Property

Front 1

Identify the two elements of possession

Back 1

(1) an intent to possess on the part of the possessor, and (2) his or her actual controlling or holding the property. As to the second element, control is the key. Both the intent and the control elements must be present to acquire the rights of a possessor. Possession need not be actual possession.

Front 2

What is constructive possession?

Back 2

Minerals, oil, or gas laying beneath the surface of the land.

Front 3

Rule from Pierson v. Post

Back 3

Property in wild animals is only acquired by occupancy and pursuit alone does not constitute occupancy or vest any right in the pursuer.

Front 4

Reason for rule in Pierson v. Post

Back 4

judicial simplicity/ easier to adjudicate

Front 5

Rule from Ghen v. Rich

Back 5

When all that is practicable in order to secure a wild animal is done, it becomes the property of the securer who has thus exercised sufficient personal control over the wild animal. Custom will overcome the basic rule from Pierson v. Post

Front 6

Rule from Keeble v. Hickeringill

Back 6

• Holding and Decision: Damages may be recovered for the intentional frightening of wild game off another’s land. Although no title to the game existed, Keeble (P) was using his land in a lawful manner. Thus Hickeringill (D) interfered with this lawful use and is liable in damages.
• Analysis: Capture or control, in conjunction with being first in time, guides legal analysis of the ownership of wild animals. The present case represents somewhat of a departure from these rules, yet it is viewed as a natural and logical extension of them.

Front 7

What does Demsetz think the main function of property rights is?

Back 7

- A primary function of property rights is that of guiding incentives to achieve greater internalization of externalities.

Front 8

Demsetz: Three types of ownership

Back 8

Communal, Private, and State

Front 9

Demsetz on Communal Ownership

Back 9

- Communal ownership means that the community denies to the state or to individual citizens the right to interfere with any person’s exercise of communally owned rights.

Front 10

Demsetz on Private Ownership

Back 10

Private ownership implies that the community recognizes the right of the owner to exclude others from exercising the owner’s private rights. It minimizes overconsumption and maximizes internalization of externalities.

Front 11

Demsetz on State Ownership

Back 11

State ownership implies that the state may exclude anyone from the use of a right as long as the state follows accepted political procedures for determining who may not use state-owned property.

Front 12

Disadvantage of Communal Ownership

Back 12

Overconsumption, transactions costs,

Front 13

Define Coase Theroem

Back 13

The theorem states that when trade in an externality is possible and there are no transaction costs, bargaining will lead to an efficient outcome regardless of the initial allocation of property rights. In practice, obstacles to bargaining or poorly defined property rights can prevent Coasian bargaining.

Front 14

Two elements of a finder of property

Back 14

(1) takes control of the lost property and (2) has the intent to maintain possession of the property.
- Conversion is a common law action for the tort of using another’s property as one’s own.

Front 15

Define Replevin

Back 15

The action or remedy to recover the asset itself (plus damages for injury to the asset) is called replevin.

Front 16

Define Trover

Back 16

- Alternatively, the rightful owner or possessor can seek monetary damages for the asset. The action for monetary compensation for conversion of personal property is trover. In effect, trover is a forced sale.

Front 17

Define Lost Property and whom it belongs to

Back 17

- Lost property – property the true owner unintentionally and unknowingly drops or loses –belongs to the finder (unless and until the true owner is located).

Front 18

Define Mislaid Property and whom it belongs to

Back 18

Mislaid property – property the true owner intentionally placed in a given location and then left, or intentionally left intending to return for it later—belongs to the owner of the locus in quo (unless and until the true owner is located).

Front 19

Define Abandoned Property and whom it belongs to

Back 19

- Abandoned property is property the true owner intentionally and voluntarily relinquished, with the intent no longer to own the object, and without transferring his rights to another person. Like possession, abandonment has two elements: an act of abandonment, and the intent to abandon. It is not presumed, but must be proven. The mere passage of time gives rise to no resumption of abandonment. Abandoned property belongs to the finder.

Front 20

American Rule on Treasure Trove

Back 20

in the United States, treasure trove goes to the finder.

Front 21

English Rule on Treasure Trove

Back 21

In England, Treasure trove belongs to the crown

Front 22

Right of Finder to all others

Back 22

A finder of chattel has title superior to all but the rightful owner upon which he may maintain an action at law or in equity.

Front 23

Policy reasons for right of finder

Back 23

Prevent Cycle of Seizure, Allow Products to Be Useful, Increase's real owner's opportunity to retrieve; Also, no reason to punish real owner for losing product and the owner earned the product.

Front 24

Policy Reasons for Abandoned/Mislaid property

Back 24

Bad rule: 1) owners of the property will return to the place they lost it either way 2) People will not announce they found the property if they knew they had to give it up 3) Tough to distinguish b/w loss and mislaid property

Front 25

Elements of Adverse Possession (5 elements and 6th element in some jdx)

Back 25

1) Exclusive Possession (i.e. enclose the property)
2) Open and Notorious
3) Continuous (normal, ordinary use of the property)
4) Hostile (most courts use this to mean lacking permission of real owner)
5) Many jurisdictions have an additional requirement: state of mind (claim of right or claim of title)  requiring a good faith showing that you thought you owned the property (although many states are abolishing this requirement)
6) Some jurisdictions: must pay property taxes

Front 26

Rule Mannillo v. Gorski

Back 26

To claim title by adverse possession, the possessor need not have been aware that the land in question was in fact owned by another.
• This rule does not apply to all jurisdictions; some requires that the possessor must know this

Front 27

Adverse Possession against state property

Back 27

Generally not allowed. Some jurisdictions allow it.

Front 28

Adverse possession of chattels: running of statute of limitations

Back 28

• The focus of the inquiry will no longer be whether the possessor has met the tests of adverse possession (in chattels), but whether the owner has acted with due diligence in pursuing his or her personal property. Under the discovery rule, if an artist diligently seeks the recovery of a lost or stolen painting, but cannot find it or discover the identify of the possessor, the statute of limitations will not begin to run…the burden is on the owner as the one seeking the benefit of the rule to establish facts that would justify deferring the beginning of the period of limitations. • Adverse possessor’s behavior does in reality affect the statute of limitations (imagine for instance that Snyder had shown the artwork all over the country constantly)…Just the main shift is the burden of proof (according to Altman) not the behavior necessarily (b/c both parties’ behavior affects statute of limitations.

Front 29

Adverse possession: disabilities of owner

Back 29

If the owner is under a disability at the time of an adverse entry, the statute is tolled until the disability ends. However, only the initial disability at the time of entry tolls the statute; a different disability arising after entry does not count. o In every jurisdiction, a disability statute exists. What happens, if someone is adverse possessing a property when the true owner falls into a specially protected class (i.e. insane, military personnel, incarcerated)? - Rather than saying that you can never adverse possess against someone with a disability. • Need to be there for as long as the statute says or a period of time after the disability is gone (whichever one is longer).

Front 30

Common rule for I.P. (as described in Cheney Brothers v. Doris Silk Corp.)

Back 30

If a person cannot obtain a patent or copyright on its product, it cannot recover for the copying of it by others.

Front 31

Exception to Common Rule for I.P.: INS v. Associated Press

Back 31

Publication for profit of news obtained from other news-gathering enterprises is a misappropriation of a property right.

Front 32

Take away point from White v. Samsung Electronics

Back 32

Overprotecting intellectual property is as harmful as underprotecting it.” (p. 62) Concern: Almost all inventions build on some other people’s creativity; so, if we are to aggressive in protecting in I.P., then we will hinder our own aims of creating incentive to invent.

Front 33

Elements of a Nuisance (4)

Back 33

1) Harm has to be substantial
2) Non-trespassery (steam, bright lights, noise)
3) Invasion (something must come on your property)
4) unreasonable (substantial)

Front 34

Nuisance: Tests for Balancing Test

Back 34

1. Threshold Test: An intentional invasion of an interest in the private use and enjoyment of land that produces a substantial harm is unreasonable, and therefore a nuisance. (Injunction or money damages)
2. Balancing Test: An intentional invasion of an interest in the private use and enjoyment of land is unreasonable, and therefore a nuisance, if the gravity of the harm outweighs the utility of the actor’s conduct. CA Rule
3. Restatement Balancing Test: Part I: An intentional invasion of an interest in the private use and enjoyment of land is unreasonable, and therefore a nuisance, if the gravity of the harm outweighs the utility of the actor’s conduct. (INJUNCTION) OR;
Part II: If the harm caused by the conduct is serious and the financial burden of compensating for this and similar harm to others would not make the continuation of the conduct not feasible. (Alternative ground for Permanent Damages when you can’t show D is doing more harm than good).

Front 35

Nuisance: Outcomes for Property and Liability, if P wins or D wins

Back 35

Property:
P Wins: Injunction
D wins: Dismissal

Liability:
P wins: Permanent damages
D wins: Paid injunction; P's choice

Front 36

Why do courts like liability rules?

Back 36

- One reason, courts like liability, b/c they are compromised outcomes. Provide some benefit to both sides. - Second reason, they provide information to the courts on the plaintiff’s loss evaluation and the defendant’s cost (no clear idea before verdict to the court).

Front 37

Define Doctrine of Coming to Nuisance

Back 37

means if you purchased property with aforeknowledge of nuisance, then you are stopped from getting damages

Front 38

Rule from Marsh v. Alabama

Back 38

- least typical of these cases; Mrs. Marsh lived in the town of Chicksaw, Alabama. Entire town was owned by one corporation. Mrs. Marsh was an evangelical and tried spreading her message of God, and she was stopped by the company that owned all the property (Gulf Shipbuilding Corporation)
- She claimed this was a violation of freedom of religion and freedom of speech. Tough to prove, b/c this is a private property not the government.
- US Govt ruled against Gulf Shipbuilding Corporation  when a private actor acts like a government; it then becomes limited by the Constitution
- Free speech wins against private property. Also, since this case appears to be irrationality or based on bigotry, the company didn’t seem too sympathetic to the court
- Trespasser wins

Front 39

Rule from Logan Valley

Back 39

- Labor dispute; picketers had a grievance against a grocery store
- Supreme Court says freedom of speech does grant access to private property (generally open to public) when subject matter of speech is connected to the location
- Since, speaking anywhere else would be pointless for the picketers.
- Trespasser wins

Front 40

Rule from Lloyd Corp.

Back 40

- Lloyd Corp is a Vietnam War protest case; the protesters are at a shopping mall but the property owner has nothing to do with the war
- Convictions of arrests are affirmed. If protest has nothing to do with location, then go to public area.
- Owner Wins

Front 41

Rule from Hudgens

Back 41

- Overruled Logan Valley: No right to trespass even if your protest relevant to that location
- Owner wins

Front 42

Altman's take on the speech cases

Back 42

Altman believes by the time they got to Lloyd Corp. The supreme court realized that wanting an audience was the only prerequisite to granting access to private property…then this would allow access to newspapers, tv, radio for the same reason as well. Freedom of speech is a negative right (not to be restrained), but shouldn’t become a positive right (a grant to override other rights to speak).
- Big issue of those cases was that freedom of speech was only limited to the rich. Technology has removed this circumstance.

Front 43

Rule from Pruneyard v. Robins

Back 43

• Question: Whether state constitutional provisions, which permit individuals to exercise free speech and petition rights on the property of a privately owned shopping center to which the public is invited, violate the shopping center owner’s property rights under the Fifth and Fourteenth Amendments or his free speech rights under the First and Fourteenth Amendments.
• This case is different than the previous cases, because the state allows for increased freedom of speech protection than the federal allocation.
• US Supreme Court granted cert to see if the state right of freedom of speech conflicts with the private property right of the owner (of exclusion)
• Court is allowed to place the protesters in a certain place, time, etc (makes it incredibly difficult to protest)
• Supreme Court affirmed right of individuals to exercise free speech and petition rights on shopping center grounds.

Front 44

Rule from State v. Shack

Back 44

• Defendants went on to farm to provide legal aid to migrant workers.
• These constitutional claims are not established by any definitive holding. We think it unnecessary to explore their validity. The reason is that we are satisfied that under our State law the ownership of real property does not include the right to bar access to governmental services available to migrant workers and hence there was no trespass within the meaning of the penal statute.
• Title to real property cannot include dominion over the destiny of persons the owner permits to come upon the premises. There well-being must remain the paramount concern of a system of law.
• The general aims of protection laws could not be achieved if the intended beneficiaries could be insulated from efforts to reach them.
• Migrant workers can only be reached by positive efforts, so insulating them cuts them off from their rights.
• Altman: this is nothing more than a supremacy clause case. That is a very narrow reading according to Altman, but it could justify the holding in this case.
• But there is almost no one you can exclude according to the opinion.
• Similar perspective to Pruneyard, in that, the Court is trying to protect the right of those who can’t hear the message to hear one…that they don’t know yet that they want to hear (Altman)
• Court obviously was worried about Shack’s interest in the case; namely, he wanted to keep screwing over the migrant workers

Front 45

Rule from Bell v. Maryland

Back 45

Dismissed as being moot (CRA of 1964 solved this eventually anyway); • Justice Douglas: says that if the real reason for discrimination was outright racism instead of an appeal to business  he would have been more sympathetic
o Due to concerns of freedom of association (due to everyone being members of discriminatory clubs)
o The majority didn’t want to go down this road, so Douglas was attempting to give them a mechanism to accomplish this goal.
o Altman: in this instance, the business model was based off of hatred of customers. In the Women’s Fitness case, it is not focused on hatred.

Front 46

Rule from Shelley v. Kramer

Back 46

- struck down as unconstitutional racially restrictive covenants
- provisions that promised not to sell to blacks, Asians, etc.
- If government gives enforcement to this contract, then it is violating the constitution. This is how the provision was struck down.
- This opened the prevention of excluding people from coming onto your property due to the race. (Bell v Maryland)

Front 47

Words used to draft Fee Simple Absolute

Back 47

• “To X in Fee Simple Absolute” OR
• “To X and his heirs” OR
• “To X” (presumed to be FSA)
• “To X” = words of purchase (who has a legal interest)
• “and his heirs”= words of limitation (what type of legal interest is being transferred)

Front 48

Words used to draft Fee Tail

Back 48

• “To X and the heirs of his body”

Front 49

Example of difference of wording of FSD and FSSCS

Back 49

• FSD: “To B for life so long as he doesn’t get married within 10 yrs”
• FSSCS: “To A for life, but if A does not use the land for farming O retains right to reenter”

Front 50

Words used to draft life estate

Back 50

• “To B for life”

Front 51

Ways to identify "term of years" grant

Back 51

• If you identify a beginning and an ending date, or a way to calculate the ending date other than the death of the owner  Term of Years

Front 52

Words used to draft FSD

Back 52

• Limitations using TEMPORAL/TIME language: so long as, while, until
• “To Bob while used for residential purposes”
• "To Bob for the purpose of residential purposes" NOT FSD (motive)

Front 53

Words used to draft FSSCS

Back 53

• Limitations using CONDITIONAL language (if, unless, on condition, provided, however)
• “To X on the condition that used for residential…”
• “I give you this property if you don’t marry”
• “To A, but if X event happens”
• “To A, upon condition that X happens”
• “To A, provided, however, that if X happens”

Front 54

Three part test to determine whether a remainder exists

Back 54

1) To be a remainder, it must belong to a third party.
2) it can become possessory immediately at the end of the prior interest (no mandatory gap). 3) Cannot divest prior vested interest (translation: not become possesory for a defeasing end for a prior present interest)

Front 55

Do a majority of states still have FSD? What about CA?

Back 55

A fee simple determinable is a fee simple so limited that it will end automatically when a stated event happens…Every fee simple determinable is accompanied by a future interest. In the ordinary case the future interest is retained by the transferor….called a possibility of reverter
Still exists in a majority of states but abolished by California

Front 56

Does FSSCS still exist in most jurisdictions?

Back 56

- A fee simple subject to condition subsequent is a fee simple that does not automatically terminate but may be cut short or divested at the transferor’s election when a stated condition happens.
 Expresses itself on conditional language (if something is to occur)
 Usually mentions a right to retake the property (I give this property to Benjamin the right to this property if he graduates from college, if he does not I give the right to Rachel to re-take it  explicitly written for right to re-take)
Still exists in a majority of states.

Front 57

Are transfers possible inter vivos? Common law v. modern rule

Back 57

Common law: no
Modern rule: states are moving to allow this

Front 58

Two elements needed for a vested remainder

Back 58

i. 1) it is given to an ascertained person (at the time the interest is conveyed…so for instance if it says To Bob and then POTUS at the time of his death fails this test) AND
ii. 2) it is not subject to a condition precedent (other than the natural termination of the preceding estates)  natural termination (equals death or lease at the end of a term of years)  defeasing event (i.e. fee simple determinable or fee simple subsequent to condition ARE NOT natural events)

Front 59

Name the either-or elements needed for a contingent remainder

Back 59

1) given to an unascertained person; OR
2) it is made contingent upon some event occurring other than the natural termination of the preceding estates

Front 60

Two common patterns for remainders

Back 60

1) life estate, contingent remainder, alternate contingent remainder
2) life estate, vested remainder, executory interest

Front 61

Reasons for distinction between vested and contingent remainder

Back 61

1) At common law only vested remainders were transferable. Now, most states allow both contingent and vested to be transferable.
2) At common law, To Bob for life then if she lives to 21 to sue, otherwise to Alice  in this case, if Bob dies before Sue turns 21  at common law ALL CONTINGENT REMAINDERS WERE DESTROYED
a. Nowadays, some jdx allow Sue to take control and then attempt to meet condition  if not it goes to Alice
b. Some other jdx have reversion to Bob and allow condition to be fulfilled

Front 62

Describe Doctrine of Life Estates/Waste. Also give the rule.

Back 62

• Doctrine of waste usually brings injunctive relief and sometime damages
• Meant to address present v future interest problems (similar to nuisance, similar relationship between the actors)

Rule: Manage it as if present and future interests were owned by the same owner.

Front 63

Describe distinction between shifting and springing executory interest

Back 63

springing: • When interest can't become possessory IMMEDIATELY after prior interest ends and thus goes back to grantor

shifting: When DIVESTS (cuts short) a prior vested interest. Generally follows defeasible interests, not life estates

Front 64

Destructibility of Contingent Remainders

Back 64

1) - A remainder in land is destroyed if it does not vest at or before the termination of the preceding freehold estate.
- Example: O conveys Blackacre “to A for life, then to B and her heirs if B reaches 21.” If at A’s death B is under the age of 21, B’s remainder is destroyed. O now has the right of possession.”
2) Contingent remainders could also be destroyed another way. English courts held that life estate could be terminated before the life tenant’s death by forfeiture or merger. The life tenant therefore had the power to destroy contingent remainders whenever he wished.
- Example: O conveys Whiteacre “to A for life, then to B and her heirs if B survives A. A conveys his life estate to O; the life estate merges into the reversion, destroying B’s contingent remainder.

Front 65

The Rule in Shelley's Case

Back 65

Elements
1) one instrument (single gift or will)
2) creates a life estate in land in A, and
3) purports to create a remainder in persons described as A’s heirs (or the
heir’s of A’s body), and
4) the life estate and remainder are both legal and equitable
Example: O conveys Blackacre “to A for life, then to A’s heirs.” The Rule in Shelley’s Case gives A a vested remainder in fee simple. A’s life estate then merges into remainder, leaving A with a fee simple in possession. The land is immediately alienable by A and not tied up for A’s lifetime.
-The life estate cannot merge into a vested remainder if there is an intervening vested life estate, blocking merger.
-Almost no longer in use.

Front 66

The Doctrine of Worthier Title

Back 66

- The Doctrine of Worthier Title provides that where there is an inter vivos conveyance of land by a grantor to a person, with a limitation over to the grantor’s own heirs either by way of remainder or executory interest, no future interest in the heirs is created; rather, a reversion is retained by the grantor
- Only applies to gifts or sales during the person’s life (not wills)
Example: O conveys Blackacre “to A for life, then O’s heirs.” In the absence of the Worthier Title Doctrine, there is a contingent remainder in favor of O’s unascertained heirs. Under the Worthier Title Doctrine, however, no such remainder exists. Rather, O has a reversion.
-Most states have abolished this doctrine.

Front 67

Basic Definition for Rule Against Perpetuities (and take away points)

Back 67

“To be valid, a Contingent Remainder OR Executory Interest MUST be certain to vest, if it ever will, within 21 years of some life in being at the time of the grant”
- If it violates the RAP, then it is null the day it is written.
-This rule does not require that a CI or a EI vest quickly; we just need to know whether it will vest or definitely know it won’t vest
- 21 years after the day of everyone who is alive at the day of the grant

Front 68

Two Reasons for Reform of Rule Against Perpetuities

Back 68

1) trap for the unwary
2) it is also striking down grants that are not actually creating uncertainty

Front 69

Wait and see doctrine

Back 69

-we look backward and ask, did the uncertainty over a period of time resolve itself before the perpetuities statute of limitations has run
-main disadvantage, you actually have to wait and see, under the previous rule, we would know the day that the grant was made

Front 70

Rule on Gifts for Groups for RAP

Back 70

For RAP purposes, a group does not become vested until every member of the group becomes vested--the group closes

Front 71

USRAP

Back 71

- 1) wait and see
- 2) 90 years after the grant (not 90 years after someone’s death)
grant is valid, if 1) valid under traditional rule or 2) the interest vests or permanently fails within 90 years of the grant
-defect: this reduces marketability for quite a while (tradeoff between traditional rule and USRAP)

Front 72

Cipres Doctrine (RAP)

Back 72

gives judge deference to rewrite will to prevent violation of RAP

Front 73

Savings Clause (RAP)

Back 73

add a clause that says if any contingent remainder or EI still exists at end of 21 years; then the interest would be abolished no matter what

Front 74

New York Approach (RAP)

Back 74

traditional ruling; any gift to a “spouse” is presumed to mean current spouse
- anyone above 65 and under 13 are deemed incapable of having a child

Front 75

Charities (RAP)

Back 75

charities are pretty much exempted from this rule; to encourage donations to charities

Front 76

Definition of Easement

Back 76

An easement is a grant of an interest that entitles a person to use land possessed by another.

Front 77

Definition of Easement Appurtenant

Back 77

If an easement benefits its owner in the use of another tract of land, it is appurtenant to that land. The land benefited is called the dominant tenement; the land burdened is the servient tenement. The servient tenement usually is, but does not have to be, adjacent to the dominant tenement. Promise made as a landowner, and thus it will transfer to the future owner of the land (unless something to the contrary is said).

Front 78

Definition of Easement in gross

Back 78

If an easement does not benefit its owner in the use and enjoyment of his land, but merely gives him the right to use the servient land, the easement is in gross. “In gross” is the term used to signify that the benefit of the easement is not appurtenant to other land. An easement in gross usually can be assigned if the parties so intend. Promises particular to you and thus will not necessarily pass to future owners of your property. Exam tip: The term “in gross” means only that the easement is not appurtenant. It does not mean that the easement is personal to the holder and cannot be assigned.

Front 79

If instrument is ambiguous, is an easement appurtenant favored or an easement in gross favored?

Back 79

Easement appurtenant is favored.

Front 80

Definition of Easement by Implication

Back 80

When at the time of sale of real estate, the property is subject to an apparent continuous easement that is reasonably necessary for that land presumes that you intended to continue it.
1) The unit of ownership is severed (i.e., a common owner).
2) The use was in place before the parcel was severed (i.e., a pre-existing or prior use);
the common owner must have engaged in the use before the severance occurred
quasi-easement is used to describe the property’s usage prior to severance
3) The use must have been visible or apparent at the time of the severance; and Courts have interpreted visible or apparent to reach those uses or conditions discoverable by a reasonable inspection
4) The easement is necessary for the enjoyment of the dominant estate (i.e., necessity)

Front 81

Easement: Creation by Necessity

Back 81

1) A common owner severed the property (unity of ownership);
2) The necessity for egress and ingress existed at the time of the severance (the severance caused the necessity); and
3) The easement is strictly necessary for egress from and ingress to the landlocked parcel
- Easements by necessity will not be implied for mere convenience, however, or even for reasonable necessity.

Front 82

Three Notes on Easement by Necessity

Back 82

o It is not the last purchase that creates the right of easement but the landlocking purchase that creates the right.
o Since we presume that the parties intended the existence of the easement, the grant of the easement can be given without payment because we assume the price of the easement was built into the purchase price.
o Scope of easement is only given for normal use. So, if it is to travel to a road by car, only allowed to drive a car on the easement.

Front 83

Elements of Prescriptive Easements (6 elements)

Back 83

1) Actual use
- prevents negative easements by prescription
2) open and notorious use
3) hostile use (adverse use) (claim of right)
- using property without permission of owner
4) continuous and uninterrupted use
5) exclusive use (in a minority of states)
6) for the statutory prescriptive period

Front 84

Ten Ways to Terminate an Easement

Back 84

10. By the Terms of the Grant
 The deed or will granting or reserving the easement may set an expiration date, a term of years, or a condition.
9. Purpose of Easement Ends
 An easement terminates when the purpose for the easement ends….most often applied to terminate easements by implied necessity.
8. Merger.
 If the dominant estate and servient estate, fall under the ownership of the same person.
7. Forfeiture for Misuse
 A court may declare an easement forfeited for misuse. This is an extraordinary remedy, and only imposed in the most egregious case of misuse.
6. Release
 The easement holder by deed can transfer part of all of the easement to the servient estate owner.
5. Abandonment
 Abandonment has two elements: intent to abandon and subsequent nonuse. Mere nonuse, no matter how long the duration of the nonuse, does not constitute an abandonment.
4. Estoppel
3. Prescription
2. Recording Acts
 A subsequent bona fide purchaser who takes without actual, constructive, or inquiry notice of the easement is not bound by the easement.
1. Eminent Domain

Front 85

Four Types of Negative Easements

Back 85

1) Promise not to block light or air coming on the property
2) Not deprive your neighbor of lateral support (don’t deprive your neighbor’s home of support under your property)
3) Subadjacent support (drawing from water that is under both property’s that may cause neighbor’s home to collapse)
4) not to block an artificial stream

Front 86

Can negative easements arise by prescription?

Back 86

Not in the United States of America

Front 87

What is the main difference between a covenant and an equitable servitude?

Back 87

Covenant: award for damages is money

Equitable servitude: award for damages: injunction

Front 88

Requirements for a burden of a real covenant to run

Back 88

1. Intent
2. Horizontal Privity
3. Vertical Privty
4. Touch and Concern
5. Notice

Front 89

Requirements for a benefit of a real covenant to run

Back 89

1. intent
2. vertical privity
3. touch and concern

Front 90

Requirements for a benefit or burden of an equitable servitude to run

Back 90

1. Intent to Bind Successors
2. Touch and Concern
3. Notice

Front 91

Define Intent requirement for equitable servitude and real covenant

Back 91

-Covenant can just say that it intends future parties to be bound to it
-Or intend to covenant to run with the land
-Typical language: “I promise on behalf of myself, my heirs, successors, and assigns to you, your heirs, successors, and assigns”

Front 92

Define Touch and Concern Requirement for equitable servitude and covenant

Back 92

-The touch and concern element asks whether a reasonable person upon calm reflection and hindsight would have intended the covenant to run with the land. Thus it focuses on the reasonableness of having the covenant bind the successors.

Front 93

Define Notice Requirement for equitable servitude and covenant

Back 93

- actual, constructive, or city list

Front 94

Define Horizontal Privity requirement for real covenant

Back 94

-In the majority of states retaining the horizontal privity element, horizontal privity will be found only if the covenant is created when one original party transfer an interest in land (other than the covenant itself to another original party. Generally horizontal privity can be created only in conjunction with grants of easements, leases, and freehold estates (such as a fee simple or a life estate)
- Mutual privity: when promisor and promise own an interest in the same parcel of land (typically this meant landlord and tenant)  such as promising not have pets in apartment (negative covenant)  meets horizontal privity requirement
- Instantaneous privity: covenant was made at the time that real estate was sold (A splits land sells half to land B)
- I could just sell you my land and then sell it back to me to create instantaneous privity.  straw transaction

Front 95

Define Vertical Privity requirement for real covenant

Back 95

- For a burden to run to a successor or remote party, the party must have succeeded to the original promisor’s entire estate or ownership interest. The “entire estate” requirement means lessees are not in vertical privity with their lessors.
- All that is required for a benefit to run is that a remote or subsequent purchaser have a possessory interest in the property. Just needs to be a voluntary transaction (not adverse possession).

Front 96

Define Implied Reciprocal Negative Servitude

Back 96

A. When a common scheme is found, courts will invoke the doctrine of Implied Reciprocal Negative Servitudes – even though no promise was made, the court will act as if it was made. As if R had made that promise back to each promisor, giving standing to earlier purchasers to sue later purchasers.
B. Requirements: General plan, similar promises from all purchasers, plan existed at the time or before the time the parcel was sold. Courts only enforce negative promises and reciprocal promises (B to A, if A made to B)

Front 97

Are Implied Reciprocal Negative Servitudes in CA?

Back 97

No; not allowed in CA

Front 98

Define Third Party Beneficiary Doctrine

Back 98

Used in Equitable Servitudes; Rather than acting as if D had made a promise he never made, some Js will simply grant A standing to sue as if he were R, on the basis that D made explicit promise and A was an intended beneficiary of this promise.

Front 99

Homeowner's Association Rule from Nahrstedt case

Back 99

A recorded use restriction imposed by a common interest development in California must be enforced uniformly against all residents of the development unless the restriction is unreasonable.

Front 100

Define Tenancy in common

Back 100

- A tenancy in common is a form of concurrent ownership wherein each co-tenant is the owner of a separate and distinct share of the property, which has not been divided among the co-tenants. Each owner has a separate undivided interest in the whole. Tenancies in common can arise by an express conveyance or devise to persons as tenants in common or when persons inherit property from a decedent.
- No right of survivorship: When a tenant in common dies, her interest passes to her devisees or heirs. It does not go to the surviving tenant in common. There is no right of survivorship among tenants in common.

Front 101

Define Joint Tenancy

Back 101

Joint tenants own an undivided share of the property and the surviving co-tenant has the right to the whole estate. The right of survivorship is the distinctive feature of a joint tenancy.

Front 102

If ambiguous, is joint tenancy or tenancy in common favored?

Back 102

Tenancy in common is favored.

Front 103

Four unities requirement for joint tenancy; applicable in modern law?; how to sever?

Back 103

Most states do not require this anymore, including CA.

- 1) unity of time: the joint tenants’ interests must vest at the same time
- 2) unity of title—the joint tenants must acquire title in the same deed or will
- 3) unity of interest—each joint tenant must own equal shares of the same estate
- 4) unity of possession—each joint tenant has a right to possession of the whole property

Modern law generally holds that severance of one of the four unities severs the joint tenancy and destroys the right of survivorship. It destroys the joint tenancy and creates a tenancy in common.

Front 104

Define tenancy by entirety? Does it exist in CA?

Back 104

Does NOT exist in CA

The tenancy can be created only between husband and wife, holding as one person. It is similar to a joint tenancy except that severance by one tenant is impossible; thus, the right of survivorship cannot be destroyed.

Front 105

Define Common Law approach to Marital Property. Modern approach to alimony and child support?

Back 105

- In common law states, property is owned by the spouse who paid for or inherited it. A person’s property is separate from his or her spouse’s property. In practice, for most of our history, that meant the husband owned most of the marital assets since he earned income, while the wife cared for the house and children. On divorce the husband got the assets. Common law states developed alimony and support laws to prevent divorced women form becoming destitute.

Front 106

Define community property approach to marital property. Before and after marriage? Gift or inheritance?

Back 106

-Everything earned during marriage is considered owned half by each spouse
-Except for that earned by gift, inheritance
-Property earned before marriage is separate
-Prenuptial agreements can bar this rule
-In three community property states (Texas, Louisiana, and Idaho) income from separate property is community property. In the five other states, income from separate property is separate property.
-The spouses can transmute separate property into community property by agreement—required to be written in most of the eight states. Both spouses must agree.
-Community property states differ on the rule of property earned during marriage, if couple moved from common law state to community property state.

Front 107

Community Property: What if commingled property cannot be ascertained?

Back 107

If commingling occurs so that it is impossible to ascertain and identify each source, the commingled whole will be presumed to be community property.

Front 108

6 common things that have to be divided in community property jdx

Back 108

1. business
2. pension
3. house
a. down payment is gift
b. down payment is investment
c. down payment is loan
4. lottery
5. personal injury
6. bank account

Front 109

Rental Housing: Term of Years

Back 109

-A term of years is an estate that lasts for some fixed period of time or for a period computable by a formula that results in fixing calendar dates for beginning and ending, once the term is created or becomes possessory…common law there was no limit on the number of years permitted, but in some American state statutes limit the duration of terms of years.
-No notice required (the contract is considered notice)
-Not very common in modern context
-Must have new contract for a new least to begin

Front 110

Rental Housing: Periodic Tenancy

Back 110

-A periodic tenancy is a lease for period of some fixed duration that continues for succeeding periods until either the landlord or tenant gives notice of termination. Examples: “ to A from month to month”; “to B from year to year”
-Under common law rules, half a year’s notice is required to terminate a year-to-year tenancy…For any periodic tenancy of less than a year, notice of termination must be given equal to the length of the period, but not to exceed six months. The notice must terminate the tenancy on the final day of the period, not in the middle of the tenancy.

Front 111

Rental Housing: Tenancy at Will; common in modern context?

Back 111

-A tenancy at will is a tenancy of no fixed period that endures so long as both landlord and tenant desire. If the lease provides that it can be terminated by one party, it is necessarily at the will of the other as well if a tenancy at will has been created…Note, however, that a unilateral power to terminate a lease can be engrafted on a term of years or a periodic tenancy; for example, a lease by L to T for 10 years or until L sooner terminates creates a term of years determinable.
- No longer common in modern context, b/c most jdxs have minimum eviction notice requirement (e.g. 1 month)

Front 112

Rental Housing: Tenancy at Sufferance

Back 112

-The so-called tenancy at sufferance arises when a tenant remains in possession after termination of the tenancy. Common law rules give the landlord confronted with a holdover essentially two options—eviction (plus damages) or consent (express or implied) to the creation of a new tenancy.

Front 113

Rental Housing: What is the American rule on delivery of possession?

Back 113

The American rule provides that a tenant may sue to recover possession and damages from the person wrongfully in possession. (example: Hannan v. Dusch)

This is the minority rule in the U.S.

Front 114

Rental Housing: What is the English rule on delivery of possession?

Back 114

The English remedy allows the tenant to terminate the lease, and sue the landlord for damages, or, if the third party is in possession of only part of the premises, to take possession of the remainder with a proportionate abatement in rent and damages.

--Majority rule in the US

Front 115

Rental Housing: Sublease; Three Ways to Make sublessee liable

Back 115

- A sublease is an independent transaction creating a wholly new and distinct landlord-tenant relationship between the sublessor and sublessee. It has no effect on the original lease…sublessee is not bound by the covenant to pay rent in the original lease—the original or head tenant remains bound by it.
-•1) You made a promise directly to landlord
•2) You own present interest in property (current right to possession) sufficient to make you obligated  whether right is sufficient will depend on jurisdiction’s rules
•3) you made promise to another tenant for benefit of landlord

Front 116

Rental Housing: Assignment; Does liability exist for the sublessee?

Back 116

- An assignment is a transfer of the whole of the unexpired term of the lease. It need not be a transfer of all of the premises. An assignment of a portion of the premises for the unexpected remainder of the term is called an assignment pro tanto. A sublease is a partial transfer of less than the full remaining term of the lease. (Ernst v. Conditt)
- privity of estate does exist;
- full interest is given;
- liability

Front 117

How to distinguish ambiguity between sublease and assignment in an agreement?

Back 117

The traditional rule in distinguishing between assignment and sublease (whether the third party’s occupation of the property extends to the end of the lease) operates regardless of the actual intent of the parties.

Front 118

How does third party beneficiary doctrine apply to sublease?

Back 118

an assignee or sublessee expressly assumes the covenants of the master lease, the assignee or sublessee is directly liable to the landlord, who is a 3d-Party Beneficiary of the K b/w the tenant and his assignee or sublessee.

Front 119

What if the original lease does not specify whether tenant has permission to sublease/assign?

Back 119

If lease is silent on whether you have permission to transfer, then you have the right to transfer the lease to anyone you want. (that is why landlords almost always put a clause in the lease preventing you to sublease/assign w/o permission)

Front 120

Is reasonability required in residential subleasing? Commercial?

Back 120

- No duty to be reasonable in residential (landlords like relying on gut instinct in granting lease or sublease)
- In some jdx, there is a requirement in commercial leasing.

Front 121

Does landlord have a duty to mitigate damages?

Back 121

Yes; the LL's duty to mitigate damages by trying to re-let the premises. Applies to both commercial and residential leases.
o Relates to LL permission for sublease: To the extent you're going to allow a LL to refuse a T's proposed substitute, you would feel better if you could tell the LL that he has try to re-let the property.

Front 122

Policy on Duty to Mitigate: Why should it be landlord's job?

Back 122

-Landlord’s in a better position, efficiency
-Encourage efficiency, prevent waste, vacant lots.
-Don’t want to force the person to continue making payments and not have the power to transfer
-Landlord prefer a duty to mitigate
-Reserves the landlords right to subjectively choose who leases the property

Front 123

Policy on Duty to Mitigate: Should the duty to mitigate be disclaimable?

Back 123

- Should landlord be able to offer cheaper rent if you disclaim the duty to mitigate?
-Argument in favor: landlords will know that tenants will be less likely to leave (b/c if they agree to this, they will be less likely to leave)
-Counterargument: every landlord will stick it into the lease contract, and we will be back to the original situation

Front 124

Policy on Duty to Mitigate: Lost Volume Seller

Back 124

Mitigation really doesn’t exist in contract law (i.e. contract to sell 1000 ipods  selling the same ipods to someone else does not mitigate failure to complete the contract)

Front 125

Define Warranty of Habitability; disclaimable?

Back 125

- Similar to implied warranty of merchantability
- Cannot be disclaimed in a contract

Front 126

Three types of award damages under Warranty of Habitability

Back 126

-Withhold rent, make repairs yourself. And if premises are found to be violation of the warranty, Damages = Difference b/w Value as Warranted (lease price) - FMV of premises as is (past and future months)
-Compensatory damages—pain and suffering (potential double counting)
-Punitive damages

Front 127

Why do we still have slums then?

Back 127

•Not a lot of litigation on breach of warranty of habitability. Ts are generally afraid to bring these suits b/c they're afraid of LLs.
•Usually, LLs make low-cost repairs to bring property up to code and not huge repairs that require raising of rents.

Front 128

Define The Doctrine of Constructive Eviction

Back 128

i.The LL constructively locks you out by providing premises that are uninhabitable, so T can terminate lease. Courts accepted this analogy. (Traditionally, the only promises that were dependent were promise to pay rent and promise to provide access to premises.)
ii.Difficulties of this doctrine for Ts: Some courts would reason that if the T remained in the premise while the conditions existed, this was proof that it was inhabitable. But by leaving T took risk of being liable for back rent. Also: Doctrine didn't accommodate Ts who just wanted LL to fix the place.
--still exists (but not used much due to warranty of habitability)

Front 129

Define The Doctrine of Illegal Lease

Back 129

i.Lease for housing that violates housing code is an illegal K b/c it provides illegal services. Thus, the LL can’t invoke an illegal contract to demand payment of rent. But the T must pay the reasonable rental value of the premises.
ii.This doctrine protects the T more b/c the T doesn’t have to leave immediately to show that the premise is uninhabitable. BUT difficult to calculate damages if T decided to stay
--still exists (but not used much due to warranty of habitability)

Front 130

Define Warranty of Marketability; Statute of Frauds?

Back 130

(must always disclose encumbrances). This existed for a long time as supposed to duty to disclose defects which is a more modern rule
Promises to sell real estate are enforceable only if in writing and transfer of property

Front 131

Two Exceptions to Statute of Frauds

Back 131

1) Past Performance
2) Estoppel

Front 132

Two Reasons that Recording Systems were set up

Back 132

1) Give C the ability to discover. C will (or should) know A already sold to B by doing a title search.
2) Gives B an incentive to record the deed, in order to protect against C's claim. Inducing people to make it a public record.

Front 133

Two types of recording indexes

Back 133

1) tract index
2) grantor-grantee (most common)

Front 134

Define Race statute

Back 134

Race statute example: O, owner of Blackacre, conveys Blackacre to A, who does not record the deed. O subsequently conveys Blackacre to B for a valuable consideration. B actually knows of the deed to A. B records the deed from O to B. Under a race statute, B prevails over A, and B owns Blackacrew.

Front 135

Define Notice Statute

Back 135

If a subsequent purchaser had notice of a prior unrecorded instrument, the purchaser could not prevail over the prior grantee. (more fair than race statute but requires more facts for the record to prove whether subsequent purchaser was aware of unrecorded act)

Front 136

Define Race-Notice Statute

Back 136

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.

Front 137

Define Shelter Rule

Back 137

A person who takes from a Bona Fide Purchaser will prevail over any interest over which the BFP would have prevailed. This is true even where such person had actual knowledge of the prior unrecorded interest. Why? Protects BFP's value in the bargain, including right to enjoy, convey or devise his interest. Otherwise, B's form of ownership would be shaky – only possession,

Front 138

Define Wild Deed

Back 138

If you acquire a deed that is unconnected to the chain of title b/c the person you bought it from didn't record, it's invalid. A wild deed is not recorded even if C takes it to the recorder's office and says, "Hey, record this!"

Front 139

Recording too soon: A sells to B without owning the property. B records immediately. Afterwards, A actually purchases property from O and records. Then, A sells property to C who records (after B recorded). Who wins? (Majority v. Minority Rule)

Back 139

C would prevail b/c the A/B deed was too burdensome to find.

Front 140

Records too late: O sells to A. A records a period of time later. Then, O sells to B who records immediately (before A records). Then, B sells to C, who records (after A had recorded). Who wins in a race-notice statute jdx? If B was good faith? If B was not good faith? If B received as gift?

Back 140

If B was good faith, then C likely wins under Shelter Rule. Also, C likely could not have searched all recordations to find the original granting of O to A. Although, some jdxs require this.

If B was not good faith, A probably wins.

If B received as gift, A probably wins.

Front 141

Gift rule for chain of title

Back 141

Does not apply as proper purchase in terms of establishing right of property!!!

Front 142

Wild deed: O grants to A(no recording) then A grants to B who records separately. Then, O grants to C who records after B recorded. Who wins?

Back 142

- C wins, as a policy matter, b/c C wouldn’t be able to find the recording that B did. Yo want to encourage people to record quickly
-B’s deed is called “wild” b/c it isn’t connected up to the chain of title. (B should have known or did know that A did not record it.)

Front 143

Rule from Guillette v. Dry Wall (on notice from neighboring property)

Back 143

A grantee is bound by restrictions in deeds to its neighbors from a common grantor, even if it takes without actual notice and his deed does not mention them, if the grantor has placed in writing the same restrictions on his remaining land. (Split among jurisdictions.)

Front 144

Marketable Title: Three types of warranties. Name the three and describe them.

Back 144

A general warranty deed warrants title against all defects in title, whether they arose before or after the grantor took title. It maintains all promises in the chart below. It maintains that nobody claiming sale from me or my predecessors will go after you

A special warranty deed contains warranties only against the grantor’s own acts but not the acts of others. Thus if the defect is a mortgage on the land executed by the grantor’s predecessors in ownership, the grantor is not liable. Special warranty will not claim warranty for anyone who took ownership prior to grantor, but it will guarantee anyone SINCE owner took possession.

A quitclaim deed contains no warranties of any kind. It merely conveys whatever title the grantor has, if any, and if the grantee of a quitclaim deed takes nothing by the deed, the grantee cannot sue the grantor. Not all interests in the property taken as is, but you DO TAKE MY TITLE AS IS.

Front 145

Marketable Title: Three Present interests. Name the three and describe them.

Back 145

Seisin (I own it)

Right to Convey (I am permitted by this form of ownership to transfer)

Encumbrances (could be some explicit ones, but any ones that are not stated are warranted against.)

Front 146

Marketable Title: Three Future Interests. Name the three and describe them.

Back 146

Quiet Enjoyment (promise that the seller will never try to evict/nor anyone that tries to claim ownership)  Ex. O sells to B and A; B tries to evict A; A has action against O for quiet enjoyment

Warranty Seller has liability for legal fees (if someone sues you, based on claim from your seller) ONLY if you lose lawsuit to B; Seller must also participate in lawsuit on your side

Further Assurances warranty that seller will cooperate in any action that you need from them to perfect your ownership in title

Front 147

Marketable title: Describe the two main differences between present interests and future interests.

Back 147

PRESENT interests: state of the title on the date of closing (is the warranty); statute of limitations begins to run on the day of closing. These are important for time period between opening bid and closing of deal.

Present interests DO NOT run with land, but future interests DO run with the land. (So any subsequent owners will have claim against original owner for warranty for claim under future interest).
Example: O grants to A with general warranty and then A grants to B with quitclaim deed. When B owns, C claims ownership over B’s property from sale from O. SO IN MOST JURISDICTIONS, B can bring action against O for claim of quiet

Front 148

Discuss the holding in Frimburger v. Anzelotti (case on zoning ordinance not applying to warranty in deed); Why does the distinction b/w warranty in contract and warranty in deed exist?

Back 148

- Contrast this to Lohmeyer case; why is this instance different? Lohmeyer said that violations of zoning ordinances are encumbrances. Why is this different? This is not universally true but broadly true. When you warrant against encumbrances in a CONTRACT OF SALE, the warranty is much broader than when you warrant against encumbrances in a DEED.
-Why does this distinction exist? Fixing the problem is less dramatic intrusion at the contract stage than at the deed stage. At the contract stage, they can give the contract back and the original owner can sell the property to someone else with the new knowledge. The correction “is much more possible.” It is very hard to un-do a sale when the sale has taken place. The seller has moved, may be dead or may be bankrupt  so plausible solution isn’t giving the property back but forcing the original seller to give money damages to buyer. (Less solutions are available). Altman thinks this is the strongest argument he has heard on the subject.

Front 149

Rockafellor v. Gray (discuss the minority rule in this instance)

Back 149

In Iowa, present interests also run with the land. The Court finds this not to be a problem, b/c this will not expose the seller of the property to infinite possibility of litigation. Because, the statute of limitations will begin to run once the first property has been sold.

Front 150

Rule from Village of Euclid v. Ambler Realty Co.

Back 150

A zoning ordinance, as a valid exercise of the police power, will only be declared unconstitutional where its provisions are clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals or general welfare.

Front 151

Why do we have zoning? Can't nuisance solve these problems? (Two main reasons)

Back 151

1) Nuisance law doesn’t solve the problem, b/c it is after the fact. We want to prevent the problem, no provide monetary damages when a factory moves next to a home.
2) Perhaps, city wants to place a specific area for industrial zone (i.e. southern part of city). This is hard to accomplish in covenants alone (b/c this can only basically accomplish that factories won’t be closes to house, but not sure where, such as the southern part of the city).

Front 152

Three reasons why losers of zoning ordinance laws should not be compensated by the government. Name the one exception as well.

Back 152

1) Hard to define who are the winners and losers (Holman’s bombshell)
2) Lots of people to deal with. Might be other factors to consider (like zoning, will draw in new residents). Means we have to adjudicate person by person. Lots of case
3) Highly speculative how much did a person win or lose by.
-EXCEPTION: if you can show that your property is worthy ABSOLUTELY nothing due to new zoning law, then you will get compensated. B/c this is easier to prove than a dollar reduction in property value (e.g. 200K to 100K for a house)

Front 153

Name six ways to exclude low income families from a locality

Back 153

1. single family only
• much more likely that poor people can’t afford single family homes  they’ll most likely get condos
2. large lots
• can’t afford the lot size
3. minimum square feet
• can’t afford the house size
4. lots of industry
• more land zoned for industrial; the less land that will be zoned for housing…raising housing prices
• factories pay taxes and don’t have children; doubly cool
5. no mobile homes
6a. maximum bedrooms
6b. bedroom/sq. ft. ratio
• lots of children, means you need lots of schools; so municipalities justify this by saying that we limit children, we limit taxes for schools

Front 154

Rule from Mt. Laurel case; is this the majority rule

Back 154

-Municipal land use regulations must provide a realistic opportunity for low and moderate income housing.
-This is NOT the majority rule.

Front 155

Two reasons offered by N.J. S.C. in Mt. Laurel as justification for decision

Back 155

1) Zoning should be rational. Rational does not mean pursuing your parochial self-interest as a city. To be pursued, they need to be legitimate STATE interests NOT just legitimate CITY interests.
2) By zoning, NJ SC says that Mt. Laurel’s standard causes surrounding cities to have to do the exact opposite, by having high taxes to fund schools. This screws over the neighboring cities.

Front 156

Is there a better solution than ordering local ordinances to accommodate for local housing? (What is CA's solution?)

Back 156

-Reason we get exclusionary zoning in Mt. Laurel is b/c of funding of school  if schools weren’t funded at local level, then reason for zoning would disappear (apparently)
-CA, Texas, and several other states said state constitution requires equal funding for all schools in the state (this was due to the US SC case which said that poverty was NOT a suspect class and education is NOT a fundamental right  so no relief from this case)
-So, in these states, they solicit private donations for schools in the rich areas.

Front 157

Physical Occupation: Rule from Loretto

Back 157

Any permanent physical occupation of an owner’s property which is governmentally authorized constitutes a taking of property for which just compensation must be paid. (These are per se takings; regardless of inquiry into the government means or how they are tailored).

Front 158

What is Altman's point of view on invasion cases? (think in terms of compensation)

Back 158

invasion cases, you can get large compensation for losses, if it is occurring over your property. (If airplane is flying over someone else’s property and making noise for you, you cannot get compensation).

Front 159

What aspect is important in takings doctrine to establish harm? Why does the court take this approach?

Back 159

-Takings doctrine takes PHYSICALITY seriously; Court is always more likely to compensate for a physical intrusion (rather than a non-physical intrusion that causes similar damage.
- One of the reasons, the court doesn’t adopt a rule that you will be compensated every time (that it exceeds a minimum threshold e.g. 50K) the government enacts a regulation that lowers property values.  B/c they do that all the time, and will have to compensate you. (If that were the rule, then the losers would have to be compensated by the taxing of the winners from the enactment of the rule  this means we will all be worse off, defeating the purpose of the rule to begin with  would need a large bureaucracy to manage this problem).

Front 160

Two main issues in eminent domain cases

Back 160

•Generally, what constitutes just compensation
•And; generally, what constitutes as public use (what are the outer limits of public use)

Front 161

What is the main issue in regulatory takings cases?

Back 161

when is the regulation so strict that it will be such that government has taken your land and requires you to be compensated

Front 162

Harvard Prof. on Takings Doctrine: What are his two main points?

Back 162

1) Takings law is always a compromise between cost of compensation (not just dollar outlay but also cost of identifying, negotiating, litigating, and setting up administrative state to pay)…when these costs are high, we should prefer not to compensate  otherwise, good regulation will be deterred by the costs
2) De-Moralization: If we do not compensate people for losses from government regulation, they will be disinclined to invest in property.
 He thinks the court has been struggling with finding ways to balance these two perspectives in concrete case.
• Physicality is a good rule. It is rare, so doesn’t have to be compensated that often. Although losses are small in physical occupation cases, the occupation is very visible. This can create high de-moralization costs, so we should compensate in this instance (balancing the two factors).

Front 163

Regulatory Taking: What is the harm v. benefit test?

Back 163

•Altman on Harm v. Benefit: 1) Altman doesn’t believe this, but a common reasoning is a “Harm v. Benefit” analysis. Basically, if the government is attempting to prevent a harm to other people, you cannot be compensated. (This is supposed to be analogous to asking compensation from the police when they stop you from punching someone). Altman thinks there should be some sort of baseline rule. Like if government gives aesthetic regulation saying your building is ugly, ugly compared to what? Nothing? A Beautiful building? Need some sort of baseline for comparison.
•Court has abandoned this argument. (Altman says this)

Front 164

Regulatory Taking: Regulation goes too far (from Pennsy Coal)

Back 164

- Goes too far test determines if a regulation is a taking in the area between a per se taking (ppo) and a per se NOT taking (nuisance).

Front 165

Sup. Ct. take on conceptual severance

Back 165

Rejected

Front 166

Two main factors on Goes too Far Test

Back 166

- Loss (is it about dollar loss, percentage loss, loss of what (all of assets, parcel of land) a great deal is left ambiguous, are we concerned about what has been taken away or what you have left all left ambiguous and to be worked out in Penn Central)
-Importance of government goal (not only the purpose but how well tailored it is)

Front 167

Doctrine of Merger

Back 167

If Life Estate and a Vested Remainder or reversion come into the hands of the same person, any intermediate Contingent Remainders are destroyed. If the two vested estates were acquired at different times, this rule applies.
 IF THEY WERE ACQUIRED AT THE SAME TIME, the doctrine of merger does NOT apply. The Contingent remainder still exists.
• Example:"To Bob for life, then if she lives to 21, to Sue for life, then to Alice." LE  CR  VR
o If S not 21, and B buys A's VR, they merge and S's interest ends. Terrible opportunity for collusion to cheat S out of her CR.
o Problems w/ DoCR: Easy to draft around; Opportunity for collusion

Front 168

Rule in Shelley's Case

Back 168

Applies to one type of grant (Life Estate  future interest to heirs). ("To B for life, then to B’s heirs"). Heirs have a contingent remainder b/c we don't know A's heirs until he dies, creating too much uncertainty. B can't negotiate to sell this property.

Front 169

The Doctrine of Worthier Title

Back 169

The Doctrine of Worthier Title states that when there is a conveyance or devise to a person, with a remainder or executory interest to the grantor’s heirs (not heirs of the grantor’s body), no future interest is created in the grantor’s heirs; rather, the grantor retains a reversion.