Reading...
Play button
Play button
Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
39 Cards in this Set
- Front
- Back
|
Basic definition
|
a permanent physical occupation of another’s property represents a taking
“The government does not simply take a single strand from the bundle of property rights, it chomps through the bundle and takes a slice of every strand (Loretto 1982, cable company case of installing on the roof of a property) |
|
|
License to another’s property
|
"the authority to do a particular act or series of acts upon another’s land without possessing any estate therein. If a license is revocable at will, the former licensee becomes a trespasser.
Not subject to Statute of Frauds, are very informal Are freely revocable unless estoppel applies to bar revocation (money or labor investment)" |
|
|
Trespass to land
|
any person who KNOWINGLY ENTERS on any land after being forbidden to do so is trespassing
|
|
|
Right to revoke
|
a man’s right to real property is not absolute. One cannot use his property to injure the rights of others.
Think the case of the migrant workers who were denied private conversations with legal and medical help by the farmer who owned the land. You cannot use the land to deny help to those on your land. |
|
|
What are Mexicans?
|
not necessarily tenants or just workers... they are a hybrid and unique in the legal system
|
|
|
Property rights to exclude?
|
most constitutional rights can be limited by discression (can’t pack a piece in Starbucks)
some statutes can limit what you can restrict (some malls have to be allowed to be used for free speech purposes) |
|
|
ESSENTIAL ELEMENT of private property
|
Exclusivity
1. At common law was absolute - you could exclude whomever you wanted from your property 2. Right to exclude a person and a physical object a. Encroaching structure, or pollution or chemicals 3. No longer absolute, subject to exceptions |
|
|
Public Accommodation laws under Civil Rights Act of 1964
|
Cannot discriminate on race, religion, color, or origin
a. Places which serve the public, such as inns and hotels, restaurants, gas stations, places of entertainment, any establishment “physically located within the premises” of those establishments which holds itself out as serving patrons and listed in statute |
|
|
Federal laws regarding Sex, religion, sexual orientation?
|
a. Must be a STATE law
i. Some only bar racial, religious, national origin, and disability discrimination in inns, restaurants and places of entertainment ii. But most states have broader statutes, which prohibit sex discrimination 1. Also, marital status, age, familial status, and discrimination against members of the military, some include sexual orientation |
|
|
Three different levels of exclusion powers
|
Private, Public, and Shared
|
|
|
Private property
|
Not generally open to others, can exclude
|
|
|
Shared property
|
Permission has been granted to another to enter or to possess part or all of the property
|
|
|
Open to the public: Public accommodation
|
a. Open to the public and hold themselves as ready to serve members of the public for specific purposes
b. Under common law, cannot refuses to serve a patron unless they have a good reason to do so c. Innkeepers and common carriers d. Maintain the right to exclude patrons who are rowdy or disruptive |
|
|
Right of first refusal in disposing of property
|
1. Distinguished from pure option
a. Option can compel someone to sell, right of first refusal means that when seller decides to sell the original seller can get first right to buy 2. Pure option can compel a person to sell, whereas right of first refusal when 3rd party offers a deal to owner of property then the owner is will to accept, under the right owner of property prior to accepting tenured offer, must vie owner of right of first refusal to match free market offer, he or she preempts free market purchase and gets property 3. Must be limited in duration and be for a reasonable price |
|
|
Restraints on alienation
|
A restriction, usually in deed of conveyance, on a grantee's ability to sell or transfer real property; a provision that conveys an interest and that, even after the interest has become vested, prevents or discourages the owner from disposing of it at all or from disposing of it in particular ways or to particular persons"
Unreasonable restraints are invalid... they are valid only if justified by legitimate interest of the parties and for a reasonable time |
|
|
Right to use
|
i. Owner is at liberty to use his property as he sees fit, without objection or interference from his neighbors, provided that such use does not violate an ordinance or statute
1. Person has the right to use his property so as not to injure the lawful rights of another 2. There is conflict between interests of one owner in free use of his property and interest of neighbors in maintaining secure enjoyment of their own property |
|
|
Penn Central Test for Right to Use Property
|
a. Economic impact of the regulation on the claimant
b. Extent to which the regulation has interfered with distinct investment-back expectations i. Single element instead of two c. Character of the governmental action i. Very spongy issue |
|
|
Lateral Support
|
a. Right of each landowner to have their land supported laterally by each neighbor (side)
b. Absolute and does not rest on a showing that defendant acted negligently c. “Natural right” d. Resembles a negative easement e. No duty to maintain support for buildings |
|
|
Fee simple determinable
|
an estate that will automatically end and revert to the grantor if some specified event occurs
|
|
|
Savings clause
|
easy to draft.... and allows that you designate a “life in being” as the reference of length of a contract plus 21 years of that person’s death as the end of the right (preemptive right)
|
|
|
Home Rule
|
a constitutional provision in many municipalities where the people give a municipality certain powers... in some instances, the powers are very broad (Zoning, building controls, occupancy limits, etc)
|
|
|
Governmental action and depreciation
|
Almost every single governmental action has SOME effect on property values in some form
|
|
|
Preservation
|
the state (through its municipalities) may make a choice between the preservation of one class of property and that of another. (think cutting down red cedars to protect an apple tree industry)
|
|
|
Aesthetics
|
A city can tmake a determination of the preservation of character and aesthetics of a city by enacting land-use restrictions
|
|
|
Layers
|
taking provisions do not discriminate against air, land, and subterranean layers. They are all covered under the same statute
|
|
|
Historical protection
|
for a zoning that restricts to not be considered discriminatory, it must be comprehensively aimed at all the town... that does not mean that it must be equal evaluation of all landmarks, just consistent with the goals of the city
Cannot interfere with the PRESENT use of a facility when deemed a land mark. |
|
|
TDR’s
|
transferable development rights
they are not considered in any evaluation of takings, but should be given weight just with respect to calculating any compensation owed to the land owner |
|
|
3 part test for a taking
|
economic impact on the claimant
extent of interference with distinct investment backed expectations Character of the government actions |
|
|
Exactions
|
when you want to develop land, you need a permit
|
|
|
Determining reasonable use
|
very fact and location specific... in an industrial district, there can be little redress for people living around the area, but in a country location, if the same factory existed there, then there may be some action that can be taken under nuisance law.
|
|
|
Public nuisance
|
aoften a private nuisance, but individual plaintiffs may be joined in one action
|
|
|
Private Nuisance
|
an unreasonable interferrence with the use and enjoyment of another’s land (neighbors with a ridiculous number of crowing roosters)... this may tie into deprivation unless there is no claim to right in the title
|
|
|
Pig in the parlor
|
a nuisance is a pig in the parlor, right thing...wrong place
|
|
|
Groundwater
|
Some courts have allowed for owner to withdraw as much water from beneath land as he wants without liability, even if withdrawing from another’s land
|
|
|
Riparian rights
|
IF you own a home or property on a body of water, you are entitled to be free of trespass on the actual land, but if the water is navigable (a log can float down it), no right to prevent people from walking or canoeing down the waterway
|
|
|
Nuisance Defined
|
Nuisance is a nontrespassory invasion in another's right to enjoy the land
a. IE uses of one’s own property that negatively affect the use and enjoyment of neighbor’s property i. Nuisance creator is deemed to have done it intentionally, regardless of whether there was intent to interfere 1. Whether the party knew or should have known harm would result b. Typical cases involve air or water pollution, excessive noise, or unpleasant odor i. Microscopic particles or sound waves, not considered trespass ii. Physical invasion considered “indirect”, drifting, not being propelled |
|
|
When is a nuisance found?
|
Nuisance is found when the harm is substantial and the consequences of that conduct to the affected property must be deemed unreasonable
a. Reasonableness is measured in terms of the interests of the parties b. Move is away from rigid rules towards test of reasonableness |
|
|
Gravity of the harm of a nuisance
|
a. Extent of the harm involved
b. Character of the harm c. Social value the law attaches to the type of use or enjoyment invaded d. Suitability of the particular use or enjoyment invaded to the type of property e. Burden on the person harmed of avoiding the harm |
|
|
Remedies for Nuisance
|
a. Injunction will be granted, and is either contingent based on paying permanent damages or in the future to allow for elimination of nuisance
b. Damages c. Purchased injunction d. No relief |
