Favre Property Outline, 2019 · Web view2020. 12. 6. · Fixation . Means the work must be fixed in some tangible medium . The copyright holder must satisfy three requirements to

Favre Property Outline, 2019

Property Law - Predictability (to invest, certainty of ownership) - Categories

o Real property o Personal property (moveable’s) o Intellectual property

- Fringe categories o Living property o Virtual property

- Labor theory of property: if you work for something, you should have a property interest in it

- Possession v. Title o Title: represents ownership as recognized by law o Possession: physical domain and control

- How to transfer title: o Gift o Sale o Transfer by will

- Involuntary transfer of title o Foreclosure o Repossession o Eminent domain o Adverse possession o Lost property and finders of lost property

- Johnson v. M’Intosh, scotus, 1823 o Land transfers are only valid when made under the rule of the currently

prevailing government - Title By Capture

o What is the rule for obtaining title to a wild animal? You have possession of the animal or have deathly injured the

animal and are in pursuit First possession need to have dominion and control Case: Pierson v. Post, fox case

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- Bailment: a delivery of personal property by one person (the bailor) to another (the bailee) who holds the property for a certain purpose under an express or implied-in-fact contract. Change of possession not title.

- Who owns wildlife before human capture? o Whoever owns the land that the animal is on at the time

- Doctrine of increase o Provides that the offspring or increase of tame or domestic animals belongs

to the owner of the dam or mother… furthermore, the increase of the increase, as infinitum, of domestic animals comes within the rule and belongs to the owner of the original stock

o Recognized everywhere- Cannot take control of a wild animal if it is on someone else’s land – cannot get

animals by trespass - A property owner has a right to make lawful use of his property for profit

without malicious interference of others - Rule of capture

Only applies to res nulius – unowned property of a fugitive nature o Animals o Oil and gas

Have to drill straight down, but until someone does that, not considered owned by anyone until reduced to physical possession

o Water Surface water:

Riparianism: water rights on the basis of land ownership beside the water

Proper appropriation: the first one who appropriates (captures) the water ad puts it to a reasonable and beneficial use

Ground water English rule: absolute ownership American Rule: reasonable use of the water

Tragedy of the commons and the economic theory of property - When is a society inclined to make something “property”?

o Realization that if people take care of the property, it will pay them better overtime compared to everyone over-using common property

o Land = always o Person property – usually pretty obvious when it is not

- Right of publicity – prevents someone from using your likeness without your permission

- Externalities o Exists whenever some person makes a decision about how to use resources

without taking full account of the effects of that decision o Recourses can be positive or negative

- bundle of rightso Joseph Willing Singer, property rights and social relations:

Under this conception of legal rights the crucial steps are: Identifying the interest for which people seek legal

protection

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Using policy analysis to adjudicate conflicts among those interests and to determine the appropriate extent of legal protection for each other

It describes legal relations among people with regard to control of valued resources, rather than relationships between people and things

o Conventional wisdom = property is a bundle of rights and other legal relations available between persons

- privacy (from government, from others)- Property rights.

o Property rights are thought to perform the value of maximizing functions by internalizing externalities

o Bringing the cost of resource use to bear on the user o Done in 2 ways

Property rights concentrate the costs and benefits of the use of owners, giving them greater incentives to use their own resources more efficiently

Reducing the costs of negotiating with others over the remaining externalities

- Limited access commons: o limits access to and use of some resources to memberso the group has the right to exclude others

- Open access commons: o no single individual and no group as the right to exclude anyone, the land is

open for anyone to use - tragedy to commons

o if property is held in common trust where everyone has access to it, incentive to overuse it as people are only getting reward. Economic issue of one person not overusing and someone else overusing and getting an advantage the first person didn’t get

- some basic aspect of ownership: the right to exclude o can have punitive damages for intentional trespass, even if compensatory

damages are not warranted and only nominal damages are awarded special enhancement to the right to exclude others

Acquisition by creation - Intellectual property: copyright, patents, trademarks - Parent legislation: protects inventions that are novel, useful and non-obvious - Copyright legislation: grants exclusive rights in original literacy and artistic

works, including books, poetry, music, dance, movies, paintings, and computer programs

- Trademark law: protects words or symbols that identify the source goods or services

- Public goods: goods that are both non-excludable and non-rivalrous - Private goods: goods that are rivalrous and excludable - Three non-traditional intellectual property interests

o Misappropriationo Design protection o XX

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- Three core intellectual property interests o Parent, trademark, copyright

- For how long should Disney be allowed to protect Mickey Mouse from use by others? Can I print a picture of President Lincoln on a t-shirt but not Mickey Mouse? What public policy supports the rules?o Disney is forever, Lincoln is temporary

Patent: - commercial monopoly over something - lasts 20 years from the date of application - Grants a limited monopoly to the patentee on the assumption that doing so

creates an incentive for the patentee to engage in creative and socially useful enterprise

- Must meet 5 requirements for the patent to be granted o Patentability

Means that the invention firs into one of the general categories of patentable subject matter:

Process Machine Manufacture Any composite matter

o Novelty It has not been preceded in identical form

o Utility Is a minimal requirement that is so easily met as long as the

invention offers some benefit to human o Non-obvious o Enablement

Requires that the patent application to describe the invention in sufficient detail so that one of ordinary skill in the art would be able to use the invention

- A live, human made microorganism is patentable subject matter Trademark

- Mark/word/name/symbol/jingle used by a person to identify their goods from those sold by others and to identify the source of the goods

- it’s not when you create it, it’s when you first use it o first in time principle

- needs to be visible to the world - there are state/national/international trademarks - Three main policies underlie trademark law

o Exclusive rights to trademarks prevents consumer confusion about the origin of the goods or services

o They encourage trademark owners to invest in and maintain a consistent level of quality

o They prevent competitors from freeriding on the trademark owners goodwill

- Federal Lanham Act o Allows a trademark owner to register the mark with the Patent and

trademark office but registration is not required for the marks validity

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- Three requirements must be met for trademark protection o Distinctiveness: mark must distinguish the good/service of one person

from another o Non-functionality: if an aspect of a good is strictly functional, cannot be

protected by trademark law o First use in trade: use must be in commerce, not just trade

- Generic terms are part of the public domain and cannot be trademarked -

Copyright- Ownership of the creative work - A way to protect original/creative material by preventing others from recreating

the work - Any type of original creativity that is not functional - To get a copyright, need original work and fixed in a tangible medium - Largely statutory law - Creating incentives for creativity by granting the reward of limited monopoly - Don’t have to register it - Copyright holder has the right to prevent others from:

o Reproducing the work o Creating derivative works o Distributing copies of the work to the public o Performing the work publicly o Displaying the work publicly o Performing the work by digital audio transmission

- Federal law imposes three requirements for copyright protection o Originality

Work must be an independent creation of the author AND must demonstrate at least some minimal degree of creativity

o Work of authorship Literary works (include computer programs) musical works dramatic works pantomimes and choreographic work pictorial graphic sculptural works motion pictures and other audiovisual works; Sound recordings architectural works.

o Fixation Means the work must be fixed in some tangible medium

- The copyright holder must satisfy three requirements to prevail in an infringement action: o He holds a valid copyright in the work o The D copied the work o The copying was an improper appropriation

Requires that the copyright holder show that the D copied so much of the original material that the two works are substantially similar

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- Fair Use Defense: o Courts will consider: the purpose and character of the sue, the nature of the

copyrighted work, the substantially of the portion used in relation to the copyrighted work as a whole, the effect on the potential market relation to the copyrighted work

- You can’t copyright facts

- What are the rights of a first finder?o By virtue of first possession, one can make an unowned thing, or a thing

before enjoyed by all in common, one’s own- Who has the legal rights to the physical remains of the Titanic?

o Shipwrecks o Sunken treasure from ships sunk at sea is governed either by finders’ law or

maritime law o Law of finders has usually been applied to ships lost in territorial waters and

the finder held entitled to an abandoned ship unless the wreck was embedded in land owned or possessed by another

o Abandoned Shipwreck act 19887 o US asserts title to any abandoned shipwreck embedded in submerged lands

of a state and simultaneously transfers its title to the state in which the wreck is located

o The evidentiary standard required for proof of abandonment is high - Finder has the right to title against everyone but the true owner of the title

o Finder is someone who discovers the property and with intentionality takes dominion and control over the property

o Discovery + intentionality + physical appropriation o To test: is the outcome fair?

- The jus tertii defense: rights of a third party: requires the D stand on his own rights rather than those of a third party

- Anyone who has had an object is subject to the prior possessors claim of title - Landowner—owns all things under and on top of the land - The finder of lost chattel on another’s property has rights to that chattel

superior to the rights of the property owner only if they were not trespassing - abandon v. lost v. misplaced property

o mislaid: if the owner intentionally places it somewhere then forgot to retrieve it

owner of the locus in quo wins o lost: when the owner inadvertently loses possession of it

finder as title for property that is a better title than everyone but the true owner

o abandoned: abandoned when the owner intentionally relinquishes all legal rights to it with no intention to confer rights on any particular person

when a person finds abandoned property, ownership to finder cannot abandon real estate relinquishment of title to no one

- treasure troveo Most American jurisdictions reject the treasure trove doctrine, treat as lost

of mislaid property

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o If found buried, usually give it to the owner of the land - conversion

o the long term deprivation, permanent deprivation or total destruction of another’s chattel

o damages – replacement costs at market value - Chain of title

o The capacity and understanding how to move title from one person to another (real and personal property)

- Intentionality: the law giving people certain rights (can sell/give/will) o Subjective intention is very important

- Bailment: transfer of possession o What is required for the creation of a bailment?

Rightful possession of goods by a person who is not the owner (bailee has possession, but not title of the chattel)

Requires that the bailee intend to possess and actually possess the chattel

Responsible for what you know ofo What are the duties of a bailee?

Baliee has the duty to take extra ordinary care, reasonable care, or to avoid acting in bad faith with respect to the property, depending upon who benefits from the arrangement

o Concealed valuable item cannot presume consent o Strict liability to return o Intend to and in fact transfer possession, not title, to someone who is not the

owner o The bailee knowingly takes possession and control

- A bailment is distinguished from other legal relationships: o Custody: when the owner of goods places them in the actual physical control

of another, but does not intent to relinquish the right as distinct from the power of dominion over them

o Sale: in a sale, the title passes to the purchaser, in a bailment the title remains in the bailor

o Conditional sale: a purchaser under a conditional sales contract acquires not only possession but also beneficial interest in the goods for which he is obligated to pay

o Trust: trustee acquires legal title for purpose of performing his duties as trustee

o Gift: transfers title o Lease: lease of space

In a lease of personal property where the lessee acquires possession of the goods with an obligation to return them, the lessee is a bailee of the chattels

- Bailments are frequently classified according to which of the parties derive the most benefit for purposes of imposing liability for negligence of the bailee. o If the bailment

Is for the sole benefit of the bailor, the bailee is liable only for gross negligence

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Is for the sole benefit of the bailee, the bailee is liable even for slight negligence

Is for the mutual benefit of both the bailee and bailor, the bailee is liable for ordinary (general) negligence, or failure to observe ordinary care, the case that would be exercised by a reasonably prudent person under the circumstances

o This is the trend for all the cases

- What are the two classes of gifts (define each)?o Gift causa mortis – death bed gifting

Will substitute Presumed revocable (and may be revoked if you don’t die) Old tradition, if survived it automatically revoked

o Inter vivos Anything you pass on while you are living without motivation of

impending death Not revocable

- When does title transfer? When all three elements are reached: intent, delivery, acceptance

- How many different categories of delivery exist?o Manual o Constructive o Symbolic

- Why is delivery required?o Objective evidence of a subjective intent o The more uncertain they are about what is in the persons head, the more

they need objective evidence - gift: voluntary transfer of title without consideration

o three requirements for Gift intent

donor must intend to make a present transfer of an existing interest in the property – title

intend to be legally bound now, not in the future delivery

manual delivery o actual delivery occurs when the donor physically

transfers possession of the object to the donee, primary method of delivery for most item of tangible person property

constructive delivery o occurs when the donor physically transfers to the

done the means of access or control of the gifted object, permitted when manual delivery is impracticable or impossible (i..e giving car keys)

symbolic delivery o occurs when the donor physically transfers to the

done an object that represents or symbolizes the subject matter of the gift, this includes a writing,

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almost needs to rise to the level of a “deed gift” or something that clearly states the intent to transfer title

acceptance courts presume acceptance upon delivery unless expressly

refusing a gift - for a gift, the intention in the head needs to be the immediate transfer of title,

not necessarily the immediate transfer of possession - causa mortis can become intro vivos if you say that it is irrevocable - evidentiary standards:

o credibility to the witnesses o need to show preponderance of the evidence

Adverse Possession - possessing the land to get a creation of a new title created by law under the

statute of limitations - common law - person asserting adverse possession as burden of proof: preponderance of the

evidence - elements of adverse possession (an evil owl hoots continuously)

o actual o exclusive o open and notorious o hostile and adverse (under claim of right) o continuous and uninterrupted

- actual entry: o what starts the clock (need all 5 elements to happen) o every jurisdiction statute of limitations is different

- exclusive possession: o cannot be shared with true owner or public in general

- Open and Notorious o Something that would put reasonably attentive property owners on notice

that someone is on their property o publicly visible -- using the land in such a way that gives notice to the public

and owner that you are using the land - Hostile and adverse possession

o Courts don’t agree on what evidence is required to satisfy this o Agreed that the claimant’s possession cannot be with the true owners

permission - Continuous and uninterrupted

o Possessor continuously possesses the land and not interrupted by the true owner

o If the true owner interrupts, re-sets the statute of limitations o Interruption:

True owner has to do something that actually interrupts the possession of the land by the adverse possessor

i.e. bringing an action before the statute runs out

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- three different views for the state of mind requirements of the adverse possessor o objective standard (Majority rule in the US)

state of mind is irrelevant, all that matters is the conduct of the adverse possessor: if the adverse possessor occupied and used the land in the way that one would expect of the true owner, then the evidence is sufficient to establish adversity

o good faith standard “I thought I owned it”

o aggressive trespass standard “I didn’t own it, but I intended to make it mine”

- Owner and adverse possessor cannot both use the same part of the land - Title automatically flips to the adverse possessor after the statute of

limitations has run, doesn’t matter if no one brings a claim for it - Once you own land, it’s your responsibility to check up on it

o With great land comes great responsibility - When you win adverse possession, you win the quiet title and the part of the

land you use - "Color of Title"

o Gives the ability to expand out beyond what you actually possessed, but cannot expand onto what the true owner was using

o Getting the extra land that the adverse possessor doesn’t use, but neither does the owner

- Ad Coelum doctrine: landowners rights to airspace above and resources below the surface of their land

- Doctrine of agreed boundaries provides that if there is uncertainty between neighbors as to the true boundary line, an oral agreement to settle the matter is enforceable if the neighbors subsequently accept the line for a long period of time

- Doctrine of acquiescence provides that long acquiescence is evidence of an agreement between the parties fixing the boundary line o Doesn’t require a whole lot of use, just have to show that its part of your land o Don’t have to show hostile o This changes the title to the lot whether its in the court or not

- doctrine of estoppel comes into play when one neighbors makes representations about (or engages in conduct that tends to indicate the location of a common boundary and the other neigh or then changes her position in reliance on the representations or conduct

- statute of limitations can be waived for certain disabilities o statute of limitations extended for specific disabilities o disability is immaterial unless it existed at the time when the cause of action

accrued

- Doctrine of accession: gives property rights to one who significantly increased the value of another’s property through labor

- Tacking o adding more adverse passion claims to each other to reach the statute.

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o Requires privity – a relationship between the 2 possessors. First person must in some way transfer their possession

o All adverse possession requirements must be met for the entire period of the statute

o The joining of consecutive periods of possession by different persons to treat the periods as one continuous period; esp., the adding of one's own period of land possession to that of a prior possessor to establish continuous adverse possession for the statutory period (blacks law)

o The joining of consecutive periods of possession between people to hit the number of years necessary for the statute of limitations

o Need relationship between the parties – first person must transfer possession to the next (deed)

- Adverse possession against the government? NOPE o No time runs against the king o State land is for all the people o Few states permit this though but same terms, or longer statutes of

limitations or only on government lands held in proprietary capacity - Dispossessor gets no more than the title that the owner as at that time

o i.e. life estate v. true owner - In the case of paintings, when does the clock start under both the Common Law

and the Discovery Rule? Which rule is better?o Clock starts when true owner discovers (or should have discovered) missing

chattel o Replevin: An action for the repossession of personal property wrongfully

taken or detained by the defendant, whereby the plaintiff gives security for and holds the property until the court decides who owns it.

o Discovery rule: Provides that, in an appropriate case, a cause of action will not

accrue until the injured party discovers, or by exercise of reasonable diligence and intelligence should have discovered, facts which form the basis of a case of action (156)

The rile is essentially a principle of equity, the purpose of which is to mitigate unjust results that otherwise might flow from strict adherence to a rule of law

o Under the doctrine of adverse possession, the burden is on the possessor to prove the elements of adverse possession

- Regarding the time when the statute of limitations begins to run for purposes of adverse possession of the personal property: know the three rules o Conversion rule:

Statute begins to rule against true owner as soon as the property is converted

o Discovery rule: Cause of action for conversion does not accrue, triggering the statute

of limitations, until the owner discovers, or by exercise of reasonable diligence and intelligence should have discovered, facts which form the basis of a cause of action

o Demand rule:

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Statute of limitations does not begin to run until the true owner makes a demand for the return of the property and the demand is refused.

System of Estates - Fee simple

o An estate in land which lasts forever by defaulto Can be granted or inherited o Provides a present possessory interest and future interest o Presumed if words of limitation are unclear o To A // To A and her heirs

- Fee tail o Prevents the owner from cutting off the inheritance rights to his issue o Way of keeping land within the family o Limited what could happen to the land o Heirs of his body o Three rules today:

Mass/Maine/RI/Delaware: lawful estate, if nothing is done, follows the oldest child down and down, but anyone can create a fee simple by signing the deed

Ohio: any language that creates a fee tail is immediately translated into a fee simple

MI: If it is a fee tail with the future interest going back to grantor

fee simple If “heirs of his body” future interest is to alternative and their

heirs. The condition exists for one generation - Words of purchase

o Who purchases the land - Words of limitation

o What do they get - Feudal system: power controlled by land, food/military exchanged for land

o Farmer had present possessory of the estate o Tenant in chief, if died with no heirs, land went back to the king

Escheat: if a tenant died without heirs, land returned to the lord form whom it was held

Today: when a person dies interstate (without a will) and without heirs, the property escheats to the state

o To transfer to someone without the kings permission Inter vivos—not transferring everything as a lateral movement, but can move him underneath the tenant in chief and make him in charge while the tenant in chief is a placeholder

o 1290: allowed the transfer of control of land without the kinds approval Land, if not revoked, goes to children, power was passed down the

families o 1500, statute of wills, allowed a landlord to convey their land to whoever

they want – king no longer automatically gets land

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- Presumption: if you convey something to A with no words of purchase: o Today: fee simple o 1800: life estate

- Describe the estates at the time of the conveyance - Heirs: The persons who are entitled to succeed to a decedent's estate on the

basis of the local statute of interstate succession when the decedent has died without a valid will

- Interstate succession: Succession at death to the estate of a person who dies without a legally valid will

- Testate succession: Succession at death to the estate of a person who dies with a legally valid will; the beneficiaries under the will are called devisees

- Issue/descendants: Surviving children, grandchildren, great-grandchildren, etc. - The life estate

o “for life” – present and future interest o Seisin: possession of a particular kind and with particular consequences o Every life estate is followed by a future interest: either a revision in the

transferor or a remainder in a transferee o The longer you have to live the more % of the value of the property is the life

estate you have - Rules of construction

o Every grant or devise of real estate, or any interest therein, shall pass all the estate or interest of the grantor or devisor, unless the intent to pass a less estate or interest shall appear by express terms, or be necessary implied in the terms of the instrument

o Presumption If you are talking about a piece of the property, you are presumed to

transfer all of it unless stated otherwise o A will … shall convey al the real estate belonging to [the testator] or in which

he has any interest at his decease, unless a contrary intention appear by its words and context

If you write a will, presumed that you intend all aspects of property When the terms of a will are ambiguous, said will shall be

determined to have passed a fee simple absolute - Remainder : a future interest in a transferee which is capable of becoming

possessory at the natural termination of the preceding estate and does not divest any one estate except the transferor o Vested remainder: a future interest in a transferee that is certain to

become possessory upon the expiration of the prior estate created at the same time

“to A for life, then to B and her heirs” o Contingent remainder: permits the transferor to let future events

determine who takes the property upon the life tenants’ death To A for life, then to A’s eldest son and his heirs”

- Executory interest: divests or cuts short the preceding interest. A future interest in the transferee that can take effect only by divesting another interest

- The doctrine of waste o Remaindermen have the right to interfere with what a life estate holder is

doing if its causing damage to the property

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o Law of waste can become relevant whenever two or more persons have rights to possess property at the same time

o Three categories of waste Affirmative waste

Arises from voluntary acts liability results from injurious acts that have more than trivial effects

Substantially reduce the value of the property Permissive waste (202)

From a failure to act Question of negligence // failure to take reasonable care of

the property Ameliorative Waste

Arises from substantial changes to the property by the tenant that increase rather than decrease the market value of the land

Traditional view was that such actions by the tenant give rise to liability on the theory that the fee holder was entitled to take possession of the land in substantially the same condition as it was when first transferred to the tenant

Today; significant number of courts reject this view- Financial value on life estate

o The longer you have to live the more % of the value of the property is the life estate you have

o Life expectancy on mortality tables and interest rate and the present value of the right to receive X amount annually

- Alienation: o The law does not like restraints on alienation o Rule prohibiting direct restraints on alienation is old and fundamental to

American property law o Three types of restraints on alienation

Disabling restraints Withholds from the grantee the power of transferring his

interest Forfeiture restraints

Provides that if the grantee attempts to transfer, it is forfeited to another person (196)

Promissory restraints Provides that the grantee promises not to transfer his

interest Promissory restraint, if valid, is enforceable by contract

remedies of damages or an injunction Rare expect in landlord-tenant context

- In determining whether to conduct a judicial sale of property, equity courts can consider whether a sale is necessary for the best interest of all the parties.o Value of the land: fair market value, look at other similar lands bought and

sold around the area - The principle of limiting the number of legally recognized property interest is

sometimes referred to as the numerus clausis principle

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- Organizing analysis, need an order of analysis o What are the interests of land of each party at the time of the

conveyance? o Consequences of what you just identified

What does that suggest what might or what might not happen? o Do the facts change anything that the initial conveyance set forward?

- Covenant is a promise in a deed to do/not do something, its not a limitation on title o Promise can be enforceable in equity/damages, but you do not lose title

- Fee simple subject to a Condition subsequent o A defeasible fee which gives the grantor the right to re-take the land from

the grantee if a pre-specified condition subsequent actually occurs may revert to future interest holder if they elect to have ot do so if a condition is met

o “but if” - Right of re-entry

o Transferor of an estate subject to condition subsequent retains the power to cut short or terminate the estate

- Defeasible Estates o Fee simple can be

absolute (it cannot be divested nor will it end upon the occurrence of any future event)

Defeasible (any estate may be made to be defeasible, meaning it will terminate, prior to its natural end point, upon the occurrence of some specified future event)

- Modern reliance of defeasible fees o To control the use of land after it has been transferred o Lesser use: to control behavior not related to the land

- Violation may result in forfeiture of ownership (203) - Types of defeasible fees

o The fee simple determinable o The fee simple subject to condition subsequent o The fee simple subject to executory limitation

(subject to executory interest) - A fee simple determinable

o So limited that it will end automatically when a stated event happens o "on special limitation" indicating that the fee simple will expire by this

limitation if it occurs o "so long as" "during" "while" o These words are words of limitation that cause the fee simple to terminate

automatically upon the occurrence of the stated event o Every fee simple determinable is accompanied by a future interest, the

future interest is retained by the transferor or his heirs and called a possibility of reverter

Possibility of reverter may be expressly retained or arise by operation of law

o EXAMPLE: A conveyance to a school board for school purposes

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As soon as its not for school purposes anymore, its done - A Fee simple subject to condition subsequent

o Does not automatically terminate but may be cut short or "divested" at the transferor's election when a stated condition happens (204)

o EXAMPLE: Conveyance to school board, but if the premises are not used for

school purposes, the grantor has a right to re-enter and retake the premises

The boards fee may be cut short if the owner elects to exercise the right of entry, but it is not automatically terminated if that event happens

o "but if" - A fee simple subject to condition subsequent

o Is created by a conveyance of a fee simple, followed by language providing that the fee simple may be divested by the transferor if a specific event happens

o "but if" ; "provided, however, that when the premises..", etc, or other words that indicate that the estate may be cut short at the transferor's election

o The future interest retained by the transforeror to divest a fee simple subject to condition subsequent is called a right of entry (also known an a power of termination)

A right of entry, like the possibility of reverter, may be retained initially only by the transferor or his heirs.

It may no be created in a transferee The right of entry must be expressly retained or it may be implied if

the words of the instrument are reasonably susceptible to the interpretation that this type of forfeiture estate was contemplated by the parties

- A fee simple subject to executory limitation o Created when a grantor transfers what appears to be a fee simple subject to

condition subsequent and in the same instrument creates a future interest in a third party rather than himself

o Executory interest -- the future interest in the third party EXAMPLE:

O conveys land to school board, but if it ceases to use the land as a school, to the city library

School board has a fee simple subject to executory limitations

City library as am executory interest Example:

O--> to MSU-law, but if it is ever used for something other than a tax clinic, the to B and his heirs

MSU: fee simple subject to conditions subsequent O has nothing B has executory interest in fee simple

o A fee simple subject to condition subsequent and a fee simple subject to executory limitation are created by the same language

Distinction is based on the type of future interest following it

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Fee simple subject to condition subsequent is followed by a right of entry

Fee simple subject to executory limitation is followed by an executory interest

o Important difference between fee simple subject to condition subsequent and the fee simple subject to executory limitation:

If the condition is breached the former is forfeited only if the right of entry is exercised, but the latter is forfeited immediately, regardless of any action on the part of the holder of the executory interest to take possession

- Fee simple determinable o If a condition is not met, the grant is automatically terminated

- Courts have preference for a fee simple condition subsequent - Release: can only go up to the possessor

o “I’m giving up my position in line for the property” – possessor then would have a fee simple absolute

Future interests - Modern future interests are divided into two basic groups according to the

identity of the person who was the first holder of the interest o Interests initially retained by the transferor

Reversion Possibility of reverter Right of entry (AKA power of termination)

o Interests created in a transferee Vested remained Contingent remainder Executory interest

- Reversiono Is the 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

o The interest remaining in the grantor, or in the successor in interest of a testator, who transfers a vested estate of a lesser quantum than that of the vested estate which he has

o Hierarchy of estates determines what is a lesser estate o The fee simple is a greater estate than a fee tail which is a greater estate than

a life interest, which is a greater estate than the leasehold estate - Possibility of reverter

o Arises when an owner carves out of his estate a determinable estate of the same quantum

o Possibility of reverter is a future interest remaining in the transferor or his heirs when a fee simple determinable is created

- Right of entry o When an owner transfers an estate subject to condition subsequent and

retains the power to cut short or terminate the estate, the transferor has the right of entry.

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Determining the status - Ask if it is an executory interest or remainder - Is it vested or contingent? - What will happen if a future event occurs?

- Vested remainder: o (1) it is given to an ascertained person, and o (2) it is not subject to a condition precedent (other than the natural

termination or the preceding estates) o A remainder is vested if it is created in an ascertained person and is ready to

become possessory whenever and however all preceding estates expire - Contingent remainder

o (1) it is given to an unascertained person, or o (2) It is made contingent upon some event occurring other than the

natural termination of the preceding estates - "vested remainder subject to open and divestment".

o If later born children are entitled to share in the gift - Whether a remainder is vested or contingent depends upon the language

employedo If the conditional element is incorporated into the description of, or into the

gift to, the remainderman, then the remainder is contingent o But if after words giving a vested interest, a clause is added divesting it, the

remainder is vested - In classifying future interest after a life estate, use this rule:

o If the first future interest created is a contingent remainder in fee simple, the second future interest in a transferee will also be a contingent remainder

o If the first future interest created is a vested remainder in fee simple, the second future interest in a transferee will be a divesting executory interest

- Rules of Construction: 1. A vested estate is preferred over a contingent estate. 2. If a future interest can be construed as a remainder, rather than an executory interest, then it must be considered a remainder.

- The difference between reversion and remainder o Reversion is in the grantor

The interest remaining in the grantor, on in the successor in interest of a testator, who transfers a vested estate of a lesser quantum than that of the vested estate which he has. Deed does not create a reversion, but a reversion is what’s left after the term expires

o Remainder is in a third party A future interest in a transferee which is capable of becoming

possessory at the natural termination of the preceding estate and does not divest any one estate except the transferor

- To be distinguished from Executory Interests o O to A for life then to B and his heirs if the Detriot Tigers win the 2001

Pennant

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o A: present possessory life estate (at death, reversion back to O) o B: contingent remainder until 2001 and then loses everything

- Vested v. contingent remainders o Vested: (1) to an ascertained person (2) not subject to a condition precedent o If either of the 2 conditions are not present in a transfer then the remainder

is contingent Precedent subsequent |_____________________|________________________|

O --> A A = s Death Future Interest

- Precedent: something that has to have occurred before A's death for B to get - Subsequent: something that after B gets a new estate, something subsequent to

the taking of the estate would cut that off.

A Decision Tree for classifying future interest Step 1:

Remainder (REM) ________ or ________ executory interest (EI)? Step 2:

IF REM, vested remainder (VR) or contingent remainder (CR)?Step 3:

If VR, vested how? Individually? Subject to open?Subject to complete divestment? More than one?

- ONCE AN ESTATE BECOMES VESTED, IT HAS ITS OWN IDENTITY - Be able to distinguish a shifting from a springing executory interest.- "cestui que use"- "executory limitation"

o Fee simple that upon the happening of a stated event, is automatically divested by an executory interest in a transferee

o Such a fee simple can be created either in possession or in remainder - "a trust"

o Allows settlors to arrange their assets in ways that maximize flexibility in property management as well as transfer wealth to future generations

o The core of the trust is separation of "legal" and "equitable" title o The trustee holds the legal title to the trust property and manages that

property for the benefit of the beneficiaries, who have the right of beneficial enjoyment of the property

o The dual ownership of the trust property was possible because of the existence of separation courts of law and equity

o The trustee must act for the exclusive benefit of the beneficiaries and is not permitted to benefit personally

o- "a fiduciary"

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Possessory estates Possible combinations of future interests In transferor

Possible combinations of future interests In Transferee

Fee simple absolute None None

Defeasible fee simple: 1. Fee simple

determinable 2. Fee simple subject

to a condition subsequent

3. Fee simple subject to an executory limitation

1. Possibility of reverter 2. Right of entry (power of

termination)3. None

1. None 2. None 3. Executory interest

Fee tail Same as with life estate Same as with life estate

Life estate 1. Revision [indefeasibly vested] (when no remainder created)

2. Reversion [vested subject to defeasance] (when contingent remainder(s) created)

3. Revision [vested subject to defeasance or indefeasibly vested]

4. None 5. None

1. 2. Contingent

remainder(s) 3. Remainder vested

subject to divestment 4. Executory interest (if

any) 5. Remainder vested

subject to limitational defeasance

6. Executory interest in unborn class members

7. Indefeasibly vested remainder

Leasehold Same as life estate Same as life estate

Review: Fee tail

o Common law o Today

If no words of limitation, presumption it’s a fee simple o Ie. (for life), (and her heirs) (so long as), etc

Contingent v. vested o Is it certain to happen

pur autre vie Condition precedent v. condition subsequent Vested remainders don’t die, go to heirs Words of purchase

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Words of limitation Make a list of questions/tree No words of limitation -- present day presumption - it’s a fee simple Restriction on alienation

o Court does not like o Cant tell someone they are the fee simple owner and then restrict their interests

in the fee simple o Punish the grantor for putting it in

Statute of Uses, got rid of prohibitions on Springing and Shifting Executory Estates.

Creation and termination of joint interests - What are the unities of interest which identify a joint or concurrent interest?- Joint tenancy

o Each person owns 100% of the property o Right of survivorship o Joint tenants are regarded as single owners o 4 unities that are essential to a joint tenancy

Time The interest of each joint tenant must be acquired or vest at

the same time Title

All joint tenants must acquire title by the same instrument or by a joint adverse possession

A joint tenancy can never arise by intestate succession or other act of law

Interest Must have equal undivided shares and identical interests

measured by duration Possession

Each must have a right to possession of the whole After a joint tenancy is created, 1 joint tenant can voluntarily

give exclusive possession to the other joint tenant o A lien placed on one joint tenants interest in jointly held property does not

destroy a joint tenancy – if the guy dies, so does the lien (modest majority rule)

- Tenancy in common o Have separate but individual interest in the property o The interest of each is descendible and may be conveyed by deed or will o “to A and B” o Each tenant in common owns a separate undivided share of the whole and

both have possession rights to the whole things o Can sell their interest

- Tenancy by the entirety

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o can be created only in husband and wife, some states will allow between unmarried couples

o use the 4 elements of joint tenancy (time/title/interest/possession) and add marriage

o husband and wife looked at as legally one person o very restrictive of individual rights o MI: if you are married at the time of transfer, this is the presumed tenancy

you will get - Common law: favored joint tenancy - Today: favors tenants in common unless there is intent to create joint

tenancy - Safety deposit box: general rule, just because you have access to the box, doesn’t

mean you have survivability of the box, the box needs to go through the will - Clear that a partition by sale should be ordered only when two conditions are

satisfied o The physical attributes of the land are such that a partition in kind is

impracticable or inequitable o The interest of the owners would better be promoted by a partition by sale

- A cotenant in common, having an undivided right to the entire property, does not owe rent to his cotenant unless he agrees to, or unless he has effected the ouster of his cotenant.

-- Entirety- Survivorship- undivided interest- probate- sever a tenancy- declaratory judgment

- landlord-tenant law - 4 types of leases

o terms of years: fixed period of time in lease: tenant either applies fir another lease

or leaves o periodic tenancy:

some fixed duration that continues for succeeding periods until either the landlord or tenant gives notice of termination for a periodic tenancy of less than a year, notice of termination must be given equal to the length of the period but not the exceed 6m

continues until one of the parties terminates the lease (in order to terminate – need to have the right length and terminate on the final day of the period, not in the middle of tenancy)

common law: no duty to mitigate when tenants abandon reasoning: based on the principles of property law which

equate a lease with a transfer of property interest in the owners estate

minority rule: have to try, factors to prove attempt at mitigation, ads, showed people the place

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o Tenancy at will: tenancy of no fixed period that endures so long as both landlord and

tenant desire – can be terminated solo o Tenancy at sufferance: holdovers

Tenancy at sufferance arises when a tenant remains in possession (holds over) after termination of the tenancy

Common law: Eviction (plus damages) Consent (express or implied) to the creation of a new

tenancy typically all the same terms as the original lease, typically turned into month to month if you had a one-year lease

- Analysis o Dealing with a creation issue?o Issue of dealing with a landlord tenant relationship

Yes? What are the rights and responsibilities within that relationship?

o For leaving the relationship, what are the obligations and responsibilities - fair housing act 1968

o federal government coming and dealing with people’s houses o exceptions: single family house (as long as the owner doesn’t own more than

3) and duplex’s o cannot discriminate in the sale or rental of housing based on suspect

categories (race, color, religion, sex, familiar status, national origin) o obligation for reasonable accoodation for handicaps

- lease v. license o Courts look to a number of variables o Intention of the parties o Number of restrictions on use o The exclusivity of possession o The degrees of control retained by the granting party o The presence or absence of incidental services o Etc. o Why does it matter whether any given arrangement amounts to a lease or

something else o Primarily whether an arrangement amounts to a lease because leases give

rise to landlord -tenant relationship which carries with it certain incidents, rights/duties/liabilities and remedies that do not attach to other relationships

- What does it mean to say there is a "duty to provide possession"?- Distinguish sublease and assignments

o Both tenant transfer to third party o Sublease: no privity of contract exists between complainants and the D and

therefore D could not be liable to complainants on the covenant to pay rent and the expense of the removal of the improvements

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A transaction whereby a tenant grants an interest in the leased premises less than his own or reserves to himself a reversionary interest in the term

o Assignment: privity of contract does exist between complainants and Defendant, and D would be liable directly and primarily for the amount of the judgements

Conveys the whole term, leaving no interest nor reversionary interest in the grantor or assignor

o Know the intention of the parties when distinguishing between sublet and assignment

o TEST: Formalists:

An assignment arises when the lessee transfers his entire interest under the lease – when he transfers the right to possession for the duration of the term

If the lessee transfers anything less than his entire interest a sublease results

The intention of the parties (less common test) The actual words are not conclusive – harder to tell what the

people meant - A commercial lessor may not unreasonably withhold his consent to an

assignment of a lease, with or without a clause requiring landlord's consent to transfer the lease. – court can go both ways with this o Different then residential resident it still protected

- Rule of dumplors case o If you have exercised the right once and allowed someone in, the landlord

does not waive that right for future assignments-- privity of estate v. privity of contract

o privity of estate: the relationship that property law recognizes between the future interest owner (landlord) and the possessory holder

if sublease, the original lessee hasn’t given up entirety of their control of the land

o privity of contract: legal relationship between landlord and tenant - Distinguish between an expressed covenant and an implied covenant.- What is the remedy for breach of a covenant?- May a landlord limit future possessors of a leasehold?

- Quiet possession- covenant - demurrer- legal possession - Common law rule: a landlord may rightfully use self-help to retake leased

premises from a tenant in possession without incurring liability for wrongful eviction provided two conditions are met: o The landlord is legally entitled to possession, such as where a tenants hold

over after the lease term or where a tenant breaches a lease containing a re-entry clause

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o The landlord's means of reentry are peaceable - Common law rule: a tenant who is evicted by his landlord may recover

damages for wrongful eviction where the landlord either had no right to possession or where the means used to remove the tenant were forcible, or both

- Modern/majority view: the only lawful means to dispossess a tenant who has not abandoned nor voluntarily surrendered but why claims possession adversely to a landlord's claim of breach of a written lease is by resort of the judicial process o No self help when there is other options o Argument is even strong in residential

- What constitutes an abandonment of a premise?o Implied surrender, an abandonment of a leased property by the tenant

occurs when he vacates the leased property without justification and without any present intention of returning and defaults in payment of rent

o Landlord is free to reject or accept the implied offer of surrender - What is a summary procedure for possession?- Can a tenant have any expectations about the habitability of a premise?- Eviction- surrender of premises: agreement between landlord and tenant to terminate

tenancy early – relieves tenant from liability of future rent – written request that the tenant be relieved of their duties as a tenant

- self-help- habitability- punitive damages- landlords options when tenant leaves

o terminate the lease: might get more $ from someone else/take your loss o leave premise vacant – recover accrued rent o mitigate damages: recover differences in rent

- Modern view: there is a duty on the landlord to mitigate- Landlord’s duties

o The duty to deliver possession American rule: landlord is obligated only to deliver legal possession

(323) Majority rule is the English Rule: landlord must deliver both legal

and actual possession o Duties regarding the condition of the premises

The original common law approach: independent covenants Covenant of title Covenants had to be performed regardless of whether the

other party's convents had been performed Covenant of quiet enjoyment

o Breach of this would discharge the tenant from their covenant

Disputes between landlord and tenant regarding the condition of the premises arise in 2 ways

Tenant might wish to vacate or to stay and pay less Tenant might be injured by defective premise and claim tort

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- a tenant who has been wrongfully evicted may abandon the premises and stop paying rent, even if the exclusive-remedy provision provides that the tenant may not terminate the lease or withhold rent if the landlord breached.

- The general rule is that a tenant will be relieved of any obligation to pay further rent if the landlord deprives the tenant of possession and beneficial use and enjoyment of any part of the demised premises by actual eviction…. Stated differently, after terminating the lease and all liability under it for future rent are extinguished

- Actual Eviction v. Constructive eviction o Actual: being physically removed/kept out of the premise by the landlord o Constructive: If (a) the condition of the leased premises amounts to a

breach of the covenant of quiet enjoyment, and (b) the breach is so substantial as to justify the tenant absenting the premises, and (c) the tenant thereafter leaves within a reasonable time, then it was as though the tenant has been evicted

o Elements of the covenant of quiet enjoyment and constructive eviction To prove breach of the covenant of quiet enjoyment and

constructive eviction the tenant must establish three elements: Wrongful conduct by the landlord (or someone for whom

the landlord is legally responsible) Substantial interference with the tenants use and

enjoyment Vacation of the premises in a timely fashion

- Covenant of quiet enjoyment o Allows the possession of the entire property substantial interference by the

landlord – acts and omissions form the landlord o Implied in every lease

- Substantial interference, could be a one time thing or a series of events - In any rental there is an implied warranty that the rental will

be/maintained as clean, safe and fit for human habitation

TRANSFERS OF LAND - Earnest money: payment of good faith that you intend to keep the deal, if you

back out of the deal in bad faith, seller gets to keep - Get a lawyer - Good and merchantable title

o The assurance that you will get a good title o Recordable and general warranty o Release of homestead rights o Title is subject to (this language will be in the deed itself)

- Statute of frauds o Need: signature, description, price o Exception:

Part performance Estoppel

- Marketable title:

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o An implied condition of a contract of sale is that the seller must convey to the buyer a marketable title -- if the seller cannot convey a marketable title, the buyer is entitled to rescind the contract

o marketable title in real estate was one that was free from reasonable doubt, and a title which carried with it the potential for litigation was doubtful and therefore unmarketable.

o A title not subject to such reasonable doubt as would create a just apprehension of its validity in the mind of a reasonable, prudent, and intelligent person, one which such persons, guided by competent legal advice would be willing to take and for which they would be willing to pay fair value

o Have to go back X number of years to prove marketable title of unbroken chain (usually 40)

- Covenant: o Set of limitations for conditions o Appear in a prior deed (if the seller says theres restrictions)

- Equitable conversion o Purchaser receives an equitable interest in the land, not a legal interest o Doctrine of equitable conversion is that there is a specially enforceable

contract for the sale of lane, equity regards as done what which ought to have been done

- Duty to disclose defects o Under the doctrine of caveat emptor, a buyer must act prudently to assess

the fitness and value of property that is the object of a transaction, or the buyer who fails to exercise due care will be barred from seeking the equitable remedy of rescission.

o Where a condition which has been created by the seller materially impairs the value of the contract and is peculiarly within the knowledge of the seller or unlikely to be discovered by a prudent purchaser exercising due care with respect to the subject transaction, nondisclosure constituted a bias for recession as a matter of equity

- Affirmative misstatements -- seller liability - Innocent misrepresentation -- not intentional lie, buyer would have a cause of

action only if detrimental reliance - Act of conceal but no statement -- hiding something you know is relevant (i.e.

painting over water damage) - Nondisclosure of a material fact know to the seller and not discoverable --

o Discoverable with what level? -- title assurance- abstract of title- title company- Mortgagee- real estate closing- recording,

GENERAL WARRANTY DEED

SPECIAL WARRANTY DEED

QUITCLAIM DEED

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- provides the greatest degree of protection

- warranting title against all defects in title, whether they arose before of after the grantor took title

- warrantying for even before seller if within the 40 years (or X of years depending on jurisdiction)

- middle for warranty protection

- contains warranties only against the grantor’s own acts but not the acts of others

- thus is a defect is a mortgage on the land executed by the grantors predecessors in ownership, the grantor is not liable

- contains no warranties of any kind

- merely conveys whatever title the grantor has, if any, and if the grantee of quitclaim deed takes noting by deed, the grantee cannot sue the grantor

- even if marketable title was in K, with quitclaim deed, the seller is off the hook

- What elements are required to create a lawful deed?o Consideration o Acknowledgement (signed) o Description of the land

Reference to natural or artificial monuments and from the starting point, reference to directions and distances

Reference to a government survey, recorded plot, or some other record

Reference to a street and number - Seal – necessary for common law deed- Fraud: induced the grantor to sign under inappropriate circumstances

whoever has the deed will lose it - Forgery: someone other than the grantor signs the deed is void - Encumbrances- Covenants

THE 6 EXPRESS WARRANTIES

o Covenant of seisen breached if at all at the time of the conveyance The grantor warrants that he owns the estate that he purports to convey Most important Breached at the time of conveyance if breached at all

Then subject to statute of limitations as soon deed conveyed

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i.e. has an easement on the land and gives a fee simple o A covenant of right to convey

breached if at all at the time of the conveyance The grantor warrants that he has the right to convey the property If insane/under 18/in a trust, cannot

o A covenant against encumbrances breached if at all at the time of the conveyance The grantor warrants that there are no encumbrances on the property Might include, among others, mortgages, liens, easements and covenants Encumbrances on title

o A covenant of general warranty breached after conveyance if breached The grantor warrants that he will defend against lawful claims and will

compensate the grantee for any loss that the grantee may sustain by assertion of superior title

Warranty of defending title o A covenant of quiet enjoyment

breached after conveyance if breached The grantor warrants that the grantee will not be disturbed in possession

and enjoyment of the property by assertion of superior title Big one If you are disturbed in possessor by assertion of superior title This is also what title insurance would cover

o A covenant of further assurances breached after conveyance if breached The grantor promises that he will execute any other documents required

to perfect the titled conveyed

- Present covenant Broken, if ever, at the time the deed is delivered Either the grantor owns the property at that time, or he does not Either there are existing encumbrances at that time or not

- Future covenant Promises that the grantor will do some future act, such as defending

against claims of 3rd party or compensating the grantee for loss by virtue of failure of title

Not breached until the grantee or his successor is evicted from the property, buys up a paramount claim, or is otherwise damaged

Delivery of Deeds

MUST GIVE DEED TO A THIRD PARTY IF YOU WANT TO HAVE A CONDITION ATTACHED TO IT

- If you don’t do it the right way, it wont be effective - General rule: delivery of a deed must be absolute and unconditional unless it

was held in escrow

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o A delivery in escrow may only be made to a third person and not a party to the transaction and there can be no such delivery to the grantee upon a condition not expressed in the instrument

- You cannot change a deed like you can a will - Has to be presently effective - Objective measure of subjective intent

- escrow agent- warranty deed- conditional delivery- right of redemption

Mortgages

- If a mortgagor sells the land to a third party, what happens to the mortgage?o If there are two mortgages on one piece of land and the land has to be sold

for non-payment, how are the proceeds of the sale to be distributed? - What is the difference between a land purchased with mortgage money and land

purchased through an installment land contract? - Credit

o Risk: (1) risk of not being able to pay it back; (2) inflation – value of money changes, and the initial investment becomes suspect to one side or the other depending upon what has been done.

- Loans featuring the following characteristics were considered unfair o (1) adjustable rate mortgage loans with an introductory rate period of

three years or less; o (2) loans that feature an introductory rate for the initial period that is

at least three percent below the fully indexed rate; o (3) loans that are made to borrowers for whom the debt-to-income

ratio would exceed 50 percent if the lender measures the borrower’s debt by the monthly payments that would be due at the fully indexed rate rather than under the introductory rate; and

o (4) the loan-to-value ratio is 100 percent, or the loan features a substantial prepayment penalty or a prepayment penalty that extends beyond the introductory rate

- FIRST MORTGAGE GETS PAID IN FULL BEFORE THE NEXT ONE

Recording Acts - Common law: who got the property first

o Follow that unless trumped by a recording act - Purpose of recording: establishes system of public record of land titles,

preserves in a secure place, protects purchasers for value and lien creditors against prior unrecorded interests

- Grantor - grantee index o Grantor index: all instruments are indexed aphetically and chronologically

under the grantor surname o Grantee index: all instruments are indexed under the grantee surname

There may also be separate grantor/grantee indexes for each type of instrument

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o The reference in the index to a document sets forth its essentials: The grantor The grantee Description of the land Kind of instrument Date of recording Volume and page numbers where the instrument can be found set

forth in full A way to find which documents you have to go look at MI have to go back 40 years Name, date, description Tract Index Document by a parcel identification number assigned to a particular

tract START: BACKWARDS FROM THE GRANTEE INDEX AND THEN GO FORWARD Golden Search Rule (for searching in the index's)

- 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 that person [date in] until the date of recording of the first conveyance from that person, of all of his/her interests, [date out].

- subsequent bona fide purchasero someone who purchases an interest in land without notice of another

interest already held by a third party - Deed Description:

o Base line. Line running east and west, usually in the center. o Prime Meridian: Line running north and south, usually in the center.

6x6 mile squares - townships 1x1 mile squares – sections

o Roads tend to follow the section lines. - Recorded instruments of conveyance filed with the state recorder’s office

must describe property with enough specificity that the land in question can easily be identified by future purchasers. o Mother Hubbard Clause: leaves the grantor with nothing more to convey

TYPES OF RECORDING ACTS

RACE NOTICE RACE-NOTICE - The first

purchaser (anyone who has paid consideration for an interest in land) for value who records first prevails

- Race to the

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

- take without notice AND record first

- a subsequent purchaser for value who takes without notice of third party interest int the land prevails

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court house - First in time,

even if they knew of a mother Hubbard clause

- shelter rule: a person who takes from a bona fide purchaser protected by the recording act has the same rights as his grantor

- at the time of purchase, does the subsequent purchaser have notice of the original purchaser

only if he records before the prior instrument is recorded

- a subsequent purchaser is protected against prior unrecorded instruments only if the subsequent purchaser (1) is without notice of the prior instrument and (2) records before the prior instrument is recorded

- inquiry notice: where you go to the land and see something that suggests that someone other than the grantor is using the land: have a duty to ask o anything you find can be held against you, but also liable for something you

should have found by making the inquiry - Distinguish a void from a voidable deed.- Acknowledgement- latent defect- chain of title problem:

o prior document recorded too early o prior document recoded too late o wild deed o deeds from a common grantor

Get clarification of what burden and benefits are and how/to whom they run

- Notice is determined as of the moment of the delivery of the deed - A purchaser of property is presumed to have knowledge of any encumbrances to

the property which can be found at the recorder’s office at the time of the conveyance.

- Common law doesn’t care who recorded, simply first in time - Three kinds of notice a person may have with respect to a prior claim:

o Actual Where one is personally aware of a conflicting interest

o Record Notice of a prior interest that would be revealed by an appropriate

title search

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Constructive notice -- the law deems you to have regardless of your actual knowledge

o Inquiry Notice based on a purchaser's duty to investigate relevant

circumstances Constructive notice -- the law deems you to have regardless of your

actual knowledge Open, visible and exclusive possession of the property that would

put someone on notice Title insurance

- No fixed term, continues as long as the insured maintains an interest in the property

- Most use uniform policy based upon forms from American Land Title Association (ALTA)

- 2 types o Mortgagee's policy o Owners policy

- Covers 4 types of risk o Risk that title is held by someone other than the insured party o Risk of a defect, lien, or encumbrance on the insured's title o Risk that title is unmarketable, and o Risk that the insured owner has no right of access to the land

- Virtually every policy contains standardized exclusions (462) o The stand exclusion include

Losses arising from government regulations affecting the use, occupancy, or enjoyment of land unless a notice of enforcement or violation is recorded in the public records

Claims of persons in possession not shown by the public records, unrecorded easements, and implied easements

Easements arising by prescription--- What "value" must be given to be a BFP?- What constitutes "notice" in determining whether an individual is a BFP?- When is there a duty to "inquire"? What point in time do we assess the

knowledge of a potential BFP?- "first right of refusal," - memorandum of lease, - condominium, - surface owner

water: Riperian system: English common law system, everyone has access Western system: water rights in hierarchical order

Private land use control: the law of servitudes

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Easement: interest in land Deed of a right to do something Has to satisfy the statute of frauds

Covenants: promises within a deed License: can be a written contract or oral, revocable Profit: can be written/oral, revocable

Doctrinally and functionally

A right to do some act on another persons land (eg. A right of way)

Easement

A right to enter onto someone's land and remove something attached to the land (eg. Remove minerals)

Profit

A right to restrict an owner from using her land in some way (eg. Your neighbor cannot develop her land commercially)

Easement (a negative easement)

Real covenant Equitable

servitude

A right to compel an owner to perform some action her own land (e.g. maintain a fence)


servitude

A right to compel an owner to pay money to maintain certain facilities (eg. Maintain a swimming pool available to residents)


servitude

When looking at restrictions and problems, first thing to do, is it positive or negativeCreation: Did you create an easement?Scope: what is the scope of the easement?Termination: how do you terminate the easement?

- Distinguish an easement from a profit, from a lease?- What does reservation of an easement mean?- When will a court find an easement by implication?- Easement by reservation: provision created in a deed creating some new

servitudes which did not exist before as an independent interest - Exception: provision in a deed that excludes from the grant some pre-existing

servitude on the land - Easement by grant- Affirmative Easement (Positive easement) - negative easement (restrictive) - affirmative easement- easement appurtenant runs with the land

o Gives that right to whomever owns a parcel of land that the easement benefits

o Require both a dominant tenement (or estate) and a servient tenement- In Gross easement

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o Gives the right to some person without regard to ownership of the land o May be alienable or inalienable

They do not attach to any parcel of land owned by the easement owner, not in the sense that they may not be transferred to another person

o Divisible when creating instrument so indicates or when the easement is exclusive

Exclusive in this context means that the easement owner has the sole right to engage in the activity that the easement permits

- If it is unclear which type of easement is intended by the parties court construes in favor of easement appurtenant

- access easement- implied easement

Classifying easements

Do a Affirmative act Restricts an owners use

Benefits land Affirmative (positive) appurtenant

Negative appurtenant

Benefits no land Affirmative (positive) in gross Negative in gross

Type of easement Burdened/benefitted land

Appurtenant (owner of the lot) Burdened: servient estate Benefitted: dominant estate

In gross (corporate) Burdened: servient estate

Licenses License is oral or written permission given by the occupant of land allowing the

licensee to do some act that otherwise would be a trespass Revocable

o Exceptions: A license coupled with an interest cannot be revoked

The irrevocability of a license coupled with an interest bears some resemblance to the doctrine of easement by necessity

License that becomes irrevocable under the rules of estoppel A license that cannot be revoked is treated as an easement in

Restatement Requirements of irrevocable license

o The usual requirements for a license to become irrevocable are Permission by the landowner of another's use of the land Good faith reliance on the permission by the licensee, usually by

making improvements and such Landowners knowledge (or deemed knowledge based on the

view that he reasonably should have known) of such reliance

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An easement by estoppel exists where:o (1) a property owner grants another permission to use the property, o (2) the other party has reasonable grounds to believe the permission

will not be revoked, and o (3) the other party, relying on this permission, incurs costs or

otherwise substantially changes position by acting in a way that is not easily undone.

- Distinguish easement by implication from easement by necessity.- Distinguish title by adverse possession from easement by prescription.- What additional difficulties exist when claiming a prescriptive easement for

public rather than private use?- When will an easement be binding on subsequent purchasers of the burdened

land?- "fiction of the lost grant"- permissive use- "benefit in gross"

- The factors for determining whether the parties intended to create an easement

by implication are: “(a) whether the claimant is the conveyor or the conveyee, (b) the terms of the conveyance, (c) the consideration…, (d) whether the claim is made against a simultaneous conveyee, (e) the extent of the necessity of the easement…, (f) whether reciprocal benefits result…,” (g) how the land was used before the conveyance, and (h) how much the parties knew about that use.

The traditional requirements for easement implied from a prior existing use are:

- Initial unity of ownership, followed by severance of title - An existing, apparent, and continuous use of the servient parcel for the benefit

of the dominant parcel at the time of the severance - Reasonable necessity to continue the prior use at the time of severance

Requirements of an easement by necessity o Two requirements must conventionally be met in order for an easement to

be implied on the basis of necessity Initial unity of ownership of the now dominant and servient estates,

followed by severance of the title to the dominant and servient estates

Strict necessity at the time of severance

- The traditional requirements for a prescriptive easement are: o Adverse and hostile use o Open and notorious use o Continuous use

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o Use for the statutory period Many courts today recognize a public prescriptive easement on the basis of long

continuous use by the public under a claim of right (for a public prescriptive easement // for one person continuous use by that person)

- Public prescriptive easements o Can be obtained, in most states, by long continuous use by the public under a

claim of right o Land owner must be put on notice that an adverse right is being claimed o Doesn’t have to be exclusive

- Beach access: o Most states hold from the water to the high tide line as public access, up from

there may be private, there needs to be public access to the beach Federal corp of engineers determines the high tide lines every 20

years o Each beach access case must be litigated separately

- Public trust doctrine o Water doctrine at the state law o Used by environmentalists -- government has obligation to protect and

promote public areas

Brown v. Voss - Easement by grant – express easement - Common law: the easement is just for the dominant estate, not the one passed it - An easement appurtenant to an estate may not be extended to other adjoining

estates o Cannot expand an easement that serves one parcel to serve another

- Express easement has the possibility for future change - Division is acceptable, changing technology and therefore some degree allow for

those changes - Access easement is for what the easement was originally for - Scope of easement

o Need permission of the dominant owner to move an express easement o Common law: express easement not moveable without both parties

- Relocating an easement: the location of an easement, once fixed by the parties, cannot be changed by the servient owner without permission of the dominant owner

- Scope of prescriptive easement: not as broad in scope as an easement created by grant, by implication or by necessity

o Limited to original use

Presault v. United States - Termination of easement - Train tracks to bike track - An easement is terminated if the easement is used in a way that is inconsistent with

the easement’s original use and was not reasonably foreseeable at the time the easement was established

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Methods for terminating easements (be able to define each of these) - Release (writing normally required)

o When the dominant estate in writing releases servient o Make sure in record

- Expiration o Can say "this is a 10y easement" o Crafting an easement that makes sense to the parties and the price

- End of necessityo Esp when by prescription or implication

- Merger o When the estates come into the same hands

- Estoppel - Abandonment - Condemnation

o Government condemnation -- government getting a parcel of clean fee simple, lose the easement

- Prescription o If there is an access over the easement over X amount of years, its overcome

by prescriptive use

Negative Easements Negative easement is the right of the dominant owner to stop the servient

owner from doing something on the servient land Common law rule: no negative easements

o Except for: Right to sunlight in the urban area

o Decided negative easements were too difficult to police/understand o Negative covenants got popular after this

Disfavored Right to an unspoiled view Conservation easement

o Negative easement for development o Way of preserving land without paying the full value of the title

Solar panels o Can have a negative easement that is a promise from an adjacent landowner that

they will not build in any way to put a shadow on a solar panel

Covenants running with the land - 2 types

o Real covenants o Equitable servitudes

- Covenant in conveyance of land o More than a K o Deals specifically with land, both parties know the significance of the land

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- Horizontal privity o Not just a contract, arose about the piece of land over which there is privity

of estate o Is a contract, but also is about the land o Previously in common law between landlord and tenants o Allows enforcement of the covenant against successors when the covenant is

created in conjunction with the transfer of some other interest in land o Traditional rules that horizontal privity of estate is required for the burden

of a covenant to run at law, but that horizontal privity is not required for the benefit to run

- Vertical privity o If conveyance is a three month lease, is it fair to make have the full burden if

they don’t have the full benefit? No o Look to the burden side

Not as clear for the benefit side o Not necessary for the benefit to run, but need it for the burden o Benefit run with estate in land and not land itself o Implies the covenant is enforceable by and against remote parties only if

those parties have succeed to the original parties estate in the land in question

o On the burden side, the covenant is enforceable only against someone who has succeeded to the same estate as that of the original promisor

o The burden of a real covenant does not run to -- that is, is it not enforceable at law against-- an adverse possessor because an adverse possessor does not succeed to the original owner's estate but takes a new title by operation of law

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o More relaxed standard is used for the running of the benefit The promise is enforced by a person who succeeds to the original

promise's estate of to a lesser interest carved out of that estate o Real covenant law traditionally has recognized several other requirements

for the burden and/or benefit of the covenant to run with the land- Both parties will have a benefit and burden - Requirement of touch and concern

o The promise must be something about the land itself o Cannot be personal to the top parties, must be something important to

the land- Must have intent to bind successors to their respective estates - Notice

o Not required for the covenant to be valid o But the covenant may not be enforceable against one who lacks notice,

either actual, record or inquiry o A real covenant can be a negative promise (promise not to do an act) or an

affirmative promise (promise to do an act)

Traditional requirements for real covenants

Burden Benefit

Intent Yes Yes

Horizontal privity Yes No

Vertical privity Yes Yes

Touch and concern Yes Yes

- Cannot create an easement in a third party o The requirements for equitable servitudes to be enforceable are

For the burden to run 1. The promise must be in writing or be implied from a common plan of

development 2. The original parties must intend to bind successors 3. The promise must "touch and concern" the land 4. The successor in question must have notice

Neither horizontal nor vertical privity is required For the benefit to run

1. The promise must be in writing or be implied from a common plan of development

2. The original parties must intend to benefit successors 3. The promise must "touch and concern" the land

o Notice of the covenant is required for the burden of an equitable servitude to run with the land but is not required for the running of the benefit

o Equitable servitudes are enforceable against successors who give no consideration (donees, heirs, will beneficiaries), whether or not they have notice

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o Fundamental principle of the recording system is that only subsequent purchasers, and not donees, are protected against prior interests of which they have no notice.

o Vertical privity is not required for the benefit of an equitable servitude to run in nearly all jurisdictions

o The basis for allowing someone who is not a successor of the original promisee to enforce the promise is as a third party beneficiary

Traditional requirements for equitable servitudes

Burden Benefit

Intent Yes Yes

Horizontal privity No No

Vertical privity No No, with exceptions

Touch and concern

Yes Yes

Notice Yes No

The statute of frauds and implying equitable servitudes from a common plan A real covenant is an interest in land within the meaning of the statute of frauds and

must be created by a written instrument signed by the covenantor o If the deed creating a real covenant is signed by the grantor only, and it contains

a promise by the grantee, the promise is enforceable against the grantee The grantee is bound by the act of accepting the deed

o A real covenant cannot arise by estoppel, implication, or prescription, as can an easement

An equitable servitude is an interest in land, but unlike a real covenant, it may be implied in equity under certain limited circumstances o An equitable servitude, which arises out a promise, cannot be obtained by

prescriptiono Most courts have been willing to imply and equitable servitude where a

developer of a residential subdivision has manifested a common plan or common scheme of restrictive servitudes throughout the development

o Equitable servitudes can be implied Validity and enforcement of Covenants

Equity imposes three requirements 1. Intent that the benefit and/or the burden of the covenant run to the successors

of the original parties 2. Notice on the part of the purchasers of the original promisor 3. That the covenant touch and concern land

Vertical privity may be required in some jurisdictions for the benefit (but not the burden) of a covenant to run in equity

Regardless of the intention of the parties, a covenant will run with the land and will be enforceable against a subsequent purchaser of the land at the suit of one who claims

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the benefit of the covenant, only if the covenant complies with certain legal requirements

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

2. It must appear that the covenant is one touching or concerning the land with which it runs

3. It must appear that there is privity of estate between the promisee or party claiming the benefit of the covenant and the right to enforce it, and the promisor or party who rests under the burden of the covenant

Termination of Covenants Termination can be done a number of ways

o Merger On the basis of unity of ownership of the benefit and burden by the same

person o A formal release

Normally written and recorded o Acquiescence

Arises when the P has failed to enforce the servitude against other breaches hen seeks to enforce the servitude against the D

o Abandonment Resembles acquiescence except that is makes servitude unenforceable as

to the entire parcel rather than only as to the P immediately involved o Equitable Doctrine of Unclean hands

Equitable doctrine of unclean hands according to which the court will refuse to enjoin a violation of a servitude that the P previously violated

o Equitable doctrine of laches Involves an unreasonable delay by the P to enforce a servitude against the

D causing prejudice to the D Laches does not extinguish the servitude, but bars its enforcement

o Estoppel If the D has relied upon the P conduct, making it inequitable to allow the P

to enforce the servitudeo Changed circumstances

Changes must be so radical as to practically destroy the essential objects and purposes of the agreement

There needs to be sufficient Substantial change for the covenant to be removed (within the subdivision)

DISCRIMINATORY SERVITUDES - Fair housing act: makes it unlawful to refuse to sell/rent/etc to any person because

of race, color, religion, national origin, familial status, or handicap

Common interest communities Common interest communities (CIC) are a form of residential ownership in which

management of the development is separated from possession

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3 basic types o Condominiums o Cooperatives o Planned subdivisions

Gated communities Almost every state has a statutory scheme for organizing CICs

o Requires a: Declaration of rules (called covenants) Conditions Restrictions Governing the community

o Must be disclosed to all purchasers Distinct feature:

o The obligation that binds the owners of individual lots or units to contribute to the support of common property or other facilities or to support the activities of an association whether or not the owner uses the common property or facilities or agrees to join the association

2 categories of the restrictions have been distinguished o Rules permutated by owners association

Should be subject to a reasonableness test o Rules originate in the original document

Not subject to the reasonableness test Set forth before any property owners come onto the property -- they have

fair warning, its not anyone's opinion Primary means of ensuring stability and predictability

Burden of proof o P has to show unreasonable

Reasonable according to o 560: unreasonable -- such restrictions should be enforced unless arbitrary,

violate public policy or impose a burden on the land

A servitude violates public policy if it Is arbitrary, spiteful or capricious Unreasonably burdens a fundamental constitutional right Imposes an unreasonable restraint of alienation Imposes an unreasonable restraint on trade or competition Is unconsciousable

Condominiums and cooperatives Condominiums

o Each unit in a condominium is own separately in fee simple by individual owner -- you own the inside walls, not the outside

Individual mortgageso Common areas: owned by all unit owners as tenants in common

Cooperatives o Title to the land and building is held by a corporation

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o Residents own all the shares of stock in the corporation and control it through an elected board of directors

o Residents are both owners of the corporation and tenants o One blanket mortgage o Financial screening provides an opportunity for social screening

A landowner who purchased land with the knowledge of a restrictive covenant governing his land and the surrounding land is entitled to enforce that covenant against other parties.

Privity - connection between two people relating to a parcel of land Common law: required horizontal and vertical Horizontal privity [creation] – privity of estate between original covenanting parties

o Required for the burden of a covenant to run at law, not required for the benefit to run

Vertical privity [subsequent interest] – privity of estate between one of the covenanting parties and a successor in interest, original promisor and the successor to the burdened estate o Requires for both burden and the benefit of a real covenant to runo Transfer of a lessor estate (lease) does not transfer a burden

You have to convey the interest that existed at the time of the creation of the burden (exact same estate in land)o To convey benefit, can run on any transfer of possessory estate

Notice – can be written or just mentioned in a deed (reference to source, inquiry notice)

ZONING

Police power: the inherent power within the state to pass laws to regulate the activities of the citizens in the state

o Should be used to promote public health, safety, and welfare Test:

o Is the subject matter of the law within public police power of health, safety, and welfare?

o Assuming the subject matter within the police power, are the particulars in the law rationally related to the asserted reason of the law

o Is it constitutional?

Municipal zoning regulations are constitutional, unless they are clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare

Euclidean Zoning: Districts are graded from "highest" (single family residences) to lowest (the worst kind of industry)

Zoning regulations cannot be arbitrary and unreasonable otherwise they are unconstitutional

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Zoning Authority and Legislation

Zoning is an exercise of police power that states have given to local governments Power of the government to protect health, safety, welfare, and morals Standard State Zoning Enabling Act Regulations must be made in accordance with a comprehensive plan

Imminent domain: Power of the state to come and take title, if for public use and paid for it

Regulatory taking: interference with property of such a nature and degree that they can do it only if they pay for it, not taking title, but regulatory, telling you about something you can or cannot do on your land

Non-conforming use:

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- Cant just kick out a porn shop an amortization clause in a zoning ordinance which affect lawful land use constitutes a “taking”

- How to handle the type of activity that may be legal but considered immoral?o Two ways to deal with

Dispersal -- spread them far around Congregate-- shove them all in a corner of the city somewhere

o Difficult topic for the law, freedom of speech made the sale of this legal, but a large part of society was uncomfortable with this

Not talking about what it is, but where it is - Non-conforming with the adoption of the ordinance after the 90 days

o It’s the use of the building, not the building itself o Goes to the social part of zoning and controlling the uses

Variances and Special Exceptions Standard State Zoning Enabling Act authorizes a board of adjustment to adopt 2

different means of avoiding undue hardships o The variance

Must be necessary to avoid imposing undue hardship on the owner of the land in question

Undue hardship: involves the underlying notion that no effective use can be made of the property in the event the variance is denied

To show, the owner must have first made reasonable efforts to comply with the zoning ordinance and must not have been self-inflicted

The grant of the variance must not substantially impinge upon the public good and the intent and purpose of the zoning plan and ordinance

Need to pay attention to the manner in and the extent to which the variance will impact upon the character of the area

Conditional variances In granting variance, zoning boards may impose reasonable

conditions related to the use of the property that minimize the adverse impact of the use on neighbors.

Variance must run with the land Variance is only given when denying the variance makes the land

almost un-usable If they don’t give the variance, the value of the lot decreases

substantially Is that not a taking, shouldn't the city pay for that --

regulatory taking Variances are ways to get out of the box Person asking for the variance must prove

Its essential for them They didn’t cause their own problem Wont mess up the neighborhood

o The special exception Sometimes called conditional uses

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Exception is a use permitted by the ordinance in a district in which it is not necessarily incompatible, but where it might cause harm if not watched

Typically require a large amount of land and involves uses that have the potential to cause injury to the surrounding area

Ie. Airports, landfills, hospitals Determined on a case by case basis

Zoning Amendments and the Spot Zoning Problem (political problem) Level of corruption on zoning issues Spot zone: changing something in a small spot on a zoning flag, raises red flag, make

sure it is according the general zoning plan Spot zoning defined as zoning changes, typically limited to small plots of land, which

establish a use classification inconsistent with surrounding uses and create an island of non-conforming use within a larger zoned district, and which dramatically reduce the value for uses specified in zoning ordinance of either the rezoned plot or abutting property

Spot zoning is invalid where a zoning amendment i. Singles out a small parcel of land for special and privileges treatment

ii. Only for the benefit of the landowner rather than in the public interest and iii. In a way that is not in accord with a comprehensive plan

Aesthetic regulation - As an exercise of their police powers, states may authorize local governments to

make zoning regulations regarding aesthetic matters for the general welfare of the community.

- Strong representation of the balancing between conformity and non-conformity

Historical towns/building: can change the inside to a degree, not the outside - Historical values at this point are pretty well acceptable as a justification of

limitations

Control of household composition - Zoning regulations may be used to enhance and preserve public welfare

o Example: a house with 6 unrelated students being not allowed o The right of related family members to live together is fundamental and

protected by the Due Process Clause, and necessarily encompasses a broader definition of “family” than just members of the nuclear family.

- Occupancy restrictions based on biological or legal relationships had no reasonable relationship to the cities objectives

Eminent Domain and the Problem of Implicit takings “Nor shall private property be taken for public use, without just compensation” US const. Amnd V

- Any taking must be for public use and with just compensation - The sovereign is not supposed to transfer property to a private party but can take it

for use of the public

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- The public purpose provision is broad enough to include economic development - Historically, three classes of eminent domain takings have satisfied the public use

requirement: o (1) taking property for public ownership, such as for public roads; o (2) taking property for use by common carriers, like railroads, who put the

property to public uses; and Used to be very important for individual transportation (public use

owned by a private company) o (3) taking property for private ownership in the context of some sort of a

public program. This is more problematic Anything could really constitute a public purpose

- A state’s use of eminent domain to condemn property from private individuals and redistribute it to other private individuals constitutes a “public use” under the Fifth Amendment if it is rationally related to a conceivable public purpose.

- Techniques for pricing compensation: o Look at recent sale prices for the property in question o Look at recent sale prices for comparable properties o Use the capital value of the actual or potential rental value of the property in

question o Use the rebuilding cost of the building in question discounted on the basis of

its age and wear and tear

Implicit takings - Whether a taking as occurred in consequence of the governmental action - Arise when government action of any sort so restricts the use or enjoyment of

private property that is the functional equivalent of an explicit exportation - A permanent physical occupation requires payment of just compensation

because it destroys the property owner’s opportunity to exercise three basic property rights:

o (1) the owner may no longer fully possess the property or exclude others from possessing it;

o (2) the owner can no longer exclude others from using his or her property, and cannot make any personal non-possessory uses of it; and

o (3) the owner cannot properly dispose of the property because a permanent physical occupation typically strips the property of most or all of its economic value.

- A taking occurs when the government allows a private company to instill a permanent physical occupation in the owners property

- Cable company gets the right to come onto the land physically without the owners permission.

o Very different from buying a fire extinguisher and putting it in every apt.

The Standard approach: ad hoc balancing - No transfer of title or physical invasion -- is this over-reach by the government in

going too far in regulatory process, if so, how do we trim that back?

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o If good police power -- state doesn’t have to pay for it o If not good police power: they still can do it, but they might have to pay for it

- Test: if there has been a substantial diminution of value as if you took the title, then gone too far

- While the use of property may be regulated, overregulation will be considered a taking.

- When governmental regulation of a use that is not a nuisance imposes too great a burden on the property owners, it cannot go forth without compensation

- When determining whether a state regulation constitutes a taking of private property for public use with the requirement of just compensation under the Fifth and Fourteenth Amendments, courts should consider:

o the economic impact of the regulation on the owner, o the extent to which the regulation has interfered with the owner’s

reasonable investment-backed expectations, and o the character of the government action involved in the regulation.

- In determining whether a state regulation constitutes a taking under the Fifth and Fourteenth Amendments, courts should consider the economic impact of the regulation on the owner, the extent to which the regulation has interfered with the owner’s reasonable investment-backed expectations, and the character of the government action involved in the regulation.

- How much weight to a historical preservation as a public good to offset the cost to the owner

- Is the burden they have imposed on proper owners unfair o Case by case basis

- In Penn Coal, in a ad hoc review, identified three factors 1. Diminution in value 2. Whether the regulation prevents a harm to the general public 3. Whether the regulation secures an average reciprocity of advantage

- Penn coal 4. The economic impact of the regulation on the claimant 5. The extent to which the regulation interferes with the owner's distinct

investment-backed expectations 6. The character of the governmental action

- A state would only need to wait until the property was acquired by a new owner to be free of a previous owner’s possible claim for just compensation.

- A landowner who acquires land after regulations take effect can still raise a regulatory takings claim.

- Two tests for regulatory takings o Should be able to argue both sides o Really done on a case by case basis

Extraction - Extractions are local government measures that require developers to provide foods

and services or pay fees as a condition to getting project approval o Government gets the easement and property owner gets their permit… o Government is seeking to extract something from a particular owner for a

particular activity Doesn’t fit under regulatory taking analysis

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In all cases, development is economic use of the land and a way that was an economic use expectation

o Cities are doing this in part to do good, accomplish appropriate goals for the city, o It matters how its done o Goes back to: when the government seeks to do a good and appropriate thing,

who pays? The government? Or private individuals on a piece by piece basis to obtain

the goal - Push back point for over-reaching governmental activity - When communities wanted improvements that benefited everyone in the area

generallyo improvements not so directly linked to satisfying service demands created

by new development itself -- they relied on property taxes and government grants to provide the wherewithal

- Exactions became a common substitute means of funding public improvements - A permit condition may constitute a taking if there is not an essential nexus

connecting the imposition of the condition to a legitimate state interest in solving a problem relating to the development.

- Needs to have a substantial nexus between goal and what you are imposing on the person

- A permit condition may constitute a taking if there is not an essential nexus connecting the imposition of the condition to a legitimate state interest in solving a problem relating to the development.

- Unless the permit condition serves the same government purpose as the development ban, the building restriction is not a valid regulation of land but an "out and out plan of extortion"

- Extractions are a matter of special takings concern - The government may not, without just compensation, place land use conditions on

an approval of a private property development plan unless there is a “rough proportionality” between the conditions and the impact of the proposed development.

- City granted the permit subject to conditions that she either convey or dedicate two portions of her land

o (1) one located in the floodplain of a creek adjacent to her property o (2) a portion to be used as a link within a pedestrian/bike pathway

- Court found that the requirement was met because an essential nexus existed between these exactions and the government objective

- Added another requirement: rough proportionality must exist between the exaction and the impact of the proposed development

- The city must make some effort to quantify its findings in support of the dedication beyond a conclusory statement

- Scotus, protecting the individual from the city who has the best of intentions but is not willing to write the check

Nexus test/limitation Rough proportionality

Is the taking of the property proportional to the public benefit (in some rough way) Is what they say they want similar to the action that they are trying to do?

- The government’s demand for property from a land-use permit applicant must have a nexus and rough proportionality between the demand and the effects of the

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proposed land use even when the government denies the permit and even when the government’s demand is for money

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Documents

Favre Property Outline, 2019 · Web view2020. 12. 6. · Fixation . Means the work must be fixed in some tangible medium . The copyright holder must satisfy three requirements to