The BAR Exam - Property Outline Cheat Sheet
The BAR Exam - Property Outline Cheat Sheet
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Date Created: 03/06/14
Public Accommodation Law a Trespass unprivileged intentional intrusion on property possessed by another i Defenses 1 Privilege with consent express or implied 2 Necessity 3 Public Policy Shack ii Remedies 1 Damages a Nominal no harm occurred or compensatory trespasser caused harm 2 Injunction 3 Declaratory judgment stating the legal rights of each party iii Shack D entered P s property to aid migrant farm workers employed and housed there 1 Owner does not have the right to exclude government employees from providing services to migrant workers a Nonconsensual entries are privileged where there is necessity or a public policy justi cation b Antilibertarianism no protective regulations antiformalism no bright line rule but rather balancing test 2 Public policy Economic Opportunity Act would be frustrated if intended bene ciaries could be insulated from efforts to reach them 3 Title to property does not include dominion over the destiny of persons on the premises 4 Harm Principle one should use his property so as not to injure the rights of others a Court balances the rights and interests of property owners personal autonomy nancial bene ts against those of the migrant workers government services iv Desnick v ABC P ophthalmic surgeons sue D broadcasting company for trespass after expose piece 1 Judgment for D trespass was privileged 2 Generally no implied consent when express consent is obtained by misrepresentation a Whether fraud vitiates consent depends on balance of interests in that particular case see also Food Lion Shz man Dietmann b Antiformalism no brightline rule 3 The tort of trespass seeks to protect the inviolability of property not the issue here a Owner s interest in exclusion lt Consumer s interest in access public s righttoknow freedom of the press b Common law public policy limits on the right to exclude i Uston P excluded om D casino bc he counts cards 1 Judgment for P when property owners open their premises to the general public they have no right to exclude people unreasonably a P does not threaten casino security nor does he disrupt the casino s operations 2 Common law rule of reasonable access requiring innkeepers and common carriers to serve public wout discrimination extended to all businesses open to the public ii Madden v Queens County Jockey Club NY places of amusement and resort have unlimited right to exclude anyone regardless of reason 1 Right of reasonable access applies only to innkeepers and common carriers c Public accommodations statutes race sex i Common law doctrine of reasonable access 1 Majority rule traditional rule a Private property owners have an absolute right to exclude i Exception innkeepers common carriers ii Libertarian formalist brightline rule 2 Minority rule Uston balancing interests a Right of exclusion depends on if the property is open to the public place of public accommodation i If so then right to exclude is limited to certain situations danger threat to security ii Statutory doctrine Civil Rights Act of 1964 Title II 1 Equal access in places of public accommodation wout racial discrimination a Remedies declaratory and injunctive relief no damages iii When analyzing public accommodation statutes ask 1 Is the P in the class of entities covered by the law 2 Is the exclusion the kind of exclusion prohibited by law a Ie was the exclusion unreasonable i Uston s exclusion wasn t based on race or sex but it was still found to be unreasonable iv Dale v Boy Scouts gay P rejected from Boy Scouts 1 Boy Scouts is a place of public accommodation a Broad public solicitation close relationships with federalstate governments and public schools 2 Boy Scouts does not meet the distinctly private exception a No selectivity criteria 3 Later reversed by the Supreme Court 1st Amendment protection of freedom of association v Constitutional protections of property rights free speech freedom of association d Free Speech Rights of Access to Private Property i Lloyd Corp v Tanner D private mall generally open to the public prohibits Resistance Community from passing out handbills 1 Judgment for D 2 Marsh when a privatelyowned company town is performing a inction that is the equivalent of a publiclyowned facility subject to free speech limits on the right to exclude then those limits are upheld a But the Lloyd Center is not the inctional equivalent of a public business district i In Marsh the owner of the town performed all municipal duties stood in the shoes of the state b Property owners are not subject to free speech limits unless they are a company town ii Hudgens v NLRB upheld Lloyd the only rst amendment rights recognized on private property are those recognized in the context of the company town in Marsh iii United Food and Commercial Workers Union v Crystal Mall private property does not lose its private character simply because the public is invited to use it for designated purposes iv New Jersey Coalition Against War in the Middle East v JMB Realty free speech guarantee extends to some private property including large regional shopping centers 1 Shopping centers are the inctional equivalent of downtown areas v Robins v Pruneyard Shopping Center free speech rights do limit the shopping mall owner s right to exclude 1 New Jersey doctrine the more the property is open to the public the more the owner s rights are curtailed 2 But NJ considers effect on business which KKK could interfere with vi General principle State cannot force anyone to devote their property to speech against their will 1 Interferes with property owner s right to exclude a 5th and 14th Amendment rights to not have property taken for public use without just compensation II Landuse Regulation and Nuisance Law a Landuse conflicts among neighbors i D s free use privilege vs P s security from harm vs prior appropriation doctrine 1 Prior appropriation doctrine whoever was there rst gets the privilegeright a May discriminate against the poor who have no choice but to live near factories ii Courts resolve land use conflicts in three basic ways 1 2 Defendant s privilege damnum absque injuria damage without legal redress D has a privilege to act without liability and plaintiff has no right to stop him Plaintiff s security veto rights P has absolute right not to suffer a particular sort of harm a D cannot legally engage in an activity without liability unless he has plaintiff s permission strict liability Reasonableness test exible D may engage in conduct if decision maker deems it is reasonable a Moralpolicy judgment consider social utility and economic efficiency b Factors to consider i Extent of harm ii Social bene ts lost if defendant were prohibited from the activity iii Relative social costs and bene ts of con icting land uses iv Availability of altematives v Defendant s motive vi Which use was established rst greater protection given to prior use iii Four remedies l 2 3 4 b Water rights Dismissal of complaint defendant s privilege Damages usually cost of restoration and dimunition in the market value of the PTOPGITY Injunction Purchased injunction ordering activity stopped but requiring P to reimburse the D for the opportunity loss i Armstrong v Francis Corp D s development caused increased water runoff into P s property 1 2 Three rules a Common enemy rule surface waters are the common enemy and the possessor has the privilege to rid his lands of them as he will i Damnum asbque injuria b Natural ow or civil law rule possessor has duties not to harm other landowners by diverting surface water i Strict liability veto rights might inhibit land development c Rule of reasonableness majority rule balance social bene t derived from development of D s property availability of altematives and gravity of harm to P s property Policy arguments a Rights Freedom of action vs Security i Right to control the use of one s property vs right to have one s property protected from harm b Social utility Competition vs Secure investment i Promoting the social welfare by enacting appropriate incentives promote socially desirable conduct and deter socially harm il conduct ii Promoting competition allow property owners to develop as they see t iii Protecting the security of investment goal should be to promote reasonable development 1 Require developers to compensate those harmed c Lateral and subjacent support i Noone v Price deterioration of D s lateral wall causes P s house to slip down the hill 1 2 In general landowner is entitled to lateral support Adjacent landowner is strictly liable for any withdrawal of lateral support a But limited to land in its natural state no obligation to support the added weight of buildings b If natural land would have supported buildings however then property owner can recover for both injury to land as well as to structure 3 Wall was erected before P s house was built so it only needed to be suf cient to provide support for the soil a D merely had the obligation to maintain the wall to support the land in its natural condition b In order to recover P must show that the disrepair of the wall would have led to the slipping of the land in its natural condition 4 If plaintiff s structures were a contributing cause of the loss of lateral support then a negligence standard applies to the defendant s activities rather than strict liability ii Easement right to do something on or control the use of someone else s property 1 Af rmative easement right to do something on someone else s property eg right ofway 2 Negative easement servitude right to prevent someone else from using his property in a certain way iii Friendswoodz P claims severe subsidence of its land caused by D s withdrawal of ground water from wells 1 D not liable must follow stare decisis common law rule of absolute ownership bc thousands of farmers and municipalities rely on it a Right to withdraw water only limited by waste or malice b Plaintiff must prove either negligence or a nuisance 2 Dissent absolute right to lateral support should control 3 P 261 how to argue water rights v lateral support iv Standards of care 1 Strict liability D liable whenever he causes harm to P 2 Reasonableness test decisionmaker makes judgment based on legitimacy of conduct andor character of harm as well as societal interests a Negligence standard D liable if he engaged in conduct that created an unreasonably great risk of causing harm i Focus on D s conduct b Nuisance standard D liable is his activity was both unreasonable and caused substantial harm i Focus on consequences of D s conduct d Nuisance substantial and unreasonable interference with the use or enjoyment of land i Must show harmdamage and then that the harmdamage is unreasonable ii When is a use reasonable 1 Unreasonable R2d of Torts gravity of the harm outweighs the utility of the conduct a Consider faimess and welfare i Fairness 1 Character of harm aesthetic harms less serious than healthsafety harms 2 Distributive considerations should individual P bear cost of D s sociallybene cial activity or should costs be spread to D and D s employees 3 Fault is the conduct appropriate for the area Did P come to the nuisance Is the activity disfavored Is P unusually sensitive ii Welfare 1 Costs and bene ts of allowing harm il conduct vs prohibiting it 2 Incentives effects of liability or immunity on incentives to engage in activity 3 Lowest cost avoider which party can more cheaply avoid the cost iii Interest protected is the quiet enjoyment of land 1 Focuses on whether the interference itself not the conduct was unreasonable 2 Reasonableness standard nonnegligent conduct may still constitute nuisance iv Remedies 1 P may obtain an injunction when D s conduct is unreasonable and causes substantial harm 2 P may obtain damages when D s conduct is reasonable but the harm is substantial so that it is unfair to burden P with the costs of D socially use il conduct 3 P is entitled to no remedy if a The harm to P is not substantial or b D s conduct causes more social good than harm and it is not unfair to impose the costs of D s activity on P or c The imposition of damages would put D out of business and avoiding this result is more important than preventing harm to P v Policy choices 1 P s veto right any interference with use and enjoyment is a nuisance 2 Reasonable use standard general rule interference with use and enjoyment is actionable if and only if it s substantial and unreasonable a Balance D s interests with social utility rights and fairness 3 D s free use privilege absolute privilege to engage in an activity regardless of the consequences 4 Prior use rule reward the first user with the privilege to engage in an activity vi Radiation 1 Page County v Honeywell radiation from Honeywell computer damages televisions in nearby appliance store a P s televisions are not a hypersensitive use of its premises b Honeywell s design emitted radiation even though it could have been prevented vii Light and Air 1 F ontainebleau D s proposed addition to hotel blocks sunlight at neighboring hotel a Despite elements of malice landowner does not have a legal right to the free ow of light and air across the adjoining land of his neighbor b No negative prescriptive easements in US mere fact that P enjoyed light and air does not create an easement that prevents neighbor from building 2 Prah v Maretti D builds structure which blocks sunlight from P s solar panels a Nuisance law applies Court s historical reluctance to grant protection for access to sunlight is based on three policy considerations no longer illy accepted or applicable i Right of landowners to use their property as they wished was jealously guarded 1 Now it is regulated ii Sunlight was valued for aesthetic value or illumination which became less important with the advent of arti cial light 1 Now sunlight is a valuable energy source iii Society had an interest in not restricting land development 1 Unhindered private development is no longer a priority b Dissent solar heating system is an unusually sensitive use of property which should not be protected III Prescription regarding border disputes color of title squatters a Basic principles i Promote the economically efficient use of property 1 Con icts with two values a Value of individual autonomy b Value of conservation and preservation ii Eliminate uncertainty over who owns a particular parcel of property we want to quiet title iii Protect reliance interests b Adverse Possession enables one who has been in possession of a piece of real property for more than ten years to bring an action asserting that he is now the owner of that piece of property even when title rests in another i Elements 1 Possession rather than use which is a Actual no possession of all the property necessary just a part of it b Open and notorious i Public perception of the property s status ii Reasonable knowledge standard favored over actual knowledge standard c Exclusive of the true owner no cooccupants can t be open to the public d Continuous Fagerstrom says seasonal use does not defeat this requirement but it depends on the situation e Hostile adverse possessor must know the property is not his i Objective standard was the adverse possession nonperinissive ii Is adverse possessor a squatter or merely an aggressive trespasser f For the statutory period ii Brown v Gobble D asserts rights by adverse possession to twofoot strip of land bordering P s property 1 D relies on principle of tacking to make up the ten years of possession by tacking on the time periods from previous owners iii Romero v Garcia iv Nome 2000 v Fagerstrom P seeks to eject D squatters from property D s claim they acquired title through adverse possession 1 One claiming adverse possession need not show signi cant improvements or substantial activity a Conduct must merely be more than casual and occasional trespass b Remanded to determine the extent of D s acquisition c Prescriptive Easements rights to continue a particular kind and amount of use of land i Elements Use rather than possession which is 1 Open and notorious 2 Continuous a Occasional sporadic use is insuf cient b Must demonstrate some regularity of a de nite and open line of travel i De niteness not necessary so long as a general outline is ascertainable 3 Hostile 4 With acquiescence a Permission not required owner must simply not exert his right to exclude by bringing a trespass action b Some courts say owner must have known about the use and passively allowed it to continue without formally granting permission c Some courts say owner should have know about the use this duplicates the open and notorious requirement 5 For the statutory period 15 years in Comm Feed Store ii Public policy weigh the private intentions of property owners vs protecting the reliance interests of nonowners who use the land iii Community Feed Store P s business vehicles use portion of D s land to turn around during loading D builds a wall and P sues for declaration of prescriptive easement 1 Judgment for P d Adverse possession v Prescriptive easement i Adverse possession results in transfer of title 1 Involves all property rights right to use exclude others 2 Adverse possessor must show that his occupation of the property was hostile ii Prescriptive easement results in the right to continue the kind and amount of use that persisted during the statutory period 1 Not all rights just right to a particular use 2 Af rmative easements right to use owner s property eg right to use watering hole 3 Negative easements right to tell owner what he cannot do on his property eg right to prevent owner from polluting through injunctiondamages a No negative easements or public easements by prescription e Lessons from Hohfeld i Rights are rational where there is a right another person is under a corresponding duty not to interfere with that right ii State power rights depend on state enforcement state action doctrine iii Bundle of sticks metaphor just because one person owns the property doesn t necessarily mean he holds all the sticks in a bundle l Sticks rights can be transferred to others iv Reconceptualizing nuisance law D get af rmative easement privilege to use P s property and a negative easement applies to P no more privilege to engage in an activity v The signi cance of remedies injunction v damages more common IV Servitudes legal devices that create rights or obligations which run with the land ie passe automatically to successive owners i Three types of servitudes l Easements permanent permission whereas license is only temporary 2 Real covenants servitude enforced by courts of law 3 Equitable servitudes covenant enforced by courts of equity ii Ways to attack the validity of an easement 1 Creation no easement created in the first place 2 Scope P misinterprets the extenttype of the easement a Whether activity is of a kind contemplated by the grantor Henley b Whether the use constitutes an unreasonable burden Green v Lupo c Whether the easement can be subdivided Cox 3 Running easement did not run with the land iii Easements last forever unless they are terminated 1 By release agreement in writing By their own terms By merger holder of the servient estate becomes the owner of the dominant estate By abandonment By adverse possession or prescription 6 Because of frustration of purpose b Easements created by implication l Easements created by implication necessity and estoppel generally run with the land if 1 they were intended to do so and 2 they are reasonably necessary to the enjoyment of the dominant estate ii Easements by estoppel irrevocable licenses reasonable reliance converts a revocable license into an irrevocable easement 1 License reliance easement by estoppel 2 Holbrook v Taylor use of roadway on neighbor s property for nearly 30 years creates an easement by estoppel a Especially when the people claiming easement made improvements and maintained the road 3 Irrevocable license doctrine economic investment is not required but it is the factual basis on which reliance can be demonstrated a License is also required the owner s permission to use the land iii Constructive trusts owner settlor transfers property to another trustee with instructions to maintain property for the bene t of a third party bene ciary 1 Trustee has legal title bene ciary has equitable title a E g Mother s will establishes trust to be maintained by her brother trustee for the bene t of her children bene ciary Squotquot N 2 Trusteer has duciary obligation to exercise control in irtherance of the wishes of the bene ciary not his own iv Prescriptive easements see above V Easements implied from prior use recognized despite the absence of an express contract 1 Granted only if a two parcels were previously owned by a common grantor b one parcel was previously used for the bene t of the other parcel in a manner that was visible and continuous and c the use is reasonably necessary or convenient for enjoyment of the dominant estate 2 Granite Properties v Manns the prior use of driveways and the defendants awareness of the prior uses when they purchased the parcel of land support the inference that the parties intended to create an easement vi Easements by necessity l Policies a To effectuate the intent of the parties b To promote the ef cient utilization of property c In Finn promoting the development of property by preventing property from becoming landlocked and taken out of the market 2 Finn v Williams where an owner of land conveys a parcel which has no outlet to a highway except over the remaining lands of the grantor or over the lands of strangers a way by necessity exists over the lands of the grantor a Right of way easement of necessity implied in the conveyance of land c Easements created by express agreement i Formal requirements 1 Must be in writing 2 Rule against reserving an easement in a third party 0 may not sell property to A while reserving an easement over A s property in B a Easy to get around i Doctrine of estoppel may prevent A from interfering in the easement ii 0 can grant property to B who then grants to A while reserving the easement ii Limitations on the types of easements that can be created 1 Negative easements traditionally limited to a Right to lateral support b Right to free ow of light and air c Right to free ow of an arti cial stream aquaduct 2 But land use restrictions not falling within these categories can always be created by covenants which can be wiped out through doctrines of changed conditionsundue hardship 3 No af rmative easements to act on one s own land law of covenants can do this iii Running with the land a Easements created by implication necessity and estoppel generally run with the land if 1 they were intended to do so and 2 they are reasonably necessary to the enjoyment ofthe dominant estate 2 Requirements for a burden to run with the land a Must be in original writing does not have to be in subsequent deeds b Intent easements bind future owners only if the grantor intended them to i If not clearly stated intent may be implied c Notice easements are binding on subsequent owners only if they have notice i Actual notice owners know in fact ii Inquiry notice visible signs indicate easement reasonable buyer would investigate iii Constructive notice if the deed conveying the easement is recorded in the proper registry of deeds in the proper place 3 Requirements for a bene t to run with the land depends on the intent of the grantor a b c Appurtenant easement bene t runs with the land Easement in gross bene t does not run with the land Green v Lupo the easement to use runway for motorcycles is appurtenant i Easement was granted for road and utilities purposes clearly intended to be appurtenant and not personal to the parties ii However equitable restrictions should be placed on motorcyclists bc they are a dangerous nuisance not considered at the time of the easement s creation Cox v Glenbrook easement to use road is appurtenant regardless of whether used by single family or by residents of subdivided property i Conveyance granted rightofway to heirs forever without restriction to single family use ii An appurtenant easement bene ts the entire dominant estate and is apportionable if the estate is divided Henley v Continental Cablevision P s predecessors were expressly granted the right to construct electric and telephone services on land and to grant easements to utilities who then granted them to D i The easementsingross were exclusive and therefore apportionable by the utilities to the D l Scienti c and technological progress have added unforeseen dimensions to electric and telephone services but the purposes are consistent with the intentions of the PS predecessors d Restrictive covenants and equitable servitudes i Express agreement 1 Ask 1 Does the covenant run with the land 2 Is the covenant reasonable 2 CA covenants are enforceable unless unreasonable 3 Davidson Bros v Katz and Sons P conveyed deed to D with restrictive covenant not to operate a supermarket on the premises a b Touch and concern rule covenant will only be enforced if it produces a countervailing bene t to justify the burden Replaced by reasonableness standard Consider i Intention of parties when covenant was executed ii Whether there was consideration for the covenant iii Whether the covenant was clear and in writing iv Whether the covenant was reasonable concerning area time or duration v Whether the covenant imposes an unreasonable restriction on trade vi Whether the covenant interferes with the public interest vii Whether changed circumstances make an otherwise reasonable covenant unreasonable viii Whether the covenant touches and concerns the land 4 Whitinsville Plaza v Kotseas D sold land to Trust under condition that D not use his remaining land in competition with the discount store to be built by Trust when Trust conveyed parcel to P Whitinsville D then leased its land to a discount store a b Covenant runs with the land Covenants not to compete do touch and concern the burdened land because they limit land use and enhance its market value of the bene ted land Covenant not to compete will be enforced so long as it is reasonable in time and space and consonant with the public interest ii Implied reciprocal negative servitudes in residential subdivisions 1 Third party bene ciary doctrine although ordinary contracts are enforceable only by contracting parties courts have held that early buyers of parcels on subdivided lots are intended bene ciaries of covenants made by later buyers if all their lots were part of a common plan or scheme of development a E g for residential use only early buyers can enforce restrictions on later buyers b Developer must le declaration prior to selling individual lots i Buyers are on constructive notice of the declaration 2 Evans v Pollock Owners of lots sue for equitable relief when one owner tries to build condo and marina restrictive covenants in deeds prohibited business or commercial use a Provisions allowing for waiver of covenants by 3 vote strongly suggest a general scheme or plan of development 3 Sanborn v McLean where a majority of lots were restricted the court inferred an intent to create a common plan to restrict the neighborhood to residential use 4 Riley v Bear Creek restrictions not in writing are not enforceable despite the buyer s actual knowledge of the general plan e Modifying and terminating covenants i Changed conditions 1 E Di v Bethany Beach restrictive covenants prevent alcohol sales at P Bethany Beach P les suit when D acquires license to sell alcohol a Restrictive covenants will not be enforced if the conditions have changed so drastically that enforcement will be of no substantial bene t to the dominant estates i Change must be so radical as to defeat the essential purpose of the covenant ii Bethany Beach has changed from a quiet religious community to a thriving summer tourist attraction iii Brown bagging has continued unchallenged ii Relative hardship a covenant will not be enforced if the harm to the servient estate caused by enforcement will be greater by a considerable magnitude than the bene t to the owner of the dominant estate iii Acquiescence complaining party may not be able to enforce covenant if he has tolerated or failed to object to other violations of the covenant l Toleration may indicate intent to abandon the covenant which the defendant may then reasonably rely on V The Estate System a Present and future interests i Future interests exist the moment they re created even though the iture owner has no right to possess the property until the happening of the triggering event ii Problems with the law of iture interests 1 Dead hand problem owners may seek to control who owns property long after they die 2 Hierarchy problem ownership becomes concentrated in the hands of certain groups ie families at the exclusion of others iii Fee simple interests 1 Fee simple absolute property without a iture interest most unrestricted ownership only the current owner has the right to own the property in the iture a to A and his heirs 2 Defeasible fees present interests that terminate at the happening of a speci ed event a Consider 1 Is the iture interest in the grantor or in a third party 2 Does the iture interest become possessory automatically or only if the iture interest holder chooses to assert his property rights b Fee simple determinable automatically ends upon stated condition whereupon it reverts to grantor possibility of reverter i O to A so long as used for residential purposes c Fee simple subject to a condition subsequent grantor retains right of 10 iv V entry if stated condition not met i O to A on condition that property be used for residential purposes if not 0 shall have right of entry d Fee simple subject to executory limitation reverts to third party upon stated limitation i O to A so long as used for residential purposes then to B Life estate O to A for life creates a life estate interest in A l Reversion property reverts to grantor when A dies fee simple determinable 2 Remainder property reverts to third party when A dies Fee simple vs Life estate 1 Fee simple owner can choose who will own property after death by writing a will 2 Life estate Owner has no right to determine this ownership automatically shifts to the reversion or remainder holder b Ambiguous conveyances i ii iii Consider intent of the grantor then public policy considerations with presumption against nding a iture interest to f1lI39tl16139 the free use and alienability of property Fee simple vs defeasible fee 1 Wood v Board of County Commissioners Wood conveyed land to be used as a hospital now claims that deed created a fee simple determinable whereby they regain control if land ceases to be used as a hospital a Language of the deed intent of parties does not state that the estate expires automatically if not used for a hospital i No time requirement stated b Wood retains no interest in the land 2 Cathedral v Garden City Stewart heirs sell land to church when church goes bankrupt and has to sell the land heirs attempt to reclaim it a Heirs have no interest in the land under statute the restriction unfairly impedes the owner of the property Fee simple vs Life estate 1 Edwards v Bradley daughter alleges that mother s will created life estate with remainder to children a Intent of deceased testatrix suggests a life estate was created c Regulatory rules governing homeowners associations and condominiums i iii iv vi Homeowners association empowered to enforce covenants or restrictions 1 Created by declaration of developer 2 May collect fees to maintain common areas Condominium each unit in condo owned in fee simple by particular person while common areas owned collectively Cooperative entire building owned by a single nonpro t 1 Individual owners buy shares in the corporation and then lease their individual units Appel v Presley Companies P homeowners request injunction barring D developer from constructing building on his lot unless it complied with restrictive covenants 1 Summary judgment for D reversed requirement of reasonableness when making amendments to a restrictive covenant 0 Buck v Cottonwood P challenges rule prohibiting outdoor TV antennae 1 Board of Directors acted within its authority on either roofprotection grounds or aesthetic grounds reasonableness test 2 Condominium owners consciously sacri ce some freedom of choice in deciding to live in that type of housing Neuman v Grandview D condo banned holding of religious services in condo s auditorium 1 Rule does not violate peaceable assembly statute Board had reasonable concern for serious potential for con ict which could arise among competing religious groups d Rule against restraints on alienation i Covenants which restrict the ability of iture owners to transfer property alienability are often held invalid 1 Reasonableness test 11 ii Policy goals in favor of alienability 1 Allow property to shift more easily 2 Free current owners from undue restrictions 3 Promote dispersal of ownership iii Five types of restraints on alienation 1 Direct restraints on transfer a Horse Pond v Cormier requirement that seller get 100 of the Horse Pond Club vote is unreasonable 2 Servitudes requiring consent of developer or association to transfer a Northwest Real Estate v Serio deed prohibited 1ture sale without consent of grantor i Clearly repugnant its object was to deprive grantees the unrestrained power of alienation b Riste v E Washington Bible Camp deed limited sale to members of a church i Invalid on public policy grounds c Aquarian Foundation v Sholom House member of D condo sold her unit to P without obtaining required consent from Board of Directors as speci ed in declaration i Restraint on alienation is unreasonable the association must be accountable to the unit owner by offering payment or a substitute market for the property 1 If this accountability exists then even an absolute restraint is law il 2 Association may not arbitrarily withhold consent 3 Rights of first refusal preemptive rights a Wolinsky v Kadison D condo association asserts right of first re isal to bar P from switching units i Restraint was unreasonable ii Reasonableness based on two factors 1 whether the reason for exercising right of rst re isal is rationally related to the protection preservation or proper operation of the property and 2 whether the power was exercised in a fair and nondiscriminatory manner iii Board owed duty to all members of association to obtain 23 vote before exercising right of f1rstre 1sal iv Re 1sal was discriminatory bc P was single mother 4 Leasing restrictions a Woodside Village v Jahren unit owner claims restrictions on leasing amended to declaration by 23 vote are unreasonable i Declarations are presumptively valid and approval of an amendment is given elevated level of deference 1 Unless the restriction is arbitrary against public policy or in violation of some indamental constitutional right ii P was on notice that declaration could be amended and declarations do not fall into any of the above exceptions 5 Restraints designed to keep housing affordable e Rules against racial restrictions i Racial discriminatory covenants are unenforceable under constitutional statutory and common law ii Shelley v Kraemer covenant restricts property ownership to whites 1 Restrictions do not violate 14 Amendment right to acquire enjoy own and dispose of property b c they are private a But judicial enforcement of the restrictions constitutes state action so judgment for D reversed l2 iii Evans v Abney will conveyed property for creation of whitesonly park 1 Testator s intention is impossible to fulfill so the park must revert to his heirs 2 RCf11SCd to apply cy pres the park s character was an essential and inseparable part of the testator s plan iv Charlotte Park v Barringer the transfer of ownership reverter occurs automatically and without any state action so Shelley is not violated f Rule against perpetuities Invalidates iture interests that vest too far into the iture i Future interests are invalid unless they are certain to vest or fail to vest no later than 21 years after the death of some life in being at the creation of the interest 1 Promotes alienability by limiting dead hand control ii How to apply 1 Determine what iture interests have been created 2 Determine whether the iture interest is valid or invalid under the rule a Does the interest vest within the perpetuities period i Traditional rule looks for possibility of this occurrence but wait andsee test is also acceptable ii Cy pres doctrine court may lower age requirements in order to validate the iture interest 3 Determine what interests remain by striking out the invalid interest and seeing what s left iii Central Delaware County v Greyhound deed restricts property to be used for public purposes if not grantor has right to repurchase 1 Restriction is an option to purchase subject to the rule against perpetuities 2 The restriction violated the rule because it allowed for the possibility of vesting later than 21 years after life in being a Public policy grounds cannot validate the restriction the rule against perpetuities is a peremptory command of law iv Texaco v Samowitz D claims option to purchase at any time during the term of the lease or an extension or renewal thereof violates the rule against perpetuities 1 Court rules for P 2 Option vested within 21 years because option could be exercised only within one of the 14year renewal terms the interest in the option would vest within the speci ed time period v Cambridge v East Slope condo declaration creates right of preemption or right to purchase any unit offered for sale upon same terms and conditions offered by a third party buyer 1 Rule of perpetuities applies to preemptive rights and it is conceivable that the right could be exercised after the perpetuities period 2 But the rule should not be mechanically applied where its purposes preventing indirect restraints upon alienation from continuing inde nitely where its purposes will not be served 3 Since owner is assured of receiving market value for his sale the preemptions do not create practical restraints on alienation g Rule against waste i Moore v Phillips P seeks to recover damages for deterioration of farmhouse resulting from neglect by the life tenant 1 Life tenant has a duty to keep the property subject to the life estate in repair so as to prevent decay or waste a Voluntary v Permissive waste 2 Remainderman does not have to wait until the life tenant dies in order to bring an action for waste 3 P nevertheless entitled to damages bc tenant failed to carry out her duties as a life tenant h Rule against restraints on marriage i Lewis v Searles will provides to niece so long as she remains single and unmarried 1 General restraint of marriage is void as against public policy 13 2 But wording of the will in this case expresses an intent to provide support for the P while unmarried but upon the happening of such a contingency to require that she share with the other niece and nephew a Not a penalty for marrying which would be void VI Antidiscrimination law in the housing market a Discriminatory treatment i Fair Housing Act Title VIII of Civil Rights Act of 1968 817 1 Claims can be based either on a showing of discriminatory treatment intent or disparate impact ii Asbury v Brougham P claims discrimination when D re ised to allow her to inspect or negotiate for an apartment rental 1 Threepart burden on proof analysis a P must establish primafacie case of discrimination i She is a member of a racial minority ii She applied for and was quali ed to rent at Brougham iii She was denied the opportunity iv The housing opportunity remained available b Burden shifts to D to show legitimate nonracial considerations i Multichildren families were not permitted so no appropriate housing was available ii They have a high percentage of minority occupancy c Burden shifts back to P to show that D s excuses are pretextual i Exceptions had been made in the past ii Statistical data is not dispositive of a claim of intentional discrimination 2 Compensatory and punitive damages awarded iii US v Starrett City D apartment building seeks to maintain speci c racial distribution among its units 1 D claimed its policy was an attempt to achieve integration and not motivated by racial animus 2 But the discriminatory effect could hardly be clearer 3 Such a plan must be temporary and have a de ned goal as its termination point 4 Plus the quotas do not provide access to minorities but rather act as a ceiling to their access iv Civil Rights Act of 1866 42 USC 1982 1 Applies to private as well as public acts of discrimination in property claims v City of Memphis v Greene Black P s sue after closing of street alleging that the closing prevented the black community from crossing the white residential community 1 No discriminatory intent 2 Inquiry under 1982 must focus on effect on property interests a Blacks weren t hampered in the use or value of their property rather they were merely inconvenienced vi Edouard v Kozubal D landlord sexually harasses P tenant 1 P s primafacie case a She is a member of a protected class b She was subject to unwelcome sexual conduct c The tangible terms or conditions of her situation adversely changed d The change was causally connected to her rejection of the sexual advances b Disparate impact and exclusionary zoning i Huntington Branch NAACP v Huntington zoning regulation restricts minority housing projects to a largely minority urban renewal area 1 Disparate impact not disparate treatment analyis 2 Primafacie case show that the challenged practice has a discriminatory effect no intent necessary a Met disproportionate harm to blacks as well as segregative impact on the entire community 14 3 D then must prove that its actions furthered a legitimate bona de government interest and that no alternative would serve that interest with less discriminatory effect a Ordinance seeks to encourage private development in the deteriorated area i But this can be met by lessdiscriminatory means tax incentives or abatements VII Zoning i Use zoning regulates the kinds of uses allowed within each district ii Area zoning regulates the size of lots heights of buildings etc iii Zoning enabling acts require municipal governments to establish a comprehensive zoning plan 1 Separates incompatible uses of property 2 Purpose avoid nuisances before they arise 3 Landowners may seek changes to the zoning law through rezoning petitions iv Mugler v Kansas statute prohibiting manufacture and sale of alcohol did not constitute a taking of P s property 1 Prohibition based on valid legislation of purposes injurious to the health safety and morals of the community v Powell v Pennsylvania permissible to outlaw the manufacture of oleomargarine so long as the purpose of the law was to protect public health and prevent fraud vi Hadacheck v Sebastian upheld ordinance prohibiting operation of brickyard even though it was law 1l when it was built 1 Although not a nuisance initially an operation may become so when circumstances change vii Buchanan v Warley struck down ordinance prohibiting whites and blacks from purchasing property on streets where the majority of owners were of the opposite race 1 Prohibiting sale of property on the basis of race is not a legitimate exercise of police power viii Pennsylvania Coal v Mahon statute requiring mining companies not to undermine support for surface structures is an unconstitutional taking of property 1 Right to coal consists in the right to mine it ix Village of Euclid v Ambler Realty even though P already purchased land for industrial purposes zoning law prohibiting industrial purposes did not unconstitutionally deprive him of protected property rights because it served a legitimate public interest x Nectow v City of Cambridge zoning ordinance which bisects vacant lot is unconstitutional bc the underlying purposes of the law did not justify its imposition 1 Different result from Euclid xi Mount Laurel land use regulation excludes low and moderate income families from the municipality no intent to exclude l D acted af rrnatively to control development and exclude lowincome residents 2 Every municipality must make realistically possible an appropriate variety and choice of housing a Land use regulation is within the state s police power and thus must conform to basic constitutional requirements of substantive due process and equal protection VIII Regulatory takings see summary on 970 a Takings clause 5th Amd prohibits the taking of private property for public use without just compensation i Three elements 1 a taking 2 for public use a must be legitimate public purpose if so then government can take it so long as it provides just compensation 3 without just compensation ii Serves to bar Government from forcing some people alone to bear public burdens which in all fairness and justice should be borne by the public as a whole 15 C iii Applies to states through 14th Amd against depriving citizens of property without due process of law iv Mediates between police power power to regulate private conduct to protect public health and safety and eminent domain power power to condemn private property pay just compensation and transfer property to public welfare use Ad hoc test whether a regulation is an unconstitutional taking is whether the burden it imposes on the owner is just or fair 1 Three categories more likely to be held unconstitutional a Deprivation of certain core property rights or estates in land b Retroactive deprivation or vested rights belonging to owners who invested in reasonable reliance on a prior regulatory authorization c Required dedications of property 956 ii Miller v Schoene D state entomologist ordered P to cut down omamental red cedar trees to prevent spread of plant disease to apple orchards 1 Apple growing is one of the principal agricultural pursuits in Virginia 2 State does not exceed its constitutional power by deciding upon the destruction of one class of property in order to save another which is of greater value to the public iii Penn Central v New York City D city places restrictions on P s building bc it was designated an historic landmark l The designation is not a taking and no just compensation is required a The law does not interfere with the present uses of the Terminal 2 Factors to consider in takings cases a Economic impact of the regulation on the claimant i Esp extent to which it has interfered with distinct investment backed expectations b Character of the government action i Is it a permanent physical invasion c Public health safety morals or general welfare i Zoning laws d Facilitation of uniquely public functions iv Keystone Bituminous Coal v DeBenedictis Penn statute required coal mining companies to leave 50 of coal under public buildings undisturbed 1 Not a taking law designed to conserve surface land areas enhance public safety and prevent harm to the water supply a All signi cant threats to the public welfare b Property still retained signi cant economic value Per se takings categorical takings for which compensation is required regardless of how important the public interest is in the regulation 1 Two categories a Governmentmandated permanent physical invasions of privacy b Regulations that completely deprive an owner of all economically viable use of her property ii Pruneyard v Robins privately owned shopping mall prohibited students from distributing pamphlets mall contends that the right to exclude others is a 5th Amendment guarantee against the taking of property without just compensation 1 Judgment for students there is nothing to suggest that the distribution impaired the value or use of the property 2 Purpose of the takings clause is to prevent the government from forcing some people alone to bear public burdens which in all faimess and justice should be bome by the public as a whole iii Loretto v Teleprompter NY law requires landlords to permit cable TV companies to install its facilities on the property 1 Law invalidated permanent physical occupation authorized by the government is a per se taking without regard to the public interests served 2 Constitutional protection cannot be made to depend on the size of the area 16 permanently occupied iv Other cases finding a taking on the basis of a permanent physical invasion by a stranger l Pumpelly v Green Bay statute authorizing a canal to build a dam and ood P s property is a per se taking 2 US V Causby military aircraft ying low over P s property exceeded the scope of public servitude and was a taking 3 Kaiser Aetna v US P owner of lagoon connected it to navigable waters where the govemment tried to force P to grant public access a Requirement would have deprived owners of essential stick in the bundle the right to exclude others 4 Nollan taking occurred when regulatory commission required beachfront owner to grant public easement of passage along his beach v Cases nding no taking despite a forced physical invasion by a stranger 1 Heart of Atlanta Motel Civil Rights Act requires motel owners to allow strangers to stay in their premises that those owners would rather exclude no reason given vi Physical invasions by those in contractual relationships with the owner 1 Block v Hirsh permitted tenants to remain in physical possession of their apartment after the termination of their leases at rents set by a rent control commission a Statute guaranteed the landlord a reasonable rent b Justi ed by emergency housing shortage 2 Y ee v City of Escondido antieviction law in mobile home park did not amount to a forced physical invasion a What mattered was the initial invitation to occupy the land 3 Flynn v City of Cambridge upheld law that prohibited landlords from evicting tenants for the purpose of converting the property to condos and moving in themselves 4 Fresh Pond Shopping Center upheld ordinance requiring landlord to obtain permit to take an apartment off the rental market and develop the land into a parking lot and movie theater a Ordinance still allowed eviction if the landlord intended to occupy the property himself vii Cases where the landlord may go out of business 1 Seawall struck down law that prohibited owners of singleroom occupancy hotels from shutting down and going out of business a Didn t just require landlords to keep existing tenants but forced them to accept new strangers to occupy the property viii Deprivation of economically viable use 1 Lucas SC law barred P from erecting permanently habitable structures on his property rendering the parcels valueless a Compensation required where the state seeks to sustain regulation that deprives land of all economicallybene cial use then it may resist compensation only if the proscribed use interests were not part of the owner s title to begin with 2 Palazzolo v Rhode Island P denied permits to develop his waterfront property a Compensation required the fact that owner took title with notice of the regulation did not by itself immunize the state from a takings challenge i There can be no expiration date on the Takings Clause future generations have the right to challenge unreasonable limitations on the use and value of land 3 T ahoeSierra regional agency placed temporary moratorium on construction around Lake Tahoe to prevent the loss of the lake s exceptional clarity a Compensation not required because ownership extends over time a temporary moratorium does not result in a complete elimination of value i Only a 100 diminution in value triggers Lucas 17 1 Any lesser deprivation governed by Penn Central test d Public use i Kelo v City of New London the taking of property for the purpose of economic development satis es the public use requirement of the Fifth Amendment 1 Public use more broadly and naturally interpreted as public purpose 2 Respect and deference must be given to state legislatures and courts to determine public needs 3 Promoting economic development is a traditionally accepted inction of government 4 Reasonable certainty that bene ts will accrue is not necessary IX Other shit a Bundle of entitlements i privilege to use the property ii right to exclude others iii power to transfer title iv immunity from having property taken or damaged b Law and economics seeks to increase social wealth by choosing legal rules that give economic actors incentives to engage in activities whose bene ts to society outweigh their costs to society i Fundamental goal of law and economics is the maximization of social welfare ii Pareto superiority someone gains and no one is injured iii Pareto optimality no irther exchanges can be made iv Wealth maximization bene ts of the change outweigh the costs 1 Winners of the change could illy compensate the losers and still be better off than before v Criticisms of law and economics 1 Not everything has a distinct market value often the money value has to do with ability to pay as well as willingness to pay we may personally value things more than others a Higher values than purely economic ones 2 Also it can often be dif cult to part with something even for its market value because we become attached to our belongings a More pain from losing 100 than joy from gaining 100 c Coase theorem property owners should not internalize their external costs rather they should utilize free bargaining to spread the costs of externalities among the community i Coase Theorem 1 1 Harms are reciprocal 2 It doesn t matter which rule we pick if we want to arrive at the economically ef cient outcome attained by privateparty bargaining free from outside regulation ii Coase Theorem 2 1 Where transaction costs are signi cant you can t assume that private bargaining will lead to economically ef cient outcome 2 Still it doesn t matter which rule you pick a Rule e g P s veto right reasonable standard whogotthere rst 3 Economic analysis does not necessarily favor free market mechanisms Law Equity Forrnalism Antiformalism Strict adherence to formalities Relaxed formalities Strict construction Liberal construction Originalism Purposivism what was intended Emphasis on owner s private interest Public policy considerations Rules Standards 18
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