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Date Created: 02/10/15
Property Outline CHAPTER 1 PROPERTY THEORIESRIGHTS THEORIES OF PROPERTY FLUPDE LFirst Possession quotFirst Come First Serve Advantage o Pierson v Post 0 Easy to decide Disadvantages Doesn t take into account the labor and pursuit Encourages waste and the idea that someone doesn t need to put a lot of effort into possession and desire for ownership 2 Labor taking a resource and adding labor to it to make it a more valuable product 0 Lockwood Horse Poo He did a lot of labor to convert it from what it was into something that has greater value in piles Advantages o Motivates people to want to add things to society Disadvantage 0 Many things are already owned not a theory used very often Encourages working hard not smart o Dif cult to gure out how much labor is required quotEveryone is entitled to the property produced through his own laborquot John Locke Under Pierson and post The one who works and puts time an effort would win 3 Utilitarianism De ning property rights in a manner that best promotes the welfare of all citizens to maximize social happiness 0 Lockwood Horse pool it s a public nuisance to have it encourages people to take initiative 4 Democracy encourages land title and independence from the gov t I quotThe more property I own the more wealth l have and the easier it will be for me to speak my mind because I have less dependence on the governmentquot 5 Personhood Property is necessary for an individual s personal development 0 Each person has a close emotional connection to certain tangible things which virtually becomes a part of one s self 6 Creation What you create is yours 0 Focuses on IP and Intellectual labor 0 Vanna white The creator is the person who owns it Vanna created her own celebrity status she is the ownershe wins 7 Environmental ll BUNDLE OF RIGHTS TransferUseDestroyExclude A The right to TRANSFER any owner may freely sell transfer lease devise with restrictions Transfers are done through sale gift or conveyance You need to be the owner to be able to transfer and property rights exist to the extent that the government recognizes the rights McIntosh B The right to USE landowner has great discretion to use the land in the way he choses Limits are imposed when land use causes nuisance to others No property owner has the right to build a useless structure for the sole purpose of annoyinginjuring his neighbor SundownerSpite Fence o 2quotd Rest Private Nuisance is an 1 Intentional did owner intend the action Did it harm neighbor 2 nontrespassory no entry 3 unreasonable will always be the controversial element o Is unreasonable not a huge change in plan to change X o Is reasonable allowed to put home wherever he wants on his property to maximize his property value Through utilitarian standard he can look to numbers to show how it would bene t the land as a whole 4 substantial interference with the nonowners coreproperty rights that limitsinterferes very major Ex effectively destroys electricity 5 the use and enjoyment of their land C The right to DESTROY Court usually restricts for social value There s a social interest generally to preserve I The right to EXCLUDE Trespass Not absolute o Shack the more you open your land less you can exclude 0 Owners rights v individuals rights 0 Privilege no trespass Allowed with a consent by property owner b necessity o Courts are reluctant to limit right unless good reason public welfareinterest Utilitarianism helps create society how we want CHAPTER 2 OWNING REAL PROPERTY Rights in land and things attached to that land such as buildings fences and trees I ADVERSE POSSESSION making a trespasser into a true owner by taking land without compensation with a showing of clear and convincing evidence A Reasons for AP Preventing frivolous claims Protects the longterm occupant wsecurity of title Protects title defects Protects title to the person who actually occupies the land 0 The area that is on the title does not match up with the actual land Encouraoes development Promotes productive use of land a Encourages growth and economic development Protects personhood The law protects people who have established their occupancy B Elements know differences and the focus main thing you think about for each element 0 Actual Did the adverse possessor physicaly use the land in a way a normal owner would given its character location and nature 0 Exclusive The claimant s possession cannot be shared with the owner or the general public Excluding others from the land acting as an owner would quotno trespassquot signs a Open and Notorious Visible and obvious possession Did an owner have notice or would a reasonable owner have notice Ex the ownership of land was acknowledged by others a Adverse amp Hostile 0 Was the possessor trespassing Was it hostile to the legal owners true interest Silence by an owner is NOT CONSENT to enter land 0 Continuous req period differs each state Was this land continuousy used in the way that a normal owner would given the character nature and location of land May use tacking Generally only allowed if occupants are in privity o For the statutory period often goes sidebyside with continuous Ranges 540 years May use tacking CHAPTER 3 OWNING PERSONAL PROPERTY 0 Personal Property moveable items such as chairs pens and computers a Four ways to acquire rights in chattels 0 Capture Find Adverse possession Gift I FINDERS RULE 7ypes of quotfoundquot chattels A Lost the owner unintentionally and involuntarily parts with it True owner trumps nder Finder only gets bailment does not automatically become true owner B Mislaid the owner intentionally places it somewhere but then unintentionally forgets it No intention to give up ownership True owner trumps nder Finder only gets bailment do not become true owner Public Policy Goal is to return the property to the true owner the person who will be the most likely to get the item back to the true owner prevails Premises owner gets bailment because he will be most likely to have the item returned to the true owner Medina lost wallet C Abandoned Property the owner intentionally relinquishes all right title and interest to it Finder trumps true owner true owner gave up property Finder steps in and becomes true owner and receives possession D Treasure Trove Property is treasure trove when the owner concealed it in a hidden location long ago true owner is dead or gone I Most jurisdictions do not recognize Usually classified as abandoned or mislaid I If recognized right to the property varies I General rule Items embedded in the soil are the property of the landowner I The finder of lost property although he does not acquire absolute ownership does acquire title superior to everyone else except the rightful owner Peel ll Determining whether something is lost mislaid abandoned or treasure trove 0 Very factbased 0 When true owner cannot be foundwho has a better claim 0 Look to the statute Locationulntention atureCharacter A Location of the nd 1 If imbedded in the land landowner Treasure trove 2 Social norms a It s normal for people to put things they don t want on the curb common understanding for a social norm 3 Ben V Linder Avigtion The owner of the plane has a right to possession of the property over all except the true owner There was substantial evidence to find that the currency discovered was mislaid It is unlikely or reasonable to suppose that a person would put that much value in a plane and forget where it was B The intention of the true owner 0 Does the location and nature of the nd provide reliable evidence of the owner s intent o Placement of the item Is it an ordinary place to put the object 0 Time periodit was left there any possible reason it was left there 0 If the landowner does not intend to exclude others property open to the public the nder will trump the landowner C The nature of the item The value 1 Value of item a Highervaluelostmislaid b Lower valueabandoned 2 Condition it was found D Character of the nder Ill The rights and duties of nders A Public Policy Deference to landowners vs rewarding the honesty of the nder encouraging that person to come forward and possibly enabling the item to be returned to the true owner Through rewarding the nder it encourages the likelihood of the true owner being contacted B Under lost prooertv statute a nder must 1 Notify police or other gov t of cial 2 Deposit the found article with them 3 Publish notice to nd it 4 If item isn t claimed within time frame 612 months title is vested with the nder C Under the law of bailments a nder is obligated to 1 Keep the chattel safe and 2 Return it to the prior possessor on demand D Bailment the delivery of property to be held in trust and which is designed for a particular purpose following the satisfaction of which the property is either to be returned or disposed of as speci ed E Bailee person holding property in trust for another party Three types 1 Those for mutual bene t of both the bailor and bailee a Bailee has the duty to take reasonable care of the property i Ex valet is responsible for any damage done to a car 2 Those for the primary bene t of the bailee a Extraordinary care is required b Farmer must return the tractor the same way it was received 3 Those for the primarv bene t of the bailor a Bailee is liable only if the property is damaged because of gross negligence or bad faith i If the dog died because a neighbor left it in a closed car on a hot day the neighbor would be liable IV GIFTS The immediate transfer of property rights from the donor to the done without any payment or other consideration A Inter Vivos Gift the usual type of gift made during the donor s lifetime An exchange between two living persons No K so future gifts are usually unenforceable without consideration Elements DonativeintentDeliveryAcceptancerrevocable 1 Donative intent must have present intent to make immediate transfer of ownership 0 Gruen Gave son future interest in painting gave himself life estate by substantially intending to transfer ownership rights of property to son A life estate does not invalidate an inter Vivos gift 2 Delivery donor parts wdominion and control physical transfer 0 Actual constructive symbolic o Constructive amp actual allowed when actual is impossible or impracticable 0 Policv for deliverv requirement I Delivery makes vivid and concrete to the donor the significance of the act he s doing 0 A donor seeing his property pass into the hands of another is an important aspect of making a gift 0 Makes donor a Witness to transactionmore credibility of assuring possession 3 Acceptance Recipient must accept the property Valuable items presumed accepted 4 lrrevocable once made grantor relinquishes rights once made 0 Gift bv check not a gift until the money is cashed B Causa Mortis Substitute for a will A gift of personal property made by a living person in contemplation of death Immediately effective when made 1 Donative Intent at the moment of delivery 2 Physical Delivery Delivery to a third party is okay not alwaysdepends on court 3 Acceptance presumed with highvalue items 4 The donors anticipation of imminent death 0 No reasonableness requirement 0 Person not required to die from what was anticipated 5 Revocable before death I General rule possession stays with person who receives it donor may revoke gift if they want to Rest Must be done in a reasonable amount of time Most states it is revoked automatically if the donor does not die CHAPTER 4 INTELLECTUAL PROPERTY p233 0 What all IP shares 0 Public good Gives P owner the right to exclude Protects the creations of the human mind Use it at the same time without interfering with each other s use Not recognized by common law 3 exceptions fed law recognizes copyright patent and trademark 0000 I COPYRIGHTS 0 life of the author 70 years 0 Protects original works of authorship in a xed medium such as books computer programs plays sculptures and songs A m to encourage creative efforts by giving authors an incentive to produce works that will bene t the public Rewards labor and creativity laborutalitarianism B Copyright owners rights 0 Right to exclude a Reproducing b Creating imitative works c Distributing works to the public d Publically displaying works during copyright term 0 Transfer copyright to others 0 Destroy copyright by abandoning it C Elements for validity In order to get copyright protection Exists at the moment these three are satis ed 1 Originality 0 Something original enough to gain copyrightable protection 0 Plaintiff designed it to make an original expression 2 Work of authorship Facts 0 Did they do something creative that didn t exist before o Is it a compilation that is original to the author in conceptAND application 3 Tangible Compilation of facts 0 Written down physically created something permanent o Is it permanently in a location where we can go see it v a comment C Defense to liability for copyright infringement 0Fair Use Doctrine allows minor use of a copyrighted work where the use does not materially affect the rights of the copyright holder 0 Ideaexpression Dichotomy 0Copyright law protects the manner in which an idea is expressed not the idea itself 0 Concepts principles discoveries facts and other ideas are not covered by copyright D Copyright infringement elements Plaintiff must prove that 1 The plaintiff owns a valid copyright 2The defendant actually copied the plaintiff s work and 3 An ordinary observer would conclude that the defendant s work was substantially similar to the plaintiff s work ll PATENTS Must be issued by the federal government Protects new inventions such as cell lines machines and medicine A Goal Encourages creative efforts by giving inventors an incentive to engage in creative effort to bene t the public by producing inventions Public bene ts in 3 ways lt receives new sociallyvaluable products scienti c development Because patent applicant must disclose how this is made others may use this information to create different noninfringing inventions Gives people incentive to INVEST in these technologies 0 Balancing creation vs public use of ideas 0 Exists to serve a utilitarianism goal to promote the progress of science and the useful arts B Owner of a patent has lalmostl complete bundle of rights 0 The right to exclude May prevent others from making using or selling her invention during a patent term 0 Patent term 20 years Begins when patent is led w US patent and trademark of ce PTO 0 May transfer rights to others 0 May effectively destroy the patent by allowing it to lapse 0 Does not ensure the right to use the patented invention which may be prohibited or regulated by other laws C Patent Infringement oTo prevail plaintiff must show either literal infringement or infringement under the doctrine of equivalents D Elements for a valid patent 1 Patentable subject matter Scope is controversial 0 Four cateoories dualifv 0 Any process 0 Machine 0 Manufacture 0 Composition of matter Patenting DNA molecules 0 Removed from its native cellular and chromosomal environment Manipulated chemically so as to produce a molecule that is markedly different from that which exists in the body 0 Ungualifying categories 0 Abstract concepts 0 Mathematical algorithms 0 Scienti c principles 0 Physical phenomena 2 Utility 0 Only issued for useful inventions one which offers actual bene ts to humans 0 Element is almost never controversialalmost everything bene ts society in some way 3 Novelty 0 Only new or novel inventions o PTO will examine prior art to determine validity things already patented 0 An invention is novel unless one source of prior art both 1 discloses every element of the invention and 2 enables a person skilled in the art to make the invention 4 Nonobviousness o No obvious inventions o PTO will examine prior art to determine validity things already patented o If the differences between the invention and the prior art at the time of the invention would have been obvious to a person of ordinary skill in the area no patent 5 Enablement 0 Patent application must describe the invention in such detail as to enable any person skilled in the art to which it pertains to make and use the same 0 Explain exactly how it is to be protected Ill TRADEMARKS Protects words names and other symbols which are used by merchants to distinguish their goods and services from those offered by others 0 Identi es the source of goods and services 0 Can potentially last forever A Goals of trademark law it seeks to protect Consumer protection protects customers from being deceived about the source of goods and services 0 Business reputation gives trademark owners an incentive to produce quality goods amp servicesreputation B Requirements 1 Word name device or combination 2 Identi es the source of the goods or service C iEIementsi Requirements for a valid trademark 1 Distinctiveness 2 Nonfunctionality and 3 First use in trade Context in industry must be different D Three types Strongest to weakest o Arbitrarv or fanciful m one that indicates nothing about the good or service Suqqestive Mark merely suggests information about the good or service 0 Requires the observer to use her imagination 0 Descriptive Mark describes the good or service CocaCola 0 Not protected unless it acquires a second meaning Second Meaning the public associates the mark with a particular good or service Cannot be a generic term that is commonly used Color has secondary meaning in speci c contexts o A color may sometimes meet the basic legal requirements for use as a trademark if it acquires a second meaning Quaitex C jacobson Products 0 Ex nike swoosh Trade Dressquot The appearance of the product to the consumer such as the manner of its packaging c To qualify for protection appearance must be distinctive by reason of the shape color or texture or other visible or otherwise probable feature of the product or its packaging so that the consumer associates it with a particular source 0 victoria secret shopping bags E Infringement Way 1 Direct or indirect infringement 2 Trademark dilution provides protection against conduct that damages famous trademarks even without the likelihood of confusion Prohibits conduct that dilutes a famous trademark either by weakening its distinctiveness blurring or harming its reputation tarnish ment F Elements for infringement Plaintiff must prove that l P holds a valid and enforceable trademark with priority over the D s claim to mark and 2 D used mark in connection with goodsservices in a manner likely to cause confusion or deceive customers CHAPTER 5 ESTATES Estate present possessory estate The legal interest an owner has over immediate possession of property I Conveying Property A Transferred in 3 ways 1 Deed Living person may transfer real property by deed to another living person 0 Completed transfer is called a conveyance or grant 2 Will The property of a descendant may be transferred by a will 3 lntestate Succession a completed transfer If a person dies without a will Property is distributed according to state statute Usually to close relatives ll Transferability restraints A Restraint on alienation provision in a deed that prohibits or limits a future transfer of the property If such provision expressly prohibits the future transfer of a fee simple it is void against public policy 0 Partial restraints may be valid if they are reasonable as to the duration scope and purpose B Disablinq restraint A restraint that prevents the transferee from transferring her interest C Forfeiture restraint A restraint that leads to a forfeiture of title if the transferee attempts to transfer her interest D Promissorv restraint A restraint that stipulates that the transferee promises not to transfer her interest CHAPTER 6 CONCURRENT OWNERSHIP AND MARITAL PROPERTY l CONCURRENT OWNERSHIP Each coowner or cotenant has the right to use and possess the entire property A Tenancy in common Default two or more persons own the property with no right of survivorship between them B Joint Tenancy with right of survivorship Possession Interest Time Title C Tenancy by the entirety JT Marriage 10 states Ml Creditors by one spouse cannot reach property except federal income tax 0 Protects family homestead by prioritizing family over creditors Not divisible or descendible IV Ways to divide property A Partition Used for tenant in common or joint tenant a Voluntary Partition Both parties agree to patrician where court will either physically divide property sell or divide based on ownership interests b ludicial Partition One tenant sues for partition B Ouster when a cotenant in possession wrongfully excludes others from the jointly owned property a Ousted tenant can sue for money they missed C Adverse possession and ouster each tenant has a right to use and enjoy the property Just because they choose not to use it it does not give the other a right to claim adverse possession If at some point the tenant living there has asserted they are taking the land they are showing adverse or hostile and could possibly have a case D Mortgageslleases some courts are divided as to whether mortgages sever joint tenancies If one tenant is living in the house some states will require both tenants to split bills Two Approaches Split authority 0 Title Theorv the mortgage is seen as the conveyance of title to the mortgagee This severs the joint tenancy because it destroys the unities of time and title 0 Lien Theory Majority the mortgage or lease is viewed merely as a lien to secure repayment of the debt it does not end the joint tenancy because the unities are preserved R39ghts and Duties of Concurrent Ownership Obligation to share costs o Absent an ouster a cotenant in possession does not owe any rent to a cotenant out of possession 0 Each cotenant is entitled to his proportionate share of all rents and pro ts derived from the land Obligation to share costs of unnecessary improvements No credit towards increased market value Repairs A cotenant who makes repairs will receive a credit for these costs in a partition action CoT s share rent from 3rcl P Yes share rent if they don t live there CoT in possession pay rent to other CoT No ongoing obligation to pay rent to tenant not living there MARITAL PROPERTY Traditional Separate Community Approach Property Property How many states Extinct 41 states MI 9 Gender Bias husband owns all except wife s Property is separately owned unless intentionally Property is shared unless intentionally separate Basic Idea clothing amp J ewlery shared During marriage prior Man Spouse who acquired Remains separate assets belong to property During marriage Man Spouse who acquired o Owned Equally assestsearnings belong to 0 Ca nnot transfer equal share to 3rd p a rty o Giftsinheritances separate na Equitable servitude Divided either Divorce property property divided based on 1 Equally acquired during marriage demographics income in a 2 EqUitable fair and just manner servitude courts have broad discretion Divorce property na Separate Stays separate acquired before marriage If man dies first women gets 13 life estate 23 1 Separate property may devise her half Surviving spouse takes what will gives Death male children 2 minimum set by state 0f community law cannot disinherit property your spouse if married at TOD Creditors can only attach property individually Creditors na owned by that spouse II DEFINING MARITAL PROPERTY A Professional Degrees o Maiority Rule Professional degrees are NOT marital property I Individual achievement It is an intellectual right that is not divisible exchangeable and holds no value to anyone but degree holder Establishing value is harddetailed fact nding Guy v Guy balances degree w fairness so party is not unjustly enriched 0 Court is willing to look back and determine how the party is going to be even walking away from divorce 0 Looks to contributions made to help w degree books tuition household expenses 0 Public policy It encourages people to invest into degrees o Minority View Professional degrees ARE marital property Fairness If the couple as a unit had not invested in this degree they could have had a higher standard of living The party who obtained the degree is in a better nancial situation which bene ts one spouse One spouse made sacri ces for the other spouse to go to school CHAPTER 7 LEASING REAL PROPERTY Most jurisdictions view a lease as a hybrid governed by both property and K law 0 Immutable rules supersede any contrary provisions in the lease usually in order to protect vulnerable residential tenants 0 Default Rules lls in the gaps that the parties did not address in the lease Parties can ignore default rules but cannot evade an immutable rule I Creating The Tenancy Selecting the tenant Landlord has a lot of leeway choosing a tenant the more the owner opens up hisher property the less that owner has a right to exclude others The leeway ends when discrimination occurs in one of the following classes a Good faith reasons a landlord may exclude Pets Bad credit Criminal background check No income Gender II HOUSING DISCRIMINATION A ir Housing Act Regulates a landlords right to exclude and discriminate Determinind when FHA applies 1 Whether it applies the this type of property a Exceptions o If it is a single familv house Bedroom not a dwelling Studio apartment IS 0 Does not use a broker 0 Owns less than 3 homes The person is a small business if they are just renting out a couple small businesses o If owner lives there as well Protects owner to chose more carefully who he lives with 2 Whether it applies to this class Protects people Within these classes 0 Disability 0 Race 0 Sex 0 National Origin Three step approach to establish discriminatorv intent under the FHA 1 P establishes a prima facie case of discrimination o P must prove he was a protected member of this class amp D knew or assumed he was a member of this protected class 0 Ex Applied amp quali ed for the rented space amp Landlord refused to accept 2 The burden then shifts to the defendant to prove a legitimate non discriminatory reason for his conduct 0 D must prove good faith reason for denial 10 3 If the D meets that burden then the P must show that the reason is a mere pretext or there is a material fact in dispute Civil Rights Act of 1866 Race protection 0 Narrower in terms of class is protected broader with type of conduct that is protected 0 Applies to all types of property but not advertising II NONFREEHOLD ESTATES A Term of years tenancy 0 Speci c amount of time months or years agreed upon in advance 0 When term expires landlord retakes possession of the premises 0 Advantage Tenant more protected 0 Disadvantage Tenant bound for the entire time period B Periodic tenancy Automatically renewed unless the landlord or tenant terminates the tenancy in advance 0 Advantage and disadvantage w Landlord tenant are the same 0 Advantage Tenant whether its likely landlord would kick me out and nd replacement 0 Disadvantage Landlord can kick you out at any time C Tenancy at Will 0 No xed ending point typically not in writing 0 Terminated automatically if tenant or landlord dies 0 Continues quotso long as both tenant and landlord desire 0 Common Law could end abruptly We notice 0 Most states require advance notice usually equal to period of time between rent payments 0 Advantage Flexibility o Disadvantage Can end abruptly D Tenancy at Sufferance Wrongful occupancy 0 Someone who stays beyond their tenancy 0 Aka Holdover tenant o Landlord has two Options 0 Treat T as a trespasser and evict him 0 Renew T s tenancy for another term Varies statestate o Terminating a lease against tenant for quotgood cause 0 Failure to pay rent 0 Criminal activity a Harassing other tenants nuisance o Negotiating the Lease a Statute of frauds a lease for more than a year is not enforceable unless it is in writing Lease must contain parties property duration rent and signed by party whom enforcement is sought tenant II DELIVERING POSSESSION The landlord39s duty to deliver possession 2 approaches A English RuleL must deliver physical possession o If it is not delivered tenant can 0 Terminate lease sue landlord o Af rm lease sue 11 E American Rule DEFAULT L must deliver legal possession when lease term begins 0 Tenant has limited rights 0 Incoming tenant would have to sue the holdover tenant to recover possession and damages but has no claim against the landlord SUBS TANDARD HOUSING INHABITABLE HOUSING CONDITIONS I CONDITION OF THE PREMISES o Permissive Waste common law doctrine tenant responsible for making repairs T could not terminate lease if L failed to make repairs T must continue payments and sue for damages ll CONSTRUCTIVE EVICTION Premises are inhabitable o Applies to residential and commercial oProtection for tenant by being able to vacate awful premises amp end lease without paying rent A Tenant seeking CE Must 1 Notify the landlord of the problem 2 Give the landlord a reasonable period to x the problem 3 Vacate the premises Can t be done too soon or too late Reasonable time F Elements Whether the landlord s omission was so bad that it justifies the tenant to cut off the lease 1 Wrongful Conduct Can be act or omission 0 Tenant may prove omission by showing that the Land0rd Statutory duty Breaches statutory duty owed Lease obligation Fails to perform lease obligation Common areas Fails to maintain common area Repairs Failure to perform promised repairs Nuisance Allows nuisancelike behavior 2 By the Landlord Act or omissionmust be responsible o Tenant cannot assert constructive eviction due to the acts of third parties BUT if the landlord has a legal right to control the third party conduct 3 That Substantially interferes with the tenants use and enjoyment 0 Minor violations will not cut it 0 Was the interference enough to justify the tenant to terminating the lease How must interference is enough 0 Disruption that interferes with the tenant s ability to use the land III THE IMPLIED WARRANTY OF HABITABILITY Residential only 0 Protects residential tenants from defective housing conditions 0 Each lease includes a covenant a promise by the landlord that he would not wrongfully interfere with the tenant s possession 0 Has to be a serious healthy risk in violation of housing codenot minor 0 Exception Actual Eviction if the landlord evicted the tenant this breached the covenant of quiet enjoyment and ended the lease Tenant seeking IWH must 1 Notify the landlord about the defects and 2 Allow reasonable time for the landlord to make repairs 3 Tenant is not required to vacate 4 Does not apply when tenant causes defect G Remedies 0 Traditional Property Law Landlord breach did notjustify tenant withholding rent 12 0 Contemporary View A tenant s obligation to pay rent is conditioned upon the landlord s ful lling his part of the bargain providing habitable premises D If IWOH is breached tenant may 1 Withhold rent most effective motivates landlord to repair 2 Repair amp deduct 3 Sue for damages while remaining in possession or after vacating premises 0 Damages Percentage diminutionquot Majority Tenants recovery re ects the percentage by which the tenant s use and enjoyment of the premises has been reduced by the inhabitable conditions Review defect length of time damages rental price Gives court broad subjective discretion amp reduces litigation by eliminating expert witnesses and calculating damages IV EVICTION Retaliatory Eviction Residential only ll Two ways a landlord can evict tenants Judicial process there are court dates notices and then the sheriff comes and physically removes the tenant and Self help where the landlord takes all your things and puts them on the street changes lock 0 Self help is almost never available 0 quotDa y in court 0 Objective third party court 0 Reduces violence 0 Cannot contract around thisno matter what the incentive is SELLING REAL PROPERTY I MARKETABLE TITLE Applies to defects BEFORE closing Can be expressly or implied that seller will deliver marketable title at closing gap fillers if not express Protects buyer from fraud Reasonably free from doubt the seller owns the estate he portrays amp no encumbrances Presented at the time of closing if not buyer can back out of deal before closing A Generallv title is unmarketable if 0 Seller s less than she has 0 Seller s title has private encumbrances governmental zoning restrictions do not 0 There is reasonable doubt about 1 or 2 0 Defect has to be substantial and the buyer will suffer greatly from it 0 Example If the fence was not tall enough would not nullify marketable title because it can be xed without a lot of money 0 If it exposes the buyer to litigation but the title does not have to be perfect 0 Buyer must discover defects before the closing Seller gets time to cure violations discovered until closing ll DUTY TO DISCLOSE 0 Rule in most jurisdictions the seller of a singlefamily home is obligated to disclose known defects that materially affect the value of the property and are not known to or readily discoverable by the buyer A Common Law Caveat Emptor Only in a few states only commercial property 0 Seller had no duty to disclose defects to buyer Buyer held complete responsibility to assess the condition of the premises 0 Exception Seller liable only if he 13 a Affirmativer misrepresented the condition of the property b Actively concealed its defects or c Owed a duciary duty to the buyer Extension Sellercreated defects must be disclosed to buyer if substantialy impairs value of contract home and buyer could not discover defect on his own StambovskyHaunted House B Majority Rule Rejects Caveat emptor Seller of residential real property is obligated to disclose defects he knows about that a materiallysubstantially affect the value of the property or b disclose defects that are not known to or readily discoverable by the buyer 0 Analysis Would a reasonable person view the defect as reducing the value of the home Would it result in someone paying moreless in the home a Disclosing offsite conditions 0 Developers and agents representing hold the duty to disclose offsite conditions if it materially effects the value of property 0 Balances rights of buyers and sellers because commercial defendants and professional developers are held to higher standard because Bargaining power Access to information in market 0 Builderdeveloper has commercial contacts and access to market info Offsite disclosure act requires each person who owns leases or maintains any quotoff site conditionquot to register it with the municipal clerk the seller of a newly constructed residential real property must notify the buyer of the availability of this list Offsite conditions 0 Toxic Waste Plans for future development in the area Overhead transmission lines Underground gas lines Sewage stations Wastewater treatment plants 0000 0 THE CLOSING The point when the purchase contract is performed Di cers statestate I Supervised by an escrow agent in many states 0 Escrow Agent neutral third party who receives the purchase price the deed the mortgage the promissory note and any other documents needed complete transaction 0 When all the conditions in K satisfied agent distributes the funds and documents as directed by written escrow instructions signed by parties OR I Table Closing the buyer and seller meet under the supervision of an attorney or other professional to sign and exchange the documents needed to close the transaction Typical Closing 1 Buyer pays the purchase price to the seller and the seller executes a mortgage and promissory note for the lender 2 The lender advances the loan funds and 3 The seller transfers title to the buyer by delivering a deed a The deed and mortgage are recorded amp title insurance policies are later issued to insure lender s mortgage and buyer s title Key Documents used in a closing deed and mortgage I THE DEED A Establishing a valid conveyance of property SOF Delivery Acceptance 1 Satisfying SOF a deed 1 Must be in writing 14 2 ID of parties 3 Description of property 4 Words showing intent to convey title 5 Signed by the grantor 2 SOF exceptions when oral agreement will enforce sale of land 1 Partial performance 1 Payment 2 possession andor 3 improvements 2 Equitable Estoppel 1 Reliance 2 change of position 2 Delivery Intent to make an immediate transfer of property ownership 0 Physical delivery does not mean there is effective legal delivery 0 Where the deed is kept is irrelevant 0 Must give grantee complete dominion and control over property 0 May be acts without words vice versaor both 0 Majority manual transferdelivery OR when recorded 0 Minority no manual delivery no delivery Acceptance we do not automatically assume acceptance with gifts of real property B Types of Deeds 0 General Warrantv Deed Best Protection provides that the grantor is liable for title defects occurring before and during the grantor s ownership 0 Special Warrantv Deed Limited Protection imposes liability only for defects arising during the grantor s ownership 0 Ouitclaim Deed No Protectionno warranties II THE MORTGAGE 1 Mortgage Judicial Foreclosure 0 Bank gives money with property as collateral 0 Power of sale 0 Banks must exercise quotutmost carequot rather than quotcommercially reasonable 0 Slow and expensive process for lender 2 Deed of trust Nonjudicial Foreclosure o 3 party relationship borrower gives deed to third party no duciary duty o If borrower defaults trustee will sell property through foreclosure and gives to bank to repay loan 0 Commercially reasonable price of sale Advantages to of deed of trust vs mortgage 0 Quick with no involvement from court 0 It bene ts the lender bank substantially which makes them more apt to give out loans 0 Not a true trust no duciary duty 0 Trustee has a lot of discretion when selling land 0 Trustees choice when to foreclose amp chooses price 0 Easier for banks to give loans when they can foreclose at will 3 Mortgages with nonjudicial foreclosures Subprime Mortgage lenders cannot give out loans as if the housing market is going up when in fact its going down because it puts substantial risk on the buyer unfair Ill FORECLOSURE A ludicial foreclosure 4 File a complaint summons and complaint 5 Prove his case 6 Receive de ciency judgment authorizing sale 15 7 Public auction B Nonjudicial foreclosure 1Notify the mortgagor that he is in default of loan amp allow time to pay debt typically 90120 days 2lf loan not repaid within set time bank may foreclose when they want The Sale both Advance notice of time and place given Sale conducted in public place Public auction mortgagee bids on remaining loan balance w credit When property is sold amp purchase price paidauctioneer delivers deed to successful bidder C Avoiding foreclosure 0 Reinstatement o o 0000 Repav loan before sale Statutorv rioht of redemption Some states allow mortgagor to redeem the property from the successful bidder within a set period of time To exercise this the mortgagor must pay the sale price plus the interest and costs TITLE PROTECTIONASSURANCE Three Ways to protect new owner s title None provide complete protection amp people often use more than one 1 Title Covenants 2 Searching Title 3 Title Insurance 0 Encumbrances rights or interests held by third parties that affect the value or use of theland 1 TITLE COVENANTS COVENANTS What is promised in the quotWarrantyquot a contractual obligation that relates to the ownership andor use and enjoyment of real property 0 Public Policy to encourage people to buy property amp have productive land use we need to protect buyers from previous defects 0 Express promises by the grantor about the sale of title 0 Buvers riohts aoainst seller will depend on a The type of deed the buyer received b The scope of any promises that seller made in the deed A Present Covenants breached if at all when the deed is delivered and traditionally did not run with the land to successors o Breach at the momentthe deed is delivered moment of sale 0 Remedy buyer xes situationcompensation Determined by purchase price paid interest 0 Must comply with SOL 1 Covenant of Seisin Connected to estate A promise that the grantor owns the estate he purports to convey 2 Covenant of Right to Convey Connected to title A promise that the grantor has the right to convey titlelnterchangable wseisen 0 Ex this covenant is breached if the grantor is a trustee who lacks the authority to transfer title to the trust property 3 Covenant Aqmt Encumbrances A promise that there are no encumbrances on the title other than those expressly listed in the deed 16 0 Ex This covenant is breached if there is a prior mortgage on the property easement or anything that buyer has to live with that WAS NOT listed Standard of breach The lesser of l the amount necessary to remove the encumbrance or 2 the amount by which it reduces property value B Future Covenants Only protects against direct threats to titlechallenge to ownership of land 0 Breach at some point in the future after the closing 0 SOL begins when owner becomes aware of the problem 0 Happens most commonly when grantee is actually or constructively evicted by 3rOI p who owns superior title 1 Covenant of warranty A promise that the grantor will defend the grantee against any claim of superior title Focus is on claim Grantor is obligated to defend the grantee 2 Covenant of quiet eniovment A promise that the grantee s possession of the property will not be disturbed by anyone holding superior title Focus is on possession quotGrantor needs to x thisquot 0 Ex this covenant is breached if the grantee is evicted because of a defect in her title 3 Covenant of further assurances A promise that the grantor will take all future steps reasonably necessary to cure title defects that existed at closing Grantor is taking reasonable steps to secure defects at the time of closing 2 TITLE OPINION Searching public land records Usually done through attorneyprofessional who will search title and give a written opinion about the state of title and determine whether anyone other than seller claims interest in land A How to search title 0 To locate relevant docs title recorders office will either use 1 GrantorGrantee Index Most Common 2 The Tract Index Organizes by the parcel involved and ID 3 Computerized records newer technology B Process for searching title Once document is found Locateevaluate 1 Establish chain of title work backwards history of ownership 0 Starts wcurrent owner and traces back deed by deed until land was owned by a sovereign govt 0 Limited to 3040 years back in many statesfor efficiency of process Any de ciency longer than 40 is deemed extinguished 2 Searcher moves to grantor index Beginning with the rst grantor in the chain and moves backwards to see if an interest was conveyed by anyone not known in the chain of title Searcher examines all entries in the grantors index under each grantors name from 1 date grantor s interest was received 2 the date the deed conveying his interest to a grantee was recorded 3 Once relevant docs are found read and evaluated to determine state of title a Whether S has fee simple absolute and b Whether title has any encumbrances or defects 17 C Problems with Recording system 0 Adverse possession may not be found additional investigation Required 0 Protects the current owner from losing title to a later buyer 0 Even if a doc is recorded it may not give constructive notice to a searcher Even if the deed or document is incorrectly indexed it still provides constructive notice recordinquiry Luthi v Evans Notice 0 Because buyer was a good faith purchaser and tour knew about the conveyance and could ve clari ed it they rewarded the subsequent good faith purchaser oAn instrument which contains A mother hubbard clausequot describing the land conveyed in general language is valid enforceable and effectively transfers the entire property interest such a transfer is not effective as to subsequent purchasers and mortgagees unless they have actual knowledge of the transfer D Settling a title dispute who owns land Settling a title dispute Who owns the land A First in time whoever s interest was created rst prevails General rule Governs any title dispute unless the subsequent purchaser quali es for protection under the state s recording act B Major exception i The Bona Fide Purchaser Doctrine the recording acts create special protection for the subsequent bona de purchaser which supersedes the rstintime rule 1 Why The primary goal of the recording system is to protect buyers from unknown adverse claims In general the diligent buyer who conducts a careful search of the public records and nds no title defects will be protected against existing unrecorded interests 2 Who is a bona de purchaser Each state has a recording act that establishes a method for determining priority between adverse claimants C Recording Acts purpose is to give buyer constructive notice Race notice racenotice 3 TITLE INSURANCE o A title insurance company issues a policy that insures the grantee s title and covers against title defects The policy will contain exclusions and exceptions which will limit scope of protection A Protects o Protects purchaser buyer 0 Helps buyers be certain 0 Mortgage companies want to see title insurance B Covers offrecord title defects not found in public record Tite insurance police imposes two obligations on the insurance policy 1 Dutv to defend requires company to pay attorney fees and costs necessary to protect the owner s title as guaranteed by the policy 2 Dutv to indemnifv obligates the insurer to compensate the owner if a loss occurs C Does not cover easements The purpose is to protect buyer from known risks not known tite probems Ex Easement A parcel may be burdened by an easement that cannot be removed CHAPTER 8 PRIVATE LAND USE PLANNING Ways that individuals agree to restrict their own land use wother individuals Originally people are free to use land as they wish In some circumstances an owner s plan to use land may conflict with core policy underlying American property law encouraging the productive use of land 18 0 Three areas that deal with con icts I Easements a nonpossessory right to use the land of another I Restriction on owner s right to use I Vital tool for productive use of land II Land Use restrictions real covenant amp equitable servitude III Nuisance Law Resolves con icts where one persons use and enjoyment of their land seriously interferes with another owner s use I EASEMENTS With burdened owner s consent 0 Express Easements Without burdened owner s consent Courts impose 0 Implied Easement by Prior Existing Use 0 Easement by Necessity 0 Prescriptive Easement 0 Easement by Estoppel or irrevocable license detrimental reliance A Express Easements specific agreement between dominant and servient estate 0 Creation IArises only with dominant land s agreement written down 0 Must satisfv SOF 0 Identify parties 0 Describe servient land amp dominant 0 Describe exact location of easement on servient land 0 State the purposes for which the easement may be used IMade by gm or m 0 Easement by grant arises when servient owner grants an easement to the dominant owner may be free or in exchange of compensation 0 Easement by reservation Dominant owner originally owned servient land but sold land and keptkeeps an easement over that servient land 39Usually easements are SET in the place it originally sits lTerminated if it fundamentally changes the nature of the easement 0Servient landowner will be bound by express easement and cannot materially change the land in a way that would nullify the purpose of the easement Millbrook Nature preserve vs hunting 0 Main Q wexpress easements Is this really an easement or is this something else Look to What the agreement createdWhat was intended License Lease Easements Time TemporaryRevocable by Set period of timenot Permanent in nature landowner permanent Interest No Personal privilege to Limited Right to Right to cross land use land for particular useexclude stay on land purpose Transferability No SubleaseAssign w Transferred to dominant landlord s permission and burdened successors B Implied Easements bv Prior Existing Use The court creates an easement because it would be unfair otherwise Reasonable necessity 0 Elements 1 Severance of title to land held in common ownership 19 2 An existing apparent and continuous use of one parcel for the bene t of another at the time of severance and I Existing Look to the time the land was sold consistent with the intent of the parties and promotes the productive use of land I Apparent As long as it is apparent to the actual buyer knowledge it exists or a passerby normally would know 0 What was the intent of the parties I Continuous easement is benefitting the dominant land at the time of severance 3 Reasonable necessity for that use I Easement must be beneficial or convenient for the use of the dominant tenement but does NOT need to be essential I A subsequent buyer should be charged with notice of underground utilities I Showing the easement is important or beneficial will satisfy easy standard to prove Van Sandt v RoysterSewer pipes running across his property Court creates creates IEBPEU because it would be unfair not to do it otherwise It s expensive and inconvenient C Easement by Necessity Lasts only as long as the necessity continues landlocked parcels Human traveling Elements 1 Severance of title to land held in common ownership and 0 Starts at same place as Implied whether there is an easement by prior existing use 2 Strict necessity for the easement at the time of severance o Strict necessity is found only when the owner has no legal right of access to her land 0 Owner cannot create landlocked land quotwithout valuequot If you create the necessity for an easement you re responsible for it lustification for EBN 1 The implied intent of the parties 0 Valid claim for necessity will not arise if it contradicts party s actual intent QL Public policy promoting effective use of land How much necessitv 3 Views 0 Strict quotAbsolutequot Necessitv strict necessity is found only when the owner has no legal right of access to her land Parcel must be surrounded by privatelyowned land and the owner must not have a right to cross that land to reach a public road 0 Lack of reasonably practical accessquot Middle view Beroe v State of Vermont P could only get to land by water Access to navigable water is generally not legally sufficient standing alone to defeat a nding of necessity Practical reasons Location of easement the owner of a servient land is entitled to select the route for the easement by necessity as long as it is reasonable 0 Reasonable Necessity Minority Rest the easement must be bene cial or convenient for the use of the dominant parcel but not absolutely necessary A conveyance that would otherwise deprive the land of rights necessary to reasonable enjoyment of the land implies the creation of a servitude granting or reserving such rights unless the facts show the parties had a contrary intent ComparingContrasting Implied amp Necessity Similarities IEBPEU Easement by Necessity Held in common ownership at time of severance Differences Reasonable necessity Strict Necessity Both require some form Multiple Functions Human travelroad 20 of necessity Abovebelow ground sewerroad Above ground Both implied Always preexists Severance could create severance necessity D Prescriptive Easement Easement that may be acquired by adverse use 0 PE arises through the adverse use of another persons land The elements that must be shown are similar to AP quot AP claimant occupies or possesses the disputed land whereas one seeking a PE makes some easementlike limited use of the disputed land Essentially rewards the trespasser by granting the right to use another s land without compensation 0 Elements No apparent and exclusive 1 Open and Notorious Notice for the landowner visible that a reasonable landowner would have noticed the use Evidence go to neighborsother ppl what did they think LAdverse and hostile oP has been trespassing amp ls acting counter to the true owner oTransforms someone from a trespasser into a legal right to use 0 Maiority silence does NOT equal consent adverse use 0 Minority silence consent Consent defeats adversity 3 Continuous Identi es scope oAmount of use can use tacking oWas use normal for that parcel oHelps establish scope of easement how wide for what purposes The reasonably identi ed starting and ending point line and width of the land that was adversely used and the manner or purpose for which the land was adversely used LFor the statutory period 10 yrs 0 Public policv lusti cation Increasing the value and productive use of the land 0 Problems 0 Landowner is disadvantaged o Goes against the notion of peaceful enjoyment of land 0 Causes altercations w neighbors unfriendly living environment 0 O39Dell v Steqall Church driveway No Easement by prescription oD has landlocked home on gravel lane 0 Fails adverse and hostile requirement O Dell never takes time to gure out who true owner is and therefore cannot establish hostile use I Court follows minoritv rule silence consent Silence does NOT equal adversity Silence consentpermission and BEATS prescriptive easement E Easement by Estoppel Reasonable detrimental reliance on nonowner based on some claim that owner gave permission to use land 0 Elements 1 Owner permits the use Consent 2 Nonowner relies in good faith and to his detriment on the permission 0 Usually by signi cant improvement or signi cant costs 3 Owner knows or reasonably should expect such reliance It was not made under duress they are neighbors and friends that have long term relationship therefore reasonable 0 Kienzle v Mvers Easement by estoppelpipelines 21 0 Court Van dynes position does not change allowing this easement does not impose anything on him but it substantially helps Meyers Court looks to equity what is fair For 21 years they did not care that sewer pipes ran under their home F POSITIVE V NEGATIVE EASEMENT o POSITIVE Nonowner has right to accessenter owner s land in some way 0 NEGATIVE Restricts owner s way he can use land Easier to create easement that covenant Nonowner doesn t gain a right of entry they just get to restrict what owner does on his land Takes the form of a covenantWhether easement holder has a right to enter negative only has right to limit or control use positive gets to enter 0 Exception Conservation easement Conservation easement landowner agrees NOT to develop land and nonpro t group has responsibility to insure owner does not develop land G TE RMINATING EASEMENTS Easements are permanent unless terminated o Wavs to Terminate Easement o Condemnation When government takes land through quoteminent domainquot and gives property owner market value Ex build public road 0 Estoppel The servient owner detrimentally relies on the easement by changing his position Given that this is used to prevent injustice Courts may only modify or terminate to the extent justice demands partial termination o Abandonment Most common Nonuse some action to show further intent not to use easement for particular purpose 0 Merger 2 properties merge into one easement terminates because there is only 1 owner 2 severed parcels becoming one o Misuse if holder seriously misuses easement they forfeit easement Usually an argument about scope and what it covers 0 Release Easement holder in writing releases all rights to easement o Prescription Servient land adversely uses easement that unreasonably interferes with the rights of the dominant owner Adverse use Negative Easement vs Restrictive Covenant Both Negative Easement Restrictive Covenant Restrict owner s Conservation most More speci c about land Type of restriction rights in some way amp common use Certain types of restrictions Provides bene ts in Monetary to servient Homeowner s association exchange servient gets to use land Everyone is subject to same restrictions Utalitarianism Written doc SHOULD be in writing MUST be in writing Easier to create 1 Binds a community 0 Don t need shared of people together vs Creation intent by parties two people min 0 Can be between two 2 Privity issue must be parties legal relationships between various people ll LAND USE RESTRICTIONS A Real Covenants Restrictive Covenants Remedy damages 0 The promise for the use of land that both bene ts and burdens the original parties to the promise and their successors 0 Issue Whether this original promise can be enforced against people who were not parties to that original promise For the burden to run with the land SlTNHV burden to perform promise 1 Vertical privity successor has relationship to one of original parties 0 Receives the estate original party had 2 Horizontal privity relationship between original parties to the promise 0 Mutual or successive interests 22 3 Intent to bind successor usually express lang in doc can be inferred 4 Notice successor must have notice 0 Actual record or inquiry 5 Touch and concern clause that restricts the land that relates to enjoyment occupation or use of property 6 SOF Bene t to run with land SlTV dominant land right to enforce promise 1 SOF 2 Intent to bind successors 3 Touch amp Concern 4 Vertical privity B EQUITABLE SERVITUDES Remedy lnjunctive Relief For Burden to Run No Privity 1 SOF or intent 0 Exception where a developer has manifested a common plan to impose uniform restrictions on a subdivision all lots are burdened by the restrictions even if they do not appear in the chain of title to every lot 2 Intent to bind successors 3quotTouch and Concernquot restricting the use of land in some way must relate to the enjoyment occupation or use of the property 4Notice successor must have notice of covenant For bene t to run SIT 1 SOF 2 Intent to bind successors 3 Touch and Concern C COMMON INTEREST COMMUNITIES 0 Rule A common interest community is a planned residential development a where all properties are subject to comprehensive private land use restrictions and b which is regulated by a homeowners association 0 Created by a declaration 4 parts Homeowners association an association that administers ClC s CCampRs imposes covenants CCampR s or similar restrictions on all land within the CIC May be enforced as real covenants or equitable servitudes Money Ownership rights provides that each unit owner holds fee simple absolute in his unit and undivided interest in common area of CIC Ex pool tennis court meeting room 0 Defenses to enforcement 1 Wholly arbitrary 2 Violates fundamental public policy Balance 1 Arbitrary capricious spiteful 2 Unreasonany burdens a fundamental constitutional right 3 lmposes an unreasonable restraint or alienation 4 lmposes unreasonable restraint on trade or competition 5 Unconscionable 3 lmposes burden on effective land that outweighs any bene t CHAPTER 10 LAND USE REGULATION BY GOVERNMENT Public land use restrictions I ZONING Another way to bring nonconformant into compliance Creates different zones where particular uses are allowed Displays height bulk and related restrictions Zoning and nuisance are not interchangeable separate ideas The Standard State Zoning Enabling Act empowers local governments to adopt zoning ordinances and speci es key provisions for effective ordinances COOQ 23 0 Purpose a utilitarian response for the government to have the inherent police power to protect the public health safety morals and welfare through land use regulation 0 GOALS o Protecting property values When you know what uses are allowed people will invest o Preserving the Environment 0 Predictability quotI know if I buy a lot in the country zoning allows me reassurancequot 0 Negatives o Restricts people on income and demographics Creates diversity 0 Incredible restriction on owner s right to use 0 Don t take into account for changes hard to change once it s in place 0 How to chanoe a zonino 0 Go to zoning board and make a case 0 Vote member out of of ce ll ZONING CONSTITUTIONALITY local gov ts making decisions that restrict private owners from using their land in certain ways 0 Constitutional because 1 Local govt vs fed govt get to make decision 2 Bene ts community by improvingpromoting health safety and general welfare 0 Rational Basis Test The Euclid Test a zoning law is constitutional UNLESS it has no substantial relation to the public health safety morals or general welfare 0 A law is constitutional unless it discriminates against a protected class or impairs a fundamental right 0 Burden is on the plaintiff because a law is constitution UNLESS ll ZONING NONCONFORMING USES when a city createschanges zoning land 0 New ordinances do NOT apply to lawful uses that already exist Regulates future development not existing use grandfathered in Existing use cannot be expanded or changed ex residential to commercial Can be sold to someone else to use in the same manner Id Old uses will quotwither awayquot Traditional Approach Nonconforming use could be terminated only if building was 1 Destroyed 2 Use was abandoned or discontinued Abandonment exists if landowner both 1 Intends to relinquish right to the use and 2 Voluntarily stops use for set time 30 days 2 years 3 Nuisance requires evidence 4 Eminent domain requires gov t to buy land 5 Amortization Mostjurisdictions 0 Modern Approach 0 Amortization government a lot of exibility sets a period of time for non conforming owner to stop using their land on a certain date and is required to comply with zoning restrictions Without compensation since it s only a regulation It is a very aggressive powerful tool for fading out nonconforming uses Determining period of time for building to comply Factors 0 Set point where business has recovered some or all investment avoiding reimbursement 0 Whether or not period of time is reasonable looks to accounting principles quotthis building nancially is donequot 0 If zoning changes before new project is completed vested rights Landowner is protected under vested rights if she has already a acquired the necessary permits and b spent a substantial amount of money in good faith reliance 24 0 Standard State Zoning Enabling Act only 3 ways for an owner to escape a zoning ordinance 1 Amendment quotChange or mistake approach rezoning is valid only a if conditions in the zone have signi cantly changed or b a mistake was made in the original zoning ordinance 2 Variance 3 Special Exception use that is permitted under certain conditions CHAPTER 11 ENVIRONMENTAL LAW What is the reason the government has for the restriction I PROPERTY AND ECOLOGY restricting property not for the bene t of public welfare but to preserve the environment 0 Two doctrines that protect environment 0 Public Trust 0 Public Nuisance CL doctrine 0 Two views 0 Transformative Economv landowner can build and do what he wants Land is passive full of resources waiting to be used ex tree becomes lumber o Economv of Nature Land is not passive It is already functioning to serve important purposes in its unaltered state Conserving natural resourcesespecially for future generations Advantages oPrevents pollution Looks at longterm perspectives oSaves society costs in the future chemicals create unusable land which is a cost in the future Disadvantaoes o Discouraging development less jobs 0 Limits private owner s property rights oAffects land valueless marketable ll PUBLIC TRUST DOCTRINE 0 Major restriction on land use for all waterfront property Private owner holds in trust the land privately owned that is restricted for the bene t of the general public water is owned by the public 0 Three aspects of public trust 1 Purpose of the trust To protect navigable waters amp recreational values commerce and shenes 2 Scope of the trust Balancing rights of private owner v Public Applies to A Water and Wetlands The water is owned by the public Beech sand is held in public trust Water public all has right of access to either navigable waters or clean water 1 Wet Sand 2 Anything effecting public trust Effects test conduct on private land can be regulated if it has an adverse affect on the body of water Restrictions are allowed because they E into the public trust monolake Not exactly part of public trust but the practicable impact is enough to allow the regulation Balances 0 Private land use What a private property owner does CAN have a signi cant impact on the rest of the community by changing the ecosystem 0 Needs of the public 25 I When human interaction affects the environment it will cause substantial harm 0 Longterm environmental impact Wetlands are the habitat for wildlife Preserving land in its natural state Allowing owner to build in this area especially structures that can sustain the weather changing the nature of the land would create environmental harm Ill PUBLIC NUISANCE 0 TEST Substantial and unreasonable interference Wpubic rights not bright line 0 Restricts private property owner s particular use without compensation Nuisance affects entire communityenvironment destroys air animals public health environment Substantial quotunreasonable interference and quotpublic rightsquot are so ambiguous it leaves a lot of room to make a valid claim for a public nuisance o Interference w public rights public has a right not to be harmedright to be hea hy o Doctrine of displacement if you are bringing a CL claim nuisance and there is a federal statute that addresses issue clean air act federal statute prevails GOVERNMENT TAKINGS A Two tvoes of takino 1 Eminent domain Gov t takes ownership of property by keeping or transferring to fellow private property Taking 2 Regulatory Takings Penn Central B Analysis to a taking A Is there a taking 1 Title 0 Eminent domain condemnation 2 Regulates use 0 Temporary physical or nonphysical invasion 0 Penn central quotAd Hocquot balancing test 1 Economic impact Owner not guaranteed most pro table use How much landowner will lose as result Measured by diminution in market value 0quotDiminution in valuequot caused by a regulation that is quotreasonably related to the general welfarequot is not a taking 2 Harm to owner39s reasonable investmentbacked expectations NOTICE owner had of regulation when he bought property given the zoning on the time What B was thinking when purchased landwhat was the law 3 Character of government actions Targeting one person Everyone 0 Permanent physical occupation Not taking title 0 Permanent No indication of enddate If in statute or installation assume permanent Installation cable box 0 Physical I lnfringes on owner s right to exclude 0 Occupation o 3rOI party s property cable company s property 26 o 3rOI Party chooses location If YES Step B IfNO permissible zoning regulation not a taking therefore no just compensation necessary B Public Use Continuum 1 Traditional public use land must be owned by public 2 Modern Kelo land can be given to another private owner if used more effectively amp primary purpose is for economic development pursuant to a comprehensive plan 3 Nonpublic use There is no public bene t from transferring privately owned property to another private owner C Just Compensation fair market value 27
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