Property Outline

I. IntroductionA. Bentham

i. Property is a creature of the lawii. Take away the laws, all property ceases

B. Bastiati. Laws exist because there is property

ii. Property is a necessary consequence of the nature of manII. What is property?

A. Board of Regents v. Rothi. In order to have a property right, there must be a legitimate claim to

entitlementB. In re Marriage of Graham

i. A degree is not property because:1. It does not have an exchange value or any objective transferable

value on an open market2. It is personal to the holder3. It terminates on death of the holder and is not inheritable

C. Elkus v. Elkusi. Broader definition of property that includes:

1. An interest in a profession or professional career potential2. “Any skills as an artisan, actor, professional athlete, or any person

whose expertise in his or her career has enabled him or her to become an exceptional wager earner should be valued as marital property subject to equitable distribution”

D. ETW v. Jirehi. A work is protected from right of publicity violations under the First

Amendment as freedom of speech if there are creatively transformative elements that elevate it beyond a mere representation of a celebrity’s likeness.

E. Moore v. University of Californiai. Conversion does not apply when doctors use a patient’s medical tissue for

research without his consent because he does not have a property right in his cells after they leave his body.

1. Leave it up to the legislature to determine if they want to regulate this type of action, but don’t think it is socially advisable for them to do so, believe it would hamper medical research to make scientists afraid of becoming liable in a lawsuit.

III. Methods of Acquiring PropertyA. Theory

i. Rousseau1. Property came into being when people started needing to cooperate

and shared things to get more accomplishedii. Posner

1. Legal protection of property creates incentives to maximize its value by using resources efficiently

B. White v. Samsung Electronics America, Inc.i. Right of publicity violated by invoking a person’s identity even if you

don’t use their likeness.C. Stambovsky v. Ackley

i. Caveat emptor applies to make the buyer responsible for examining the property he is purchasing, but the seller cannot deliberately conceal a condition that the buyer can’t reasonably be expected to discover.

D. Benjamin v. Lindner Aviationi. Ownership rights to found property are determined by the distinctions

between different classifications of found property (see definitions below).E. Gruen v. Gruen

i. The elements you must satisfy to make a valid inter vivos gift of chattel are: intent, delivery, and acceptance.

F. Nome 2000 v. Fagerstromi. Seasonal residence can satisfy the continuous element of adverse

possession if it is in a place where a normal owner would reside seasonally. (see definitions for adverse possession below)

G. O’Keefe v. Snyderi. Discovery rule states that for the statutory period in an adverse possession

claim, the clock starts running when the owner knows, or reasonably should have known through the exercise of due diligence, that the property was being adversely possessed.

H. Guggenheim Foundation v. Lubelli. Demand and refusal rule states that the time clock in an adverse

possession claim should start running once the owner makes a demand for its return and is refused.

IV. Shared OwnershipA. System of Estates

i. Estates and Future Interests1. Fee Simple Absolute

a. Complete ownership2. Life estate

a. Right to posses for the rest of your lifeb. Reversion – when it goes back to the original owner after

deathc. Remainder – when it goes to a third party after death

3. Leaseholda. Right to possess something for a certain amount of time

4. Fee Simple Determinablea. Right to possess something until a certain event happensb. Possibility of reverter – the interest held by the grantor,

such that it goes back to him automatically if the event ever happens

5. Fee simple subject to condition subsequent

a. Same as fee simple determinable, except here grantor has a right to repossess the property but it doesn’t automatically happen, grantor must assert the right

b. The grantor has a right of entry6. Fee simple subject to executory limitation

a. Same as fee simple determinable, but it goes to a third party if the event happens, not back to the grantor

b. The third party has an executory interest7. Types of remainders

a. Vested remainders – One day this person will possess the property, there is no uncertainty

b. Contingent remainders – not yet certain that the holder of the remainder will ever get to hold the property

ii. The Rule Against Perpetuities1. No interest is good unless it must vest, if at all, not later than 21

years after some life in being at the creation of the interest2. Process for determining whether the rule applies:

a. The interests it applies to are:i. Contingent remainders

ii. Executory interestsiii. Vested remainders subject to open

b. What is the contingency?c. When will the future interest definitely be resolved?d. For it to be valid, the uncertainty must resolve itself within

21 years after the death of someone alive at the time the future interest is created

3. Not concerned with when the person will actually possess the property, just when we will know whether or not they will ultimately do so

B. Concurrent Ownershipi. Kipp v. Chips Estate

1. If there are conflicting clauses in a granting deed, the document must be reviewed to determine the true intent of the drafters as stated in the document, with tenancy in common preferred over joint tenancy.

ii. Delfino v. Vealencis1. To order a partition by sale of a tenancy in common, it must be in

the interests of all the owners of the property, not simply one or some of them. Otherwise, will do a physical partition unless that is for some reason completely impractical.

C. Landlords and Tenantsi. Berg v, Wiley

1. Landlords must use judicial means to repossess leased premises if the tenant is attempting to maintain possession of them; self-help repossession is not permitted.

ii. Ernst v. Conditt

1. If a transfer of a lease says it is subletting but the description is of an assignment, then it is an assignment, not a sublease. An assignment is when the lessee is giving away the entirety of the leasehold, not resuming the lease later.

iii. Kendall v. Pestana1. Consent to permit a transfer of assignment or lease can only be

withheld for good faith reasons.iv. Sommer v. Kridel & Riverview v. Perosio

1. Landlords must attempt to mitigate damages in the case of a broken residential lease by attempting to fill the resulting vacancy (these were residential leases – holding opposite of Stonehedge).

v. Stonehedge v. Movie Merchants1. Landlords do not have to attempt to mitigate damages in the case

of a broken commercial lease by attempting to fill the resulting vacancy (this was a commercial lease – holding opposite of Sommer).

vi. Green v. Superior Court1. Implied warranty of habitability – landlords have an obligation to

maintain residential leaseholds in a habitable state that meets bare living requirements.

vii. Building Monitoring Systems v. Paxton1. Retaliatory eviction, eviction in response to a tenant reporting

housing violations to authorities, is not permissible. viii. Fair Housing Act

1. Unlawful to refuse to rent/sell or to base conditions of rental/sale on race, color, religion, sex, familial status, national origin, or handicap, or to refuse to accommodate handicaps.

2. See below for further detailsix. Fair Housing Councils v. Roommate.com

1. Renting to a roommate is not restricted by the Fair Housing Act.x. Mister v. A.R.K.

1. The Fair Housing Act does not require landlords to rent to unmarried, cohabiting couples.

V. Relations Among Property OwnersA. Trespass and Nuisance

i. Intel Corp. v. Hamidi1. Trespass to chattel means using someone else’s property without

their permission.2. For relief to be granted in a trespass to chattel suit, there must be a

showing of harm or some interference with possessor’s use or possession of the object.

3. Civil vs. criminal – criminal if you know what you’re doing is a trespass, has to be some intent.

ii. Prah v. Maretti1. Private Nuisance – when one landowner’s use of property

unreasonably interferes with another’s enjoyment of property

2. Reasonableness Doctrinea. Subject to liability if conduct is a legal cause of an invasion

of another’s interest in the private use and enjoyment of land, and the invasion is either:

i. Intentional and unreasonable, orii. Unintentional and otherwise actionable under the

rules controlling liability for negligent or reckless conduct, or for abnormally dangerous activities.

b. Liability for nuisance only to those whom it causes significant harm, of a kind that would be suffered by a normal person in the community or by property in normal condition and used for a normal purpose.

3. Must consider the gravity of the harm (extent and character of harm, value of the interest invaded, burden of avoiding harm) against the utility of the conduct that causes the invasion (social value of the conduct’s purpose, suitability, practicability of prevention)

B. Easementsi. Urbaitis v. Commonwealth Edison

1. An easement is the right to use land owned by another2. In construing a deed, the overriding concern is to ascertain and

give effect to the intention of the parties, as expressed in the language in the contract, even if there are some contradictions.

3. Look to the contract as a whole to figure out how to solve such contradictions.

ii. Holbrook v. Taylor1. A license is the same thing as an easement except it can be

revoked.2. However, a license can become irrevocable through estoppel.

iii. Kitchen v. Kitchen 1. In some states (here, Michigan), a written agreement is necessary

to get an irrevocable license; therefore it would not be able to become irrevocable through just estoppel (counter to Holbrook).

2. In general, a license is revocable at will and is automatically revoked upon transfer of title.

iv. Concerned Citizens v. Holden1. Easements may be established through prescription (see elements

below).v. Russakoff v. Scruggs

1. An easement by implication can be created through pre-existing use if there is

a. A common grantor, b. It had been a quasi-easement, and c. Use is apparent, continuous, and reasonably necessary.

2. Common grantor means the dominant and servient tracts originated from the same original tract.

vi. Schwab v. Timmons1. An easement by necessity is established through the following

elements:a. Common grantor – same as aboveb. Necessity – it is absolutely necessary in order for the

supposed dominant parcel to have any valuec. Necessary at time of severance – becomes necessary as

soon as the parcels are separated, not from later circumstances of events.

C. Covenantsi. Runyon v. Paley

1. An owner of land in fee simple has a right to sell his land subject to any restrictions (covenants) he may see fit to impose, provided they are not contrary to public policy.

2. A restriction in a deed can be enforced as either a real covenant or an equitable servitude. Parties will determine which to pursue based on which they determine is easiest to demonstrate.

3. The elements of each are listed below.ii. El-Di v. Bethany Beach

1. A court will not enforce a restrictive covenant where a fundamental change has occurred in the intended character of the neighborhood that renders the benefit underlying imposition of the restrictions incapable of enjoyment.

iii. Nahrstedt v. Lakeside Village1. Use restrictions are an inherent part of any common interest

development (like condos) and are crucial to the stable planned environment of any shared ownership arrangement – can limit activities in the common area and within the confines of the home.

2. Common interest development use restrictions are “enforceable unless unreasonable”. Assumed to be reasonable unless:

a. It’s arbitraryb. It imposes a burden of the use of lands it affects that

substantially outweighs the restriction’s benefits to the development’s residents.

c. It violates a fundamental public policy.VI. Relations Between Property Owners and the Government

A. Zoningi. PA Northwestern Distributors v. Zoning Hearing Board

1. Non-conforming use – pre-existing uses that come in conflict with newly exacted zoning restrictions that do not have to come into compliance with the restrictions, they’re allowed to go on.

ii. Lang v. Zoning Board of Adjustment1. If a resident can show that a variance (exception to zoning

regulation) is needed to avoid an undue hardship resulting from the physical nature of the land and does not negatively impact the surrounding parcels, he can receive a variance.

2. To get a variance based on undue hardship, you must prove:a. Exceptional narrowness, shallowness, or shape of the

propertyb. Exceptional topographic conditions or physical feature

uniquely affecting the property, orc. An exceptional situation uniquely affecting the property or

his lawfully existing structures.iii. Stoyanoff v. Berkeley

1. A city can determine aesthetic standards in zoning regulations only if that authority is granted by legislation.

2. In general, this is permissible because the aesthetic value of nearby houses can negatively impact the property value of others.

B. The Takings Clausei. Kelo v. New London

1. 5th Amendment of the Constitution: “…nor shall private property be taken for public use, without just compensation”

2. This allows eminent domain, but requires that for anything to be taken it must be for the sake of public use and they must adequately compensate the owner.

3. Can’t just take land from A and give it to B, even if A is paid just compensation.

4. But the state can take the land from one and give it to another if “use by the public” is the purpose of the taking. And this doesn’t always have to mean the land is being freely opened to the public.

5. Economic development can qualify as a valid “public use” as long as there is a legitimate intention and plan to use the land in a way that would help the economic development of the land.

6. So if you take the land from A and give it to B because B is going to use it in a way that benefits the public (economically or in some other way), it is a valid taking.

ii. Penn Central v. New York1. When a property owner sees the value of their property go down

due to government action, they could be eligible for compensation from a regulatory taking.

2. The factors to consider in determining whether regulation goes far enough to be considered a taking are:

a. The economic impact of the regulation on the claimanti. Diminution in property value

1. Usually used to support finding a takingii. Interference with investment-backed expectations

1. Usually used to support finding no takingb. Character of the governmental action

i. How necessary is it? Do the ends justify the means? Are there other options?

c. Is the property owner singled out or is the burden shared among many people?

i. If singled out, more likely to find a taking.iii. Loretto v. Teleprompter Manhattan CATV

1. For physical takings, if something is being taken permanently, it always constitutes a taking, no matter how small the thing is.

2. Permanent physical occupation counts as a physical taking also, because occupation denies the basic rights of property.

3. Damages will be very small sometimes though, because for occupation it’s just a measure of the difference in value with or without the occupation.

iv. Lucas v. South Carolina Coastal Council1. Further distinguished from Penn Central to say that any regulation

which denies all economically beneficial or productive use of land is always compensable (wipeouts).

2. It is not an exception in these cases to say the regulation is serving a public good.

3. However, there is no compensable taking if the use being regulated against was already illegal or against public policy as a nuisance or violation of property law prior to the regulation in question.

v. Brown v. Legal Foundation of Washington1. Just compensation is measured by the property owner’s loss, not

what the other has gained.2. The loss is measured by the objective fair market value, not the

subjective or personal value that the owner may ascribe to the property.

3. Possible for there to be a taking (even a physical taking) and not to have any compensation owed.

VII. How It All StartedA. Johnson v. M’Intosh

i. General principle of European colonization was that discovery conveys rights to the land.

ii. Therefore, for the European, and subsequently American, governments and courts, title obtained from the Native Americans in conflict with title obtained from the discovering government would also be overridden by the title obtained from the discovering European government.

iii. The absolute right of the government granted them exclusive title.VIII. Definitions/Rules

A. Types of found propertyi. Abandoned property

1. When owner no longer wants to possess it, shown by proof that owner intended to abandon it.

2. Claim – Finder beats everybodyii. Lost property

1. When the owner unintentionally and involuntarily parts with something and does not know where it is.

2. Claim – True owner > prior finder > finder (finders go in order they found it) > other people

iii. Mislaid property1. When property is voluntarily put in a certain place by the owner

who then overlooks or forgets where it is.2. Claim – true owner > owner of premises > finder

iv. Treasure trove1. Coins or currency concealed by the owner that have been hidden

for such a length of time that the owner is probably dead or undiscoverable.

2. Claim – finderB. Inter vivos gift elements:

i. Intent – donor must intend to make an irrevocable present transfer of ownership

ii. Delivery – if not physical, then constructive or symbolic delivery; this element is not rigid or inflexible in how it is met

iii. Acceptance – generally presumed for a gift of value to the doneeC. Adverse Possession elements:

i. Actual – the possessor must be physically possessing itii. Exclusive – not shared with the owner or with the public at large

iii. Open and notorious – not in secret, open enough to give a reasonably diligent owner notice

iv. Adverse (hostile) – inconsistent with the rights of the true owner; without the true owner’s permission

v. Continuous – at least as continuous as what an actual owner would dovi. Statutory period – all these elements must persist for as long as the

relevant statute requires, usually 10 or 20 yearsD. Estates and Future Interests

i. Fee Simple Absolute1. Complete ownership

ii. Life estate1. Right to posses for the rest of your life2. Reversion – when it goes back to the original owner after death3. Remainder – when it goes to a third party after death

iii. Leasehold1. Right to possess something for a certain amount of time

iv. Fee Simple Determinable1. Right to possess something until a certain event happens2. Possibility of reverter – the interest held by the grantor, such that

it goes back to him automatically if the event ever happensv. Fee simple subject to condition subsequent

1. Same as fee simple determinable, except here grantor has a right to repossess the property but it doesn’t automatically happen, grantor must assert the right

2. The grantor has a right of entryvi. Fee simple subject to executory limitation

1. Same as fee simple determinable, but it goes to a third party if the event happens, not back to the grantor

2. The third party has an executory interestvii. Types of remainders

1. Vested remainders – One day this person will possess the property, there is no uncertainty

a. Absolutely Vestedi. One that will not change

ii. “O to A for life, then to B”b. Vested remainders subject to open

i. If a remainder is to a class that can increaseii. If B is alive and has children at the time of the

conveyance, “O to A for life, then to the children of B” gives the children of B a vested remainder subject to open

c. Vested remainders subject to divestmenti. When a vested remainder can be taken away by the

happening of a later eventii. “O to A for life, then to B, but if B drops out of law

school, then to C” gives B a vested remainder subject to divestment and C an executory interest

2. Contingent remainders – not yet certain that the holder of the remainder will ever get to hold the property

E. The Rule Against Perpetuitiesi. No interest is good unless it must vest, if at all, not later than 21 years after

some life in being at the creation of the interestii. Process for determining whether the rule applies:

1. The interests it applies to are:a. Contingent remaindersb. Executory interestsc. Vested remainders subject to open

2. What is the contingency?3. When will the future interest definitely be resolved?4. For it to be valid, the uncertainty must resolve itself within 21

years after the death of someone alive at the time the future interest is created

iii. Not concerned with when the person will actually possess the property, just when we will know whether or not they will ultimately do so

F. Concurrent Interestsi. Tenancy in Common

1. Each tenant in common has a separate interest in the property, which he can dispose of as he chooses

ii. Joint tenancy1. Same as tenancy in common except joint tenants have a “right of

survivorship” – when one dies, the other automatically gets his/her interest

2. To create a joint tenancy, there are 4 “unities” that must be present:a. Time – each must acquire their interest at the same time

b. Title – must acquire the same way, through the same instrument

c. Interest – each must have an equal interestd. Possession – must both possess equally

iii. Tenancy by the entirety1. Same as joint tenancy, but available only to married couples and

cannot be severed unilaterally by one partyiv. Ways to break up a tenancy in common/joint tenancy

1. Partition by sale – auction of the property, joint tenants split the proceeds

2. Physical partition – physically divide the land between the joint tenants

G. Types of Leaseholdsi. Term of years

1. Lasts for a fixed period of time (doesn’t have to be years, could be months or even days).

2. No notice required to terminate it, just ends when the period is over.

ii. Periodic Tenancy1. Lasts for a fixed period of time that continues for successive

periods until either the landlord or tenant gives notice of termination (often from month to month, or year to year)

2. Notice of termination usually at least one period in advance, but most states have shortened the max required to one or two months

iii. Tenancy at Will1. No fixed period, lasts until either landlord or tenancy gives notice

(these are very rare)H. Assignments and Subleases

i. Assignment – if a lessee transfers the entire balance of his term, the transaction is an assignment.

ii. Sublease – if less than the entire balance of T’s term is transferred, it’s a sublease

iii. If the lessee has assigned his interest, the lessor can sue either party for unpaid rent because he has privity of contract with the lessee and privity of estate with the third party

iv. If the lessee has sublet his interest, the lessor can only sue the lessee because there is no privity of contract or estate between the lessor and the third party.

I. Retaliatory Eviction if:i. There is a protective housing statute embodying a public purpose to insure

proper conditions of housingii. The landlord is in the business of renting residential property

iii. The tenant is not materially in default in the performance of his obligations

iv. The landlord is primarily motivated in so acting because the tenant has complained about a violation by the landlord of a protective housing statute

v. The tenant’s complaint was made in good faith and with probable causeJ. Fair Housing Act

i. Unlawful to refuse to rent/sell or to base conditions of rental/sale on race, color, religion, sex, familial status, national origin, or handicap, or to refuse to accommodate handicaps.

ii. Exceptions1. Any single-family house sold or rented by the owner2. Provided that:

a. Does not own more than three such single-family houses at any one time.

b. Only one such sale within any 24 month periodc. Only if such house is sold or rented:

i. Without use of broker, agent, salesman, etc.ii. Without publication or advertisements violating Act

iii. Attorneys are okay3. Rooms or units in dwellings containing living quarters occupied or

intended to be occupied by no more than four families if the owner occupies one of such quarters as his residence

4. Religious organizations and private clubs not open to the public (as long as neither bases membership on any of the above factors) are not bound by this Act

5. Housing for older persons also exceptedK. Trespass and Nuisance

i. Trespass to Chattel – using someone else’s property without their permission. Actionable if there is harm to or interference with the property.

ii. Nuisance - when one landowner’s use of property unreasonably interferes with another’s enjoyment of property

L. Easements – the right to use land owned by another.i. Two types of easements:

1. Easements Appurtenanta. Benefit a certain parcel of landb. Parcel that is benefitted is called the “dominant

tenenment” or “dominant parcel”c. Parcel that is burdened is called the “servient tenement” or

“servient parcel”d. If no agreement as to who will maintain it, the obligation

goes to the dominant tenement because it is for their benefit.

e. Examples: road through another piece of land.2. Easements in Gross

a. For the benefit of another person, not another parcel of land.

b. There’s a servient tenement but not a dominant tenement.c. Examples: power lines, water pipes, TV cables

3. Transfera. Easement appurtenant always stays with the dominant

tenement, follows the parcel, cannot be sold independently.b. Easement in gross is transferable independent of any parcel

of land.ii. Licenses

1. A license is the same thing as an easement, except a license is revocable and an easement is not.

iii. Easements from implication1. To get an easement from prior existing use, there are 3 elements:

a. Common grantor – both the dominant tenement/person and the servient tenement got their parcel from the same person/entity

b. Quasi-easement – when, prior to severance of the parcel, one part of the land was used for the benefit of another part.

c. Apparent, continuous, and reasonably necessary2. To get an easement from necessity, there are also 3 elements:

a. Common grantor – same as aboveb. Necessity – not just reasonably necessary, but absolutely

necessary in order for the supposed dominant parcel to be of any value.

c. Necessary at time of severance – becomes necessary as soon as the parcels are separated, not from later circumstances or events.

iv. Prescriptive Easements – same thing as adverse possession but with easements rather than fee simple.

1. Substantial identity – doesn’t have to be exact, but a good idea of what it is that you have the right to use.

2. Open and notorious – same3. Adverse – same4. Continuous – as continuously as a normal person with an easement

would be using it (accounting for realities of the property)5. Statutory period – varies, CA is 5 years6. Exclusive (only sometimes)

a. Sometimes possible for the public as a whole to get a prescription, unlike adverse possession.

b. But if one person is trying to get an easement for themselves, would have to be exclusive.

M. Covenantsi. When two parties want to bind not only themselves but also their

successors to certain uses or restrictions of use of land.ii. If they bind just themselves, it’s just a contract, but to bind future parties,

it needs something else, which then transforms it into a covenant.

iii. The common situation would be A sells to B with some conditions in the lease, and then A sells to C and B sells to D and C tires to enforce the condition against D.

iv. There are two alternatives, real covenants and equitable servitudesv. The elements to prove a real covenant are:

1. Intent – to bind successors. If words are ambiguous, based on what you can infer from their intent in the circumstances.

2. Touch and Concern – does it actually concern the land in some way? Has to affect the value or desirability of the land in some way.

3. Privity of estatea. Horizontal Privity

i. A and B have to have some mutual interest in the same parcel of land.

ii. Most common is grantor and grantee.b. Vertical Privity

i. When the successor and the predecessor (A-C and B-D) have the same estate in land (usually fee simple)

c. Every covenant will have a burden and a benefit. Whether you’re seeking to enforce a burden or benefit determines the type of privity to be proven.

i. For the burden of a promise to run to the successor, there must be both horizontal and vertical privity.

ii. For the benefit of a promise to run to the successor, there only has to be vertical privity.

vi. The elements to prove an equitable servitude are:1. Intent – same as above2. Touch and concern – same as above3. Notice

a. Can be actual or constructive noticeb. Did the successor have notice? Should they have, would a

reasonable person have?vii. Implied Covenants (Doctrine of Implied Reciprocal Servitudes)

1. When a common grantor develops land for sale in lots and includes a common scheme of restrictions for the benefit of all the lots on each of the parcels sold, the grantees acquire by implication the right to enforce the restriction on a lot retained by the grantor, or subsequently sold to a purchaser who has notice of the common scheme restrictions.

2. Assumed to be the intention of all contracting parties in the sale of the other lots; that all lots in the development will be bound by the same covenants.

3. Notice – usually enough for an incoming purchaser to look around and see a common scheme of development to give them adequate notice.

viii. Terminating Covenants1. Uncommon ways:

a. All land involved goes into a common ownershipb. People contract to release each other (A pays B to not owe

an obligation – implausible in large communities)2. Common ways:

a. May have a limited duration written into it, or say it can be terminated by a majority vote of the homeowners.

b. Doctrine of Abandonment – if there’s widespread noncompliance, eventually the covenant will cease to exist and become unenforceable (similar to changed circumstances)

c. Statues of limitations – if someone violates it for long enough before you try to enforce it, may have gone too long under S of L for enforcement of contract. Only unenforceable against that one breacher, not others.

d. Estoppel – a) if P is violating, can’t enforce against someone else, b) if P allows D to rely on P not enforcing it and incurs substantial expenditures in that reliance, then D can’t enforce, though others could.

e. Changed Conditions (El Di) – if a fundamental change has occurred that renders the benefit of the restriction incapable of enjoyment, court won’t enforce the restriction.

N. Zoning – when a local government or administrative agency splits up an area into different zones to restrict the use of the land within those zones.

i. Non-conforming uses – those that predate a zoning ordinance prohibiting them and are thus still permitted.

ii. Variances – an exception to a zoning restriction.iii. Special exception – an exception to an ordinance built into the ordinance.

O. Takings Clause – must be for a valid public use.i. Always Compensated:

1. Physical takings, including permanent occupation (Loretto)2. Regulatory takings that deny all benefical use of the land

(wipeouts) unless the use being regulated against was already illegal or against public policy as a nuisance or violation of property law (Lucas)

ii. Sometimes Compensated:1. Regulatory takings, based on:

a. Extent of the economic harm, consideringi. Diminution of property value

ii. Interference with investment-backed interestsb. Character of the government action (do means justify ends,

did they have any alternatives?)c. Extent to which someone is singled out versus the burden

being shared by the public at large.iii. Compensation is fair market value of the owner’s loss, not taker’s gain.