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Deb BergmanPetherbridge 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 possess2) To use3) To exclude others from possessing or using4) To alienate (dispose of the property by sale or gift)

B. THEORIES OF PROPERTY/JUSTIFYING PROPERTY LAW1. 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 armiesEncourages 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 TheoryHow do you become the owner of stuff you produce?

You own yourself and your laborOnce 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 workSomeone 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

Internalizing – transaction costs

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Holdouts – hold out until the buy-out price goes way upFree-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 highTragedy 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 RIGHTSRule 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. PostProperty 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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D. INTANGIBLE PROPERTY RIGHTSRule:

There are no property rights in factsCheney 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 stronglyTragedy 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 PROPERTYTheory 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.Creates defined, discrete package of rights out of otherwise intangible information that ppl can now transact around. Promotes putting info into

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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. COPYRIGHT1. Copyrightable subject matter:

1) Applies to original works of authorshipRequired originality is very low barFacts:

Facts are not copyrightable b/c they are not original and copyright rewards originality, not effortCompilations 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 expressionMuch less disputed than original authorshipWords 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.

Feist v. Rural

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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. SeldonFacts: Seldon made book explaining how to do accounting w/ forms at the end. Baker used those forms. Seldon claims copyright infringementHolding: 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 CompanyFacts: 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 thin2. 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 PacificFacts: 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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3. Scope of the Exclusive Right of CopyrightMust 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 work3) 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 PicturesFacts: 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 EnterprisesFacts: 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. PATENTS1. Patentable Subject Matter

General:Justified leg and constitutionally by the same language as copyrightStatutory property system that’s based on private enforcementPatent 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 propertyThe 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 USCons: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 innovationRigorous, 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 futureYou 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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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 ideaIE – 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.

Cases: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 CoFacts: Scientist tries to patent purified adrenalinHolding: 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. DiehrFacts: 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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Experimental Use Defense – the patent version of Fair Use, but much more narrowUse 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 UniversityFacts: 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 TISSUESRule:

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 CaliforniaFacts: 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 RIGHTSA. 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. DelamirieSubsequent 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. 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.

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O > P1 > P2 > PnSO P2 can trover P5

Trover – damages for wrongful taking of personal propertyFarther 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 BailmentWhen 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 estateGeneral 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 - McAvoyLost – 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. HawkesworthAbandoned – 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. PeelFacts: 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.

Bridges v. Hawkesworth – cited in HannaFacts: Customer finds money on the floor of a shop

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Holding: customer gets to keep it b/c finders in public areas have superior rights to lost property

McAvoy v. MedinaFacts: Customer finds pocketbook on a table in public area of shopHolding: Shop owner, not customer, gets to keep it. Greater likelihood the true owner will get it back than in Hannah.

B. ADVERSE POSSESSIONJustification:

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 landStarts 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 useSometimes shorter SOL for color of titleSOL 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 notoriousWould 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 chattelsPossession may not be open and notoriousRule for real property: In cases of minor encroachment, open and notorious is not an objective standard. There is no

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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 periodNo SOL for remaindermen (future interest) until they have possessionIncludes 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, imprisoned3) 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.Death removes the disability so the heirs do not get an extra 10 yrs.

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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 titleRequisite mental state varies by jdx:

1) Good faith mistake2) Aggressive (knowing) trespasser3) 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 landSomeone 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.Rule: You only get what you possess. Must have substantial inclosure OR cultivate/improve.

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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. GorskiFacts: 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. KuntoFacts: 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. SnyderFacts: 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. GIFTSElements:

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 problem2) 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 DeliveryThrough a letterCould 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.Ok when gift cannot be delivered b/c intangible property – like IP or future interest

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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) AcceptancePresumption 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 INTERESTSHow 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 FS2) Determine if the Rule Against Perpetuities Applies

If no, future interest is validIf yes (contingent remainders, vested remainders subject to open/divestment/class gifts, executory interest), move on

3) Apply the RAP and figure out if the future interest is validIf no, cross out from comma to comma the offensive clauseIf yes, future interest is valid

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A. INHERITANCE RULES (default system of land distribution): Intestate – someone who dies without a will. Heirs – a person has no heirs until they are deadHeirs apparent – the people who might become heirs upon the principal’s deathWhen 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 transfer2) Devisibility – capable of transfer by will3) 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 heirsTo ATo A in fee simpleTo A foreverAll to A

Conveyability:Transferable, devisable, inheritable

2) The Finite EstatesLife Estate

Terms of art:To A for lifeTo 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 yearsConveyability:

Transferable, devisable, inheritable (b/c you could die before the term of years is up)

3) The Defeasible Fee Simples

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A. Fee Simple Determinable1) Automatically ends at the happening/non-happening of an event2) Future interest held by grantorTerms of art:

Created by language of fee simpleTo A and his heirsTo ATo A in fee simpleTo A foreverAll to A

Limited by language showing intent to terminate automatically

So long asWhileUntilDuringUnless

Conveyability:Transferable, devisable, inheritable (subject to conditions)

B. Fee Simple Subject to Condition Subsequent1) May end at grantor’s election on happening/nonhappening of event2) Future interest held by grantorTerms of art:

Created by language of fee simpleTo A and his heirsTo ATo A in fee simpleTo A foreverAll to A

Limited by language showing intent not to terminate automatically, but right to re-take:

But ifProvided that/howeverOn 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 DFS2) BUT the future interest is in 3rd party, not grantorConveyability:

Transferable, devisable, inheritable

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Rules of Interpretation:1) Cardinal rule of interpretation – discover the grantor’s intent and try to give legal effect to it2) 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 reversion4) 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 estate2) 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 AbsoluteNo future interest

2) Finite EstatesA. Reversion – in grantor

Remember: can revert for one day.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

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Cher has executory interest, Duane has reversion in FSSEL.

B. Remainder – in 3rd party. NEVER follow any type of fee simpleNEVER divest prior estate.Two kinds:

1A) Vested remainder – sure to happen. Preference for vested where ambiguous. Three requirements:

1. Remainderman is born2. Remainderman is ascertainable (we know his/her name)3. AND NO express condition precedent in

A. The clause creating the remainderB. 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 FSAG 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.

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):

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1. Remainderman is unknown2. OR subject to condition precedentEX 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 remainderFollows another contingent remainderEX: 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 possessShifting 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 encourage ppl to donate land to churches, schools, etc so we allow restrictions.

Cases:Mtn Brow Lodge v. Toscano:

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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 PERPETUITIESRule:

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 VOID2) 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 remaindersMust 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 time3) Executory Interests

Must become possessory w/in the timePurpose:

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 CValid 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 CInvalid 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 childIf giving child has no effect on vesting b/c it’s tied to that life in being, it’s probably valid.

Kill – kill everyone elseCount – add 21 yrs and measure against the conveyance. Could the interest vest after these 21 years? If so, it’s invalid.

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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 problems2. Wait and see – wait 95 yrs and see if the interests vest.

IV. CONCURRENT INTERESTSHow 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/deedNo survivorship

2) Joint tenancyOld rule – Must have 4 unities

1) Created at same time2) Created by same instrument – deed/title/joint adverse possession3) Equal interests – equal undivided shares/identical interests measured by duration.

SurvivorshipWhen 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 wholeModern 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 tenancyStrawman 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 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.

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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 impracticableHow many co-tenants; shape/geography of land/resources; location of buildings/roads/utilities

2) Interests of owners better promoted by saleIs 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 so2) 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 rent2) 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 collectedE. Cases:

Riddle v. HarmonFacts: 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.Holding: The transfer was fine and now they’re tenants in common.

Harms v. SpragueFacts: 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.

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Delfino v. VealencisFacts: 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. MackerethFacts: 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. SampsonFacts: 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 ASSURANCEMain purpose of the recording system

Resolve potential conflicts in title.Records all instruments that affect interest in property:

Deeds, mortgages, liens, easements, judgmentsTwo kinds of Indexes

1) Grantor/granteeEx:

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.

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.

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2) Constructive notice – objective – should be aware of a conflicting interest in real property.

A. Record notice – notice based on properly recorded instrumentsA 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. EglinWhat 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 earlyA 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 splitMA + ½ jdxs = notice when reference to common plan w/ other deeds to look at the other deeds - GuilletteOther ½ jdxs = no notice

Prior document recorded too lateNo 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 acts1) Race – As b/w successive purchasers for value the purchaser who wins the race to the recording office wins. Is claimaint:

A. Subsequent purchaserB. For valueC. 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 purchaserB. For valueC. 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 purchaserB. For valueC. Did he have notice?

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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 ruleA 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. HughesFacts: 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 WallFacts: 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. ParadiseFacts: 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 NationalFacts: 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.

2ND HALF OF SEMESTER:

I. Judicial Control of Land Use – NuisanceDefinition:

Any substantial, unreasonable nontrespassory invasion of another’s interest in the private use and enjoyment of land.

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Test:1) Is there a private nuisance?

Non-trespassoryNo physical invasion – just fumes, odors, loud noises, lights, etc.

Intentional conductIf you know or should have known you’re doing something that’s causing a nuisance/causing harm.

Substantial – not just inconvenienced or annoyedNo 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 harm2) Social value of P’s use3) Suitability to the locality in question4) Burden on the P of avoiding the harm

Social value of D’s use:1) Social value2) Suitability to the locality in question3) Impracticability of the D preventing the harm

Coming to the nuisanceOld CL – P is barred if they came to the nuisanceModern/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:

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

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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 = intentionalHolding: Nuisance.

Estancia Dallas Corp v. SchultzFacts: 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 WebbFacts: 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 – ServitudesDrawbacks to nuisance leading to servitudes – nuisance law is retroactive/does not prevent nuisances from occurring. Remedy may only be damages.Servitudes

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

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Servient tenement - burdened estateIn 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 easementEasement 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 EasementsExpress 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. Taylor2) 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.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

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A. Common ownership and then severanceB. Use must be strictly necessary at time of severance

Prevents landlocked parcels4) 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 EasementsEasements only serve dominant parcels. Any service of a non-dominant parcel is a misuse of the easement and a trespass – BrownScope 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 grant2) It is within the parties intentions

Read the grant3) AND doesn’t unreasonably burden the servient estate - Preseault

Remedies for misuse of an easementSome 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 easements1) Through abandonment (see Preseault)

1) NonuseMaj – usually not enough, aloneMin – 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.

2) Release – easement holder agrees to release the easement (usually requires a writing)3) Expiration – if the easement’s length was limited4) Defeasible easement – ends upon the occurrence of an event5) Necessity – ends when there is no more necessity6) Merger – when the easement owner becomes the owner of the servient estate7) Condemnation – gov’t takes it and new purpose is inconsistent w/ continued existence of the easement8) Prescription – servient owner wrongfully and physically prevents the easement from being used for the prescriptive period.

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Willard v. 1st Church of ChristFacts: 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. TaylorFacts: 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. RoysterFacts: 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. RosierFacts: 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. VossFacts: 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.

Preseault v. USFacts: 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

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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 covenantsDefinition:

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 thisHe 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.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 written4) 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.

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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 covenants1) 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) Prescription10) 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 equitiesEnforceability 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 membersVoted in by members of the association

Enforceability: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 policyIn CA after Nahrstedt, public policy is that all homeowners get one pet.

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3) Imposes a burden on the use of affected land that far outweighs any benefit.

Neponsit Property Owners’ v. Emigrant Savings BankFacts: 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. TruskolaskiFacts: 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. WestFacts: 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 caseFacts: 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.

EQUITABLE SERVITUDESCan 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 successors2) Notice (actual, record, inquiry – do they need to search index for neighbors’ deeds like in Guillette/Sanborn)3) Touch/concern land

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Remedies:Enforceable against successors in equity. P can get injunctions/get D to tear down 2nd story but cannot get money damages.

Tulk v. MoxhayFacts: 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. McLeanFacts: 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.

ZONINGZoning is not unconstitutional - EuclidPower 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:

1) Zoning commissionMakes 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 adjustmentHears 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.

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- Over-inclusive zoning that fails to separate b/w noxious and non-noxious 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 lawfulLawful nonconforming use establishes a vested right which cannot be destroyed unless it is a nuisance, abandoned, or extinguished by eminent domain – PANW DistributorsW/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 use2. Length of time in relation to the investment3. Degree of offensiveness of the nonconforming use in view of the character of the surrounding neighborhood

Spot ZoningNot 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 laws1) 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

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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 useCts are stricter here b/c use might have greater impact on surrounding neighborhood than an area variance.

Self-inflicted hardshipNo 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 permitsDefinition:

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 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.

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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 BoardFacts: 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 AdjustmentFacts: Less frontage ft and sq ft total than allowedHolding: Yes variance b/c otherwise zoned out of utility and little effect on neighbors

Cope v. Inhabitants of BrunswickFacts: 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. BerkeleyFacts: 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)Holding: Ordinance is unconstitutional b/c it violates Ladue residents’ right to free speech.

TAKINGS5th 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?

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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 sovereigntyBenefitting the public to the detriment of one private party

Why do we have just compensation?To limit gov’ts desire to takeTo 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 condemnationPublic 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 investment-backed expectations)Landowner’s suit is called inverse comdemnation – try to establish a takingPer 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?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

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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 landownerTrend 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 decisionsOnce 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)

RemediesEarly 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.

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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 zoningFacts: 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

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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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