econoically %iable useof property unless

bac$ground principles of nuisance and property already restrict that use.e. nder the ad hoc test 7Penn 5entral8, these three categories are most often found to be ta$ings:

i. depri"ation of core property rightsor estate in landii. interference with reasonable in"estment bac$ed e&pectations

iii. re6uired dedications of property imposed as conditions for land use de"elopment permitswhen those re6uirements don@t substantially ad"ance the same interests that land useauthorities used to say they could deny the permit in the first place.

f. , 35 % Crand central station was deemed a historic landmar$ and the

city refused to allow them to build an office building on top of it. 3tation claimed this "iolated its"ertical property rights and constituted a ta$ing

i. 2ule: in order to something to be a ta$ing, the courts should loo$ at 1. econoic ipact

on the indi"idual '. the e&tent to which the regulation interferes with an in%estentbac*ed expectation). a physical in%astionis more li$ely to be a ta$ing, than aregulation.

1. he parcel is loo$ed at in its entirety, so the right to build wasn/t remo"ed, 4ust thaparticular plan was re4ected.

'. his restriction is on a lot of buildings, and #oning does pretty much the samething, and its not a ta$ing.

). Penn central isn/t solely burdened.

+1


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ii. =issent argued that this is different from #oning laws, because they create a basic structurethat e"eryone benefits from. his is +JJ out of 1 million buildings.

iii. owe"er this is the $ey test that is applied down the road.h. Eeystone ituminous 5oal " =ebenedictis 1>, 35*3 % PA law re6uired enough coal to be

left underground to support structures abo"e. 5oal companies said this "iolated the undergroundrights they had bought.

i. 2ule: this isn/t a ta$ing because it is a regulation that liits' but doesn"t copletelyinterferewith the property right. Its not a physical in"asion, it only re6uires that 'U of

coal be left in the ground, so it barely interferes with in"estment bac$ed e&pectations.ii. =issent disagreed with in"estment bac$ e&pectation analysis.

Pruneyard 71>J8 Pamphleting at mall No ta$ing

(oretto 71>'8 5able a$ing

ee 71>>'8 >8 oo$ away right ofalienability

a$ing

(ucas 2egulated wherebuildings could be

a$ing

ahoe03ierra emporarily haltedbuilding Not a ta$ing

II. Ouestions to as$ when applying the Penn )entral test: pg>Ja. Is this a per se ta*ing75onsider these three types of ta$ings, which are per se ta$ings: 8

i. Is it a forced physical in%asion?1. Pruneyard " 2obins 1>J, 35*3 2hen6uist: Petitioners at a shopping center

were as$ed to lea"e. 5A sup ct said that free speech rights allows this, andPruneyard claims this is an uncompensated ta$ing.

a. "en when there is some physical in"asion, when there@s absolutely noeconoic effectit will not be a ta$ing. When the in"asion is temporary anlimited and since the owner hasn@t e&hibited an interest in e&cluding all

person@s, this isn@t a ta$ing.i. his would be different if the petitioners deterred shopping.'. (oretto ". eleprompter 7358 % he city re6uired the landlord to allow cable

e6uipment to be laid across the apartment building. he wire too$ up "ery littlespace and actually increased the "alue of the property.

a. 2ule: A peranent' forced physical in%asionis always a ta$ing thatre6uires compensation, no matter how slight the in4ury or how minimal thein"asion

i. Co"ernment re6uired to pay 4ust compensation 7on remand only K1for the intrusion8.

b. =issent argues that this ignore the other elements, where there is no

economic effect and no affect on in"estment bac$ed e&pectations.i. (andlords already ha"e to ha"e fire e&tinguishers and mailbo&es, sowhy not this.

c. Policyi. his pre"ents future worse ta$ings and establishes a bright line rule

but 4ust compensation must be nothing.ii. In pruneyard they $ept control of time, place, and manner, so it

wasn/t a permanent physical in"ationiii. his is absurd because it adds to "alue and the chords are negligible

and don/t interfere with anything.

+'


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). ee ". 5ity of scondido 7358 %he state enacted a law limiting the bases uponwhich a par$ owner could terminate a mobile home owner/s tenancy 7limitsconstructi"e e"iction and ma$es the property rent controlled8. ees, par$ owners,claimed it was a physical in"asion of their land and re6uired compensation. hiscan result in perpetual tenants 7right to occupy indefinitely at sub0mar$et "alue8 anda shifting from (andlord to tenant the benefit of K earned on increased rent on theproperty.

a. 2ule: (ot a forced physical in%asion. ;ust a mere regulation. ere owner

opened up his land, "ersus inLoretto! where a stranger came onto the land.i. >'8 % 3tate eachfront


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i. Protect reasonable e&pectation interests of property owners. (ostsomething here.

1. At the same time, property owners $now that their propertyis sub4ect to regulation especially in a sensiti"e area li$e this

'. Not all use is depri"ed here. 5old ha"e set up a boyscoutcamp or some other use.

ii. (aws li$e this pre"ent state legislatures from being able to protectthe common good because they can/t compensate e"eryone.

i". ahoe03ierra ". ahoe 2egional Planning Agency 7358 % (egislature placed a ' yearmoratorium on de"elopment around the la$e to determine impact on the la$e. he courte&tended it to years. *wner bought land and was pre"ented from building and sues forcompensation.

1. olding: Not a ta$ing. ecause the oratoriu is teporary, the property willreco"er its "alue as soon as they are lifted.

a. (ucas doesn/t apply because it didn/t constitute a permanent depri"ation ofall use.

b. his is a fu##iness within the right line rule'. Policy:

a. his isn/t a ta$ing, its temporary, and its 4ust the amount of time needed forthego"t to protect this uni6ue la$e and the surrounding area. Co"t can/tcompensate to conduct studies.

b. Its already been years, how long does it ha"e to be before its permanent.his is a total dimunition in "alue and state should ha"e to compensate.

b. If this isn/t a per se ta$ing, loo$ at the three factor test:i. )haracter of the /o%ernent Action: Is the regulation a physical in"asion, is it the

sei#ure of a core property right, or is it a general regulatory program affecting numerousparcels and designed to protect the public from harm by ad4usting the benefits and burdensof economic life to promote the common good 7li$e #oning8?

1. 2egulation


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b. If diminution in "alue is 33ANIA(, but it is 4ustified by a strongpublic interest

iii. Interference with reasonable in%estent?bac*ed expectations%1. more li$ely to be a ta$ing if a citi#en has already in"ested substantially in

reasonable reliance on an e&isting statutory or regulatory schemeHa. Interferes with "ested rightsH orb. Interferes with an e&isting present use of property

'. it is less li$ely to be ruled a ta$ing if the regulation pre"ents the owner from

reali#ing an e&pected benefit in the futurea. Imposes an opportunity lossH orb. he change in the law is one that the owner should ha"e anticipated such

that the owner/s reliance was unreasonablec. If there is a ta$ing, as$ if its for public use

i. a$ings are ne"er permitted for pri"ate use, e"en with 4ust compensationii. Public se : 3o long as the state/s use of its eminent domain power is Frationally related to

a concei"able public purposeG the public use re6uirement is satisfied.d. awaii ousing Authority ".


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i. If the purpose is legitiate and the eans are rational, the court will not re"iew planson a plot by plot basis to determine if the ta$ing is "alid.

1. here has to be a public benefit, but it doesn/t ha"e to be definite or concrete, but ican/t be prete&tual.

'. Primary use to benefit the public.). Eennedy/s concurrence re6uires assumption of in"alidity and strict scrutiny.+. =issent, */5onnor: this gi"es leg the ability to depri"e people of property to updat

city bloc$s to be better, which is whate"er the leg says.

a. his is too much deference.b. his isn/t li$e a blighted slum, therse were perfectly good houses.c. he plan should either ha"e to go around them, or it isn/t "alid

-. =issent, homas: this is changing the -th amendment to say for public purpose, annot public use.

a. he awaii and C< cases were wrong too, because that/s not use by apublic entity.

2eiteration of how to do a ta$ings problem:1. Is this a per se ta$ing? Will fall into one of the three rules!categories

Physical in"asion

5ore property right

otal and permanent depri"ation of economic "iable use

o Note: there are e&ceptions to each of these three categories. &ample: temporary moratorium.

o *n e&am: e"en if you say it fell into one of these ) rights must also do )0factor test. 3ay: in the

case the court does not fall that it fell into S brightline rule, we will apply the )0factor test.'. If not a per se ta$ing, is it a ta$ing under the )0factor test?

5haracter of the go"ernment action

=iminution of "alue

Interference with reasonable in"estment0bac$ed e&pectations

). Is the property being ta$en for public use? If so, then 4ust compensation is re6uired.

he regulation must be rationally0related to a legitimate state interest to e"en be ta$ing at all. his

6uestion would not arise if there was no ta$ing % ob"iously not on an e&am.

hen see if it is compensation necessary. No right or wrong answer, 4ust ma$e an argument based on the

case law we/"e read, common sense. If public use, then 4ust compensation is re6uired. Would argue bothsides of whether or not it is a public use.

Ceneral 6uestions about ta$ings:he issues here are should society as a whole bear the burden and compensate or should the indi"dual bearthe burden?why are courts more e6uiped to do this than legislatures. hat wasn@t their 4ob or

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