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270 Cards in this Set

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  • Back
What is the Unanswerable Question?
Defining the term property; Ordinary people define property as things owned by people; But in law, property is defined as rights among people about things.
What is Legal Positivism?
The USA view that property rights arise through government. Johnson v. M'Intosh (1823) established that land claims could only rely on laws of the federal government, not on natural law (not with native americans).
What is Natural Law Theory?
As opposed to Legal Positivism, rights arise in nature (not govt) because of fundamental justice as stated in the Declaration of Independence.
What's the Scope of Property Rights?
Limited, not absolute, and exist as long as they service a socially useful justification.
Property as a Bundle of Rights / Bundle of Sticks? What's in the bundle?
1) The right to exclude (halmark of USA property law), 2) The right to transfer, 3) The right to use, 4) possess, 5) alter, 6) enjoy fruits.
If property concerns rights among persons in relation to things, then what are these things?
Real Property: rights in land and its attachments; Personal Property: rights to things other than land: 1) chattels 2) intangibles.
Why Recognize Private Property? What is the justification of private property?
Important questions b/c the justification affects the substance of property law. USA property law is a mixture of competing theories.
What is First Occupancy or First Possession?
It's about first-in-time rights where the first person to take occ/poss owns it; explains the evolution of property rights but doesn't fully justify private property.
What's the Utilitarian Traditional Theory?
Utilitarianism: property rights exist to maximize the overall happiness/utility and to promote the general welfare of society; the base theory of USA property law.
What's the Utilitarian Law and Economics Approach?
The application of economic principles to utilitarianism (promotion of gen wel) through property law; however, perhaps social value cannot be measured only be economic factors (i.e. willingness to pay, market, etc.)
What's Liberty or Civil Republican Theory?
Private property rights supports democratic self-government, but has waned due to real conditions.
Personhood theory?
Justifies broad property rights over items that people's well-being is so closely connected emotionally and psychologically to.
What's a Starting Point of Property Rights?
Since wild animals in nature are not owned, the rules governing their acquisition are a good starting point for law in USA.
What are the 3 main points of the general capture rule?
1) Basic: The first person to kill or capture a wild animal acquires title to it; 2) Pierson v. Post. Pierson was allowed to keep a captured fox even though his actions were rude and interrupted Post's original Fox hunt; 3) One still owns a tamed animal if it escapes; this is not the case if the animal is still wild.
The Capture Rule fails because...
It encourages the destruction of wild animals.
What's a difference b/w the Rights of English and American Landowners?
English landowners enjoy constructive possession of wild animals on their land while American landowners, since they may exclude others from their land, have the exclusive opportunity to capture wild animals on their land.
What has substantially eroded the capture rule?
Government regulations and restrictions but the gov't still doesn't own wild animals.
What's a Starting Point of Property Rights?
Since wild animals in nature are not owned, the rules governing their acquisition are a good starting point for law in USA.
What are the 3 main points of the general capture rule?
1) Basic: The first person to kill or capture a wild animal acquires title to it; 2) Pierson v. Post. Pierson was allowed to keep a captured fox even though his actions were rude and interrupted Post's original Fox hunt; 3) One still owns a tamed animal if it escapes. This is not the case if the animal is still wild.
The Capture Rule fails because...
it encourages the destruction of wild animals.
What's a difference b/w the Rights of English and American Landowners?
English landowners enjoy constructive possession of wild animals on their land while American landowners, since they may exclude others from their land, have the exclusive opportunity to capture wild animals on their land.
What has substantially eroded the capture rule?
Government regulations and restrictions but the gov't still doesn't own wild animals.
What's the rule of fox hunt Pierson v. Post case?
Property in wild animals is only acquired by occupancy, and pursuit alone does not constitute occupancy or vest any right in the pursuer.
What's constructive possession?
A legal fiction that allows for control over real property (wild animals on one's land) w/o actually having physical control of the same assetts.
What's the rule of the whale Ghen v. Rich case?
Custom determines ownership of the dead washed-up whale b/c of the nature of this whale industryallowed for eventual possession of one's killed whale.
Rule of geese Keeble v. Hickeringill case?
Damages may be recovered for the intentional frightening of game of another's land.
Jacques v. Steenberg Homes
The right to exclude is valid in the context of purposeful and unapologetic trespass for the sole benefit of the trespasser.
State v. Shack
custom determines ownership of the dead washed-up whale b/c of the nature of this whale industryallowed for eventual possession of one's killed whale.
Common law limits on the Right to Exclude:
1) Consent, 2) Estoppel, 3) Necessity, 4) Public policy, 5) Prescription/forbidden (i.e. assaults, or othercrimes on your property).
Statutory limits on RTE:
1) Civil Rights Acts, 2) American with Disabilities Act, 3) State laws on equal accommodations, 4) Federal labor laws.
Prah v. Maretti (1982)
A neighbor may be granted relief from another that obstructed the neighbor's solar panels from the sun.
Armory v. Delamire (1722)
The sweeper boy's first possession of jewelry is good title against all the world including the jeweler who found it, except those having a better title.
Hannah v. Peel (1945)
The finder of the brooch has a superior title than the owner of the locus in quo on which the lost/unattached property was found.
McAvoy v. Medina (1866)
An object thus placed and neglected to be removed (mislaid) belongs to the shopkeeper and not the finder.
Johnson v. M'Intosh (1823)
Native Americans had the right of occupancy but not ultimate title to their lands, and so could not sell land to private US citizens following Natural Law conepts.
The requirements for adverse possession (CHANCE):
Continuous, Hostile, Actual Entry, Notorious/Open, Claime of Title/Right, Exclusive (land cannot be shared with other adverse possessors).
Van Valkenburgh v. Lutz (1952)
Despite virtually meeting requirements for adverse possession, Lutz's admission of VV's ownership of the land deemed his claim void along with the court's interpretation of lack of improvements/ownership.
What does color of title refer to?
A claim to title which appears valid but may be legally defective. IOW, having a deed colors one's title to show ownership.
Mannillo v. Gorski (1969)
Constructive adverse possession; an AP's continuing possession w/o hostilily (No CHANCE ) of 15 of property still exhibits the requirements for adverse possession.
Howard v. Kunto (1970)
Adverse possession of land B while mistaking it for land A is legal.
O'Keefe v. Snyder (1980)
Statute of limitations beings to run upon the discovery of the disposession, not upon the discovery of the latest owner; tacking is permitted to show succession of titles to bar suit for return of property.
The 3 dominant factors over finders' rights:
1) the presumed intent of the original owner (misalid, lost, abandoned), 2) the identity of the competing claimants, 3) the location where the item was found (mislaid, lost, abandoned).
Who is a finder?
A person that takes possession (1 intent to control, 2 control) of mislaid, lost, or abandoned property.
Four traditional categories of found property:
1) abandoned (intentional/voluntary relinquish of ownership), 2) lost (neglect/inadvertence), 3) mislaid (intent to retain ownership but fails to reclaim or forgets it), 4) treasure trove (unknown owner, kept for safekeeping)
Discover Rule (3):
1) Use of due diligence at the time of the alleged theft and thereafter; 2) Existence of an effective method to notify authorities; 3) Whether the use of the effective method is effective in putting reasonably prudent purchaser on constructive notice that someone else is the true owner.
Adverse possession of chattels rule (3):
1) Dicovery Rule (NJ); 2) Demand and Refuse Rule (NY); 3) Conversion Rule
What is Fee Simple & Fee Simple Absolute:
An estate in land, the most common way real estate is owned in common law countries, and ordinarily the most complete ownership interest in real estate.
Two ways of thinking about cultural property:
1) Cultural internationalism which protects the interests of acquisitive nations; 2) Cultural nationalism which protects the interests of source nations.
Inheritance of a Fee Simple (HIACE):
1) Heirs are persons who survive the decedent and are designated as intestate successors under the state's statute of descent; 2) Issues are descendants and take to the exclusion of all other kindred; 3) Ancestors are persons who take as heirs when no issues are present; 4) Collaterals are collateral kin when others do not exist; 5) Escheat occurs when no heirs are found and the property goes to the state.
The now abolished Fee Tail is:
An estate of inheritance in real property which cannot be sold, devised by will, or otherwise alienated by the owner; every fee tail has a reversion or remainder after it.
The Life Estate is:
An estate in real property that ends at death; O to A for life, and O has a reversion.
A lawsuit for Waste and 3 kinds of waste:
Can be bought against a tenant or lessee of leasehold estate either by O or future-interested who has changed the condition of the real property; 1) Voluntary (if waste condition existed, then its ok), 2) Permissive (Failure to maintain/repair/pay-taxes of the estate), 3) Ameliorative (An improvement upon the estate even if it increased the value).
Modern US Fee Simple law (3):
1) Presumption of FSA ownership unless proven otherwise; 2) For efficiency in the economy; 3) Alienable property allows for easy quite of title actions.
O to A forever and ever:
Does give FSA ownership as forever and ever serve as words of limitation upon grantor.
O to A and its successors and assigns:
FSA as latter words serve as words of limitation upon the grantor.
O devises to A for life:
Provides a life estate not FSA ownership as for life are not words of limitation upon grantor; a future interest is created as a reversion to O at A's death, if O also dies then vested remainder goes to O's heirs.
What is reversion?
A part of an estate that is retained by the grantor.
What is remainder?
A part of an estate that is owned or transferred by a third party.
O to A for 10 years (tenancy for a term of years):
A Fee Simple Determinable not FSA, reversion in O after expiration of time.
O devises to A and her heirs provided that she marries:
A Fee Simple Subject to Executory Limitation; A has an executory interest; O's heirs have a fee simple subject to executory limitation.
O to A for life, unless she remarries:
Defeasible Life Estate and not FSA ownership.
O to A for life of B:
Life Estate autre vie; Life Estate during Another's Life; No FSA ownership so no alienability powers in A.
O to A for life, then A to M:
Life Estate in A while A is alive and M and its heirs only have a future interest (Life Estate Autre Vie).
O to A for life and remainder to B and his heirs, B then dies intestate and A dies too:
No FSA, Life Estate in A; Remainder in B but upon B's death Escheat.
O to granddaughter and her heirs on her father's side:
Not FSA as its defeasing; More properly phrase as To Sarah for life and Remainder to her heirs on her father's side.
Define operation and operator of a will, deed, and intestate:
1) Devise, devissee; 2) Conveyance, grantor; 3) Death and no will, heir.
Rule of White v Brown (1977 own-will posits tenancy and no future sale):
The restraint on alienation of the home devised to petitioner devisee did not evidence a clear intent to pass a life estate and was insufficient to overcome the presumption that a fee simple interest was conveyed.
Restraint on property alienation is discouraged b/c (4):
1) Un-marketability, 2) Perpetrates concentration of wealth, 3) Discourages improvements, 4) Prevents creditors from reaching the property.
O to A and the heirs of his body:
A fee tail, not FSA. A very rare estate on land only respected by a few states; NJ construes fee tails as FSA ownership instead.
Rule of Baker v Weedon (1972 remainderman v maintenance of a life tenant):
As life tenant's reasonable needs may give rise to a sale of a part of the land for those needs if no agreement can be made with remainderman.
Rule of Woodrick v Wood (1994 remainderman children fight over tearing of rotting barn):
Tearing down the rotting barn results in gross but not net waste leading to ameliorative waste (an increase in property value); therefore, ameliorative waste isn't waste and no cause of action arises.
Freehold estates (3):
1) Fee Simple 2) Fee Tail 3) Life Estate
What is seisin?
Was possession of a particular kind and with peculiar consequences; no longer differentiated from possession in modern times.
Types of future interests of transferor (3):
1) Reversion (A transferor's right to future possession) 2) Possibility of reverter (A transferor's right to future possession determinable on the happening of an event) 3) Right of entry or termination (A transferor's right of entry subject to condition subsequent and retain the power to cut short the estate).
Types of future interests of transferee (3):
1) Vested Remainder (a future interest that becomes possessory upon natural expiration of preceding estate) 2) Contingent Remainder (a future interest that doesn't become possessory solely upon natural expiration of preceding estate) 3) Executory Interest (a future interest that divests another estate except when a remainder divests a reversion)
O devises to A for life, then one year later to B (3 points):
1) Life Estate in A 2) O has reverter in FSA 3) B has springing executory interest in FSA (shifting executory interest if it concerned transferee-to-transferee transfer).
O conveys to A for life, but if B aces Property class then to B upon As death (3 points):
1) Life Estate in A 2) Contingent remainder in B (shifting); a condition precedent that when fulfilled (a contingent remainder becomes a present interest).
To A for life, then to B and his children (2 points):
1) Life Estate in A 2) Vested remainder in B and his children; But if A is still alive, then NO vested remainder in B and his (in)determinable children.
To A for life, then to B and B's children if B survives A (2 points):
1) Life Estate in A 2) Contingent Remainder in B and his children bc of condition precedent that B survive A.
To A for life, then if B has married, to B and his heirs, or if he hasn't married, to C (3 points):
1) Life Estate in A 2) Contingent remainder in B and his children 3) Contingent Remainder in C.
To A for life, then to B if B turns 21 (3 points):
1) Life Estate in A 2) Reversion in O 3) Executory Interest in a remainder in B (O retains reversion if A dies and before B's age of 21; Reversion is cut when B turns 21 and so divests A).
To A for life, then to A's children and their heirs, but if at A's death no children, then to B and his heirs (4 points):
1) Life Esate in A 2) Contingent Remainder in A's children in FSA 3) Alternative Contingent Remainder in B and his heirs 4) Reversion in O always the case when contingent remainders exist.
To A for life (with 2 kids at conveyance), then to such of A's children that survive him. But if none surivive A then to B (4 points):
1) Life Estate in A 2) Reversion in O 3) Contingent Remainder in A's children in FSA subject to open 4) Contingent Remainder in B.
Leasehold estates are:
nonfreehold possessory estates; leasehold tenants do not have seisin (the landlord does) but does have possession; today it is usually not necessary to distinguish seisin from possession.
Defeasible estates are:
any estate that may terminate prior to its natural end point upon the occurrence of some specified future event; for example a life estate ends naturally at the death of the life tenant but a defeasible life estate might end earlier.
Type (3) of defeasible fees:
1) FSD (fee simple ends when an event happens; automatic forefeiture; so long as) 2) FSSCS (fee simple cut short when a stated condition happens; forefeiture not automatic; but if; presumed FS) 3) FSSEL (fee simple ends upon execution of a limitation; automatic forefeiture).
Rule of Mahrenholz v County Board of School Trustees (property for school purposes only case):
Court reversed and remanded lower court's decision, holding inclusion of the word "only" in the granting clause of the fee simple in deed created a fee simple determinable; Therefore, plaintiff entitled to pursue claim for quiet title even though grantor's inheritor had never reentered property.
To A for life, then to Rutgers law for purposes of the centennial celebration only:
1) Life Estate in A; 2) Contingent Remainder in Rutgers law; 3) If FSD, then ONLY is a term of duration; If FSSCS, then ONLY is a term of condition.
5 types of Dead Hand Control:
1) Fee Tail 2) Fee Simple Determinable 3) Fee Simple Subject to Condition Subsequent 4) Fee Simple Subject to Executory Limitation
3 categories of restraints on the legal power of alienation:
1) Disabling Restraint (direction that prohibits alienation) 2) Forefeiture Restraint (direction to forefeit property if conveyee alienates) 3) Promissory Restraint (direction that conveyee promises not to alienate property).
Rule of Moutain Brow Lodge v Toscano (fraternal lodge property case):
The grantor cannot place a restraint on alienation because it is an essential stick in the bundle, however a restriction on the use of the land is NOT a restraint on alienation even if that is its effect; Lodge 82 may sell their land to whomever they like, but only they can use it.
Suppose a parcel of land (owned in FS defeasible with a future interest to grantor-heirs) is taken via eminent domain; how is the payment distributed?
The holder of the FS takes the entire condemnation award; the holder of the reversionary interest takes nothing.
Rule of Ink v City of Canton (gifted city land for park-use case):
Since the city decided to sell off most of the land to appropriate the highway, they should not be entitled to receive profit from land they got free in the first place, however they should be reimbursed for costs associated with structures on the land.
Rule of City of Palm Springs v Living Desert Reserve (FSSCS for equestrian-land-use case):
Since the condemnation proceeding made breach of the condition reasonably imminent, the Living Reserve was entitled to be compensated for 100 percent of the value of the unrestricted fee in the land.
? may be only action to help one protect a future interest:
Waste - a cause of action that can be brought in court to address a change in condition of real property brought about by a current tenant that damages or destroys the value of that property.
Differences between Contingent Remainder and FSSEL (2):
1) CR never divests the Owner 2) FSSEL always divests the preceding estate like FSD.
The future interests recognized in our legal system (2):
1) Interests retained by the transferor (reversion, possibility of reverter, right of entry OR power of termination) 2) Interests created in a transferee (Vested remainder, Contingent remainder, Executory interest).
To A for life and nothing else results in?
The grantor or grantors heirs having a reversion in fee simple that is certain to become possessory at As death.
To A for life then to B and her heirs if B survives A results in?
The grantor having a reversion in FS that is not certain to become possessory; if B dies before A then grantors reversion in FS is certain to become possessory; if A dies before B then grantors reversion is divested on As death and will never become possessory.
O conveys property to Hartford School Board as long as used for school purposes results in?
O having a possibility of reverter as the owner carved out of his estate a determinable estate of the same quantum.
O conveys property to Hartford School Board but if it ceases to use the land for school purposes O has the right to reenter and retake results in?
O having a right of entry or a power of termination as O transferred the estate subject to condition subsequent.
A remainder created in an ascertained person and is ready to become possessory at preceding estates termination:
Vested Remainder as 1) its given to an ascertained person and 2) property isn't subject to a condition precedent other than the natural termination of the preceding estate.
A remainder created in an unascertained person and is not ready to become possessory at preceding estates termination:
Contingent Remainder as 1) its given to an unascertained person and 2) property transfer is subject to a condition precedent other than the natural termination of the preceding estate.
O conveys to A for life then to B and her heirs results in?
Life estate in A; An indefeasibly (FSA) vested remainder certain to become possessory upon As death; if B dies before A then Bs remainder passess to Bs devisees or heirs or escheats to the state.
O conveys to A for life then to As children (just B) and their heirs results in?
Life estate in A; A defeasible vested remainder in B subject to open to let in later-born A children; if no A children at conveyance then remainder is contingent because of unascertained taker.
O conveys to A for life then to heirs of B results in?
Life estate in A; Contingent Remainder in heirs of B because heirs are unascertained until B dies; Note that heirs refer only to persons who survive B and are designated as such.
O conveys to A for life then to B and her heirs if B survives A results in?
Life estate in A; Remainder subject to condition precedent in B.
O conveys to A for life then to B and her heirs if B survives A and if B does not survive A to C and his heirs results in?
Life estate in A; Contingent Remainders subject to conditions precedent in B and C; IOW alternative contingent remainders in B and C; If B then not C and vice versa; Since CR then reversion to O possibility.
O conveys to A for life then to B and her heirs but if B does not survive A then to C and his heirs results in?
Life estate in A; Vested remainder in FS subject to divestment in B; C has a shifting executory interest which can become possessory only by divesting Bs remainder.
The rule for classifying future interests after a life estate (2):
1) If the first future interest created is a CR in FS then a second future interest will also be a CR in FS; 2) If the first future interest created is a VR in FS then a second future interest will be a divesting executory interest.
An executory interest is a future interest in a transferee that must, in order to become possessory (2):
1) divest or cut short some interest in another transferee (shifting executory interest) 2) divest the transferor in the future (springing executory interest); Not modern.
A fee simple that, upon the happenning of a stated event, is automatically divested by an executory interest in a transferee:
A Fee Simple Subject to an Executory Interest.
O conveys to A and his heirs but if A dies without issue surviving him to B and her heirs results in?
A having a possessory fee simple subject to an executory limitation (or subject to divestment by Bs executory interest); Bs future interest can become possessory only by divesting A.
O conveys to A for life then to B who is now 15 and her heirs but if B dies under the age of 21 to C and her heirs results in?
B has a vested remainder in FS subject to an executory limitation (or subject to divestment by Cs executory interest if B dies before 21).
Executory interests are ordinarily treated as ? because they are subject to a ? and do not vest until they become possessory.
Contingent interests; condition precedent.
O conveys to Hartford School Board so long as the premises are used for school purposes then to Town Library results in?
School board has a determinable fee and Town library has an executory interest.
O conveys to school board so long as premises are used for edu purposes during Os lifetime; if board allows non-edu purposes then land reverts to O results in?
Under 3rd restatement: board has a fee simple defeasible and Os interest is simply a future interest.
O conveys to A for life then to B if B survives to age 21 results in?
Historically, CR interest in B and reversion interest in O during As life and prior to B reaching 21; but via 3rd rstmnt its a future interest in B and a future interest in O.
O conveys to school board so long as premises are used for edu purposes otherwise reverts back to O results in?
Under the 3rd Rstmnt the School Board has a Fee Simple defeasible, and Os interest is classified simply as a future interest.
O conveys to school board so long as premises are used for edu purposes if the school board allows the premises to be used for non-edu purposes during Os life then land reverts back to O.
Under 3rd Rstmnt school board has a Fee Simple Defeasible and O has a contingent future interest bc its not certain to become possessory.
O conveys to A for life then to B but if B dies before A then to return to O.
Under CL B and O have vested remainders subject to complete defeasance (divestment); under the 3rd B and O have a contingent future interest bc theyre not certain to become possessory.
O conveys to A for life then to As children (at conveyance X and Y).
Under CL during As X and Y have a vested remainder subject to open (see executory interests in As unborn unadopted children); Under 3rd X and Y have a vested future interest subject to open while unborn unadopted children have a contingent future interest subject to open (contingent bc not certain to become possessory).
Does a possessory estate in fee simple absolute have reversionary or nonreversionary future interests?
No and no.
Which of the (3) defeasible fee simple possessory estates have reversionary or nonreversionary future interests?
1) FS Determinable has possibility of reverter so only has reversionary future interests; 2) FSSCS has right of entry (power of termination) so only has a reversionary future interest; 3) FSSEL only affects future interests of transferees via executory interests so only has a nonreversionary future interest.
Rule that no interest is good unless it must vest within 21 years after some life in being at the creation of the interest.
Rule Against Perpetuities to limit the control over the disposition of wealth forever into the future; Btw if an intervivos conveyance case then operating date is the moment of the transfer; otherwise the operating date is the date of death of the grantor.
To A for so long as the property is used for agricultural purposes then to B.
A has a future interest under FSSEL; B has an executory interest in fee simple (vests when property is not used for agri purposes).
To A for life then to B if B has perfect attendance in property class.
A has a life estate under FSSEL; B has an executory interest in fee simple (vests when B has perfect attendance).
O devises to A for life then to As first child to reach 30 (At Os death A is childless).
A has a life estate and O has a reversion; due to As children having a contingent remainder which is RAP-applicable and also bc child will not be 30 within 21 years of Os death.
To A for life then to As grandchildren.
A has a life estate; As grandchildren have vested remainder subject to open; O has reversion if O has no grandchildren; RAP applies according to other facts such as As children having kids within 21 years of Os death.
2 steps in applying RAP:
1) Does it apply and 2) Does it excise a clause in the grant.
To A for life then to the first child of A to clerk on the SC.
A has life estate; Children have vested remainder subject to open and executory interest in clerking; RAP may apply if a child doesn't clerk for the SC within 21 years of Os death.
O conveys to A for life then to As children for their lives then to B if B is alive and if B is not alive to Bs heirs.
Life estate in A; As children have vested remainder subject to open; B and Bs heirs have alternative contingent remainders; RAP may apply bc of interests involved.
O devises to grandchildren (3 under 21 at the moment) who reach 21.
Validting lives are 2 children bc their procreative capabilities may affect taking; Nothing is excised from the statement as grandchildren may reach 21 as per RAP; See different treatment if this was a conveyance instead where O is the validating life and not the children.
Devises pertain to transfers of property during this time.
After the grantors death.
Conveyances pertain to transfers of property during this time.
During the grantors life.
RAP doesnt apply anymore in NJ since abolishment but still exists in bar exams.
O conveys to A for life then to As widow if any for life then to As issue then living.
A has life estate; As widow has a vested remainder; As issue then living has a contingent remainder; 1) RAP applies to CR in As issue then living 2) The final clause may be excised as its possible that it not vest within 21 years due to unborn widow scenario.
O transfers a sum in trust for A for life then to As first child to reach 21.
A is the validating life and has a life estate; First child to reach 21 has a vested remainder if no children then reversion in O; RAP doesn't apply as any existing child will be 21 as per RAP and will.
O transfers a sum in trust for A for life then to As first child to reach 25.
RAP applies as any existing child may or may not be 25 and not meet RAP; No validating life and contingent remainder is void.
O conveys Blackacre to the school board so long as its used for a school.
The school board has a fee simple determinable; O has a possibility of reverter exempt from the RAP.
O conveys Blackacre to the school board but if it ceases to use it for school O has right to re-enter.
The school board has a fee simple subject to condition subsequent; O has a right of entry exempt from the RAP.
O conveys Blackacre to the school board so long as it is used for a school then to A and her heirs.
The school board has fee simple determinable; RAP applies and excises last clause; Leaves only possibility of reverter in O.
O conveys Blackacre to the school board but if it ceases to use Blackacre for school to A and her heirs.
The school board has a fee simple subject to (a purported) executory interest; RAP applies and excisees entire last half of statement; So leaves FSA to school board.
O conveys to A for life then to B but if B dies before A and then to C.
Under 3rd B and C have contingent future interests bc theyre not certain to become possessory; Under CL and during A and Bs life C has an executory interest (since if B died before A then C wouldve divested Bs vested remainder and become a vested remainder).
Common law concurrent interest type 1:
1) Tenancy in Common allows for separate but undivided possessory interests in the property; each have a right to posess ALL of the property notwithstanding their right of possession; owned in fractional shares for example.
Common law concurrent interest type 2:
2) Joint Tenancy is based on (TTIP Unities; if no TTIP then Tenancy in Common) in that interests must be acquired at the same Time same Title identical Interest right to all Possession concepts; JT can be conveyed but cannot be willed; however as a right of interest it does follow survivorship; If JT conveyed then survivorship is destroyed.
Common law concurrent interest type 3)
3) Tenancy by the Entirety (TTIP Unities and Marriage) cannot be transferred without spousal consent; partition is not readily available unless divorce is sought.
A joint tenancy helps avoid:
Probate at the joint tenants death because JT is the practical equivalent of a will.
(Huff v Metz 1996) Inasmuch as the joint tenants interest ceases at death:
A joint tenant has no interest that can pass by will (Huff v Metz 1996).
(Rembe v Stewart 1986) Inasmuch as the joint tenants interest ceases at death:
A creditor cannot seize anything from a deceased joint tenant; If the jt is alive then creditor can seize and sell the joint tenants interest in property thereby severing the JT.
Traditionally a JT cannot be constituted by persons with unequal shares:
Today a JT may be held by people with unequals shares and may take proportional profit as well; presumption of equals shares rebuttable by evidence of contrary intent.
Rule of Riddle v Harmon 1980 (severance of JT case at death and devise):
A joint tenant may unilaterally end a JT when that joint tenant has died and conveyed the land to a separate party; Iow one joint tenant may unilaterally sever the joint tenancy without the use of an intermediary devise.
Severability of joint tenancy is based on modern need for (2):
Marketability and alienability of property.
If A conveys interest to C upon joint tenancy dissolution from B.
Survivors of A no longer receive property as they are now tenants in common with B; Iow transfer of JT interest destroys the right of survivorship only as to that interest; Obvious with 3 or more actors in JT scenario.
Joint tenancy can be conveyed but cannot be willed but as a right of interest it may follow surivorship.
If JT is conveyed thereby destruction of survivorship.
Rule of Harms v Sprague (1984 brothers in JT case; the one who mortgaged died):
A joint tenancy may NOT be severed when less than all of the joint tenants mortgage their interest in the property; a lien on the joint tenants interest in property will not effectuate a severance of the joint tenancy absent the conveyance by deed.
To A B C as joint tenants; If A conveys to D then B dies intestate leaving H as heir then state of title:
1) Bs death severs his interests in JT 2) B C remain JTs giving C right of survivorship 3) D is now third tenant in common with twothirds C (look for survivorship text); H gets nothing.
T devises to A and B as joint tenants for their joint lives remainder to the survivor then state of title:
1) A and B have life estate in joint tenancy measured by either ones death 2) Survivor has contingent remainder in fee simple 3) Reversion in T and Ts heirs as their is always a reversion in a life estate scenario.
Should a bank take on the risk of a mortgage without all joint tenants?
Yes if bank is well informed they may have all interested parties execute an interest document.
Whats the Uniform Simultaneous Act?
Alleviates the problem of simultaneous death by considering decedents as predeceasing each other simultaneously and allows the inheritance to be divided 5050 among their closest living relatives (heirs); best outcome as JTs cannot be created without 4 unities.
O conveys to my wife for life remainder to each of my children to graudate from Rutgers.
Wife has life estate; Children have contingent remainder; JT may not be construed as Time of TTIP may not be simultaneous.
The action of partition of property is available to (2):
Tenants in common or any joint tenant it is unavailable to tenants by the entirety.
Rule of Delfino v Vealencis (1980 partition request by one tenant in common):
Partition in kind ruled by CT SC over partition by sale bc the latter forces someone else to sell their land without their consent; P in kind was feasible geographically and theres no need to prejudge what zoning would approve; however p by sale are most common in real world.
Rule of Spiller v Mackereth (1976 coownership of tuscaloosa building benefits and burdens case):
In absence of an agreement to pay rent or an ouster of a cotenant a cotenant in possession is not liable to his cotenants for the value of his use and occupation of the property; before an occupying cotenant can be liable for rent in AL they must have denied a cotenant the right to enter which can only happen if there is a demand or an attempt to enter.
Rule of Swartzbaugh v Sampson (1936 only one joint tenant leases property to another case):
One joint tenant can execute valid leases while the other joint tenant cannot maintain an action to cancel the leases where the lessee is already in possession of the leased property; note risk of being in a joint tenancy.
Rule of Sawada v Endo (1977 widow against creditors case):
Creditors of one of the spouses may not reach property held in tenancy by the entirety during the spouses joint lives; see Married Womens Property Acts.
Rule of In re Marriage of Graham (1978 supportive wife and mba husband divorce case):
An MBA degree does not constitute marital property subject to equitable division by the court; property is anything that has exchangeable value; a degree is not something that can be exchanged for money; not transferable; not alienable; not solely vested; not devisable; terminates at death; nonassignable; no surrender value; personal achievement.
Marital interests in property are governed by the governing jurisdiction and is based on (3) areas.
1) Common law 2) Married Womens Property Act 3) Rights at marriage, divorce, and death.
At common law, these are 2 governing ideas over marital property.
1) Coverture when a womans legal rights were subsumed by those of her husband and 2) Dower for supporting a wife in the event that she should survive her husband.
The Married Womens Property Act.
Allowed married women to own and control their own property; Mississippi was first state in 1839.
Rights at marriage regimes (2):
1) Separate Property Regime NJNY and other states where each spouse owns what they brought into the marriage (Equitable Division allows for distribution of property (any that was acquired by either spouse during the marriage) on equal terms under the circumstances); 2) Community Property System where all gains belong to and owned by both spouses and the interests are unconveyable.
Rights after death regime (1):
1) Elective Share allows a right to elect between a willed share or a statutorily provided share (NJNY).
Rule of Elkus v Elkus (1991 divorcing opera singer case):
Under NY property law, the celebrity status and wealth gained during a marriage is a divisible item in divorce proceedings to the extent that dfs contributions and efforts led to an increase in the value of the pls career; This appreciation was a product of marriage and therefore marital property subject to equitable division.
Equitable Distribution Law deemed marital property as the effect of an economic partnership.
It is the nature and extent of the contribution by the spouse seeking equitable distribution that should determine the status of the enterprise of marital property.
Rule of Varnum v Brien (2009 Iowa samesex marriage case):
That denying samesex couple the right to marry is unconstitutional.
4 types of leasehold estates:
1) The Term of Years (fixed start and end dates) 2) The Periodic Tenancy (fixed periods that continue until either gives notice of termination) 3) The Tenancy at Will (endures so long as both desire) 4) The Tenancy at Sufference or Holdovers (arises when a tenant remains in possession after termination of the tenancy and results in eviction or consent of the holdover tenancy).
Rule of Garner v Gerrish (1984 right of tenant to terminate lease as per K case):
A lease that grants the right to terminate the lease to the lessee soley creates a determinable life tenancy; does not reserve to the landloard a similar right.
Limites on RTE in sales and leases (4):
1) NJ Antieviction Act 2) Civil Rights Act of 1866 (covers racial discrimination in holding selling and ads) 3) Fair Housing Act covers 7 types of discrimination in ads and in regard to one-dwelling 4) Other state and local law prohibiting discrimination in housing decisions.
Fair Housing Act 3603 and 3604 rules:
3603a Application to certain dwellings; 3603b Single unit homes FHA exempt, multi unit homes not FHA exempt; 3604 No discrimination in the sale or rental of housing and other prohibited practices.
One BR apt in 10unit building, prefer tenant who can speak Portuguese (FHA violation?)
3604 ad violation because of intention to discriminate on national origin; if allowed would be an opportunity for abuse.
Building manager rejects would be tenant for having too many children for a small apt (violation?)
Civil Rights Act may not apply; Perhaps a FHA 3604 violation based on familial status; Procedurally the P presents prima facie case then the burden shifts to the mgr to rebut the prima facie case.
Broker refuses to rent bc she is latina and black female (violation?)
CRA may apply due to racial element of refusal; May be a 3604 violation and this single-unit home is actually not exempt as owner doesnt reside at the property.
T arrives ready to take possession at the start of the lease and finds a former tenant holding over (Is this Ts problem?).
See Hannan v Dusch 1930 case where an implied covenant to deliver possession does not exist in the lease because the lessee has a statutory remedy; there is an implied covenant in such cases on the part of the LL to assure to the T the legal right of possession.
Sublease or assignment determination case in re 1964 TN gocart racing track?
See Ernst v Conditt where leases must clearly and unambiguously have intended a sublease; Otherwise in light of the surrounding circumstances 1) an assignment arises when the lessee transfers his entire interest under the lease; anything less results in a sublease and reversion in the lessee and 2) the intention of the parties is persuasive but not conclusive.
Can a lessor arbitrarily refuse a proposed assignment when a lease contains such an approval clause?
Yes but for growing minority rule see Kendall v Ernest 1985 commercial lease case where Kendall sought consent from the new lessor Ernest to approve existing 25 year lease on premises; As there is No commercially reasonable objection to the assignee of the lease (Kendall) or the proposed use.
The growing minority rule of limiting lessor-refusals in lease agreements has been adopted bc (2):
1) Based on conveyance of a lease and reasonable alienation of commercial space 2) Based on contract of the lease, good faith and fair dealing.
Is a landlord entitled to self help in barring a tenant in possession?
No see Berg v Wiley 1978 case where DF LL should have sought judicial help in barring PL from premises; a departure from CL rule of retaking possession if 1) LL is legally entitled to possession 2) LL means of reentry are peaceable.
Summary proceedings are a?
Quick and efficient means by which to recover possession (or rent in some jurisdictions).
Is a landloard bound to mitigate damages much like standard contract law by making reasonable efforts to relet an apartment wrongfully vacated by a defaulting tenant?
Yes see 1977 Sommer v Kridel case which established a new rule that LLs must make a reasonable attempt to mitigate their losses when a T surrenders or abandons their leased property.
(2) LL remedies and security devices:
1) Rent and damages calculation in the leases 2a) Security deposits 2b) Other techniques
(2) LL duties (Tenants rights and remedies):
1) Quiet Enjoyment and Constructive Eviction 2) The Implied Warranty of Habitability
May flooding violate the express covenant in the leases of quiet enjoyment such that it would constitute constructive eviction and if so was DF covenant to pay rent dependent on the quiet enjoyment covenant?
Yes see Reste v Cooper 1969 flooded offices case which rendered the premises unfit for occupancy and substantially impaired the Ts quiet enjoyment of the property and thus terminated the lease without liability for any futher rent.
Majority of states view constructive eviction as serving as a substitute for dependency of covenants; Minority of state apply more general contract doctrine of dependence of covenants.
Thereby allowing a T to vacate premises when the LL committed a major breach but not so substantial as to amount to a constructive eviction.
The illegal lease doctrine which allowed a tenant a remedy for illegal unsafe premises led to:
See Hilder v St Peter 1984 Rutland apt building case in which there is an implied warranty of habitability from a LL to a T that the leased property is fit to live in and that it will remain so during the term of the lease; at a minimum the leased premises must be safe and sanitary.
Implied warranty of habitability doesnt render pointless the doctrines of quiet enjoyment, constructive eviction, and illegal leases because (3):
1) Not adopted by all states 2) Doesnt apply to single family homes; agri leases; longterm leases; casual leases; 3) Majority of states do use implied warranty in commercial leases.
Standard and breach of the implied warranty of habitability:
1) The objective is safe and healthy housing; substantial compliance is required; 2) There have been cases that loud noise or bed bugs have breached the standard.
Remedies (2) for breaches of the warranty:
1) Hilder outcome; reimbursement of all rent monies 2) Or the T withholds rent retains possession and have the agreed rent reduced.
Damages (3) for breaches of the warranty:
1) The diff bw the value of the dwelling as warranted and the value of the dwelling as it exists in its defective condition; 2) Diff bw rent and rent for unfit apartment; 3) Rent is reduced by percentage equal to the lost leasevalue due to the breach.
If a LLs staff go on strike and cause vermin to flourish does it breach the warranty of implied habitability?
Yes see Park West v Mitchell 1979 nyc case.
May a LL be liable for breaching the warranty of habitability for common areas and apartment specific conditions?
Yes as to the problems with the common areas as they prevented the premises from serving their intendend function of residential occupation but No as to the apartment specific problems as they did not render an apartment unsafe or uninhabitable; See Solow v Wellner 1995 NY case.
May a LL be liable for breaching QE covenant or IWH when allowing a sex offender to move in to a family?
Yes a tenant may breach his lease under these circumstances as LL couldnt offer QE and not breach IWH; see Knudsen v Lax NY 2007 case.
May a tenant use breach of IWH as a defense when he moved in fully knowing about the deplorable conditions?
Yes see Haddad v Gonzalez 1991 case.
May a LL be subject to tort liability?
Yes in some jurisdictions see Sargent v Ross NH 1973 case that held that LL must exercise reasonable care not to subject others to an unreasonable risk of harm; but the majority of states hold to the conventional common law exceptions.
(2) Tenants duties (LLs rights and remedies):
See Rumiche 1976 NY case of not to code property improvements as being permissive waste which provided the foundation of the tenants duty to repair (mostly negated today due to warranty of habitability).
A nuisance and 2 American types that interferes with your interest in and private use and enjoyment of your land:
Private nuisance; 1) Nuisance per se which is a nuisance at all times; liability for it is absolute; and injury to the public is presumed; decided by a judge; 2) Nuisance per accidens decided by a jury instead as a nuisance in fact issue to be determined by the jury.
A nuisance that unreasonably interferes with a right that is common to the general public:
Public nuisance which offends the public at large; usually acted upon by govt entities such as EPA DOJ etc.
May a refinerys existence on a neighboring tract of land to PLs landowners represent a nuisance when its smells and noises invade the neighbors lands?
Yes see Morgan v High Penn Oil 1953 oil refinery case where DFs continued operations present the threat of an irreparable injury to PLs.
5 elements for liability for private nuisance:
1) Intentional invasion via acts for purposes to harm and LL know harm is substantially likely to result from nuisance; 2) Nontrespassory harmful conduct 3) Unreasonable interference if the gravity of the harm outweights the utility of the DFs conduct 4) Substantial interference if a normal person living in the community would regard as such 5) Interference with use and enjoyment of land.
May a corp operating loud air conditioners be liable for a private nuisance and have to cease its operation of the private nuisance?
No today but see Estancias v Schultz 1973 AC case where the court used the doctrine of comparative injuries and still ruled in favor the plaintiffs.
May a cement company be liable for private nuisance and have to cease its operations?
No see Boomer v Atlantic Cement 1970 case where the court engaged in a cost-balancing analysis and granted an injunction which the court would vacate after the DF paied permanent damages; note law and economics approach in nuisance law and property law.
Does coming to a nuisance usually bar relief?
Yes but see Spur Industries v Web Development 1972 AZ Sun City and feedlot case where a public interest at play could not preclude the public (Sun City) from being protected from the nuisance bc of populous-area statutes that prefered to protect residents from nuisance as long as the P paid damages to indemnify the defendant.
An unreasonable interference with a right common to the general public:
Public nuisance.
An unreasonable interference with the right of specific people:
Private nuisance.
Four rules governing nuisance claims resolutions:
1) Abate the activity in question by granting P injunctive relief (Morgan and Estancia) 2) Let the activity continue if D pays damages (Boomer) 3) Let the activity continue and deny all relief (opposite of Morgan and Estancias) 4) Abate the activity if the P pays damages (Spur).
Can a solar-using neighbor get an injunction against a neighboring constructiont that would block sunlight?
Yes see Prah v Maretti 1982 case because now 1) society regulates the use of landowners for the general welfare 2) sunlight has taken new roles in todays society and 3) the need for rapid development is no longer present (which governed the past rationale in part).
Does zoning violate the right to property when they are attempted regulations via the police power reasonably?
No see Village of Euclid v Ambler Realty 1926 case because the ordinances were made for the public welfare, rely on police power, are dependent upon the local circumstances and conditions; and are not arbitrary decrees.
The structure of authority underlying zoning (2):
1) Enabling legislation via the exercise of police power to protect health safety welfare and morals by delegating the police power for zoning to local governments; 2) the comprehensive plan as a guide or blueprint for the local zoning boards decisions.
May a zoning ordinance require amortization and discontinuance of a lawful preexisting but now nonconforming use?
No see PA NW Distributors v Zoning Hearing board 1991 case where the court held the ordinance unconstitutional for being per se confiscatory without evidence of appellants use being obscene unlawful nuisance or abandoned and without providing just compensation.
If a zoning ordinace diminishes the value of land may an invested business owners existing now-nonconforming use be protected over another noninvested owner of affected land?
Yes the invested owner has demonstrated intent on the land and apparent damages from the ordinance while the other owners claims are more abstract; One has used his land productively while the other has not; see vested rights doctrine.
Does the right to maintain a nonconforming use run with the land?
Yes a nonconforming use may survive changes in ownership.
Ways to terminate nonconforming uses:
Destruction by act of God or otherwise usually terminates it and so too for abandonment which requires intent to abandon the nonconforming use; See Toys r us v Silva 1996 case where the nonconforming use was lost because it was substantially discontinued for two years; complete discontinuance was not necessary for loss of the privilege.
Do courts in about two dozen states approve amortization techniques?
Yes as long the amortization requirement is reasonable by 1) the nature of the use in question 2) the amount invested in it 3) the number of improvements 4) the public detriment cause by the use 5) the character of the surrounding neighborhood and 6) the amount of time needed to amortize the investment.
Vested rights doctrine and estoppel:
The rule of zoning law by which an owner/developer is entitled to proceed in accordance with the prior zoning provision where there has been a substantial change of position, expenditures or incurrence of obligations made in good faith by an innocent party under a building permit or in reliance upon the probability of its issuance; a preexisting operation is protected while mere plans to engage in some use are insufficient.
May a developer rely on a permits validity without proceeding on good faith and making all inquiries as to the permits validity as are expected of a reasonable person?
No see Parkview Assocs v NYC 1988 case where the owner must proceed with good faith and make all reasonable inquiries into the permit.
Why is achieving flexibility in zoning important?
Euclidean zoning can work inequitable hardships, promote inefficient patterns of land use, slow new and needed construction, and inhibit socially and aesthetically desirable diversity.
(2) Types of mechanisms for achieving flexibility in zoning:
1) Variances as requests for deviations from the prevailing zoning ordinance and 2) Special exceptions (special use or conditional use permits) which allows a specific exception to the zoning regulations from a list of acceptable exceptions.
To avoid a taking these are the four factors for a variance to be granted:
1) Unnecessary hardship by showing reasonable efforts first to comply and hardship is not self inflicted 2) Needed for reasonable use 3) No alteration of essential character of the neighborhood and 4) Request is the least instrusive solution.
Does undue hardship involve the underlying notion that no effective use can be made of the property in the event the variance is denied?
Yes see Commons v Westwood 1980 case that reversed denial of a variance because of undue hardship.
Are personal hardships (need for mods for handicapped people) relevant in granting variances?
No if existing violations exist and are relied upon as a basis for further violations see Aronson v Stoneham 1965 and Crossley v Pelham 1990 that held personal hardships are irrelevant.
May a self imposed hardship foreclose a buyer from being granted a variance?
No generally if the buyer stands in the same position as the seller in regard to being granted a variance; Yes it does foreclose variances if the self imposed hardship is outright and blatant.
Is the burden of proof greater for a use variance (allowing commercial use in a residential area) than for an area variance (dimensional; having to do with setback requirements)?
Yes see Hertzberg v Zoning Board of adjustment of Pittsburgh 1998 case.
The factors for determining grants of special exceptions from zoning ordinances:
See Cope v Brunswick 1983 case that held an ordinance that grants a broad delegation of power to make or not make zoning exceptions based on a Zoning Board’s assessments of health, safety, welfare and essential property characteristics could lead to selectivity in enforcement of the law and discrimination; health safety welfare is best left to the legislature than a local board.
Are zoning amendments allowed for spot zoning requests?
Yes see State v City of Rochester 1978 condo bldg case that held any rational basis (deferential treatment) related to health safety welfare and morals will uphold a a zoning or rezoning classification; rational basis and deferential standard is consistentn with the characterization of zoning as a legislative act.
Spot zoning (the improper and broadened permission (relative to adjacents) to use an island of land) is invalid because of these factors (3):
1) Small parcel is signled out for special treatment 2) Benefits a private party greater than the public 3) The treatment is not in accord with a comprehensive plan.
Are controls on household composition by local ordinances constitutional?
Yes see Village of Belle Terre v Boraas 1974 strict residential zoning case that held the police power is a valid basis for limiting the number of unrelated individuals that may inhabit a dwelling; But see Moore v East Cleveland 1977 City of St Barbara 1980 and others for a less deferential view by state courts.
An alternative for plaintiffs affected by local household composition ordinances:
Seeking a variance through established local procedures; a city may be able to accomodate these requests better than the courts.
Are an owner and seller liable under the FHA for not selling a property to an interested and capable group home organization?
No See Advocacy Service v Babin 1994 as the sale did not affect the availability of housing.
All zoning is exclusionary by definition because:
Its central purpose is to minimize or eliminate unwanted effects; externalities; in a given district be they typical nuisances or preferences to single family homes.
Holding of Mount Laurel I:
That zoning ordinances which make it physically and economically impossible to provide low and moderate income housing were unconstitutional; This decision mandates a state constitutional obligation for every municipality in a growth area to provide a fair share of its regions present and perspective housing needs for low and moderate income families.
Exclusionary zoning techniques:
1) Controls on minimum housing cost (invalidated as having no rational relationship to advancing public health and safety) 2) Minimum housing size (mixed treatment) 3) Minimum lot size (justified by conditions in the community); Related techniques: 4) Prohibitions on mobile homes (mixed but not upheld more recently with better mobile homes) 5) Prohibitions on multifamily housing.
Private arrangements (2) as the means of land use control:
1) Servitudes (a non posessory interest in land that operates like a covenant that runs with the land) 2) Nuisance law ().
(2) More activitist courses by the government for land use control:
1) Regulations 2) Taking (eminent domain).
The power of govt to force transfers of property from owners to itself and its requirements:
Eminent Domain via the 5th amendments confirmation of the power; eminent domain being a inherent attribute of sovereignty as long just compensation is provided and its exercised for public uses.
Does govt taking of property from one private owner to another in furtherance of community enjoyments of economic growth constitute permissible public use under the 5ths takings clause?
Yes see Kelo v City of New London 2005 that used a broad reading of the takings clause as being coterminous with the scope of the sovereigns police powers (iow as long as the taking serves is in the public interest as an exercise of the police power must be).
A pragmatically sound reaction to Kelos broad interpretation and use of ends test for the takings clause:
That state courts and legislatures are free to impose stricter public use requirements thant the Court itself saw fit to do.
Just compensation has been held satisfied by what type of payment?
A payment based on market value.
(3) Categorical rules for physical occupations and regulatory takings:
1) Loretto (any permanent physical presence is a taking no matter how inconsequential the taking is) 2) Hadacheck (any regulation for the public welfare health or morals is not a taking) 3) Lucas (any regulation that removes all economic benefit from land is a per se taking).
Does the NJ state govt effect a taking when they build sand dunes on private beachfront property after a storm?
Yes see Klumpp v Borough of Avalon 2010 since the borough had taken inconsistent positions toward the status of the property in taxes and town maps.
Are land accretions due to avulsions the property of the adjacent owner or the state?
The state see Stop the Beach v Florida DEP 2010 case that had no rights to future accretions and to contact with the water superior to the state's right to fill in its submerged land and any further seaward accretion became property of the state.
Is an Act constitutional that removes mining rights under land despite existing contractual and property rights?
No see Pennsylvania Coal 1922 under surface of land mining case because it was not a legitimate exercise of police power and any regulation that is not a nuisance and works too great a burden on property owners.
Penn Coal 1922 case dissenter:
Brandeis reasoned that the regulation did not take all of a smaller thing but just a part of the whole property.
Takings analysis in Penn Coal:
1) Diminuition in value (relative to what; absolute terms) 2) Public interest 3) Reciprocity of advantage.
What is the denominator problem?
The larger ownership whose part is being subjected to regulation; since the regulatory taking of a part of it (the numerator) is not compensable. IOW Homes denominator was just Penn Coals under surface rights while Brandeis denominator was all the entire land (PA segmented by 3 estates of air, land, subsurface).
Does a landmark law that restrains an owner from completely reconstructing a property a taking of property under the 5th?
No see Penn Central v City of New York 1978 case because the landmark law did not interfere with what must be regarded as Penn Centrals primary expectation concerning the use of the parcel (making a profit).
If Penn Central holds then what type of compensation can owners enjoy that have their development rights regulated?
Transferable Development Rights (TDRs) which offers owners the right to use unused transfer or sell development rights on other participating properties.
Does an Act which desprives someone of their home erection rights unconstitutional?
Yes see Lucas v SC Coastal Council 1992 beachfront property case that held it a total takings as 1) the degree of harm to public lands or adjacent property was small 2) the social value of such regulated activities was small and 3) the relative ease of avoiding the measure by the govt was small.
3 major questions in takings analysis:
1) Is there property concerned 2) Is there an applicable per se rule 3) If noen then see penn central test outcome; compare with other cases.
Does a claimant waive his right to challenge a regulation as an uncompensated taking by purchasing property after the enactment of said regulation?
No see Palazzolo v RI 2001 coastal wetlands case because such a principle 1) creates a statute of limitations on a constitutional right 2) prejudices owners by impairing owners ability to transfer land 3) creates two classes of owners rights; old and new.
The right to use the real property of another without possessing it:
Easements are helpful for providing rights 1) of way 2) Of support for excavations 3) Of Light and air 4) Of artificial waterways all at common law.
Does a former owners conveyance of an easement in land to a 3rd party carry over when a new owner takes possession?
Yes see Willard v 1st Church of Christ 1972 california church parking case even though the former owner had not notified the new owner of the reserved right belonging to the 3rd party (the church).
Difference between an easement and a license:
Revocation; a license is revocable unless 1) the license is coupled with an interest (a profit a prendre; profit motive) 2) the license cannot be revoked because rule of estoppel (cannot be barred bc of facts therefore practictially treated as an easement in rstmnt 3rd of property).
Does at least tacit approval by one owner to another for use of a private roadway for home construction general improvements and maintenance establish an irrevocable license to use the roadway?
Yes see Holbrook v Taylor 1976 private roadway case where the rule of estoppel made a license to use a roadway irrevocable.
Are existing hidden sewer lines on a property subject to protection by an apparent easement when the owner purchases and uses the home as such?
Yes see Van Sandt v Royster 1938 shared sewer line case because the quasi easement was passed at conveyance and necessary to the continued usefulness of the land.
Does a landlocked landowner have an easement by necessity and or by prescription (implied) to a private roadway based on prior use?
No see Othen v Rosier 1950 TX private roadway case that held 1) no implied easement bc the deed did not show that the roadway was a necessity 2) roadway use was purely permissive and not ripe for prescription 3) no showing that prior owners adverse possession of same roadway property.
The right to use anothers property for a specific purpose:
Affirmative easement.
A restriction on a right to prevent an otherwise lawful activity on anothers property:
Negative easement.
May owners erect a gas station on property that the town records imply were always strictly meant for residential purposes?
Yes see Sanborn v McLean 1925 case as the plaintiffs were bound by constructive notice under the recording acts in regards to the property in question.
May owners argue that lands are not subject to a covenant when lands were purchased in a judicial sale?
No see Neponsit v Emigrant Bank 1938 case that held the covenant to run with the land as the deed contained an covenant to run with the land was clearly intended to run with the land touched and concerned the land and there was privity of estate bw the parties.
Are racially discriminatory covenant constitutional?
No see shelly v Kraemer 1948 restrictive covenant case because the Ps were denied their rights of ownership or occupancy enjoyed as a matter of course by other citizens of different race or color.
May homeowners enforce restrictive covenants and enjoin construction of a business by the developer who originally subjected the lots to the restrictive covenant?
Yes see Western Land v Truskolaski 1972 residential subdivision case that held the developer failed to show that the changed conditions or that the purpose of the restriction had been thwarted even if there was more profit to be had with other commercial uses.