Deb Bergman
Petherbridge Property Outline 2010-2011
I. THE ACQUISITION OF PROPERTY RIGHTS
A. GENERAL – WHAT IS PROPERTY?
A bundle of rights between people with respect to things (tangible and intangible).
Usually consists of up to four rights, though many forms of property consist of less
or have them to a lesser extent:
1) To possess
2) To use
3) To exclude others from possessing or using
4) To alienate (dispose of the property by sale or gift)
B. THEORIES OF PROPERTY/JUSTIFYING PROPERTY LAW
1. Natural Right Justifications:
William Blackstone – First Occupancy Theory (associated w/ but didn’t create)
Recognizing more permanent rights in ppl who are first to grab something
out of the commons (rather than transient rights, just while you’re in
possession of it) b/c:
Preserves peace and order – no more private armies
Encourages productive use of resources by allowing ppl to hold them
for longer than the moment in which they actually possess them. Ppl
can now become drs/lawyers/etc instead of running around grabbing
food for themselves
John Locke – Labor Theory
How do you become the owner of stuff you produce?
You own yourself and your labor
Once you mix labor with/put work into something, then you should
own that too.
1st one to put work into it is entitled to it.
Property is a natural consequence of your existence – normative
Problems with this – scale of the mixing/productivity of the work
Someone paints on a canvas. Who owns it? Canvas-maker or painter?
Pour bottle of pepsi into the ocean, do you own the ocean?
2. Philosophical, not natural right, Justifications:
Jeremy Benthum – Utilitarianism – fundamental philosophy of property law
Purpose of law is to make everyone’s life better (property law is a means to
an end). Judge rules by whether society is better of with them or without
them.
Rights b/w people in relationship to things (it’s not about you and your
chapstick, it’s about you and someone else w/ relationship to your chapstick)
Problem with this – who decides what is good for society?
Harold Demsetz (pg 12 of class notes)
Externality – the effect of someone’s use of are source on other people that
they’re not forced to take into account (can know about it tho).
Are not always problematic – ex: where resources are plentiful and
ppl are concerned w/ other things, it may not be socially harmful
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Petherbridge Property Outline 2010-2011
Internalizing – transaction costs
Holdouts – hold out until the buy-out price goes way up
Free-riders – expect others to put in the buy-out money instead of
themselves
Property rights develop when – internalizing the externality is cheaper than
the externality.
Tragedy of the commons – overuse/depletion – when transaction
costs keep socially beneficial transactions from happening = overuse
of communal resources that ppl should be able to manage but can’t
b/c transaction costs are too high
Tragedy of the Anti-commons – underuse – each person owns a part
of something needed to make something bigger. The bigger thing
won’t be made b/c transaction costs are too high to make things that
are socially useful.
Property rights can keep transaction costs down – when you have to
negotiate with the entire village about the risk to communal property
if you cut a tree down vs only with the four people who own land
around you.
Coase Theorum – in a (fictional) world w/out transaction costs, it won’t matter who
you give property rights to. Things will move towards everyone’s social benefit.
Who you give property rights to decides who gets rich and who doesn’t.
Rights make someone wealthier than someone else = moving money around.
C. TANGIBLE PROPERTY RIGHTS
Rule of Capture – First to grab something out of nature (possess something)
establishes their ownership over it – Pierson v. Post.
1. What if someone owns the land?
Landowners don’t own wild animals on their land just b/c its their
land. So we have laws against trespassing. Trespassing builds
conflict, economic waste (ppl spend time figuring out ho to steal
instead of how to do other productive things)
2. What if the animal escapes?
Generally courts say the animal returns to its natural state. Finder’s
ownership rights are extinguished.
Pierson v. Post
Property rights in wild animals by possession where you’re the first
to: 1)Intent to possess it and 2) kill it, capture it (deprive it of its
natural liberty), or mortally wound and pursuit it w/ intention of
appropriating it. Awards the kill.
Policy = makes it easier to adjudicate a case and gives more notice
when you have a bright line rule that’s certain its application –better
for peace in society. Promotes competition (you have to get better at
killing foxes if you want to own them).
Dissent: pursuit with a reasonable prospect of capture should give
property rights. Awards effort.
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Petherbridge Property Outline 2010-2011
D. INTANGIBLE PROPERTY RIGHTS
Rule:
There are no property rights in facts
Cheney Bros rule: People’s property is limited to their chattels and others
can imitate these at their pleasure. If you want to have property rights in
something intangible, you must:
1) Find a statute that gives it to you (like the patent act)
2) OR find CL that gives it to you
Like in INS which is still good law, though Cheney Brothers is
dominant rule (no property rights). Hardly any CL so INS is
probably limited to its facts
3) If you can’t find it there, there is no property right and people can
copy it.
Theory:
Tragedy of the Commons and Intangible property: diff than tangible b/c
there is no threat of overuse – knowledge/information can be used by many
people at once/non-rivalrously (unlike a pen) so tragedy of the commons
may not be implicated as strongly
Tragedy of the Anti-Commons and Intangible property: information could be
underused if ppl stop putting in effort b/c others can use it by stealing it from
you w/out effort.
Cases:
INS v. AP
Facts: INS steals APs news from bulletins (after publication). Argues
news is public info and socially valuable.
Holding: Court holds that as to the two competitors, AP had property
rights in the news that survives publication b/c of unfair business
practices concerns. INS is unfairly competing b/c they don’t feel the
cost of news collection
Cheney Brothers v. Doris Silk Corp.
Facts: Doris copies Cheney’s successful patterns (which they’ve paid
people to create and also created many other patterns that aren’t
successful) and undercuts their price.
Holding: Unless statute or CL gives you a property right to something
intangible, no rights and ppl can copy it. Competition is good b/c it
lowers the price of goods and creates better products.
POSSESSION BY CREATION AND INTELLECTUAL PROPERTY
Theory for giving property rights in intellectual property:
If protecting information is bad b/c it limits use, there must be a good utilitarian
reason for having it that outweighs the bad:
Encourages ppl to innovate by allowing them to reap the benefits/profits of
their innovation.
We help ppl define their existence when we give them rights to property.
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Creates defined, discrete package of rights out of otherwise intangible
information that ppl can now transact around. Promotes putting info into
public sphere b/c you’re not afraid to share it. Encourages disclosure and
dispersion of information. This means other ppl can use the info to engage in
more innovative activity.
E. COPYRIGHT
1. Copyrightable subject matter:
1) Applies to original works of authorship
Required originality is very low bar
Facts:
Facts are not copyrightable b/c they are not original and
copyright rewards originality, not effort
Compilations of facts could be copyrightable (though copyright
is thin – only as to the expressive/arrangement aspect of it) IF
they are compiled in a creative way.
But you could spend 5 yrs working on a phone book and
if it’s not creative, you get no copyright b/c it’s only
uncreative facts – see Feist v. Rural
Copyright is cabined by not protecting facts but allowing
protection of: selection, coordination, compilation,
arrangement/relation of facts
Government works:
Generally, no copyright in gov’t works (like judge opinions or
statutory text).
2) Fixed in a tangible medium of expression
Much less disputed than original authorship
Words on paper, records, any way you can tangibly fix info and
reproduce it from whatever you’ve fixed it on.
Ideas:
Ideas are not copyrightable b/c they are not tangible and
copyright rewards tangible things not intangible creativity
Otherwise, we would give ppl a monopoly on ideas and
that would .
Copyright protection for an original work does NOT extend to
ideas, procedures, processes, systems, methods of operations,
concepts, principles, or discoveries regardless of the form in
which they are described. Only to original works that describe
these ideas. Not the ideas themselves. (Section 102). See
Baker v. Seldon.
Property rights start as soon as the tangible thing exists and last until
75 yrs after the author’s death.
Strong property rights of copyright lead to policy of wanting to
narrow the scope of protection
Fact/Expression Dichotomy – Copyright protects expression but not the factual
aspect of the things you express.
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Petherbridge Property Outline 2010-2011
Feist v. Rural
Facts: co takes names out of phone book to publish their own phone
book, which covers a much larger geographic area.
Holding: ct says no copyright infringement b/c copyright didn’t cover
what Rural took. It was only facts compiled in a completely unoriginal
way – alphabetical order.
Idea/Expression Dichotomy – useful information is not protected by copyright.
Copyright protects expression but not the ideas/useful functional aspects of the
things you express.
Baker v. Seldon
Facts: Seldon made book explaining how to do accounting w/ forms at
the end. Baker used those forms. Seldon claims copyright
infringement
Holding: Close relationship b/w utility of the forms and method of
bookkeeping -> thin copyright -> only covers the book not the system
so no infringement when someone uses the system, necessarily using
the form.
Merger or Idea/Expression Inseparability – an extension of Baker v. Seldon - the
idea and what you have to do to express it are so closely intertwined that you can’t
really pull them apart. Giving copyright to the expression essentially gives
copyright to the idea so therefore there can be no copyright.
Morrisey v. Procter and Gamble Company
Facts: Morrissey wrote sweepstakes rules. P&Gs rule 1 is very similar
to Morrissey’s.
Holding: No copyright. There is originality here but when an idea can
only be expressed in very few ways it’s not copyrightable b/c it would
create a monopoly over the idea and that’s not what copyrights do.
Other courts say there is copyright but it is very thin
2. Copyright in pictoral, graphical, and sculptural works
Rule:
A sculptural work must have expressive features separate from and
capable of existing independently of the utilitarian function of the
sculpture to be copyrightable
Conceptual separability – exists where design elements can be
identified as reflecting the designer’s artistic judgment exercised
independently of functional influences = copyright. If aesthetic and
functional are merged then it’s not conceptually separable.
Brandir v. Cascade Pacific
Facts: Guy creates the ribbon bike rack. First it’s a piece
of art but he changes it (makes it more symmetrical)
and sells it after a friend tells him he could make money.
Holding: no copyright b/c it would go beyond aesthetic
to the utilitarian and that’s not copyrightable.
Dissent: if an ordinary reasonable observer perceives
an aesthetic concept not related to the article’s use,
there should be copyright in that.
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Deb Bergman
Petherbridge Property Outline 2010-2011
3. Scope of the Exclusive Right of Copyright
Must first determine:
1) What is copyrighted;
2) The scope of the copyright based on the subject matter.
Infringement = copyright trespass. Two types of infringement:
1) Copying –
No liability where D created work independently w/out
knowing of the copyrighted work but this is hard to prove.
2) Improper Appropriation – are the works substantially similar in
the eyes of an ordinary/reasonable observer? Defines the boundary of
the right to the property.
Fair Use Doctrine – a limit on the scope of the right – you can
copy some stuff for a good purpose (criticism, comment, news,
teaching, scholarship, research) up to a point where it becomes
unfair. Purpose is to encourage use of information, etc.
Copyright Act section 107. Four factors to aid in
determination:
1) Purpose/character of the use (commercial nature vs
non-profit education)
2) Nature of the copyrighted work
3) Amount and substantiality of the portion used in
relation to the copyrighted work as a whole
4) The effect of the use on the potential market for – or
value of – the copyrighted work.
Nichols v. Universal Pictures
Facts: Man writes play about Jewish/Catholic families in
NYC in the 20s. Son and daughter get engaged, have
baby, families reconcile. Universal makes a movie with
a similar general theme.
Rule: Stereotypic characters/plots are not
copyrightable. They are part of the public domain. As
you get more specific, from plot to details to actual
words of the play, you get more copyright protection.
Holding: No infringement b/c none of the details were
taken, only the basic general plot.
Harper & Row v. Nation Enterprises
Facts: Pres Ford signed K w/ H&R to write a book. H&R
signed K w/ Time to release an exclusive teaser. The
Nation got a hold of it and published juicy bits of the
manuscript. Time voids the K.
Holding: Nation infringed on the copyright b/c their
purpose was commercial, was not done in good
faith/fair dealing, it had a negative effect on the worth
of the copyright, it took away the copyright holder’s
right to first publication, and used the heart of the
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copyrighted work even though the actual amount taken
was small.
F. PATENTS
1. Patentable Subject Matter
General:
Justified leg and constitutionally by the same language as copyright
Statutory property system that’s based on private enforcement
Patent prosecution - Must apply and give money to the patent office and go
through the patent examination system.
Most of the time the office says no.
Appeal – can take 2-10 years
= must more difficult/expensive than copyrights
Patents give you 20 years from the date of filing of the application (NOT the
date you get the patent). Much more valuable than copyrights though.
When it expires all the information falls into the public domain. No
more property rights.
Policy:
Encourage production of new and useful information by giving property
rights so ppl can exclude others/license it out = accounts for
underproduction when ppl can freely use anyone’s work, which is what can
happen w intangible property
The market decides how valuable something is. Patent system, like
copyright, set up w/ market-based reward as the incentive. Creates a market
around the info that ppl can participate in. Helps to push resources around in
a helpful way.
Technological history of the US
Cons:
Diminished utility by excluding ppl = more expensive and perhaps less
advanced products.
Adds costs to the system, transaction costs -> tragedy of the anti-commons
particularly w/ respect to things that require aggregation of lots and lots of
rights = discourages innovation
Rigorous, expensive process may discourage ppl from applying/inventing
General rules:
Rewards new, non-obvious utilitarian things/inventions
Non-obvious – beyond what a person w/ ordinary skills could come
up with. New - must be big enough jump in existing knowledge to
justify a patent
Patentable Subject matter (35 USC 101)
ANY new and useful process, machine, manufacture, or composition of
matter or any improvement thereof
Broad statute b/c we can’t predict the future
You can patent living things. As long as you’re w/in one of the
four SM areas and the product is of human ingenuity, you
probably have patentable SM – see Diamond v. Chakrabarty
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Petherbridge Property Outline 2010-2011
Cases:
You look at things as a whole, not as their composite parts –
Diamond v. Diehr
Limitations: CL puts some limits on this - can’t patent laws of nature
(like algorithms), physical phenomena (animals), or abstract ideas.
Must be any application of it to the real world PLUS the law of
nature, pp, or abstract idea
IE – mountain goat’s kidney is not patentable but it is once you
add water, blend it and strain it = not naturally found in nature.
It’s prepared in a new way – see Parke-Davis
Policy – encourages ppl to discover things in nature and turn
them into useful things for humans. Pharmaceutical
companies.
Other things may limit whether or not you can patent your invention
like section 102 which requires sufficient novelty or non-obvious
invention but patentable SM just has to fit into one of these four
categories.
Diamond v. Chakrabarty
Facts: Scientist creates genetically engineer bacteria by combining
DNA from 4. Can break down oil much more. Tries to get a patent and
is denied b/c it’s a living thing.
Holding: The bacteria is a composition of matter and a manufacture.
As such it is patentable subject matter.
Parke-Davis & Co v. HK Mulford Co
Facts: Scientist tries to patent purified adrenalin
Holding: It is patentable SM b/c it is no longer something found in
nature and did not exist for the service of humans before the inventor
made it. You can patent products of nature/physical phenomena if, by
adding human ingenuity to it, you so separate it from its natural
circumstances that it becomes a new thing.
AWARD HARD WORK AND DETERMINATION. Doesn’t look anything
like how it is in nature.
Diamond v. Diehr
Facts: Tried to patent a process for rubber molding that used a
computer, and a known algorithm. Patent office denies b/c can’t
patent algorithm or the computer and the process is known.
Holding: Process IS patentable SM b/c it’s new process using an old
equation. If you want to patent an algorithm you basically have to
have legitimate/significant steps on either side that take it out of the
abstract and make it real.
2. Scope of the Exclusive Right of Patents – Infringement
Claim on your patent/patent application defines the legal scope of your property
right
Defines who you can exclude from making, using, or selling the SM of your
patent. The name of the game is the claim.
B/w issuance and expiration of patent = Patent Enforcement
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Petherbridge Property Outline 2010-2011
Experimental Use Defense – the patent version of Fair Use, but much more narrow
Use is allowed if it is for the SOLE purpose of amusement, to satisfy idle
curiosity, or for strictly philosophical inquiry. If you’re in one of these
categories and not benefiting commercially, then you can get defense.
Madey v. Duke University
Facts: Stanford prof moves patented lab to Duke, quits, leaves lab there, Duke
continues to use it. Prof sues for infringement. Duke says non-profit univ
and using the lab for research so experimental use defense applies.
Holding: Ct says no defense. D has burden of proof and didn’t meet it. Duke
makes lots of money off the lab through grants.
G. OWNERSHIP OF BODILY TISSUES
Rule:
Some bodily tissues can be property w/ the right to sell them for certain purposes
(blood and semen/eggs) but for the most part a person is not permitted to sell her
organs/tissues. Cts are afraid of commodifying body parts. Could be bad policy b/c
ppl would be economically coerced to sell body parts.
Moore v. Regents of the University of California
Facts: UCLA doctors took out mans spleen and lots of other tissue samples and used
them for research w/out telling him and made tons of money. He sues for
conversion.
Holding: Once UCLA took the cells out of Moore’s body he no longer retained
ownership interest in them = could not sell them or collect money gained during
scientific/commercial research. More does not have property in his spleen. Patietn’s
interests are outweighed by social benefit of medical research and a patient has a
right to informed consent before surgery.
Dissent: He should have property rights, just not the full bundle of rights, like we do
for lots of stuff.
II. THE SUBSEQUENT ACQUISITION OF PROPERTY RIGHTS
A. FINDERS
Rule:
Finders must 1) form intent to possess an unpossessed object and 2) perfect
possession (by capture) – from Pierson v. Post.
Finders hold the property in trust for the benefit of the true owner.
They have superior title to all the world but the true owner - Armorie v.
Delamirie
Subsequent finders have better title than later finders but worse title than
previous finders, and obviously no title as against the true owner
Protects true owner by always returning it back temporally to the first
finder, the person closest to him that had possession of it.
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Discourages stealing/violence. Also encourages possessor to put it to
good use and found items will thus make their way back into
commerce. B/c no one will be trying to take it. Helps settle title.
O > P1 > P2 > Pn
SO P2 can trover P5
Trover – damages for wrongful taking of personal property
Farther left has stronger rights even if P1 is a thief.
Finder who sells the item must give proceeds of the sale to the true owner
under principles of restitution.
Exception – Voluntary Bailment
When true owner voluntarily gives property to someone and then it is lost,
true owner is barred from recovering.
Where P2 trovers P5 but then later the true owner trovers P5:
True owner can prevail against P5. To the extent P5 suffered damage, he can
sue P2. P5 bears the risk of loss if he can’t find P2.
Conflict b/w owners of real estate and finders of property on the real estate
General Rule:
If it’s in the land, attached to the land, or under the land it goes to the
landowner over the finder – Elwes v. Brigg Gas Co.
Mislaid – where the owner intentionally places the item in a certain place and
later forgets to collect it. Landowners acquire title to mislaid property b/c
true owner is more likely to remember and come back whereas true owner
doesn’t know who P1 is so they wouldn’t be able to find them - McAvoy
Lost – Property that has not been intentionally left by the owner – usually
goes to the finder b/c less likely the true owner will be able to figure it out
and come back – Bridges v. Hawkesworth
Abandoned – owner voluntarily and intentionally relinquishes ownership
with the intent to give up title and possession. Abandoned property becomes
common property, subject to the rule of capture.
SOL:
Usually prevent ppl from suing far in the future for recovery of property.
Usually statutory by state.
Cases:
Armory v. Delamirie
Facts: Chimney sweep boy finds jewel, brings to jeweler who offers
him $$. Boy refuses but jeweler refuses to give him the jewel back.
Holding: the finder has property rights (not absolute or ownership) in
the article superior to all but the true owner. Finder has at least
enough property rights to sustain cause of action (trover) that
requires you to have property.
Hannah v. Peel
Facts: D inherits house but doesn’t live there. Soldier finds a brooch
that’s old and gives to police, who give to D. P claims better property
rights than D.
Holding: True owner is long gone. P is good guy. D never lived in his
house. P has better property rights.
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Petherbridge Property Outline 2010-2011
Bridges v. Hawkesworth – cited in Hanna
Facts: Customer finds money on the floor of a shop
Holding: customer gets to keep it b/c finders in public areas have
superior rights to lost property
McAvoy v. Medina
Facts: Customer finds pocketbook on a table in public area of shop
Holding: Shop owner, not customer, gets to keep it. Greater likelihood
the true owner will get it back than in Hannah.
B. ADVERSE POSSESSION
Justification:
Promotes productive use rather than waste of land.
Follows Lockian theory of owning something you put your work into.
Colonialist, follows regular possession laws of just owning the land you take.
Provides certainty – clears/quiets title/promotes settling of disputes earlier
than 100 years from now.
Often used today in boundary disputes
Elements:
1) Actual Entrance
Must actually enter and possess the land
Starts the SOL for the trespass/ejectment claim
SOLs are longer (favors landowner) or shorter (favors
possessor) and may depend on the type of land/jdx. IE,
general trend that urban states have shorter SOLs to keep
expensive land in productive use
Sometimes shorter SOL for color of title
SOL continues despite a change in ownership
Usually also defines the scope of the possession – how much property
are you possessing?
Possessor usually acquires title only to the property s/he
actually possesses.
Constructive Adverse Possession – one who enters property under
color of title (written instrument that is defective) will gain title to the
entire area described in the instrument even if he only actually
possesses a portion of it.
Unless he doesn’t enter half the land and that 2nd half is owned
by someone else.
2) Open and notorious
Would a reasonable landowner recognize that, given the nature of the
land, someone was possessing it?
Gives notice to the landowner that someone has trespassed
and is acting as possessor – can be constructive b/c this is an
objective test.
An issue in encroachment/boundary disputes and chattels
Possession may not be open and notorious
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Rule for real property: In cases of minor encroachment, open
and notorious is not an objective standard. There is no
presumption of knowledge. Owner cannot have constructive
notice, must have actual notice – Manillo v. Gorski.
4 possible rules for chattels (rationales for each pg 73):
1) Cause of action accrues at time chattel goes missing.
2) Adverse Possession
But open and notorious is difficult to prove in
context of small movable chattels.
3) Discovery/CA rule – MAJ rule – cause of action does
not accrue while someone is exercising due diligence
UNTIL person 1) knows it’s missing AND 2) knows or
should know who took the chattel.
4) Discover and Demand/NY rule – No accrual until 1)
person knows who took it AND 2) makes a demand for
replevy. No mention of diligence.
3) Continuous for the statutory period
No SOL for remaindermen (future interest) until they have possession
Includes seasonal use, where appropriate (an ordinary land owner
would act the same way)
May include pauses. Ordinary landowners may be threatened
and have to leave their land, litigate a dispute, go on vacation.
So pauses may be allowed BUT WILL BE TAXED (you leave for
6 months, you don’t have to start over but need to add 6
months to SOL)
Cannot abandon the land though. Ordinary landowners can’t
abandon land so if AP does, it is not acting like an owner.
Tacking
May be allowed (adding periods of possession together) if the
current and prior possessor are in privity w/ each other.
Privity = continuity of interest b/c of direct relationship
(family or economic, etc). One person acts like an
owner and gives/sells land to another.
Abandoning the land and then someone else comes on; kicking
someone off = NO tacking. No privity.
Prior possessor has better title than person who kicked
them off though so they can eject the other person.
Disabilities extend the statutory period (effectively SOL never ends if
landowner is alive and disabled)
1) IF at time cause of action for trespass ACCRUES (starts)
2) Landowner has a specified disability:
Minor, incompetent, imprisoned
3) THEN landowner/guardian has extra 10 yrs from the time
the disability is removed
Minor reaches age of majority, incompetent is restored
to sanity, prisoner released from prison.
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Death removes the disability so the heirs do not get an
extra 10 yrs.
No tacking of disabilities (b/c the 2nd doesn’t exist at time of
accrual)
Ex: go from minor to incompetent, incompetent
landowner dies and land goes to 6 year old heir = no
tacking. Disability is removed in both instances.
When disability is removed w/in SOL, cts usually give
landowner LONGER of either 1) remainder of statutory period
OR 2) 10 years
Helps establish that possessor deserves land b/c they’ve put lots of
work into it. Establishes their intent to be the owner.
4) Hostile/adverse/claim of title
Requisite mental state varies by jdx:
1) Good faith mistake
2) Aggressive (knowing) trespasser
3) Doesn’t matter
Why:
Policy of adverse possessor is to put land to good
use so it shouldn’t matter.
What’s left of hostility requirement?
Intent to own the land
Someone who enters with permission can’t
establish AP.
Legal effects:
Adverse possessors acquire title to the land as soon as the SOL is up.
However, if they want a written instrument they have to sue to quiet title in
court and get a record, which they can then use like a deed to sell the land.
Prior owner cannot eject possessor.
AP and land estates:
You can adversely possess against someone w/ a life estate but the
future interest holder does not have opportunity to kick you off so
your adverse possession ends when life estate holder dies.
Jdx’l variation:
Each state has adverse possession statutes. No matter what they say though,
there’s also CL that supplements and is concerned w/ proving the 4
elements. SO you usually must satisfy both.
Equitable remedies when you don’t satisfy all 4 elements:
Force purchase of the land in exchange for title – Manillo.
AP and the government:
Can’t adversely possess against the government
Cases:
Van Valkenburgh v. Lutz
Facts: Makes walkway through property and uses property as his own
for 1) shack; 2) garage over the line; 3) garden; 4) moveable chicken
coops.
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Rule: You only get what you possess. Must have substantial inclosure
OR cultivate/improve.
Holding: Suit 1, Lutz gets walkway, concedes VV owns property. Suit
2, Lutz did not inclose, did not cultivate/improve. Loses on the
adversity requirement. Says: shack doesn’t count b/c he knew he was
not his land. Garage doesn’t count b/c he thought it was his land.
Either way no hostility.
Manillo v. Gorski
Facts: Gorski’s encroached on Manillo’s land by 15 inches when they
fixed stairs to their house.
Rule: no presumption of/constructive notice when it’s a minor
encroachment.
Holding: equitable remedy since Gorski couldn’t show open and
notorious. Forced Gorski to purchase the land and forced Manillo to
give him the title.
Howard v. Kunto
Facts: Everyone lived one unit over from the deed they owned.
Howard gets Kunto’s deed from Moyers in exchange for their deed.
Tries to kick Kunto off b/c Kunto doesn’t actually own that land.
Hasn’t lived there a long time either. Summer home.
Holding: Ordinary use of property is enough to satisfy continuity
(summer use is enough for summer home). Tacking is allowed so
Kunto satisfies adverse possession.
O’Keeffe v. Snyder
Facts: 1946 O’Keeffe has 3 paintings stolen. 1972 she reports it and
1976 she brings her lawsuit.
Holding: Discovery rule says cause of action accrues after you
discover, if you’ve exercise due diligence. Remands to find if she was
diligent/when/if cause accrued.
C. GIFTS
Elements:
1) Intent to make present transfer of an interest
“I give you my furniture” = ok
“I promise to give you my furniture” = not ok b/c no present transfer
2) Delivery – 3 possibilities:
1) Actual Delivery – never any problem
2) Constructive Delivery
Ok when thing transferred is too big. Key.
Constructive transfer where O leaves ring at As house but later
tells A to keep it.
3) Symbolic Delivery
Through a letter
Could argue this is even better b/c it’s a signed writing instead
of someone’s oral testimony that the painting was swung
across the wall and back.
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Ok when gift cannot be delivered b/c intangible property – like
IP or future interest
Inter vivos gifts – cts are less strict b/c no worry about fraud b/c giftor
is still around to affirm/deny giftee’s story.
Causa mortis – cts are stricter b/c concern about fraud. That’s why we
have wills, to ensure no fraud.
3) Acceptance
Presumption of acceptance if gift is economically beneficial to giftee.
Legal effects:
Valid gifts are irrevocable. Giftee now has title.
Cases:
Newman v. Bost
Facts: Housekeeper/mistress receives some gifts from man upon
death and others inter vivos. Key to dresser/furniture w/ insurance
policy inside.
Rule: Must deliver if possible. Constructive delivery ok if too big. No
symbolic delivery.
Holding: Doesn’t get insurance policy b/c no delivery (furniture w/
keys had independent value to her as opposed to a lockbox). Gets
furniture locked by keys – constructive delivery ok where too big. No
furniture NOT locked by keys – no delivery/constructive delivery
occurred. Gets bedroom set b/c intended as gift and delivered to her
part of the house.
Gruen v. Gruen
Facts: Father gives son Klimt painting for 21st b-day but retains
possession for himself for his lifetime. Conveyance is symbolic, in a
letter. Son never has possession. Father dies.
Rule: Delivery can be symbolic. Must be as perfect as the nature of the
property/circumstances of the parties will reasonably permit.
Holding: Son owns painting. Illogical to require delivery of an
intangible future possession. The only thing delivered was current
interest in future possession so doesn’t make sense to require a
physical handing over plus the parties lived far apart. Symbolic
delivery ok when gift is intangible.
III. POSSESSORY ESTATES AND FUTURE INTERESTS
How land is divided up over time
Steps to analysis:
1) State the title – possessory estate and all future interests
Eliminate offensive clauses if they restrict alienation of FS
2) Determine if the Rule Against Perpetuities Applies
If no, future interest is valid
If yes (contingent remainders, vested remainders subject to
open/divestment/class gifts, executory interest), move on
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3) Apply the RAP and figure out if the future interest is valid
If no, cross out from comma to comma the offensive clause
If yes, future interest is valid
A. INHERITANCE RULES (default system of land distribution):
Intestate – someone who dies without a will.
Heirs – a person has no heirs until they are dead
Heirs apparent – the people who might become heirs upon the principal’s death
When someone dies intestate their land goes to their heirs in this order:
1) Issue – descendents. Children and grandchildren (if children are dead)
2) Ancestors – parents
3) Collaterals – siblings, other blood relatives like cousins, aunts, uncles, etc.
4) Escheat – when someone dies intestate and has no heirs, the land escheats
to the government.
B. POSSESSORY ESTATES:
Definition:
The person with the current right to posses the land has the possessory
estate.
Conveyance – 3 ways to convey property interest:
1) Transferability – capable of inter vivos transfer
2) Devisibility – capable of transfer by will
3) Inheritability – capable of transfer by inheritance
Three types of Possessory estates:
1) Fee Simple Absolute
The largest estate recognized by property law. Theoretically lasts
forever.
Terms of art:
To A and his heirs
To A
To A in fee simple
To A forever
All to A
Conveyability:
Transferable, devisable, inheritable
2) The Finite Estates
Life Estate
Terms of art:
To A for life
To A for the life of B
Conveyability:
Transferable only (b/c it ends at your death)
Term of years:
Terms of art:
To A for 50 years
Conveyability:
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Transferable, devisable, inheritable (b/c you could die
before the term of years is up)
3) The Defeasible Fee Simples
A. Fee Simple Determinable
1) Automatically ends at the happening/non-happening of an
event
2) Future interest held by grantor
Terms of art:
Created by language of fee simple
To A and his heirs
To A
To A in fee simple
To A forever
All to A
Limited by language showing intent to terminate
automatically
So long as
While
Until
During
Unless
Conveyability:
Transferable, devisable, inheritable (subject to
conditions)
B. Fee Simple Subject to Condition Subsequent
1) May end at grantor’s election on happening/nonhappening
of event
2) Future interest held by grantor
Terms of art:
Created by language of fee simple
To A and his heirs
To A
To A in fee simple
To A forever
All to A
Limited by language showing intent not to terminate
automatically, but right to re-take:
But if
Provided that/however
On the condition that
Conveyability:
Transferable, devisable, inheritable (subject to
conditions)
EX: To D and his heirs provided that D does not cut his hair.
C. Fee Simple Subject to Executory Limitation
1) Looks like the other two DFS
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2) BUT the future interest is in 3rd party, not grantor
Conveyability:
Transferable, devisable, inheritable
Rules of Interpretation:
1) Cardinal rule of interpretation – discover the grantor’s intent and try to
give legal effect to it
2) If there is uncertainty about how much was given, try to interpret it as the
biggest estate possible.
3) When it doesn’t specify who takes the land in the future, default is
reversion
4) If you sell your life estate, the buyer’s interest is measured by YOUR life,
not theirs – pur autre vie.
5) Fee simples are transferable and you cannot EXPRESSLY restrict an owner
of FS from alienating land.
Why? 1) Interferes w/ productive use of land b/c can’t get a mortgage,
land is worth less to you 2) Perpetuates concentration of wealth by
preventing break-up of land
Rules of Construction:
1) Start with language b/c ppl were careful with words since they were
contemplating death.
What was grantor’s intent?
2) Follow the rules of interpretation
If it’s ambiguous, give largest estate
2) Look into circumstances as gap-fillers since ppl don’t always say what they
mean.
Cases:
White v. Brown
Facts: will says “I wish Evelyn to have my home to live in and not to be
sold.”
Rule: When will is ambiguous, ascertain grantor’s intent and give
biggest estate possible. Cannot restrict alienation of FS. Give intent of
grantor. If it’s ambiguous, give largest estate.
Holding: Evelyn has FS and rest of clause is void. Not a life estate w/
remainder in collaterals b/c that’s not the biggest estate you can give
nor seems to be the grantor’s intent.
C. FUTURE INTERESTS:
Future interest – a present right to future possession
Person named in a will has NO future interest while will writer is alive.
Types of future interests by what estate they follow:
1) Fee Simple Absolute
No future interest
2) Finite Estates
A. Reversion – in grantor
Remember: can revert for one day.
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EX: Duane conveys to Greg for life then to Cher
and her heirs IF Cher attends Greg’s funeral.”
Greg’s funeral cannot be the same day Greg dies
so it reverts back to Duane for a few days and
Cher has executory interest, Duane has reversion
in FSSEL.
B. Remainder – in 3rd party.
NEVER follow any type of fee simple
NEVER divest prior estate.
Two kinds:
1A) Vested remainder – sure to happen. Preference for
vested where ambiguous. Three requirements:
1. Remainderman is born
2. Remainderman is ascertainable (we know
his/her name)
3. AND NO express condition precedent in
A. The clause creating the remainder
B. OR the preceding clause
NOTE: the natural termination of a prior estate is
NOT a condition precedent (“in the event of A’s
death” where A has a life estate)
EX: To A for life and in the event of As death to B
and her heirs.
B is born, ascertainable, and there is no
condition precedent
NOTE: If the interest following a life estate is
vested remainder but something could divest it,
it will usually be an executory interest.
EX: To A for life, then to C and his heirs, but if A
fails to preserve the Redwoods on the property
then to G and his heirs.
C has vested remainder subject to
divestment in FSA
G has shifting executory interest
1B) Vested remainder subject to partial
divestment/subject to open/class gifts – sure to happen
but subject to condition subsequent that would prevent
possession. Like one member of the class is ascertained
and no condition precedent but later-born children are
also entitled to the land.
Ex: To my children. He has one but more could
be born.
1C) Vested remainder subject to divestment.
Ex 2: To Bill, but if he does not graduate, to Cecil.
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Bill has vested remainder subject to
divestment in FSSEL. Cecil has executory
interest.
2A) Contingent remainder – any other kind of
remainder (condition precedent is in clause creating or
preceding the remainder):
1. Remainderman is unknown
2. OR subject to condition precedent
EX 1: To A for life then to B and her heirs IF B
attains the age of 21 before A dies.
While B is under 21, B has contingent
remainder b/c condition precedent.
EX 2: To A for life then to such of A’s children as
reach the age of 21.
If A has no children, they are not
ascertainable/not born AND there’s
condition precedent (turning 21).
NOTE: Contingent remainders can vest,
becoming vested remainders.
2B) Alternative condition remainder
Follows another contingent remainder
EX: To A for life, then to A’s children and their
heirs, but if at A’s death he is not survived by any
children, then to B and her heirs
If A has no children then they have a
contingent remainder. B has alternative
contingent remainder b/c it follows a
contingent remainder and has condition
precedent in the clause preceding it.
3) Defeasible Fee Simples:
Fee Simple Determinable
Possibility of reverter (held by grantor)
Fee Simple Subject to Condition Subsequent
Right of Reentry or Power of Termination (held by grantor)
Fee Simple Subject to Executory Limitation
Executory interest/limitation – two types:
Springing executory interest – cuts off grantor’s possess
Shifting executory interest – cuts off 3rd party’s possess.
Rules of Construction:
1) If someone purchases your future interest, they own your future interest
(ie, if grantor sells reversion to 3rd person, that person does not have a
remainder. They own the grantor’s reversion).
2) Restrictions are burdens on the land that impact their value in some way.
Therefore they all restrict alienation to some extent. Depending on how
strict it is, it may be an effective restriction on alienation and that’s fine so
long as it doesn’t expressly restrict alienation. However, we want to
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Cases:
encourage ppl to donate land to churches, schools, etc so we allow
restrictions.
Mtn Brow Lodge v. Toscano:
Facts: Will conveyed property to group but “property is restricted for
use and benefit of Odd Fellows only; and in event it fails to be used by
them or in the event of sale/transfer, it will revert.”
Holding: Grantor’s intent and preference for biggest estate mean Odd
Fellows have fee simple. Express restriction of alienation is void. BUT
condition remains that they must use it for their own purposes, so it
impliedly restricts alienation. Fee Simple Determinable.
D. THE RULE AGAINST PERPETUITIES
Rule:
No interest is good unless it must vest, if at all, no later than 21 years after
some life in being at the creation of the interest (includes babies in
gestation).
1) If the interests do not vest or fail w/in the time they are VOID
2) If an interest is void, it is eliminated from the conveyance (from
comma to comma)
3) Which interests and how do they vest? Applies to ONLY these three
future interests:
1) Contingent remainders
Must vest or fail to vest w/in the time
2) Vested remainders subject to partial divestment/subject to
open/class gifts
Must close or completely vest w/in the time
3) Executory Interests
Must become possessory w/in the time
Purpose:
To prevent dead people from tying up land forever. The rule is a compromise
b/w wealthy ppl and everyone else about how far into the future ppl can
control their interests in land. Gives about 95 yrs of control (life span of ppl
alive plus 21 yrs)
Tips:
If vesting is tied to a life in being, it’s probably valid. If it’s not, it’s probably
not valid.
EX 1: To A, but if A plants beets on the land then to C
Valid b/c its limited to A’s life and could not vest after 21 yrs
after her life. Must vest or fail w/in A’s life.
EX 2: To A, but if beets are planted on the land then to C
Invalid b/c beets could be planted on the land 200 yrs from
now. Offensive clause is eliminated. What’s left: “To A.” So A
has FSA.
Create – determine who the important life in being is and give them a child
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If giving child has no effect on vesting b/c it’s tied to that life in being,
it’s probably valid.
Kill – kill everyone else
Count – add 21 yrs and measure against the conveyance. Could the interest
vest after these 21 years? If so, it’s invalid.
EX: “To A for life, then to A’s children who reach 25.” A has 1 child, B,
who is 26.
Create a child for A, X. Kill A and B. Count 21 yrs. X is 21, not
25. So the interest is void. A has life estate, grantor has
reversion.
Reform:
1. Try to give effect to grantor’s intent and avoid RAP problems
2. Wait and see – wait 95 yrs and see if the interests vest.
IV. CONCURRENT INTERESTS
How land is divided up between people.
A. Two types of concurrent interests:
1) Tenancy in common
Separate but undivided interest in the property (can have 2/3: 1/3 interests)
Interests are conveyable by will/deed
No survivorship
2) Joint tenancy
Old rule – Must have 4 unities
1) Created at same time
2) Created by same instrument – deed/title/joint adverse possession
3) Equal interests – equal undivided shares/identical interests
measured by duration.
Survivorship
When you die, so does your interest in the land (= not
conveyable by will). Entire parcel passes to joint tenant.
4) Each has right to possession of the whole
Modern rule:
1) Intent of the grantor. Did grantor intend survivorship or not?
2) Is arrangement of conveyance compatable with survivorship?
= If so, joint tenancy even though landowners own diff amt of land or
other unities are not the same.
How to sever joint tenancy
Strawman intermediary
Transfer of title to 3rd party creates tenancy in common.
Unilaterally – Riddle.
Good b/c gets rid of stupid formalism. Bad b/c other joint
tenant may have relied on survivorship.
Mortgages
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Lien theory: Do NOT sever under Harms v. Sprague b/c
mortgage is just a lien, not a passing of the title. So when joint
tenant dies, the mortgage disappears.
Part of cost of mortgage is for interest of joint tenant in
survivorship so if the other dies and mortgagee is alive,
argument that bank has interest in entire property, not
just half.
Title theory: mortgages are titles so they do sever joint
tenancy.
B. Rule of Construction:
If the instrument is ambiguous, preference for tenants in common
Leads to fractioning of land b/c no survivorship. Higher transaction costs to
reunify the land parcel.
C. Partitioning land in court – Harms v. Sprague.
Partition in kind
Preference for partition in kind BUT practically cts usually end up selling.
Partition by sale – ONLY when:
1) Physical attributes of land make partition in kind impracticable
How many co-tenants; shape/geography of land/resources; location
of buildings/roads/utilities
2) Interests of owners better promoted by sale
Is co-tenant in actual possession for substantial period of time?
Living/working on land? Improvements that have had value? While
others are non-possessing owners? Is land more valuable as a whole
or in chunks? Are future plans for the land co-habitable side by side?
D. Rent?
1) B/w co-tenant in possession and co-tenant not in possession:
Maj rule:
Co-tenants do not owe each other rent b/c each has right to use the
whole UNLESS
1) Agree to do so
2) Ouster – deny co-tenant their right to use and enjoyment of
the land.
If ouster, ousted co-tenant gets fair market value rent.
Minority rule:
Co-tenants must pay fair market value rent
2) When 1 co-tenant is collecting rent:
Other cannot cancel lease b/c co-tenant had right to make it – Sampson.
Can sue for an accounting
Gets actual value of rent collected
E. Cases:
Riddle v. Harmon
Facts: Husband and wife own in joint tenancy and wife wants to terminate so
she deeds herself ½ interest to create tenancy in common.
Rule: Joint tenants can sever joint tenancy unilaterally and at any time w/out
telling their co-tenants. You can unilaterally sever your joint tenancy.
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Holding: The transfer was fine and now they’re tenants in common.
Harms v. Sprague
Facts: 2 brothers own in joint tenancy. 1 brother gives mortgage and then
dies.
Rule: Mortage doesn’t sever joint tenancy b/c it’s a lien, not a passing of title.
Holding: 2nd brother gets survivorship rights of whole parcel and mortgage
extinguishes upon 1st brother’s death.
Delfino v. Vealencis
Facts: Bros real estate developers own 2/3 and want PBS. Sister owns 1/3,
lives and works in family business there and wants PIK.
Holding: Partition in kind b/c sister has strong interest.
Spiller v. Mackereth
Facts: Own as tenants in common, one moves stuff in. Other sends letter
asking for rent or vacating half the building.
Holding: co-tenants do not owe rent unless ouster. Changing locks but never
refusing a copy of the key/letter asking to move your stuff is not enough.
Must be interference w/ right to use/enjoy the land.
Swartzbaugh v. Sampson
Facts: Husband and wife own as joint tenants. Husband leases land. Wife
doesn’t want to. Tries to cancel lease.
Holding: Can’t cancel b/c joint tenants have right to use whole land and make
leases.
V. TITLE ASSURANCE
Main purpose of the recording system
Resolve potential conflicts in title.
Records all instruments that affect interest in property:
Deeds, mortgages, liens, easements, judgments
Two kinds of Indexes
1) Grantor/grantee
Ex:
O-A-B-C-D-E and you’re F.
Start with grantee:
Search backwards from your grantor who was a grantee to prior
grantee, etc until 40/60/100/sovereign depending on jdx.
E, go back until you find D, C, B, A, O stop.
Finish with grantor:
Search forwards from sovereign/1st grantor all the way forward
looking for all deeds/interests from 1st grantor to 2nd and so on.
These deeds/interests may burden your title so you want to know
about them.
O look for all deeds until A-B-C-D-E-now.
2) Tract – by parcel
Note: Hughes problem wouldn’t arise in tract jdx b/c he’s searching the
parcel and would see a deed, putting him on inquiry notice.
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Recording Acts:
Protect bona fide purchasers
BFP: 1) subsequent purchaser; 2) in good faith (w/out notice of prior sale);
3) for value
What is notice?
1) Actual notice – subjective - Personally aware of a conflicting interest in
real property.
2) Constructive notice – objective – should be aware of a conflicting interest
in real property.
A. Record notice – notice based on properly recorded instruments
A deed referring to other deeds gives constructive notice of
those deeds – Paradise.
B. Inquiry notice – based on facts that would cause a reasonable
person to make inquiry.
Actual possession is inquiry notice – Waldorf v. Eglin
What is not notice?
Mother Hubbard clauses – Luthi v. Evans (Kufahl leases case)
I give you all my land. Transfer land validly b/w parties but do NOT
give notice to subsequent purchasers. Encourages recipients to file
specific info w/ recording office later so they can keep their land.
Encourages good record-keeping.
Wild deeds/prior deed recorded too early
A recorded deed not connected to any valid transfer won’t work to
give record notice b/c it’s not properly recorded.
Ex: where O-A (not recorded), A-B (is recorded). B/c person
doing due diligence who wants to buy O’s property will never
look for A since no recording that O ever sold to A – Board of Ed
v Hughes. If you have to choose, choose Hughes.
Ex: A to B (records). O to A (records). A to C. C wins.
References to common plans – jdx’l split
MA + ½ jdxs = notice when reference to common plan w/ other deeds
to look at the other deeds - Guillette
Other ½ jdxs = no notice
Prior document recorded too late
No requirement to search record after date of recorded conveyance to
discover whether grantor made prior conveyance that was recorded
after.
3 diff types of recording acts
1) Race – As b/w successive purchasers for value the purchaser who wins the race
to the recording office wins. Is claimaint:
A. Subsequent purchaser
B. For value
C. Did he record first?
2) Notice – As b/w successive purchasers a subsequent purchaser for value and
without notice (BFP) wins. Last BFP is usually the one who takes. Is claimant:
A. Subsequent purchaser
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B. For value
C. Did he have notice?
3) Race-Notice – As b/w successive purchasers a subsequent purchaser who is BFB
AND records first wins. Is claimant:
A. Subsequent purchaser
B. For value
C. Did he have notice?
D. Did he record first?
If no recording act, CL default is 1st in time gets it. Theory = once O sells to A, he has
nothing left to give to B.
Shelter rule
A person who takes from a BFP who is protected by a recording act has the same
rights as his grantor.
Cases:
Luthi v. Evans
Facts: Conveys 7 specific leases plus “Mother Hubbard” clause w/ all leases.
Later sells Kufahl lease to Burris. Index mentions 7 leases but not mother
hubbard.
Holding: Mother Hubbard clause is not constructive notice. Burris is BFP so
under recording act of KS, he gets the property.
Board of Ed of MN v. Hughes
Facts: Invalid deed to Hughes. Deed to Wilson, Wilson to BoE (records).
Deed to Hughes becomes valid when he fills in his name (records). Wilson
records.
Holding: Hughes wins b/c race-notice and he was subsequent purchaser w/
no notice who recorded first.
Guillette v. Daly Dry Wall
Facts: Owner of subdivision makes lots of deeds w/ express restriction of
building only single-family homes. One deed includes reciprocal promise by
landowner not to sell to anyone who will use for multi-family units. Then
deed w/ no mention of reciprocal promise to DDW who wants to build
apartment complex.
Holding: DDW took subject to restrictions b/c reference to common plan b/w
deeds put him on notice to search all the other deeds.
Harper v. Paradise
Facts: Deed for life estate w/ remainder in children gets lost in 1922. Record
of the deed is recorded in 1928. 1933 life-tenant purports to put up FSA as
security for a loan that later defaults. 1957 original deed is found and
recorded.
Holding: 1928 recording gave constructive notice of 1922 deed.
Waldorf v. Eglin National
Facts: Guy is in possession of apartment.
Holding: Bank w/ mortgage over the whole building was on inquiry notice
that there was a conflicting interest in land so bank does not have title to his
apartment.
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2ND HALF OF SEMESTER:
I. Judicial Control of Land Use – Nuisance
Definition:
Any substantial, unreasonable nontrespassory invasion of another’s interest in the
private use and enjoyment of land.
Test:
1) Is there a private nuisance?
Non-trespassory
No physical invasion – just fumes, odors, loud noises, lights, etc.
Intentional conduct
If you know or should have known you’re doing something that’s
causing a nuisance/causing harm.
Substantial – not just inconvenienced or annoyed
No thin skull rule – interference must be of the kind that an ordinary,
reasonable person would consider an interference.
Stigma damages: Is a loss in property value substantial?
Cts go both ways. Maj says only recovery where actual
physical injury to P or property due to D’s conduct, not just
where property value goes down. May not pass threshold test.
Unreasonable – two tests:
1) Threshold test – if the interference is substantial enough, then its
unreasonable – Morgan v. High Penn Oil Co.
May have made more sense when there were less ppl/more
land.
2) Restatement test – balance the gravity of the harm/substantiality of
the interference with the utility of D’s conduct. P can recover from
annoying neighbor but not hospital.
Harm to P:
1) Extent and character of the harm
2) Social value of P’s use
3) Suitability to the locality in question
4) Burden on the P of avoiding the harm
Social value of D’s use:
1) Social value
2) Suitability to the locality in question
3) Impracticability of the D preventing the harm
Coming to the nuisance
Old CL – P is barred if they came to the nuisance
Modern/maj law – P is not barred if part of the natural development
of a community. The nuisance, though not originally a nuisance, will
usually be enjoined. P may have to pay for relocation - Spur
2) If yes, what remedy?
Balance the equities:
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Injury resulting to D/public by granting injunction v. injury sustained
by P if only damages are awarded.
Can be:
Default is usually injunction – Estancia Dallas
Sometimes injunction that nuisance-maker can buy at their
option - Boomer
If no injunction, could get money damages, nominal damages, or
nothing
May get $ for permanent damages (one lump sum) or
temporary (you’ll keep going back to court to get new $
damages periodically)
Morgan v. High Penn Oil Co.
Facts: Oil refinery emits gases that make ppl sick 2-3x/week. Ps ask them to
stop and they don’t = intentional
Holding: Nuisance.
Estancia Dallas Corp v. Schultz
Facts: Apartment complex saved money by installing 1 giant air conditioning
unit right next to Ps house that is so loud they cannot have a conversation
inside w/ doors and windows shut.
Holding: Ct granted injunction.
Boomer v. Atlantic Cement Co.
Facts: Cement plant caused dirt, smoke, vibration that caused structural
damage to homes.
Holding: Yes nuisance but conditional injunction (dismissed upon payment of
damages) b/c NY rule says injunction for all nuisances. Utility of plant far
outweighs burden to Ps. $185k in damages versus $45 million plant w/ 300
employees and no reasonable way to abate the nuisance like there was in
Estancia (just move the air conditioner, it will be expensive but fine). The
cement plant cannot create the technology. It will be a nuisance wherever it
is.
Spur Industries v. Del Webb
Facts: Sun City developer builds across from cattle lot and then sues for
nuisance.
Holding: Statutory public nuisance b/c of the flies. Spur has to move but Del
Webb came to the nuisance so he has to pay for Spur’s move. Encourages
development even though Del Web was not really following natural
development of Phoenix but instead plopped down in middle of nowhere.
II. Private Control of Land Use – Servitudes
Drawbacks to nuisance leading to servitudes – nuisance law is retroactive/does not
prevent nuisances from occurring. Remedy may only be damages.
Servitudes
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Legal mechanisms of enforcing promises about the use of land. All servitudes are
interests in land so they fall w/in statute of frauds and either must be written down
and signed by the person against whom enforcement is sought or fit an exception.
EASEMENTS – a private agreement b/w two parties regarding use of land.
Defined by what it’s attached to:
Appurtenant – attached to the land, passes with ownership of the land. Law
has preference for appurtenant, where ambiguous (b/c it’s a bigger interest
b/c not tied to someone’s life).
Dominant tenement - easement holder – benefitted estate
Servient tenement - burdened estate
In gross – given to a person. Easement does not pass w/ ownership of the
land. No In Gross unless it’s clear the grantor intended it.
Two types:
Positive easement
Easement holder has right to do a physical act on another’s land.
Historically recognized by courts.
Ex: right of way for landlocked parcel
Negative easement
Easement holder has right to prevent landowner from doing
something on his land.
Cts used to be very against these. Eventually allowed 4 and only 4:
(light, air, water, support).
Ex: beachfront property owner agrees not to build 3rd story on his
house so neighbor can still see the beach.
Creation of Easements
Express easements
Comply with SOF. Could be in: deeds, separate “deed of easement,”
wills, other written instruments - Willard
Implied easements:
Maj rule: some states allow exceptions to SOF:
1) Easement by estoppel/irrevocable license – Licenses are
revocable but when licensors know the licensee makes
substantial expenditures in reliance on it, estoppel makes the
license irrevocable. Not technically an easement. Look to
intent and expectations of the parties – Holbrook v. Taylor
2) Easement implied from prior existing use – Van Sandt
Elements:
A. Common ownership (creating quasi-dominant
and quasi-servient parcels) and then severance.
Two possibilities:
1. Grantor retains quasi-servient – may be
easier to establish easement b/c grantor
impliedly promises to continue allowing
the easement.
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2. Grantor retains quasi-dominant – may
require better notice/stricter necessity.
That deed gave no notice of an easement
is not determinative, just a factor – Van
Sandt
B. Apparent, continuing use that existed at the
time of severence.
C. Reasonable necessity of the use
Ends when the necessity ends (question is, is necessity
over when it costs $15k to do something diff?)
3) Easement by necessity - Othen
A. Common ownership and then severance
B. Use must be strictly necessary at time of severance
Prevents landlocked parcels
4) Private eminent domain – like an easement by necessity but
necessity does not have to have existed at time of severance.
Min rule: others allow no exceptions, must be expressly written.
Easement by Prescription:
Adverse possession of an easement is possible. Must be w/out
permission.
Scope of Easements
Easements only serve dominant parcels. Any service of a non-dominant parcel is a
misuse of the easement and a trespass – Brown
Scope may change over time. Usually can expand use of an easement in ways that
are consistent w/ development of the dominant parcel so long as:
1) It is not contrary to the terms of the grant
2) It is within the parties intentions
Read the grant
3) AND doesn’t unreasonably burden the servient estate - Preseault
Remedies for misuse of an easement
Some states enjoin the misuse immediately b/c it’s a trespass
Some still allow use for the easement’s orig purpose, others say no use at all
until D proves they’re not using it for the nondominant parcel.
Others look to whether it has increased the burden on the servient estate and may
award $1 – Brown.
Termination of easements
1) Through abandonment (see Preseault)
1) Nonuse
Maj – usually not enough, alone
Min – nonuse can be abandonment if it is for statutory period
2) AND acts by the owner conclusively and unequivocally manifesting either
present intent to relinquish the easement OR purpose inconsistent w/ its
future existence
This is related to misuse. The greater the misuse, the greater the
intent of not using the easement for the purposes for which it was
created and more likely ct will find abandonment.
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2) Release – easement holder agrees to release the easement (usually requires a
writing)
3) Expiration – if the easement’s length was limited
4) Defeasible easement – ends upon the occurrence of an event
5) Necessity – ends when there is no more necessity
6) Merger – when the easement owner becomes the owner of the servient estate
7) Condemnation – gov’t takes it and new purpose is inconsistent w/ continued
existence of the easement
8) Prescription – servient owner wrongfully and physically prevents the easement
from being used for the prescriptive period.
Willard v. 1st Church of Christ
Facts: Lady owns lot 19 and 20. Conveys 20 to Peterson w/ recorded
restriction that it be free for Church parking on Saturdays. Peterson
deeds 20 to Willard w/ no written restrictions.
Holding: W is not BFP b/c he had record notice of the restriction.
Restriction is an express (written) easement appurtenant. You can
reserve interest in property to a 3rd party.
Holbrook v. Taylor
Facts: Landowners gave positive easement to coal company. Then
Taylors moved in and built house on property while using the right of
way w/ permission (license). Then Holbrooks sought to revoke
permission.
Holding: Easement by estoppel b/c they relied on permission to their
detriment. No prescription b/w always w/ permission.
Van Sandt v. Royster
Facts: Ladys own big tract of land, builds sewer through it to attach to
public sewer. Divides up property in deeds that expressly promise no
easements. Property closest to public sewer tries to stop other
property owners from using his sewer.
Holding: Easement implied by prior existing use/easement by
necessity. Even though she promised no easements in the deed, the
purchaser had actual notice and subsequent purchaser from him had
constructive notice b/c his pipes were connected to a sewer…
Othen v. Rosier
Facts: Common owner sold chunks of land. Othen’s estate is
landlocked, is using Rosier’s estate to cross over. Rosiers build a levee
that floods the right of way.
Holding: No easement by necessity b/c ct is strict and Othen cannot
prove when/how his easement came into being/that it was over
Rosier’s parcel, not someone elses.
Brown v. Voss
Facts: Voss had right-of-way easement to parcel B but bought parcel C
and began using it for parcel C as well. Brown sues.
Holding: Ct holds it’s a misuse but no remedy b/c misuse is not
increasing burden on the servient estate.
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Preseault v. US
Facts: US had railroad going through Ps backyard. Stopped using it,
took out the tracts, approved it under Rails to Trails Act and the public
started using it. Presaults sued saying the public trail was a taking b/c
gov’t only had an easement to use it for RR and when they stopped the
easement ended. Gov’t argued they owned it in FS.
Holding: 1) Deed w/ fee simple language was actually an easement
b/c of the type of survey done. Gov’t took only so much as necessary,
which was easement, not FS. 2) Scope of easement was only for
RR/public transportation. Public trail is diff and puts much diff
burden on servient estate. 3) Gov’t abandoned easement, thereby
terminating it when it stopped using it AND started using it for
something completely diff.
Dissent: Hiking/biking trail is w/in scope of the easement. Gov’t only
paused its RR use, not terminated it. Rails to Trails is designed to
preserve the easements in case of future gov’t need.
COVENANTS – Ks relating to property that intend to bind subsequent owners solely b/c of
their ownership (ie, the promise runs w/ the land).
1) Real covenants
Definition:
Servient estate cannot do something on their property.
Real covenants CANNOT be implied. MUST be written down
History:
Ppl started to enter into covenants b/w themselves b/c courts weren’t
recognizing negative easements. Easy to enforce b/c it they are contractual.
Problem was what to do once the orig parties to the K sell their interests to
successive purchasers.
Args against:
May not be best use of property; inefficient and expensive to enforce
through judicial system (what does “keep garden in sufficient repair”
mean?). No upper end to the cost.
Elements:
1) Privity – at least vertical, sometimes horizontal
Horizontal – common owner who subdivides plot
No horizontal privity/no real covenant for our purposes unless
we have this
He is in horizontal privity with the purchasers
Vertical – b/w orig promisor/promisee and their successors in
interest
Where P is burdened by the promise, P MUST have the same
estate in land as orig promisor/promisee (FS-FS) to have it
enforced against him.
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Where P benefits from the promise, usually less strict privity is
ok (FS – Life estate, is fine) to enforce it against orig promisor
or his successor.
HOAs, though not landowners, are agents for the
landowners so they are allowed to bring suit in their
shoes – Neponsit.
2) Intent to bind successors – look for “and his assigns…”
3) Notice – not usually a prob since they must be written
4) Touch/concern land – affect the legal relationships of the parties as
owners of land
HOA fees touch and concern land when they are used to upkeep
common areas to which homeowners enjoy access.
Does the covenant substantially affect the value of the land? (“Does
the covenant impose, on the one hand, a burden upon an interest in
land, which on the other hand increases the value of a different
interest in the same or related land?”) - Neponsit
Remedies:
P could only get money damages for breach of real covenant, not injunction.
Couldn’t get D to tear down the 2nd story of his house.
Termination of covenants
1) Abandonment; 2) Release; 3) Condemnation; 4) Merger; 5) Unclean hands
– ct will not enforce a violation of a servitude that P previously violated; 6)
Acquiesence – P has failed to enforce servitude against other breaches but
seeks to enforce it against D; 7) Estoppel – D has relied on Ps conduct,
making it inequitable to allow P to enforce the servitude; 8) Laches –
unreasonable delay by P in enforcing servitude against D, causing prejudice
to D; 9) Prescription
10) Changed circumstances – hard to establish but:
Covenant may be modified or terminated by the court when
conditions have so changed that is it impossible to accomplish the
purposes for which the servitude was created. Gets rid of land uses
that are really inefficient.
Look to whether the purpose of the covenant is still satisfied,
benefits still occur, objective/intent of the parties are still
obtained.
That zoning may have changed (so long as use is still allowed),
surrounding area changed, a diff use would be more profitable
= Not enough to override fact that ppl still get benefit from a
covenant – see Western Land.
Rick v. West – NOT a balancing of the equities
Enforceability of covenants in Common Interest Communities (condos, etc)
Covenants are created:
Written in the master deed before any units are sold
As interpreted by the association members
Voted in by members of the association
Enforceability:
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Covenants in master deeds are presumptively valid
B/c homeowners have power to repeal it. Continued existence
reflects desire to retain it. Although there are tyranny of the
majority arguments here.
UNLESS unreasonable (facial challenges only):
1) Wholly arbitrary
Rational basis test – is there any logical connection b/w
the promise and the use and enjoyment of land?
2) Violates fundamental public policy
In CA after Nahrstedt, public policy is that all
homeowners get one pet.
3) Imposes a burden on the use of affected land that far
outweighs any benefit.
Neponsit Property Owners’ v. Emigrant Savings Bank
Facts: affirmative covenant on all prop owners says must pay annual
fee (like HOA fee).
Holding: Ct says this is enforceable covenant. 1) Runs w/ land –
owners who are paying $ to HOA purchased not just their property
but rights of way over public areas that are benefitted by the $; 2)
Privity – HOA, though not a landowner itself, represents all of the
homeowners as an agent so practically, the HOA can stand in their
shoes.
Western Land Co. v. Truskolaski
Facts: WLC wants to build shopping center in subdivision covenanted
for single-family homes. Heavier traffic flow and more commercial
development outside subdivision.
Holding: Changed conditions is not satisfied to terminate the
covenant. NO change in subdivision so there’s still benefit to its
residents. Zoning ordinance (city council had agreed to re-zone) does
not override valid private restrictions UNLESS zoning makes the use
illegal.
Rick v. West
Facts: Developer wants to build subdivision. Sells 1 house w/
covenant. Can’t sell anymore and wants to build a hospital instead.
Landowner wants to keep the covenant.
Holding: No changed circumstances. Changed circumstances is not a
balance of the equities test. Just b/c the hospital is beneficial and
would be more profitable use of the land, doesn’t matter.
Nahrstedt v. Lakeside Village Condo – crazy cat lady case
Facts: Crazy cat lady has 3 cats in condo that has pet restriction
covenant.
Holding: Ct says covenant is enforceable and not unreasonable.
Allergies/smell/noise are good reasons to prevent pets and only facial
challenges are allowed.
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EQUITABLE SERVITUDES
Can be implied
Where owner of two or more lots sells one w/ restrictions of benefit to the
land, the servitude becomes mutual. Runs w/ the land sold and abides w/
the land retained. Subsequent purchasers must have at least constructive
notice (including inquiry notice) - Sanborn
Elements (easier to enforce than real covenants b/c no privity requirements)
1) Intent to bind successors
2) Notice (actual, record, inquiry – do they need to search index for
neighbors’ deeds like in Guillette/Sanborn)
3) Touch/concern land
Remedies:
Enforceable against successors in equity. P can get injunctions/get D to tear
down 2nd story but cannot get money damages.
Tulk v. Moxhay
Facts: 3 servitudes: 1) affirmative covenant – maintain the grounds;
2) negative easement – leave the garden uncovered w/ no buildings;
3) positive easement – let people on your land who pay rent.
Holding: Old English case. Real covenant is enforced b/c subsequent
purchaser had notice.
Sanborn v. McLean
Facts: McLeans want to build gas station but there’s a negative
easement on most of the lots saying only for residential use.
Holding: Guillette says you have to search for other deeds in the
subdivision (although in Guillete if they had done that they would
have found a restriction on their own land, here they would not have).
Ct says inquiry notice that there was a reciprocal negative easement.
They should have inquired and discovered that grantor promised all
single family homes and when he did so, he made implied reciprocal
promise to do the same on his land.
Rule: For subdivisions: implied reciprocal servitude: 1) Common plan,
references in some deeds; 2) D had constructive notice of the plan
III. Legislative Control of Land Use – Zoning/Takings
Drawbacks to servitudes leading to zonings – too piecemeal. Only b/w private landowners
so hard to get planning across large swaths of land.
ZONING
Zoning is not unconstitutional - Euclid
Power to zone comes from state’s police power (health, safety, welfare and morals).
Usually runs with the land.
Standard State Zoning Enabling Act
Model put together by Department of Commerce – All 50 states adopted it.
Then states delegate the power to a county. County/city creates:
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1) Zoning commission
Makes the comprehensive plan. Town council adopts the plan.
All zoning should be in accordance with this plan but if not,
might still be valid if reasonable. Makes the zoning, approved
by town council.
2) Board of adjustment
Hears cases of ppl aggrieved by the zoning rules. Grants
variances, special exceptions, etc.
Enforceability
1) Zoning ordinances are presumptively valid unless unreasonable or
arbitrary – rational basis-like test.
- Over-inclusive zoning that fails to separate b/w noxious and nonnoxious use (no industrial use at all) is fine b/c state needs to do this
in order to regulate it – Euclid
- Excluding uses from certain areas, generally/facially, is fine b/c of
nuisance prevention – Euclid
- Aesthetic regulation is generally fine on its own, stronger where you
can relate it to property values, which are legit state purpose –
Stoyanoff.
Zoning must not be vague (“interesting design”) b/c otherwise
the standards will be constantly changing and it will be a
delegation of too much power. - Anderson
2) Stricter scrutiny when ordinances regulate important public interests/
constitutionally protected rights like free speech/political speech - Gilleos
- Ordinance that prohibits landowners from putting up signs may
violate their 1st/14th Amendment rights to free speech.
- If states are going to regulate speech (which they can do), they need
to have a really good reason and means of regulating needs to be
much more closely connected to the reason they’re regulating (ends).
Amortization clauses (retroactive enforcement) – applied to lawful
nonconforming uses
Maj rule – not lawful
Lawful nonconforming use establishes a vested right which
cannot be destroyed unless it is a nuisance, abandoned, or
extinguished by eminent domain – PANW Distributors
W/out amortization, the only way to get rid of a use is to buy
them out or wait for them to leave.
Min rule – may be ok.
Balance public gain against private loss. Look to:
1. Length of amortization period in relation to nature of
the nonconforming use
2. Length of time in relation to the investment
3. Degree of offensiveness of the nonconforming use in
view of the character of the surrounding neighborhood
Spot Zoning
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Not allowed. Where like parcels are treated differently w/out
valid/rational reason. Usually involves just 1 parcel.
Invalid spot zoning:
1) small parcel is singled out for privileged/specialized
treatment; 2) singling out is for benefit of landowner, not the
public; 3) action is not in accordance with comprehensive plan.
Reverse spot zoning – singled out to detriment of landowner = look
for rational basis
Exceptions to the zoning laws
1) Variances – an exception to the application of the zoning laws in a
certain area b/c parcel does not meet the zoning requirements. Tries
to avoid undue hardships on a landowner (who could not make
effective use of the property otherwise) – Commons v. Westwood.
Balanced against public good/purpose of zoning.
Two types:
Area variance – size restrictions, etc
Boards will balance benefit to applicant against
detriment to health, safety and welfare of the
neighborhood if variance is granted.
Use variance – type of use
Cts are stricter here b/c use might have greater
impact on surrounding neighborhood than an
area variance.
Self-inflicted hardship
No variance where property owner subdivides land in a
way that does not conform to the ordinance, especially
where this is done knowingly.
Where subsequent purchaser purchases w/ notice that
the area does not conform, jdx’l split as to whether this
is self-inflicted or not.
2) Special Exception/conditional use permits
Definition:
Zoning permits the use but ONLY with express
permission of the Board/where you meet certain
requirements b/c the type of use may impose greater
burden than others in the same area.
If landowner meets the requirements, they’re supposed
to get special exception.
Limits on board’s power:
Town can specify conditions under which certain uses
may exist and may delegate to Board discretion to
determine whether the conditions have been met or
not. But town cannot delegate discretion that is not
limited by any leg standards.
Ex: Whether the use will “comply with health,
safety and welfare of the public” or “the essential
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character of the area” is a legislative question
and delegation is improper if board is permitted
to decide this w/out guidelines – see Cope.
Why? Prevents arbitrariness/favoritism.
Village of Euclid v. Ambler Realty Co (USSC)
Facts: Village council adopts “Euclidian zoning scheme,” 6 levels of
cumulative uses. Ambler loses 25% of the value of their land if they are stuck
with the zoning plan. Argues that zoning violates substantive due process
under 14th Amendment by restricting his use of land. USDC says zoning is
wrong b/c its economic segregation.
Holding: Facially, zoning is constitutional and we use a rational basis-like
test. Zoning is good b/c it prevents nuisances. Ct failed to address that the
zoning prohibited duplexes from the single family home zone. Reserves the
option of as-applied challenges for the future.
PA Northwestern Distributors v. Zoning Hearing Board
Facts: adult bookstore opens w/ necessary permits. A few days later the
town rezones and includes an amortization clause that forces him to cease
the use w/in 90 days.
Holding: The amortization clause is invalid. You cannot retroactively zone an
otherwise prior, lawfully existing use.
Commons v. Westwood Zoning Board of Adjustment
Facts: Less frontage ft and sq ft total than allowed
Holding: Yes variance b/c otherwise zoned out of utility and little effect on
neighbors
Cope v. Inhabitants of Brunswick
Facts: Developer wants to build apartment complex in a residential use area
that provides special exceptions.
Holding: Board must grant special exception b/c development meets 2 of the
4 requirements for special exception and the other two are void b/c too
much delegated power.
Stoyanoff v. Berkeley
Facts: Ladue Architectural Board denies architects’ plan to build pyramid
house b/c it wouldn’t fit in with the area, which was mostly Victorian and
would therefore lower property values of the homes.
Holding: Zoning regs were fine b/c property values going down are legit
state concern. Beauty of a neighborhood is for the comfort and happiness of
the residents and sustains, in a general way, the value of the property.
Anderson v. City of Issaquah
Facts: A wants to develop strip-mall. Goes in front of development
commission 3 times and they are never satisfied.
Holding: Aesthetic regulation is fine but zoning code that says “no
monotonous design, interesting project, harmonious colors” is too vague.
City of Ladue v. Gilleo (USSC)
Facts: Gilleo puts anti-war sign on her lawn in violation of Ladue ordinance
that prohibits almost all signs (except commercial/for sale signs)
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Holding: Ordinance is unconstitutional b/c it violates Ladue residents’ right
to free speech.
TAKINGS
5th Amendment Takings Clause:
Nor shall 1) private property be taken 2) for public use 3) without just
compensation
Background:
States
Are free to enact greater protection but cannot give less than this.
What is a taking?
The gov’ts power to take title (fee simple) to property by forcing a sale to so
it can use the property for public use (a limit on gov’ts power).
Just compensation
Fair market value. Not necessarily fair compensation
Why do we have takings?
Comes from England’s exercise of sovereignty
Benefitting the public to the detriment of one private party
Why do we have just compensation?
To limit gov’ts desire to take
To encourage landowner to use their land productively
Why the 5th Amendment?
Preventing gov’t from taking all the land from the wealthy ppl and
redistributing it to the poor. Maintains the landed class.
Takings suit is called condemnation
Public use:
So long as the use is rationally related to a police powers purpose, the use will be
considered for the public – Kelo.
Most uses will satisfy this, even a private-to-private transfer if town can point
to stimulating tourism, raising property values, etc.
If the taking would not be for a public use (ie, no rational relationship at all) then
gov’t can only acquire the land through a voluntary transaction.
Remember Hawaii-Midkiff where state took private land froma few owners and
sold it to many to redistribute wealth = that was ok.
Regulatory takings:
Regulations that so drastically interfere w/ landowners use of land that they
constitute a taking. Gov’t can regulate in a way that affects property rights but if it
goes too far it is a taking – Mahon (concerned w/ extent of economic
harm/diminution of value/discreteness of the estates/reasonable investmentbacked expectations)
Landowner’s suit is called inverse comdemnation – try to establish a taking
Per se rules:
1) Permanent, physical occupations are per se takings (regardless of burden
to landowner and of benefit to community) – Loretto
Question here is what is permanent?
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Physical occupation includes of the airspace (see US v. Causby – US
flies military planes constantly over Causby’s land, causing his
chickens to commit suicide. It was a taking of his air space)
Rationale
Degree of intrusiveness onto a property owner’s bundle of
rights is great when you are occupying b/c they cannot exclude
you.
2) Regulations of nuisance-like uses are per se NOT takings – Hadacheck
Rationale
Whatever the scope of someone’s property rights are, they do
not have a right to be a nuisance. Gov’t is regulating bad use,
not doing something for the public good
This is a fine line, though. Gov’t will always argue they are
curbing a bad rather than doing a good. Just have some
hearings and make some findings. Don’t have to win the
nuisance suit, just prove its harmful enough to be bad. But
can’t be completely arbitrary/unjustly discriminatory.
3) Where regulation denies all economically beneficial or productive use of
land, it is a per se taking – Lucas.
This will be rare though. When is land ever completely valueless.
Even in Lucas the maj says this is dubious claim b/c he can still camp
there, exclude ppl, etc.
Ps will argue: narrow definition of property (under Mahon) and
regulation wipes out entire ability to use it. Like harvest trees, etc.
Cts usually reject this as long as DA can come up with some sort of
argument the gov’t did not take all the property.
No temporal severance - Even where land is “valueless,” if the
regulation is temporary, there is no taking under Lucas. Rather, must
do Penn Central analysis and temporal scope is a factor - Tahoe
Otherwise look to Penn Central test:
1) Character of the gov’t action
Permanent occupation?
Is gov’t asking 1 or a very small numbner of ppl to bear burden of a
benefit that is widely distributed? Classic taking…
2) Economic impact on the landowner
Trend is to look at the property as a whole (no conceptual severance)
and to insist on regulatin that will last a long time and has very
extreme economic impacts.
3) Landowner’s reasonable investment-backed decisions
Once a taking, always a taking – if you purchase a parcel that is
already regulated/burdened, you don’t lose your ability to claim a
taking just b/c you had notice. Takings are not limited by time –
Palazzolo. Are they still able to use it for the purpose they bought it
for? Penn Central (bought as RR, used as RR)
Are they still able to use it for the purpose they bought it for? Penn
Central (bought as RR, used as RR)
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Remedies
Early on – the ct would declare the regulation invalid. The gov’t would then decide
whether to go back and affirmatively take the person’s property through eminent
domain proceedings.
Now – ct will declare a taking and decide what just compensation is.
Kelo v. City of New London (USSC)
Facts: Pfizer flirted w/ idea of building plant in New London. To stimulate
economy, New London creates commission, which decides to revitalize
water-side area by creating commercial and recreational uses. Successfully
buy out most of the 90 lots but a few ppl do not want to.
Holding: Ct finds the plan is for the public use so long as it is rationally
related to a police powers purpose, which it is here. Cts are not the right
place to define what is/is not for the public use. Town can take the land.
Concurrence (Kennedy): Rational basis + a little bite. Was the taking really
meant for public benefit or just meant to give the land to a private party?
Look to see how papered up the decision is.
Most things would pass this test – ex: if town took house for an author
and gave it to him. His presence would generate revenue/taxes for
the town by encouraging tourists. Would probably raise property
values in the area.
Dissent: 3 acceptable situations: 1) transfer to public ownership (naval
bases); 2) transfer to private parties for public use (RRs); 3) transfer to
private parties to serve a public purpose in extreme exigencies/nuisance-like
situations (Midkiff – a few ppl own 97% of land so gov’t allowed tenants to
purchase the land – this was upheld; Berman – every house in the
neighborhood was in irreparable repair except 1. Taking of that house was
fine b/c it was part of the bigger plan to stop ppl from living in squandor –
upheld).
Loretto v. Teleprompter Manhattan CATV (USSC)
Facts: Loretto owns apartment building. NY law requires all owners to let
CATV run cables into and across their buildings. Has two silver boxes on her
roof and one cable down the front of her building. Sues for a taking.
Holding: Ct holds there is a per se taking b/c permanent, physical
occupations are always takings. Rational basis is important educational and
community aspects of cable tv.
Hadacheck v. Sebastian (USSC)
Facts: Guy has valuable clay deposits that he uses to make bricks on his
property. LA grows out to his property and passes ordinance prohibiting use
of kilns b/c of the smell. Too expensive to transport the clay so he loses 90%
of the value of his land.
Holding: Ct says city can regulate the use out of existence w/out taking the
property b/c its nuisance control. Allows the city to grow w/out high
transaction costs.
PA Coal Co v. Mahon (USSC) – establishes regulatory zoning
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Deb Bergman
Petherbridge Property Outline 2010-2011
Facts: Coal Co owned tons of land in FS. Sold surface estates but retained
underground and support estates for itself. Recorded so purchasers had
notice. PA passes law prohibiting maintaining the support estate.
Holding: Ct finds the law is a taking b/c it so impaired coal company’s right to
mine coal in one of its entire estates (the support estate) and the purchasers
had notice. Every law is distortive of property values to some extent. Gov’t
couldn’t operate if that was the standard. Extent of the economic
impact/diminution of value of the regulated party’s property is important.
AND nature of the property interest being affected. Here, it was the entire
support estate.
Dissent: The regulation is not a taking b/c it merely prevents a noxious use.
Coal company owns tons of land and it’s not that big a deal just to prevent
them from mining a small part of their property (more liberal definition of
property) where they affirmatively let a house be built.
Penn Central v. City of NY (USSC)
Facts: NY has regs for its landmarks (upkeep the exterior, any changes must
be w/ permission (b/c no effect; appropriate changes; extreme economic
harm); special exception for owners of landmarks to transfer development
rights to their other, nearby buildings. Designates Grand Central as a
landmark. Grand Central owners enter 50 yr lease for 53 story building on
top of it w/ estimated $3 million in rent/yr. Board rejects 2 plans. GC
owners don’t appeal or submit more plans. Just bring suit for taking.
Holding: No taking. It’s a RR station, still usable as such. Can’t say they’re
denying all air rights b/c GC didn’t try to submit more plans AND b/c of the
transferable development rights. Not a burden on very few ppl b/c over 400
landmarks.
Dissent: Such a tiny number of ppl are burdened by the landmarks
regulations that it should be considered a taking. That’s what takings are:
benefits to the public to the detriment of a few private landowners.
Lucas v. SC Coastal Council (USSC)
Facts: Bought 2 lots on island off coast of NC he wanted to develop. 1988 –
SC passes act (rationally related to police power b/c preventing erosion and
stronger storm surges) that prevents him from building permanent
structures there. Trial judge finds that this restriction rendered his land
valueless.
Holding: Per se taking – if a regulation denies all economically beneficial or
productive use of land.
Tahoe Sierra Preservation Council v. Tahoe Regional Planning Agency (USSC)
Facts: Gov’t wants to preserve Lake Tahoe. Temporarily (6 yrs) halts all
construction while they figure out a development plan.
Holding: No Penn Central analysis b/c it wasn’t appealed. No Lucas claim. If
it’s temporary, it’s not a taking.
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