Property Outline Supp

7/31/2019 Property Outline Supp

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PROPERTY OUTLINE

PROFESSORGLAZER

1.Conceptions of Propertya.Bundle of rights

i. Possessii. Use

iii. Transferiv. Excludev. Destroy

2.Policy Reasons for Property Lawa. Instrumentalist Aims (better for social policy) that end up driving courts to certain decisions:

i. Promoting competitionii. Bettering health of more people

b. Some decisions may be reconcilable even if they don't look like they are because of the differingnatures of certain things, or X's.

c. Can't give what you don't have.d. If you did something wrong you should pay for it.e. If you said you got something first, you should get it, unless there's a good reason for you not to.

3.Initially Acquiringa.Capture

Policy: Promote order, peace, and certainty. General Rule: You must actually possess something to get property rights to it. EXCEPTIONS TO GENERAL RULE OF CAPTURE

1. Size - i.e. Ghen v. Rich2. Custom3. Constructive Possession: You don't actually hold it, but the law says that it is

possessed. - i.e. Ghen v. Rich.

4. Rationale Soli: If you own land and a wild animal comes on to your land then you ownthe animal. (This is a form of constructive possession because you don't have to actually

physically hold the animal to have rights to it.)

5. Violent or malicious acts - i.e.Keeble v. Hickeringill Externalities Property law tries to increase the likelihood that someone will internalize externalities. Private property forces you to take into account what you do affects your neighbor. Internalizing: Making something your own. CASES:

Pierson v. Post: Parties wanted the rights to a fox. The court considered the essentialcharacteristic to be that the fox was a wild animal.

Rule: In order to have property rights to a wild animal you actually have tophysically capture it. (Actual Possession)

Ghen vRich: Parties wanted the rights to the whale oil. The court considered theessential characteristic to be that the whale was so huge that it is impossible to actually

possess it.


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Rule: Custom is an exception to thePierson rule. This case establishes thatconstructive possession is also an exception to the general rule established inPierson.

Keeble v. Hickeringill: Facts: owns land that has a decoy pond on it. intentionallyshot a gun near the pond to scare the wildfowl away. This deprived of his profit and he

lost the money put in to making the decoy pond.

Rule: If the means by which you possess involve violent or malicious acts youdon't actually have rights to the thing. Exception: If this is done by using the same employment (i.e. competing businesses)

there lies no action.

Popov v.Hayashi:The parties wanted rights to the baseball. The special characteristic isthat it was mid air and moved quickly. Result was an equitable division of the baseball

(each got half of the proceeds.)

b.Creation Policy: Promote competition When you originally own something you want to have all the rights to it. Locke's labor theory: Basically, if you put work into something you own it. CASES: INS v. Associated Press: The parties want the rights to the news that the AP published

first and that the INS resold as its own. The essential characteristic is that news is only

news if you get it first. The court says you either have to say it first or make it news in

your own words.

Policy: The court wants to promote the existence of competition. Rule: In absence of some recognized right at common law, or under the statutes,

a man's property is limited to the chattels which embody his invention. Othersmay imitate these at their pleasure.

o Cheney Bros v. Doris Silk Co.: The parties want the rights to a silk design. The patternexists for only one season. The pattern can be easily copied, and only one of the five

designs is actually a winner. The court is trying to promote competition.

Policy: It's better when people can copy because then get comparable goods for alower price.

c.Gift General Rule: Unless there is some right at common law or statutory protection to

your property anyone can copy. Policy: It's better when people can copy because then consumers can get comparable

goods for a better price. Three Elements: 1. Intent: Donor must have clear and convincingevidence showing his/her intent to give the

item to the donee as a gift.

How to prove intent: Look to the words/action in context of the surroundingcircumstances (i.e. relationship, size of the gift in relation to total assets, conduct of

the donor towards the property after that property was gifted.)


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2. Delivery: Donor has to hand over possession of the item. Delivery is required so weknow that the donor has divested himself from dominion over the property. Cannot

presume delivery.

Other ways of delivery: Symbolic (i.e. writing; Gruen v. Gruen) Constructive (i.e. a key to something [access];Newman v. Bost).

If the donee already has the item - then we can essentially waive the delivery aspect.3. Acceptance: If property is of any value to the donee it is assumed that it is accepted. It

could be a contested element if its not clear whether it is of positive value or not. (If

there are any conditions on acceptance then this a contracts problem.)

Two types of gifts: 0. Inter Vivos (while living)2. Donatio Causa Mortis (in anticipation of dying) CASES: Newman v. Bost:

Intent Element: The insurance policy was in the drawer of the bureau. - The Courtsays this is not the normal place to keep an insurance policy. Van Pelt couldn't have

intended to give it to her because it was in a weird place."It must always clearlyappear that he knew what he was doing, and that he intended a gift." (pg. 161)

Rule: If the party wants the rights to aDonatio Causa Mortis gift they haveto prove there was intent, delivery and acceptance.

Delivery Element: Insurance policy: No delivery because the insurance policy is small enough tobe manually delivered and if the gift can be manually delivered then

constructive delivery is not enough (i.e. the key). Ct says that the policy wasn't

mentioned specifically by Van Pelt.

Furniture: Constructive delivery exists, butJulia gets only the bureau and theitems that were unlockable by the keys that were given to her. With respect to

the rest of the furniture: there was no constructive delivery.

Keys are constructive, NOT SYMBOLIC - furthermore symbolic delivery forgifts causa mortis is not acceptable in the jurisdiction.

Piano: Julia would have to prove constructive delivery of the piano at a newtrial.

Gruen v Gruen: Intent Element: 3 letters show Victor's intent to transfer the remainder interest

to Michael. Victor intended to make a present gift of title of a remainder interest

of the painting. Important to remember thatremainder interest is not tangible-

not deliverable. argument: A gift of a chattel must transfer the present right to

possession - you can't give a remainder interest as a gift.


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Rule:"a present interest can be a future interest or a possessoryinterest as long as the evidence establishes an intent to make a presentor irrevocable transfer of title or the right of ownership." (pg. 170)

Delivery Element: The letters were symbolic delivery. Ct held a letterdelivering a remainder interest is sufficient, since a remainder interest is not

capable of physical possession.

RULE: There has to be delivery of the gift (actually, symbolically, orconstructively) that is sufficient to divest the donor of dominion orcontrol of the property. Delivery has to be tailored to the circumstancesparticular to the thing being gifted. Take into account what is special

about the thing and circumstances.

d.Right to Exclude (Acquisition by being alive) Policy: Promote social welfare. The right to exclude is contingent on owner's use of another right in the bundle. Right to ExcludeDestroy, Use, Possess, Sell CASES:

Moore v. Regents of the University of California: Thing: Cell linederived from Moore's cells. Cause of action: conversion and breach offiduciary duty. Moore thinks he has rights to the cell line because they

came from his body. The hospital thinks they have rights because they

created the cell-line. Holding: There is a both a factual and legaldistinction between the cells and the cell-line. Patent law does not

protect cells, or any raw materials. Policy: This was done for medical

research and the court wants to promote medical research that benefits

people in society.

Jacque v. Steenberg Homes, Inc.: The right to exclude is protected.The court acknowledges that the act of plowing through the Jacques

land caused no physical damage - the damage done was that the

plowing was infringing on the 's right to exclude.

State v. Shack: The right to exclude is not protected. is not allowedto ban the lawyer and doctor from coming on to his land to help the

immigrant workers.

e.Adverse Possession Elements:[AEOCC]

1. Actual: AP has to actually deprive the TO of the land.

AP has to act as a normal owner would over the property. Have to modify the actual possession requirement depending

on the characteristics of that property.

The easiest way to demonstrate actual possession is to build afence around your property.

2. Exclusive: The AP is excluding the TO from the land.


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AP has to show that the TO isn't on the land.3. Open and Notorious: TO has notice.

If the TO doesn't know but should have known then thiselement will be satisfied.

4. Continuous: You have to be doing all the other elements for as long as the statute saysyou have to do it.

Two Dimensions: Continuous and not stopping. For the S.O.L period.

I.e. If the S.O.L is one week AP has to havepossession for all 7 days.

EXCEPTIONS: Seasonal property

(i.e.Howard v. Kunto) Tacking: I.e. A owns for 10 years. B owns for the

next 10 years. Succeeding periods of possession by

those different persons can be added together - there

must be a relationship between A and B. You must

haveprivity- there has to be some sort of legal

document showing that B bought from A.

Exception to Tacking: If B dispossessed aprior AP that B is generally not going to be

given the benefit of tacking.

Disabilities: I.e. infancy, insanity, incompetency.*Disability must be had at the time of entry.

5. Claim of Right:TO didn't grant AP license or lease. AP being hostile and adverselypossessing the land.

Different schools of thought: Good Faith (Minority view) - AP in good faith

believes he has the right to be there. Some courts in

some states say that you need that frame of mind. I.e.

Carpenter v. Ruperto

Bad Faith (Majority view) - Only if AP believes thathe's not supposed to be there can he gain adverse

possession.

No Faith - This is an objective test - it doesn't matterwhat your frame of mind is as long as you acted asan owner would you have satisfied the claim of rightelement of adverse possession.

Policy Reasons for Adverse Possession: To reduce transaction cost. Utility: It's the sleeping on your rights theory. Desert: After a certain amount of time the AP develops a certain

amount of reliance interest in the property.


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People don't like it when you take away their property more than theylike it when you give them property (loss aversion; endowment effect;

prospect theory).

Personhood: More of a "thing" to the adverse possessor than to thetrue owner.

To automatically quiet all titles which are openly and consistentlyasserted, to provide proof of meritorious titles, and to correct errors inconveyancing.

TITLE TRANSFERS TO THE ADVERSE POSSESSOR when the statute oflimitations runs out.

Color of Title: When you actually have some sort of deed, or judicial decree butthere's something legally wrong with it. MOST states have a special adverse

possession statute that deals with adverse possession under color of title- often

there is a shorter statute of limitations. Constructive possession.

Two Advantages: Shorter S.O.L Constructive Possession

Exception to CP: If the TO is somewhere on theproperty there is no constructive possession.

**Doesn't pertain to IP - but does pertain to personal property (theSongbirdcase)**

All land publicly owned is generally not adversely possess-able. Ouster: Someone who is going to be the better gatekeeper of the land (you are

on the land because you actually want to put it to better use.)

CASES: Howard v. Kunto:'s and 's each owned tracts of land on the shore

of Hood Canal in Mason County. The deeds to the houses contained the

wrong descriptions of the adjacent lots. I.e. 's house sat on one lot but

the deed described 's lot. 's predecessors even had a survey done of

the land that said that the deed was right. Eventually 's surveyors

discovered the error in the deed. Holding: The continuity element wassatisfied because the home was a summer home but was occupied by

every summer.

Carpenter v. Ruperto:[Illustration of good faith req't] Facts: knewher lot of land didn't include a cornfield but she cleared it and planted

bushes on it anyways. The remainder of the other lot was cornfield until

1957. From 1960 - 1978 (18 yrs) the lot was only used to store junk and

debris on it. 's obtained permission from past owner to use the lot to

keep a horse on it. (new owner of the land) claims that the land is

part of his property. claims she adversely possesses. Holding: When

knowledge of lack of title is accompanied by knowledge of no basis

for claiming an interest in the property, a good faith claim of rightcannot be established.

Lessee of Ewing v. Burnet:The parties wanted the rights to a lotprincipally containing sand and gravel that was adversely possessed by for 24 years. obtained a deed from Symmes but it turned out the

deed was invalid- he had a color of title. Holding: You have to show

acts or ownership. Songbyrd, Inc. v. Estate of Grossman: Thing: concerns the possession,

ownership, and usage of several master recordings of Byrd. Claims for

conversion. Issue: When were the master recordings allegedly

converted? When did the claim accrue for statute of limitations


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purposes? The conversion occurred in 1986 and the claim was filed in

1995 so the SOL ran out already.

Van Valkenburgh v.Lutz: Illustration of an adverse possession statuteon pg. 118. Disjunctive elements. This case illustrates all three kinds of

claim of right.

Charlie's shack: the ct says that Lutz knew that the shackwasn't on his land- therefore it didn't meet the requirement ofclaim of right. (Bad Faith)

Garage: extended a few inches over boundary line- Lutz failedto meet requirement because he thought it was built on his

land. (Good Faith)

Dissent adopts neither test instead says that it doesn't matterwhat your faith is as long as you acted like the land was yours.

(No Faith)

4.The Estates System Estate: An interest which is or may become possessory and which is measured by some

period of time, even if that period is indefinite. Estates transfer and divide land over time; they also transfer the bundle of rights. Principle I:Always account for whereabouts of property until the end of time. Principle II: O can't give what O doesn't have.

I.e. O to A for life. A cannot give B anything more than a life estate because A only has alife estate.

When owners transfer property they can designate someone as the owner/possessor (presentpossessory interest) and can also designate someone as thefuture owner/possessor (future

interest). PPI: An entitlement that gives someone the right to the land at the given moment. FI: A right someone has to get the land at some future date.c. Present Possessory Estates (Right to land right

now)i. Freehold Estate: The owner of that estate hasseisen (your ownership

with respect to X is not subject to anybody else's ownership to X.)

1. Fee Simple Absolute Right to the whole bundle of rights (exclude, use, possess,

transfer) forever.

Fee: means interest Simple: ownership is unlimited duration Absolute: There aren't any future interests that could cut short

A's interest.

Possessor can do whatever they want with X until the end oftime (assuming there are no limitations.) Magic words:

O to A To A and her heirs

2. Life Estate An interest that a life tenant has during the course of that life

tenants life. We can tie life estates to other people's lives. A


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can transfer a life estate but whoever buys it can only have

property rights for the duration of A's life.

Every life estate is followed by a FI because X will alwaysoutlive one recipient.

Heirs don't have rights until whoever has the FSA dies. I.e. O conveys land to A for life and B forever.

A has life estate. B has a remainder infee simple absolute.

Magic words: To A for life. To A as long as he wishes to live on this property.

ii. Defeasible Estates: A PPI that can be cut short at the happening of aspecified event.

Grantor wants to control the purposes to which the land is used. Granted with a condition attached to it with the understanding

that if that condition isn't met or maintained then the land can

return to the grantor or the grantor's heirs to go to some third

party.

Two things to keep in mind: Who gets the property upon the happening of that specified

event?

O or not O Whether the FI become possessory automatically (meaning at

the time the condition occurs) or instead if the FI holder has

to do something affirmative to assert the rights?

If something is defeasible then you have to take into account that thereis always something left over since it's not FSA then there's something

that can take X away. FI in the Grantor (O)

Fee Simple Determinable (FSD) Generates anautomatic transferat the time the event

happens.

Is always followed by a future interest and is alwayscalled apossibility of reverter.

The PPI ends automatically upon the specified eventoccurring.

Magic Words: (SUDUW) So long as Until During Unless While

Fee Simple Subject to Condition Subsequent(FSSCS)

Magic Words:(BOPP) But if On condition that Provided that Provided, however

Terminates when the grantor exercises theaccompanying FI, which is calledrights of entryor


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theright of re-entry, but until then the holder of the

FSSCS owns the property.

Power of termination Fee Simple Subject to Executory Limitation

d.Future Interests All of the future interests that we already met in the context of defeasable feesare future interests in O.

ii. Retained by Grantor (In O)0. Reversion

Goes back to O An interest left in O when O gives an estate less than what O

owns.

Usually will be in connection with a life estate.. I.e. O has fee simple he says O to A for life, O has a reversion.

1. Possibility of Reverter Goes back to O Attends fee simple determinable. I.e. O gives X to town library board as long as it is used for

library purposes.

Town has FSD and O has possibility of reverter.2. Right of Entry (a/k/a Right of Re-Entry, Power of

Termination) Goes back to O. Attends fee simple subject to condition subsequent. I.e. O gives X to town library board but if it ceases to use the

land for library purposes O has the right to reenter and retake

the premises.

Town has FSSCS, O has right of entry.iii. Created in a Grantee (Not O)0. Remainder

An interest created in a grantee, a 3rd party- someonewho's not O, that is capable of becoming possessory

at the natural termination of a prior possessory

estate created in the same conveyance.

An unnatural termination would be doingsomething defeasable.

I.e. using the land that wassupposed to be used as a library for

a strip club

Usually will follow a life estate - but doesn't have to- can follow a term of years.

I.e. O to A for life, remainder to B. ELEMENTS:( TIN )

Held by atransferee - NOT O Capable ofbecoming possessory

immediately at the end of a prior possessory

estate. Doesn't divest any other interest.


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It has to follow an interest that dieda natural death.

(a) VESTED

O has a present interest at the time of thetransfer to create a present right in the futureinterest.

ELEMENTS: Belongs to an ascertained person. Not subject to any condition

precedent other than the

conclusion of the prior estate.

ASK: Is there now someone to receive theremainder when the prior estate ends? If yes,

then the remainder is vested.

3 Kinds: Absolutely Vested

NO DOUBT that the person who'sdesignated to get the remainder will

get it.

I.e. To A for life, then to B and hisheirs.

Vested Subject to Open (VSO) If the remainder can be divided

among people who will be born in

the future.

I.e. O to A for life, then to A'schildren (A has one child at the

time of this devise, C).

If A had no children thenthis is not the same thing!

Vested Subject to Complete Defeasance(VSCD)

Vested remainder where acondition is attached to a vested

gift which will divest the gift.

I.e. To A for life, then to B and herheirs, but if B should fail to

graduate from Law School, then to

C.

A has life estate. B has vested remainder to

B in fee simple.

C has VSCD. Includes language where a

condition is attachedonly after a

remainder has already established

a vested interest. CONTINGENT (uncertainty)

A contingent remainder occurs if that remainder willtake effect only upon the happening of an event that's

not certain to happen (a condition precedent).


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I.e. To A for life, then to B if she reaches 21,otherwise to C.

"Otherwise to C" is what we call an alternativecontingent remainder.

TWO KINDS: "Not O" isnot ascertained

We don't know who "not O" is. I.e. To A for life then to B's

children. (B has no children at the

time of the conveyance.) It's made contingent uponsome event

occurring (the event cannot be natural

termination). I.e. To A for life, then to B if she

graduates law school, otherwise to

C. The difference between this and

VSCD is where the comma is. If you can pick out

between two commas aclause that incorporates

the condition. Then its

contingent remainder. If you have a severable

remainder from wherever

the condition is written

(not in the same clause)

then it's a VSCD.2. Executory Interest

Divests in Fee Simple Subject to an Executory Limitation(FSSEL)

A FI in not O that cuts short someone's interest in theland.

I.e. O to Hof Law, its successors andassigns, but if the premises are not used for a

library during the next 10 years, to B and her

heirs.

B has executory interest Springing: EI comes from O.

I.e. O to A for life, then one yr later to B and B'sheirs.

Shifting: EI comes from someone who's not O. I.e. O to Hof Law, its successors and assigns, but if

the premises are not used for a library during the next

10 years, to B and her heirs.

RULE: Anytime you have a series of interests that ends in anything other than vestedremainder in FSA there will be a reversion in X back to O.

Fee Simple Determinable :: Possibility of Reverter Fee Simple Subject to Condition Subsequent :: Right of Entry Fee Simple Subject to an Executory Limitation :: Executory Interest


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c.The Rule Against Perpetuities RAP = No interest is good unless it must vest, if at all, not later than twenty-one

years after some life in being at the creation of the interest.

In other words: All interests must either vest or be determined not tovest within 21 years after the death of any person who was alive when

the interest was created.

Perpetuities Period: the life of the life in beingplus 21years. Things we want to know:

What the interest is. Who is the relevant life in being?

Anyone who is alive at the time the interest is created iseligible for life in being status.

Lives in being that are going to affect where and when theinterest vests.

Can be anyone named in the conveyance or interveninggenerations who are alive at the time the interest is created.

A validating life is a person who was alive when the interestwas created and who is going to help you prove that the

interest will vest during the person's life, or within 21 years of

that person's death.

I.e. To A for life then to B if he reaches 25. Whatever interest you get on the final it's not going to fail the R.A.P.- You

still have to know whether the rule does or doesn't apply to the interest. Applies to:

Contingent Remainder Executory Interest Vested Remainders Subject to Open

Doesn't matter when an interest becomes possessory, but when an interest vests. Relevant Life in Being: Lives in being at the creation of the interest who can

affect if and when the interest vests. Can include anyone named in the conveyance, or can also include

intervening generations who are alive at the time the interest is created. CASE:

Symphony Space, Inc. v. Pergola Properties, Inc: Facts:Broadwest selling building to Symphony Space and thenleasing back the commercial parts of the building for

itself. Symphony was a tax exempt organization- so byselling the property to Symphony Space they got a tax

exempt. Using Symphony as a "strawman" to get thebenefits that Symphony Space gets. The latest time thatBroadwest can buy back the building occurs after 21 years

after the option was created. An option grants the holder
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the power to compel the owner of property to sell itwhether the owner is willing to part with ownership or not.

Holding: Options are subject to the RAP.d.Concurrent Estates

i. Tenancy in Common Tenants have separate but undivided interests in the property; the interest of each is

descendible and may be conveyed by deed or will.

I.e. I cant keep you off the property and you cant keep me off the property. Each TIC has the right to possess the entire parcel. TICs do not need to own equal shares. TIC's do not need to own the same type of estate. Differences between this and joint tenancy:

We don't need the share of the interest in X to be the same We don't need to own the same estate There is no right of survivorship Property will be devisable by will.

*DEFAULT ESTATEii. Joint Tenancy

4 Unities: (TTIP) Have to take their interests with a unity intime: The interest is acquired by each

joint tenant at the same time.

Have to have unity oftitle: each of the team members got X in the same way-through the same instrument (i.e. the same will).

Have to have unity ofinterest: each member of the team has to own the wholething for the same amount of time.

Have to have unity ofpossession: each member of the team has the right to ownthe whole thing.

Consequences: Right of Survivorship: Right that any joint tenant has to the whole at the death

of another joint tenant.

The last surviving team member takes all. The other team members can't try and give away X because they're

trying to give away something that you don't have. Biggest benefit of joint tenancy. Death of A eliminates him from part of tenancy. When one JT dies, the estate continues in survivors free from the participation of

the dead team member. (The law pretends like the dead team member never

existed) Severing: Way for a member to escape a joint tenancy. In order to get out of a joint tenancy all you have to do is negate one of the

unities.


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Can be destroyed by one of the JT's conveying an interest to a third party (has tobe done while JT is alive) - this would create a joint in common.

Common law presumption against JT's (so if you want one, be very clear aboutit!)

The law treats joint tenants as oneperson but in actual reality they are not. Each JT has right to possess the whole property. **CANNOT BE CONVEYED BY WILL**

iii. Tenancy by The Entirety Requires TTIP plus marriage.(TTIPM) Half of the states recognize TBE. Can be created only in a husband and a wife. There is a right of survivorship. Neither the husband nor his wife can acting alone can end the right of survivorship of the

other by conveying their half of their TBE to a 3rd

party. Policy reason: You're not supposed to disinherit your spouse.

ONLY WAY TO SEVERE IS BY DIVORCE. When TBE is severed the parties have a TIC.

RELATIONS AMONG CO-OWNERS Sharing the benefits and burdens of co-ownership

Each has an equal right to possession of the whole propertyregardless of the size of the co-tenant's actual share.

A lease won't sever a joint tenancy and the lease will be valid.Swartzbaugh v. Sampson

If the leaser dies- there's still a right of survivorship since theJT is not severed by the lease.

Ouster: occurs when a co-tenant in possession refuses the request ofanother co-tenant to share possession of the land.

What it is that a co-tenant has got to do in order to be liable tohis other co-tenants.

If you've done something less than ouster then you are notliable.

If you've done something that's ouster or more then you areliable.

Partition: Any TIC or JT can sue for judicial partition. That will end the

co-tenancy relationship. And assuming judicial partition is

granted and the co-tenancy is over, the property is distributed

among the co-tenants as solely owned property. Moreover,

those former co-tenants will get an accounting.

Absent some contrary agreement each co-tenant has a right toobtain a partition because the free partition of land is

considered to be central to land's efficient use.


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Two Types: Partition in Kind - dividing the actual land. Partitions by Sale - generally courts prefer this.

Selling land and dividing the proceeds.

CASES: Riddle v. Harmon: You don't need a "strawman." What used to happen

is people would give to a "strawman" - looks like you gave it to a 3rd

party- but really you didn't because that person never became the

owner. The reason for that convention is that it was well settled that

you can sever a JT by giving the interest to a 3rd

party.

Delfino v. Vealencis: Spiller v. Machereth: Rule: A co-tenant in exclusive possession does

not owe rent to his co-tenants absent ouster. Refusing a demand to

either vacate the premises or to pay rent does not constitute ouster. If

you're not ousting the co-tenant but not allowing them to use the whole

thing then you must compensate the excluded co-tenant.

e. Marital Interestsi. The Common Marital Property System

(CLMPS) Each spouse takes whatever is not considered "marital property." *On

exam - must define what is marital property and what is not! Professional degrees are not marital property according to

Graham, but in NY they are. In NY, celebrity status is even considered martial property.

Elkis CASES:

Sawada v. Endo: Facts: Husband in car accident. Wife wasnot a named in the car accident lawsuit. The wanted

to go after property that was held jointly by the marriedcouple. Married couple held their interest in a TBE. Issue:Whether the interest of one spouse held in a TBE wassubject to the levy and execution of the other spousescreditors. Holding: In Hawaii a creditor can obtainsatisfaction from a creditor held in TBE only if the debt isan obligation of both spouses. A creditor cannot go afterboth spouses for an individual debt.

In re Marriage of Graham: Anne works full time; Dennisworks part time and goes to school to get MBA. Anne

contributed %70 of financial support and that she did the bulkof the housework and cooked the majority of the meals.

Couple had no accumulating marital property. Holding:

Educational degree is not marital property subject todivision upon divorce.

Elkus v. Elkus: is a celebrity. was 's husband. Duringthe marriage he travelled with the , attended and critiqued

her performances, photographed her for album covers and

magazine articles, and was her voice coach and teacher for 10


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years. Holding: Celebrity status is considered martialproperty.Reasoning: The 's contributions and efforts led toan increase in the value of the 's career, this appreciation was

a product of the marital partnership. Policy: A marriage is an

economic partnership to which both parties contribute, as

spouse, parent, wage earner or homemaker.

Termination of Marriage by Death of OneSpouse

Elective Share: Idea that at death, if your spouse dies andbasically disinherits you, you as the spouse has the optionof taking an elective share.

This will only be available in a CLMPS.ii. Migrating Couples

RULE: When a person dies that person's domicile at the time of death governsthe disposition ofpersonal property (anything that can be moved) and the law of

the place where the land is located (if there's land) governs the disposition of

real property (land and the improvements of land).

Whether property is classified as CP or CLMP depends on the spouses when theproperty was required.

RULE: Once that property has been initially characterized (at the time ofacquisition) the status doesn't change when the parties change where they're

domiciled unless there's consent to the change in classification.

iii. The Community Property System (CPS) Policy: The earnings of each spouse during the marriage should be

owned equally in undivided shares by both spouses.

Each spouse gets half of whatever is classified as CP. The court decides which things are community property and which is

separate property.

COMMUNITY PROPERTY Earnings during marriage. Rent profits. Fruits of those earnings. Any debt accrued during marriage.

SEPARATE PROPERTY Anything acquired before marriage. Gifts acquired during marriage. Devises (giving real property through a will) Descents (getting property from someone's death)

Don't have the option of owning property via tenancy by the entirety. Right of survivorship does not attend community property.

Martial Property Community P

JT Yes Yes*

TIC Yes Yes*

TBE Yes NO

* Only with respect to separate property.


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iv. Rights of Domestic Partners Marriage is between one man and one woman, except in Massachusetts. See Goodridge.

So in most states, the benefits of having marital property do not extend tocouples comprised of a group of individuals that is different from one man and

one woman.

American Law Institute Requirement: Domestic partners of the same or opposite sex must share for a

significant period of time a primary residence and a life together as a couple.

If the partnership terminates while both partners are living, the couple's propertyis divided according to the principles set forth for the division of marital

property.

Goodridge v. Dep't of Public Health: Facts: 7 couples who all have been together for anumber of years. Each attests a desire to marry his or her partner. Each couple tried to

obtain marriage licenses and were denied. There are many benefits only available if the

partners have marriage licenses. "The right to marry means little if it does not include the

right to marry the person of one's choice, subject to appropriate government restrictions

in the interests of public health, safety, and welfare." Holding: Civil marriage means

the voluntary union of two persons as spouses, to the exclusion of all others. Barringan individual from the protections, benefits and obligations of civil marriage solelybecause that person would marry a person of the same sex violates the

Massachusetts Constitution.

5.Leaseholds: The Law of Landlord & Tenanta.The Lease and the Leasehold Estate

i. Term of Years An estate that arises from any lease or rental agreement that must expire at

the end of a defined period. (I.e. day, month, year, # of years)

The defined period has to be explicitly stated in the lease. Either landlord or tenant can terminate early upon the occurrence of an

event or condition. No notice is required by either party to bring a term of years estate to close.

This is a default rule. If you have a notice provision in your lease- then you are not

protected by this default rule. Can be terminable earlier than that period upon the happening of some

event or condition.ii. Periodic Tenancy

A lease for a period of some fixed duration that continues for succeedingperiods until either the landlord or the tenant gives NOTICE of termination.

Notice: If there is no notice of termination then the fixed period will

automatically extend for another period. I.e. you have 6 month lease that's a periodic tenancy and

there was no notice then the lease will renew for another 6

months. The notice has to be express notice. Unless you say otherwise explicitly in the lease either party is able

to terminate by giving notice to the other by giving notice in the

amount of time that is AT LEAST equal to the length of the lease.


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I.e. if it's a month to month tenancy you have to give atleast a months notice of termination.

EXCEPTION: if you have a year-long tenancy you onlyhave to give a 6

thmonth notice.

In order to be effective the notice has to state the termination dateon it.

If it doesn't stipulate the length of the term- the initial terms length willconform to the frequency of rent payments. Thus, if rent is payable monthly, the parties will be found to have a

month-to-month periodic tenancy. Can be created by explicit agreement but can also be created by implication.

One way of creating an implied agreement- a lease comes due andthe landlord continues to accept or collect rent. In this case, the

terms and conditions of the other lease are carried over to the new

lease.iii. Tenancy at Will

Tenancy ofno fixed periodthat endures for as long as landlord and tenantdesire it to.

Terminates when either: One of the parties terminates, or One of the parties dies.

At common law it was terminable whenever either party wanted it to beterminated and no notice was required.

Most state statues require 30 days notice for a landlord to terminate. Somestates will require the tenant to terminate in a certain amount of time as

well. If the lease provides that the lease can be terminated by one party, then if a

tenancy at will has been created then the implication is that that termination

can occur at the will of the other party as well. Garner v. Garish

iv. Tenancy at Sufferance; Holdovers Occurs when a tenant enters into a valid lease of any of the above 3 types

then holds over past the end of the lease term.

Landlord can treat you as a trespasser; or Can bring an ejectment action. Used to be the landlord could engage in self help (i.e. changing the

locks). Self help is not allowed anymore. [This benefits the tenant.]

Landlord can treat you as a tenant that's held to a further term. Further term will renew for as long as the original lease was for

(not longer than a year though.)

CASE: Crechale & Polles, Inc. v. Smith

v. Lease An agreement between the landlord and tenant (lessor/lessee). Leases are contracts (can be express or implied). Need consideration. Generally from tenant to landlord we've got rent and

from landlord to the tenant is providing of space plus something more. Something more can be: (a) covenant of quiet enjoyment; and (b)

warranty of habitability. Covenant of quiet enjoyment

You've really got to be able to feel like you are not constructivelyevicted.


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Constructive eviction: Not actually being kicked outbut rather you feel like you are effectively beingkicked out - you can't possibly feel comfortable.

Warranty of Habitability Not just looking for constructive eviction here - you've got to feel

like you can really live there. Makes sure a reasonable person can still live there.

Landlord retains a reversion. (You've got to assume that the landlord has afee simple interest)

Tenants' right to the space is subject to the landlord's right to the space. Under the statute of frauds states require that a lease with a term longer

than one year be in writing. Some states go even further and mandate that

ALL leases be in writing.

b.Selecting Tenants Can't discriminate pursuant to the Fair Housing Act on the basis of race, color, religion,

sex, familial status, national origin, or handicap in connection with the sale or rental of a

"dwelling."

Can discriminate on basis of marital status of sexual orientation.c.Subleases and Assignments

Assignment: Puts the responsibility on the third party to pay the rent. Subleases: Keeps the original tenant on the hook. Still have a contractual

relationship with the original landlord.

Usually end on day before the original lease ends. Two tests of whether an arrangement is an assignment or a sublease:

Rule of Intent (Minority rule): The courts will give effect to theparties' intentions about whether or not what they've created is a

sublease or assignment.

Traditional Rule: If the original tenant retains an interest in thepremises then the transfer from that tenant to a third party is a sublease,

but if instead the original tenant transfers the property for the entire

remaining period of the lease then that transfer is an assignment.

CASES: Ernst v. Conditt Kendall v. Ernest Pestana, Inc.

d.The Tenant who Defaults Expectation interest- you have someone who is in possession of the land and has

an expectation interest in being allowed to stay. Property law factors in that you

have an expectation of staying there.

Landlords are no longer allowed to resort to self help when the tenant holdsover. When a tenant possesses and stops paying rent or moves out before the end of

the lease termlandlord has the right to sue the tenant to recover possession ofthe space and can also recover back rent owed and also the costs of finding a

replacement tenant. (NO SELF HELP ALLOWED)

If tenant pays rents but has abandoned the premiseslandlord must make areasonable attempt to mitigate damages.


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Sommer v. Kridel: was going to get married but doesn't, so hebacks out of his 2 year lease about two weeks after he signed thelease. The landlord did not re-let the premises even when there

was a third party who was willing and able to rent the apartment.Instead, the landlord held the tenant to the contract and left the

apartment vacant and sued more than a year later. Ct Holding:

Leases should be treated like regular contracts; therefore, theparty seeking damages has an obligation to mitigate the damages.

This is the rule in NJ- not the rule everywhere!'e.Duties, Rights and Remedies

Covenant of Quiet Enjoyment (Constructive Eviction) Warranty of Habitability (Reasonableness) CASES:

Reste Realty Corp. v. Cooper Hilder v. St. Peter Chicago Board of Realtors, Inc. v. City of Chicago

6.The Recording System Record: File your deed with a public office. Doing whatever it is that you're required to do

when a particular transaction has transpired.

GENERAL RULE: First in time rule. First deed delivered wins. Exceptions to General Rule:

Subsequent BFP prevails. If recordedfirst to record wins.

Recording statutes DO NOT apply to gifts. Since you don't know everything about land by looking at it the next best option is to look at

the paper trail.

e.Types of Recording Actsi. Race: The first party to record wins and must be a purchaser for value.

ii. Notice: Have to be BFP who had no notice of prior purchase.iii. Race-Notice: Have to be the first to record and be a BFP with no notice of priorpurchaser.

f. Who is Protected by Recording Acts?. First to Record, in a race jurisdiction, or

i. BFP's (i.e., bona fide purchasers), who are different depending upon which typeof recording act applies (i.e., notice or race-notice)

Bona Fide Purchaser: Someone who purchases an interest in land forvaluable consideration without notice of an interest already held by athird party.

ELEMENTS: Being subsequent Purchase for value

Don't have to pay full market value butnominal value will not be enough either.

The law is relatively unclear of what countsas value. Some courts require a substantial

amount in relation to market value. Other

courts just say that the payment can't be

grossly inadequate. Other courts require an


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amount that's just greater than nominal. It's

all judicial what constitutes a reasonable

value.

W/out notice of the prior interest. TYPES OF NOTICE:

Actual: Knowledge of the priorinterest. So someone that knows theprior interest exists has actual

notice. I.e. A tells B that he has a

deed from O. Record (aka Constructive): You

didn't check title, but if you did you

would have had actual notice of the

fact. Inquiry: There are certain facts

that are a part of your deal that

give rise to some suspicious

circumstances that a reasonable

person would have checked out

further and had that reasonable

person checked that out further that

reasonable person would have

found whatever fact. If you are held

liable for inquiry notice then you

don't meet the requirements to be a

BFP. In order to have no notice the person cannot

have inquiry notice, actual notice, record

notice, or imputed notice.

In Notice Jurisdictions a BFP is a subsequent purchaser whopays valuable consideration for an interest in real property

without any notice of an interest that a third party holds in the

land. o Wild Deed: A deed that is recorded but has no connection to the original owner (O) - the

effect of this is that a wild deed (even though first) will not trump a later deed. Wild

deeds don't show up in grantor-grantee indices. Doesn't give constructive notice to a

subsequent purchaser.o CASES:

Messersmith v. Smith B.O.E. of Minneapolis v. Hughes Guillette v. Daly Dry Wall, Inc. Daniels v. Anderson Lewis v. Superior Court (pg. 600): Court found that buyers were BFP as to the

entire purchase price and the court noted that otherwise a buyer who already

held title would have to undertake a title search before making each payment.

Diverged from the outcome in Daniels because they reasoned it would be

unreasonable for them to require a person who is paying in installments to

continually do a title search before sending every check.

Harper v. Paradise Waldorff Insur. and Bonding, Inc. v. Eglin Nat'l Bank

7.Servitudes


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a. Easements - Rights to perform specific acts on land that is owned by someoneelse.

i. Terms Land benefited: Dominant tenement (estate)

Owner of the easement: Dominant owner

Land burdened: Servient land. Owner of the land burdened: Servient owner

ii. How Easements are Created Categories

Express Written down and most likely will be recorded. Is different from a license - allows more continued

access in a more permanent sort of way. By Estoppel

In order to meet this requirement you aresomeone who exercises the privilege, done

stuff to "improve" the land (generallybuildings) and/or spent a lot of money

improving the land, and you did this on the

faith and strength of the license. If you meet

these requirements the license becomes

irrevocable and continues for as long as the

nature of the license calls for. Holbrook v. Taylor: Holbrook buys

property a few years later the road is cut.20 years later Taylor buys land and usesthe road to build his home. Later in timeHolbrook blocks the road.

"Where the licensee has exercisedthe privilege given him and erectedimprovements or made substantial

expenditures on the faith or

strength of the license, it becomes

irrevocable and continues for so

long a time as the nature of the

license calls for. In effect, under

this condition the license becomes

in reality a grant through estoppel."

Pg. 679 What was originally a license turned into an

easement. Transformed via easement by

estoppel into an easement. **Not every court agrees with this**

Henry v. Dalton: Irrevocablerights are better granted throughdeeds or licenses rather than anoral agreement. So they don'tagree that you can get anirrevocable right from having alicense.

Implication Implied from prior existing use.


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Implied by necessity. Prescribed

Acquired by using the elements of adversepossession:

Open and Notorious Have to act like you have the right

to use. Adverse claim of right

Generally without the ownersconsent/permission.

Continuous for the statutory period Howard v. Kunto (from adverse

possession section)- the difference

in importing this rule to the context

of prescriptive easement is that the

reasonableness of this particular

use is not dictated by the servient

owner but instead is dictated by the

potential dominant owner. Not continuous if owner effectivelyinterrupts use, as by physical

interruption, or legal interruption

(e.g., by bringing an action for

trespass). Actual

Requires the affirmative use ofsomeone else's land.

*Cannot gain a negative easementby prescriptive.

i.e. the fact that youhaven't blocked your

neighbors view for the last

10 years doesn't mean theyhave gained a negative

easement for light. Element on exclusivity is missing as compared to

Adverse Possession because you are not trying to be

the exclusive owner of the land you just want the

right to use. Focus on the differences and similarities to AP.

Classifications Affirmative (Positive) or Negative

Affirmative: allows someone to do something on yourland for a particular purpose. Authorizes the

dominant owner to do a particular act on servient

land. I.e. Giving someone a right of way to cross

your land to get to the street. Negative: restricts the servient owner from doing

something on the servient land. I.e. Being restricted from building a fence

on your property to block someone from

crossing your land.


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Promise not to do something. Willing toforgo doing some part of the bundle.

Appurtenant or In Gross Appurtenant:

Automatically transferred when dominantland is transferred.

Exists ONLY when there is both a dominantland and a servient land. If the dominantland is transferred from A to B then B takes

the appurtenant easement as well. ALWAYS involves the dominant land

and the servient land. In Gross (benefits a particular person not the land):

Personal to whoever holds the easement Benefits the dominant owner in a personal

sense ONLY going to be a servient estate.

iii. The Scope of Easements - The extent of thebenefit and the extent of the burden.

Parts of Scope: Manner Frequency Intensity

The scope of the easement turns to the intent of the parties. Courts look at the circumstances surrounding the creation of

the easement.

Easements can effectively be used to benefit a parcel other than thedominant land if the servient land won't be burdened any more.

Brown v. Voss: Issue: Can an easement holder use and easement tobenefit any other parcel of land that's not the dominant land?

held an easement that allowed them to cross the land so that they

could reach their own land which they improved by putting asingle family house on it. then purchased an adjacent parcel ofland (C) and they planned to first demolish the house on the firstparcel (B) and planned to build a new house that would straddlethe boundary line of B and C. sued for the removal of

obstructions that the had placed within the easement area. counterclaimed for an injunction in order to limit the 's use of the

easement only to parcel B. The court held that the had no right

to extend the easement to serve parcel C even though there was noextra burden on parcel A (servient land). Refused 's request foran injunction was denied- limited to $ damages- court awarded $1.

Basically allowed the extension of the easement tohappen by only granting the $1 in damages.

iv. Terminating Easements Merger

The easement owner becomes the owner of the servient land.If the dominant and servient lands come into the same hands

then the merger doctrine terminates the easement that the

dominant owner had


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Release Dominant owner basically just signs a release.

Abandonment You've got to do more than just stop using- has to be a

physical act that the easement owner does that indicates anattempt to abandon the easement.

Presault v. United States Holding: Abandonment happened when the owner

failed to use the railroad easement for 26 yearsand removed the railroad equipment from theservient land thereby making future railroad useimpossible.

Prescription The effective ouster. As the servient owner you are preventing the use of the

easement- therefore preventing the continuity requirement. Condemnation

The government exercises its power of eminent domain. Destruction

Destruction of the servient land other than some willful act ofthe land owner.

Recording Act If an easement is not recorded it can be terminated by a

subsequent BFP who did not have notice of the easement.v. Negative Easements

Cannot get a negative easement by prescription - therefore a negativeeasement has to be granted.

Have to have an explicit agreement which restricts the way yourneighbor uses her property.

In the US a few more negative easements are recognized: Solar easements Blocking view Conservation easements

Courts are generally unwilling to see negative easements unless incertain contexts.So, the court is likely to view that promise is going tobe viewed with the reference to the doctrine of restrictive covenants or

equitable servitudes.vi. Conservation and Other Novel Easements

Conservation easements: type of negative easement which purposeis to conserve land. Prevents the owner from building on the

owners land except in ways that are specified in the grant. Benefitto the land owner is that the land owner will get a tax break oftenthe land will be set aside to preserve scenic or open areas/space.

Some people object on the ground that they're perpetual in duration, aretransferable and can be in gross.

CASES: Willard v. First Church of Christ, Scientist Matthews v. Bay Head Improvement Assoc.


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b.Covenantsv. Types of Covenants

Real Covenant: A promise relating to the use of land that (1) benefitsand burdens the original parties to the promise and their successors and

(2) is enforceable in an action for damages.

A conveys parcel (a) to B and does so by giving B a deed thatsays "B his successors, heirs and assigns shall use parcel (a)

only for residential purposes" B then conveys parcel (a) to C

and then C opens a pig farm on parcel (a). What rights does A

as against C?

Traditional answer- there was nothing that A coulddo to recover from C.

The problem is that the personal covenantdid not burden or benefit anyone that

succeeded the original contracting parties.

So originally you had to be a party to thecontract and the contract duties could not be

assigned.

Today the law has developed ways to get away fromrestrictions of personal covenants. They both extendthe burdens and benefits of land use covenants to the

successors of the original parties.

Real covenant Damages can be recovered if

breached.

Equitable servitude Primarily enforced through injunctions if

breached.

Negative Easements vs. Real Covenants: Both involve an owners promise to refrain from performing

some action on the land that you would otherwise be able to

do.

Both offer the remedy of damages. The requirements for creating each differ.

Real Covenants v. Equitable Servitude Traditional remedy for equitable servitude is an injunction. Requirements to create a valid equitable servitude are going to

be easier to meet than one would have to meet to make an

enforceable real covenant.

Two Sides of a real covenent: promisors duty to perform the promise (burden) promisees right to enforce the promise (benefit).

Two distinctions that are important to keep in mind: (1) between original parties and successor parties (2) between the burden and benefit.

vi. How Covenants are Created ELEMENTS

Covenant in writing. Has to be written in the form of an enforceable

contract. Parties intend for the promise to run with the land


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Take intent from the circumstances surrounding theparties.

Notice to the successors at the time of purchase. Arises indirectly from recording statutes.

Covenant must "touch and concern" the land. Generally the promise has to effect the parties' legal

relations as owners of a particular parcel of land - notsimply as members of the community at large.

Horizontal Privity (look at diagram on pg. 743) A connection between the originally contracting

parties (A &B) there is horizontal privity.

A & B share an interest in the land, aside from thecovenant.

I.e. Could have been grantor and grantee;landlord and tenant; mortgagor and

mortagee...etc.

2 Positions: 1st Restatement - Need horizontal privity for

a burden to run but you don't need it for a

benefit to run.

3rd Restatement - Abolishes horizontalprivity in its entirety.

Vertical Privity The party is the successor to the interest that had

been held by the original promisor or the original

promisee.

Establishing vertical privity is difficult (1) when X gains title through adverse

possession; or

(2) when X leases land from A. For a burden to run, an assignee has

got have the same exact estate as

the original party had.

vii. Terminating Covenants Covenants can be terminated in a number of ways, including:

Expiration Release Abandonment

Abandonment happens when the conduct of theperson who's entitled to the benefit of the covenant

demonstrates that person's intent to relinquish his/her

rights. Found when the average person, upon

inspection of a subdivision and knowing of a certain

restriction, will readily/easily observe sufficient

violations so that he /she will logically infer that theproperty owners neither adhere to nor enforce the

restriction.

Reasonable standard. Merger Estoppel Prescription Condemnation Eminent domain.


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viii. Equitable Servitudes When parties don't have privity but meet all the other requirements of a

real covenant an equitable servitude is made.

Tulk v. Moxhay conveys a privately owned park to Elms. Elms promised to

maintain the property in an "open state uncovered with any

buildings." wanted that promise in order to benefit somehouses that he owned that fronted the park - would ensure that

's tenants could enjoy the park. eventually acquires title tothe park and he has actual notice of the promise but despite

that notice he claimed that the promise was not binding on

him. That conclusion was right under existing English law in

1848. Promise couldn't be enforced as a real covenant against

because there was no horizontal privity between and Elms(the original parties). sues for an injunction and wins. Thekey to this ruling was that had notice of the promise

before his purchase. In light of that advanced notice the courtreasoned that it would be inequitable to permit to breachthat restriction.

Holding/Reasoning: If equity is attached to the property bythe owner no one purchasing with notice of that equity can

stand in a different situation from the party from whom he

purchased, otherwise an original purchaser could buy land at

some price reduced (bc of the restrictive promise) then the

original purchaser will be able to resell the land for a greater

price to some successor bc according to the legal result

successor wouldn't be bound to that promise.

Ct used its power to create and equitable servitude that wouldcome into play when there wasn't privity

Requirements for burden to run with land: Intent Notice Touch and Concern In writing or implied from a common plan

IF there's sufficient evidence that the plan is commonenough then that is going to bind successors and the

burden will run with the land.

ix. Scope of a Covenant Hill v. Community of Damien of Molokai(Pg. 773) Facts: Neighbors

wanted to enforce a restrictive covenant to stop 4 ppl with AIDS living

together in their neighborhood. Covenant says: land can be used for

single family residences only. Issue: Can the neighbors get aninjunction to prohibit the AIDS ppl from living in the group home. The

purpose of the home was to create a family type environment.

Interpreted the single family home restriction as it applied to 4unrelated people living in a subdivision that was bound by this

restriction. Ct is trying to convince the reader that they really are like a

family - so the fact that there were four of them is significant. There is

a big stress that the court puts on public policy for disabled people.They want disabled people to be afforded the same kind of life as non

disabled persons.

READ THIS CASE AGAIN WHILE STUDYING. Shelley v. Kraemer Western Land Co. v. Truskolaski


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Rick v. West Pocono Springs Civic Assn., Inc. v. MacKenzie

8.Zoning The regulation of land uses through a general regime that permits and restricts land uses There are zones where particular kind of use (commercial or residential...etc) is allowedand then restrictions on how height, how many people...etc. Industrialization led to overcrowding, pollution...etc. In order to deal with that zoning

ordinances were created.

City has a power to establish a system of zoning and that power comes from the state -generally from the state zoning enabling act.

City only has the power to zone under the power of the enabling act. Police Power- power that the cities have to provide for the general welfare of the cities.

City's policy power is not enough to enable them to enact a zoning ordinance.

When the city has the right to zone they usually implement a Euclidean model of zoning. Exceptions

Idea that pursuant to the SZEA that's adopted in almost every state - a joiningadjustment board may in appropriate cases, subject to appropriatecircumstances, alter zoning ordinances if it is harmony with its general purpose

and intent, they may issue such variance as will not be contrary to the....spirit of

the ordinance observed.

Variance Permits a use that deviates from uses that are otherwise permitted by the

ordinance and its going to be granted to an owner:

(1) That demonstrates that literal enforcement of the provisions of the ordinance will

result in exceptionaland undue hardship to the owner, and;

(2) That the variance can be granted by the municipality without substantial

detrimentto the public good and;

(3) That it won't substantially impair the intent and purpose of the zoning

ordinance.

Use not contemplated at all in the ordinance. Special Exceptions

Involves a use that is contemplated in the ordinance but only if specialcircumstances are met.

I.e. O wants to use her property, Blackacre, for a garbage dump. Azoning ordinance may allow that kind of use in a particular zone only if

the owner demonstrates that Blackacre meets certain predetermined

criteria. Criteria- that the land is 50 acres or more; that it's at least 1000

feet from the nearest residential area; and 4000 ft from water. *Easier to prove*

o With respect to zoning - understand what it is structurally, what issues it brings up, andhow it interacts with and compares to the other sorts of land use restrictions that we've

been dealing with.

o Board of Zoning Appeals- hears appeals from denials, requests for variances, requestsfor special exceptions.

o Generally the reason that you need a comprehensive plan is bc the enabling act requiresthat the city council or the legislative body adopt a comprehensive plan.

o CASES:


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Village of Euclid v. Amber Realty Co.(pg 828) Facts: In 1922 the villagecouncil adopted an ordinance that made a comprehensive zoning plan - it

divided the town into 6 use districts, 3 height districts, and 4 area districts. - This

is called a Euclidean zoning system. Amber is . owns 68 acres in the village.Residential areas were located west and east of 's tract. Industrial uses weren'tpermitted on a large part of that 68 acre tract. The restriction allegedly reduced

the land's value to a quarter of what it would have been if it could have been allindustrial. challenges the city's zoning law on the grounds of substantive dueprocess and equal protections ground. sought an injunction. 's alleged harmwas the loss of value and the loss of the right to use their property in certain

ways. Supreme Court upholds the zoning ordinance. Holding: When zoningbenefits the community as a whole it is constitutionally.

Apply a rational basis test. In order for the ordinance to be constitutional it had to be rationally

related to a legit state interest.

State interest: promote safety and security, reduce streetaccident, preserve an environment to raise children..etc.

Commons v. Westwoodo Exclusionary Zoning

Refers to this type of land use control that tends to exclude low income andminority groups.

The cost of housing becomes really high and as a relative effect lowincome residents are going to be priced out of the market.

Justifications: Generally want to preserve people's autonomy. Open space is preferred - aesthetically pleasing. Property value is upheld. High public service at a lower tax cost.

Generally not ok. Mount LaurelCase

NJ supreme ct held that every local gov't needs to meet its fair share ofthe need for low and moderate income housing.

9.Eminent Domain: The gov't takes property froman owner and then reallocates that that property

to the governments preferred use

TAKINGS CLAUSE: "Nor shall private property be taken for public use withoutjustcompensation." - Fifth Amendment

Cost benefit analysis - if it benefits a number of people versus the one person whose land is beingtaken then it's ok.

Purpose of Takings Clause: It's to bar government from forcing some ppl alone to bear publicburdens when in all fairness and justice should be borne by the public as a whole. Makes sure that

all citizens bear their fair sure of public burdens.

Any kind of private property can be taken by eminent domain. What does it mean to "be taken"?

Physical invasion Any permanent physical acquisition of property by the government will

constitute a taking. Regulatory invasion


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What does "for public use" mean? Example of obvious public use: schools; railroad; hospitals...etc. In order to have a constitutional claim the thing you're bringing an action against has to

be state actor. Needs to be some link btwn whoever's doing the taking and thegovernment.

Kelo v. City of New London: Facts: The New London Development Corp. wanted toplan a development to restore the economy. They bought 14 houses and 9 ownersrefused to leave.Issue: Whether the city's proposed disposition of this propertyqualifies as a "public use" within the meaning of the Takings Clause. Does fixingeconomic distress constitute a public use? The Court says there's no basis to exemptfrom the understanding of public purpose economic distress. The Court also saysthat the fact that private parties are going to benefit is really beside the point.

Two ways this case deals with private matters: Dealing with private people who want to do something - it's not the

government acting.NLDC is a private nonprofit entity. - Acting onbehalf of the government.

The city council authorized the NLDC to exercise eminentdomain in the city's name.

Economic distress arguably is not a public problem. We do have something going in that will do something that wemay classify as public.

Narrow "public use" - if everyone can access. Broad "public use" - if public derives collateral benefits from the taking.

Was the person given "just compensation"?

10. Regulatory Takings:The gov't doesn't takebut instead enacts some sort of a

statute/ordinance that effectively deprives the

owner of the rights that he has with respect to hisprivate property and then the government has to

compensate owner for it.

Metaphorical extension of taking. What constitutes a taking?

Loretto v. Telepromter Manhattan CATV Corp. Facts: bought an apartment building. Previous owner had permission to

install cable. The cables physically occupied portions of 's roof and the side ofthe building. Two years later drops a line to the first floor to serve the

buildings tenants. This prompted to bring a class action suit against . argued that the installation was a trespass, and under NY law trespass

constituted a taking and she wanted to be compensated per the 5th

amendment.

In reality the cables are not really intruding on 's ownership rights but it ispermanent.

Holding:A permanent physical occupation authorized by a gov't statute isa taking regardless of any public interest it may serve.

Per se rule- no balancing of other elements i.e. The size of the burdendoesn't matter.


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Policy: A permanent physical occupation destroys three crucial property rights:possess, use and dispose.

Hadacheck v. Sebastian Facts: convicted of a misdemeanor for violating an ordinance that said that no

one could operate a brick yard. When he bought the land it was outside the

limits of the city and then the city expanded and a residential community

developed around 's property. The prohibition reduced the value of hisproperty more than 90%. It would have been not feasible for the petitioner totransport his clay from his property to make the bricks elsewhere. said thebrick making didn't create a nuisance and that the area where his land is sparsely

settled. says the ordinance was designed to single him out and didn't apply toother areas that included brick yards.

Rule: If a regulation does nothing more than prevent harm to the publicthen it is not going to constitute a taking per the Fifth Amendment.

Policy: When the gov't prohibits you from building something on your land inorder to preserve the beauty for the public, this is not a nuisance because the

gov't is extracting a benefit so therefore will constitute taking.

Pennsylvania Coal Co. v. Mahon Facts: Penn () reserved the right to remove all the coal from underneath the

property. Mahon's () predecessor agreed to take the risk and bear all the costsofdamages. buys the property and knows of the 's rights. In 1921Pennsylvania passes an act that prohibited mining in such a way as to cause

damage to any structure used as a human habitat. had to have structures tosupport the land that 's house was on. When notified the that futuremining would cause their land to subside the sued to enjoin the frommining. Argued that 's contract rights to mine were eradicated by the 1921Penn. act. says that statute is a taking and that they should be paid justcompensation.

Issue: Whether the statute is a constitutional exercise of the states police powerin violation of the takings clause?

Holding: The statute affected an unconstitutional taking of property. It wasunconstitutional because there was no payment. It is unconstitutional in so far as

the act affects the mining of coal under streets or cities in places where the right

to mine coal had been reserved.

"If regulation goes too far it will be recognized as a taking." Things to balance to determine if it "goes too far":

The extent of the public interest Limited in this case since the statute ordinarily

doesn't apply to land when the surface is owned by

the owner of the coal. Not public safety bc that can

be provided for by a notice of digging. Designed to

protect dwellings rather than land - so therefore not a

public concern.

The extent of the diminution in value. Penn Central Transportation Company v. City of New York

Modifieds Penn Coal by setting forth a broader set of adhoc factors.

Factors to consider when determining public interest: Economic impact Extent to which the regulation interferes with the claimant's

investment-backed expectations;

The character of the State action. As a general matter in regulatory takings cases that don't fit categorical rules the courts

engage in a balancing test and take into account a number of factors.


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OTHER DEFINITIONS:

Relativity of Title: Depending on the circumstances different people can have better and worseclaims to the same thing.

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