Intro to Property



Table of Contents TOC \o "1-8" Intro to Property PAGEREF _Toc260565196 \h 1Ownership PAGEREF _Toc260565197 \h 2Theories of Ownership PAGEREF _Toc260565198 \h 2The Right to Exclude and its Limits (And Introducing the Public/Private Distinction) PAGEREF _Toc260565199 \h 4Adverse Possession PAGEREF _Toc260565200 \h 7Types of Ownership PAGEREF _Toc260565201 \h 9Division of Property Among Owners and In Time PAGEREF _Toc260565202 \h 9Concurrent/Joint Ownership and Marital Property PAGEREF _Toc260565203 \h 13Landlord-Tenant PAGEREF _Toc260565204 \h 18Fair Housing and Real Estate Transactions and the Subprime Mortgage Crisis PAGEREF _Toc260565205 \h 23Regulating the Use of Land: Private Law Regulation PAGEREF _Toc260565206 \h 26Nuisance PAGEREF _Toc260565207 \h 26Servitudes PAGEREF _Toc260565208 \h 28Regulating the Use of Land: Public Law Regulation PAGEREF _Toc260565209 \h 33Zoning PAGEREF _Toc260565210 \h 33Regulatory Takings PAGEREF _Toc260565211 \h 36Beyond Real Property PAGEREF _Toc260565212 \h 38Intellectual Property PAGEREF _Toc260565213 \h 38Human Beings PAGEREF _Toc260565214 \h 40Property OutlineIntro to PropertyProperty – basis of market economyHistory is important (even if the history has no basis)Property creates relationships Why it’s good to own stuffCreates market economyIndividual autonomy(maybe) prevents exploitation of a common resourceallows you to plan for the futurealienability: the ability to buy & sell land easily (we favor)right to exclude is a core property right for the most part, states get to define property law (eg. Trespass)OwnershipTheories of OwnershipRules v. StandardsRulesGood b/c easy to administerGood b/c clear guidance to publicBad b/c they are over/under inclusiveCommon in property because people want to know when they own something StandardsGood b/c more flexibleGood b/c might align better w/ what we think should happen Bad b/c more expensive to administerBad b/c unclear to public More wiggle room gives more power to judges Standards often creep in to undermine rules Justifications for Ownership/Property RightsLabor (Locke)You get a property interest when you mix your labor with itRejected in Johnston v. M’IntoshPossessionSettled ExpectationsProperty interest should reflect what is socially expected or on what expectations people have come to rely Social UtilityIncentive based reasoningWhat legal rule will promote the social welfare?Cost benefit analysisDoes not care about rights – you give it to the party who wants it the most (signifies social utility)RightsA concept in opposition to social utilityA property interest is a right individuals have that defeats social welfare claims to preserve autonomy, privacy of individualsDistributive Justice Sometime property arises from political or some other structureSometimes we get stuff we didn’t earn (inheritance)We think about property as distributed originally & if it was fair (eg. Rich people don’t need the money as much as poor people do so we should give them the money)Res Nuellius – never owned (without an owner)Res Derilecte – abandoned abandonment requires intent We come up with rule formulations generally by looking at many cases:Foxes(Pierson v. Post)Baseballs(Popov v. Hayashi)Oil(Elif v. Texon Drilling Co.)Artifacts(Charrier v. Bell)News/Info(INS v. AP) (p131)RuleLaw of capture/occupancy (p153)If law of capture Hayashi winsRule (p157)Law of capture + absolute ownership (correlative rights)Can’t exist correlatively Capture/Occupancyres nuelliusres derelictCapture/occupancy StandardDissent – reasonable prospectPre-possessory intent/interestEquitable division Fair Share (holding in this case) Correlative rights – reasonable opportunity to take oil Unjust enrichment – act reasonably requiredQuasi-property right against competitorsYou can’t apply the law of capture in Popov b/c that’s for animals that can move – not for animals Distinction between statutory protected expressions (Copyright) (information can sometimes be owned – eg. Trade secrets)INS v. AP (p131)Questions Presented (p133)Property in news? Yes and noRes neuillius – never ownedRes derilicte – abandonedQuasi property (p134) against competitors, not 3rd parties If property, does it survive publication? Yes and no Yes to other competitorsno to general consumersWas Defendant’s conduct unfair competition in trade? YesYesWe need the unfair competition argument b/c there’s no fully fledged property rightMade in reference to fair trade (custom)Quasi property right becauseJustifications:LaborSettled expectationsSocial utility (majority argues news stations will go out of business if INS can do this) (monopoly concerns counter balance because monopolies would make news expensive for consumers_Biggest argument – social utility arguments will cut both ways in every case though – don’t get seduced by the majority’s view because it was the majority Why isn’t the news abandoned when it’s published?Abandonment requires intent to abandon (that’s missing in this case)Dissent, BrandeisThis is an issue for the legislature because it deals with public interest & the judiciary does not have enough info to make an informed decision (p140)Just because it takes $ to procure the news does not mean there should be property right (labor justifications is often not enough)Makes a finders fee argument (p141)NBA v. Motoroloa (note case) (p143)court says pager using scores WON’T create a problem so big that the NBA will stop producing the scoresthe Court reads INS narrowly (direct competition) (destruction of business potential)because they’re wary about the implications of allowing business to control informationliability rule (finders fee) – you can do a thing but you have to pay damagesThe Right to Exclude and its Limits (And Introducing the Public/Private Distinction)Right to exclude v. right to accessThe Right to Exclude is a core property interestother core interests:right to sellright to give awayright to useLimits to Right to ExcludeCommon Law ways to get out of trespassconsent, necessity, public policy statutes can override the right to excludecivil rights actsconstitutional – first amendment When do courts do balancing?migratory worker: State v. Shack (p3)broadcasting undercover: Desnick v. American Broadcasting Co. (p8)Card counting: Uston v. resorts international (p16)State v. Shack (p3) – migratory worker case This case is about a violation of a criminal trespass statute, not CL trespass(CL trespass – unprivileged intrusion on property owned by another)HoldingDefendants are not trespassers because the right of the workers are balanced against the right of the landowner Plaintiff and defendant are fighting about rights of 2 separate partiesPlaintiff = N.J.Defendant = Shack (attorney); Tejeras (nonprofit worker)Contract law comes up because contracts can’t violate public policy (p6)Even if workers contracted away rights to have visitors Public policy limits the right to exclude – it’s a common law claim Rule (p8)Fairly broad:Any individual who will not interfere with the property owner’s farming is ok (not trespassing)A narrow law could have just allowed federal/state/local services; press; doctors; lawyersWhy not just make them tenants (which would give them rights like the right to visitors)Because this is different & they don’t want to give them all the protections of a tenant (Eg. Property interests) Desnick v. American Broadcasting Companies, Inc. (p8) – undercover broadcasting Did ABC lie to Desnick?They at least misinterpreted…To enter on to another’s land w/o consent is trespassABC did not have consentConsent by fraud is not consentUltimately, Posner is worried about “testers” – we want them to be ok – we don’t want testers to be trespassers because they have high social value TrespassNot TrespassFake meter readerRestaurant criticFake trade secret stealerWindow shoppersFake doctors witnessing child birthFalse friend dinner guestsFake doctor to induce sexual relationsSeduction by false promises of loveConcealing VDPaying for sex with counterfeit $$The question now is – where do we put undercover TVWhen writing a rule – consider:Nature of property between private and publicNature of the right/activity asserted and how protected it is Uston v. Resorts International Hotel, Inc. (p16) – card counting (CL case)(loses his case in Vegas, wins here)resorts want – proprietors of amusement places an absolute right arbitrary to eject or exclude any person consistent with state and federal civil law (p17)CL rule (before this case)Proprietors have a right to exclude since end of 19th C; before 1860s the rule for places of public amusement was you had to give access – you can’t arbitrary discriminate. During the 1860s the states started excluding black people Skeptical of right to exclude because:Origins of right to exclude – racist policyProperty owners don’t have a legit interest in unreasonably excluding particular members of the public when they open their premises for public useMarsh v. Alabama case (Shopping Mall)NJ invokes sliding scale – the more open your property is, the less right to exclude you haveConstitutional law – Usually no first amendment rights on public property but ht emore you look public (company town) the more we’ll hold you to first amendment rightsMarsh is still good law, but its been limited to company towns, except in a few states – Malls in NJ and Cali They used this case to change the rule because they think that when businesses don’t have a good reason to exclude – they have a secret bad reason to exclude New Rule – you can’t arbitrarily exclude in places of public amusement Civil Rights Act of 1964 (p33)private establishments are exemptedyou can exclude from your house for ANY reason including on the basis of race, color, religion or natural origin Shopping Mallreplaced public downtowns so in order to have meaningful first amendment rights, you need to pen up the malls for first amendment free speech.Argument made in NJ pursuant to Marsh and company towns Matthews v. Bay Head Improvement Association (p56)doctrine tries to balance the rights of public access with right to exclude the sea is a common resource and can’t be owned (fear with common resource overuse) Bay Head argues they are private property owners of the dry soundRationales for giving public access to the private dry sand (kind of a policy justification)In order to really enjoy the water & wet sand, you need some access to the shore too (p60)TestLocation of dry sand in relation to foreshore, extent & availability of publicly owned upland sand area, nature & extent…There can be reasonable fees & admission requirements as long as they’re nondiscriminatory on basis of residence If we were to write a dissent it would be:Overuse fearsPublic trust only extends to wet sand its narrow for fishing only Adverse PossessionAdverse PossessionIs someone getting something for nothing?Turns true owner into trespasser & turns trespasser (adverse possessor) into a true owner There is a statute of limitations on your ability to bring an action to recover your land (eg. Footnote 3 p284 Brown v. Gobble) We favor the behavior of the industrious adverse possessor over slothful owner – it moralizes adverse possession Privileges development over non-development A kind of prescriptive right – you get land b/c you’re on itPrescriptive rights – rights that exist over long useEg. Public trust doctrine; custom; adverse possessionTraditional justificationQuiet old claims to titleTo redistribute land to people that use it (pro development)To encourage owners not to sleep on propertyTo honor reliance interestSome of these justifications work well – some don’t make much sense Efficiency claims aren’t that greatWhat’s really happening is a reliance interestIf someone has been relying on property it’s worse to make them give it up than it would gain the title owner Rules (crystals) are often unjust so we move to standards (mud)Elements under pressure (usually)Statement of mind of possessor (silent; good faith; bad faith)Adversity what does it require? Do we presume permissiveness or non-permissiveness? If silent? Most presume non-permissiveness; in prescriptive easement cases, permissive is assumed (community feed store case p311)Elements of Adverse Possessionthe tract has been held adversely or hostility if nothing has been said, we assume (in AP) the possession is adverse or hostilesome jurisdictions: if you’re talking about a prescriptive easement will assume permission was given if nothing was said the possession has been actualthe possession has been open and notorious (or visible and notorious)possession has been exclusivepossession has been continuous(claim of right)state of mind of possessor (silent; good faith; bad faith)possession has been under claim of title or color of title for the statutory period tacking possiblecolor of title – you had a defective deed that somehow meant to give the land to you but was defective (missing a signature or something) Brown v. Gobble (p281)the Brown’s property is 2 feet behind the fence the Gobble’s put up tacking – add together time periods for adverse possessionGobble’s are there on good faith – they’re mistaken and think the land is theirs. But this case is in west Virginia and it wouldn’t matter if it was bad fait – in WV they would still get to adversely possess If the Brown’s had given permission, element (1) would not have been met (forget the tacking problem)Nome 2000 v. Fagerstrom (p289)do the Fraggerstroms know they’re on land that’s not their own?Yes probably b/c they applied for the Native American Allotment & get a neighboring lot – but they continued to use the lot they were onWe think the Fagrestrom’s are bath faith adverse possessors (they know the land isn’t theirs)Does it matter?Yes – it incentivizes trespassing & theft of land Community Feed Store, Inc. v. Northeastern Culvert Corp. (p311)Issue(1) Did they have permission to use the land?; No one said anything; so was it permissive or adverse?This court says its adverse – it’s the same in an adverse case as in a prescriptive easement (nothing said = adverse)Majority position – in prescriptive easement cases, saying nothing it’s assumed use was permissiveThe idea is that socially normal permissive use is different than ownership (adverse possession) (2) scope of easement; how do we know what this easement of land looked like?You only need to know general use of landThere are different kinds of prescriptive rightsAdverse possession you’re asserting ownership rightsPrescriptive easement when you’re asserting use rights over land AcquiescenceNot entirely clear what it meansSeams to mean the true owner knew it was happening & acquiesced (complied) – but if that’s all it means, then it’s redundant (See Singer p314-315)Types of Ownership Division of Property Among Owners and In TimeVocabularyLandowners can own property in common in two ways Concurrent – possess property together and work out how its usedDivvy ownership over time Present estate holderFuture interest holder Future interests exist the moment they are created Present and future interests may be creates by sale, lease, will, or trust Fee simple interestsFee simple absolute – property ownership without an associated future interestHas present right to possess and use, right to sell or give it away, and right to devise it by will or leave it to her heirs Language:O to AO to A and her heirsO to A in fee simple Defeasible fees – present interests that terminate at the happening of a specified event, other than the death of the current owner Automatic transfer to the grantor – when the future interests reverts automatically to the grantor on the happening of the stated event, the present interests is called a fee simple determinable and the future interest is called a possibility of reverserO to A so long as used for residential purposes O to A while used for residential purposesO to A during residential useO to A unless used for nonresidential purposesO to A so long as used for residential purposes; if used for a nonresidential purpose, the property shall automatically revert to O. Transfer upon grantor’s assertion of property rights – the grantor may chose to retain for herself or her heirs the right to decide, at the time the condition is violated, whether to retake the property. The current interest is called a fee simple subject to a condition subsequent and the future interest is called a right of entry (or power of termination) O to A on condition that the property be used for residential purposes; in the event it is not so used, O shall have a right of entryO to A, but if used for nonresidential purposes, O shall have a right of entry.O to A, provided that the property is used for residential purposes; if this condition is violated, O shall have a right of entry. Transfer to a third party – when the future interest in a defeasible fee belongs to someone other than the grantor, the present interest is called a fee simple subject to executor limitation, and the future interest is called an executor interest. Reversion – if the property reverts to the grantor when A dies, the future interest is called a reversionRemainder – if the grantor designates a third party to obtain ownership when A dies, the future interest in the third party is called a remainder Contingent remainders (if one or both of two conditions are met):(1) if the remainder will take effect only upon the happening of an event that is not certain to happen(2) if the remainder will go to a person who cannot be ascertained at the time of the initial conveyance vested remainders – remainders to person who are identifiable at the time of the initial conveyance and for whom there are no conditions precedent other than the natural termination of the prior life estate when the life estate owner dies.See p615Present InterestWords Used to Create Future Interest in GrantorFuture Interest in Third PartyFee Simple Absolute (FSA)“to A”“To A and her heirs”Fee simple determinable (FSD)“as long as”“while”“during”“until”“unless”Possibility of reverterFee simple subject to condition subsequent (FSSCS)“provided that”“on condition”“but if”Right of entry (for condition broken) or power of terminationFee simple subject to executor limitation (FSSEL)“until (or unless) …, then to…”“but if…, then to…”Executor interestLife Estate (LE)“for life”ReversionRemaindervestedcontingent FSA – best thing you can getFSD – PR automatically reverts @ end of stated condition; if giver didn’t know it was being used according to the condition Adverse Possession is possibleFSSCS – right of entry must be exercised; it doesn’t automatically revert so Adverse Possession won’t be a problem b/c ownership interest doesn’t begin until you show up (but you can’t wait too long because other statutes have a problem with it) (so this difference is more technical than real)LE – if it’s a reversion and the grantor dies, then the FI goes to heirs or deviseesVery specific language requiredRules against property being constrained too far in the future rationales:efficiency of land marketprevent land from being in 1 lineage Wood v. Board of County Commissioners of Fremont County (p616)Woods say they intended the land was used for the exclusive use of a hospital for eternity They wanted a fee simple determinable because it automatically goes back to them if it’s not a hospital Not enough for the courtCourt doesn’t question intent; court questions the if the language is strong enough If we believe the Woods are telling the truth – why don’t’ we follow their intent?Look to maximize use of land by people that firmly own it Language: “O to A for the purpose”Issue – if it’s a fee simple determinable or a fee simple subject to condition subsequent Court says they didn’t use the language required, they say “for the purpose” is precatory language, it is not binding Should have used fee simple determinable language:“as long as”, “while”, “during” courts want you to use specific/exact language (instead of just looking to intent) because courts don’t like idea of forfeiture – they like the status quo & don’t like conditions on property unless they’re VERY specific - & you only have a few choices (p615) – it has to fit in one of those boxes Edwards v. Bradley (p619) – IM NOT SURE I UNDERSTAND THIS CASE viva Margaret Edwards (five got property, and Beverly $1.00)what did she give her? Fee simple subject to executor limitation or a life estate?Beverly contests Margret’s rights to the property – Beverly asserts a 1/6 fee simple absolute to the property Everyone else (5 siblings) say she owned $1.00 b/c Margret owned a fee simple absolute or a fee simple subject to executor limitation but her requirement was met at her death so she could do what she wanted with the landViva doesn’t use “fee simple” language even though she knew how to use it Language in will – looks like they’re trying to create a fee simple of some kind w/ a condition resulting in a 3rd party interest (either a fee simple subject to executor limitation or a life estate Court says the condition in the will is not consistent with a fee simple subject to executor limitationWe don’t let you create these for public policy reasons“as a general rule, a condition totally prohibiting the alienation of a vested fee simple estate or requiring a forfeiture upon alienation is void” (p620)so you can’t create this but the language obviously intended to restrain Margret so it had to be a life estatelife estate w/ those conditions okb/c policy – life estate restriction ends when person dies – it can’t go on foreverViva can’t create a FSD, FSSCS, FSSEL b/c that would have been illegal for public policy reasons – we don’t allow restraints on alienation that last for a long time (we do allow restrains on alienation for a lifetime)lie estate w/ remainderremainder = future rights Beverly wins – gets 1/6 fee simple absoluteCase shows balance between interest of landowner in creating conditions and public policy interest in encouraging alienability of land If all 6 kids can’t get along the options:If Beverly lives there and the other sibs don’t want to live there does Beverly owe them rent?No b/c they chose not to live thereBut she might have to share profits from landShe might have to pay expenses on land She can’t live there for a long time and then claim adverse possessionb/c the siblings don’t have to assert their ownershipshe’s not acting adversely to her siblings by being there b/c she has a right to be there and use the house if Beverly puts on new locks & puts up fence, does she owe the rest of them rent?Yes – b/c she ousted them Ousting requires affirmative steps If other siblings can’t get along with Beverly they can sue for partition in court and the court will evenly divide the land if possible, or sell property & split the profits Cathedral of the Incarnation (p619)charitable gifts of land = different regime we want to encourage this which is why we want to allow some constraints on gifts of land for charitable purposesnot subject to restrictions or restrains on usemany states have statutes that allow charities to go to court & get out of restraintwhat happened in this caseConcurrent/Joint Ownership and Marital PropertyQuestion: what are obligations & relationships between joint owners & what are their obligations & relationships to third parties?Question: how much do we force joint owners to agree before doing something to the property?TIC – both parties are basically autonomous; don’t need permission from each otherJT – loosens autonomyTBTE – autonomy is basically nonexistent If we’re not sure what kind of Concurrent Ownership it is, we usually presume TIC but sometimes if they’re married we presume something else (JT)Tenancy in Common (TIC)all states recognize itevery party gets to possess the whole (even if they only have a small percent) if you can’t get along the only remedy you have is partition no special way to create Joint Tenancy (JT)some states recognize itright of survivorshipyou can own things other than land as JT (like bank accounts)require 4 unities (some states have gotten rid of them)timetitleinterestpossession severed if you sell your property – new co-owners are TICyou can unilaterally decide to sell (and therefore break JT)Tenancy by the Entirety (TBTE)some states recognize it@ common law husbands made all the choicesold common law required 4 unities + marriage SellDeviseLeaseCreditors (mortgage)TICYesYesYesYes (can reach that interest)JTYes – turns into TICNoDepends on jurisdictionNoTBTE (only available to married people)NoNoNo?Two kinds of marital property regimes:community propertyeach spouse has vested ? interest in property obtained during the marriage so at death/divorce you own ?. Creditors of 1 spouse may be able to reach property of other spouse. Looks like a partnership.Often supplemented by equitable division statutesSeparate propertyStatutes divvy up assets at end of marriage regardless of who owns them & how. At death you’ll have a forced share arrangement. Creditors can’t reach the property of the other spouse. At divorce you have equitable division No joint property unless you own jointly common law coverture – husband and wife = one person and husband had controlwife had dower – 1/3 life estate interest in free hold landsmarried women’s property actsallowed wives to enter into property & contractssome courts said this abolished TBTE all together; others modified TBTE most states abolished dower & adopted a statutory forced share – allocates a % land to surviving spouse after death moving from property conceptions to contract conceptions marriage in many ways has moved from a property regime to a contract regime see this w/ leasehold estates Marital Propertyspecies of Joint Ownershiphave a little bit of development from CL – husband in control increasing equalitybalance individual autonomy & securitylaw is informed by some conception of what marriage is and does amenable to some contracting around (but questions as to extent)Prenupreasonablenessunconscionabilityvoluntarieness homestead exemptionstry to protect family home from creditorsOlivas v. Olivas (p617)husband argues for constructive ouster (no physical requirement for him to leave so it wasn’t ouster) in the wake of a separation “impossible or impracticable” for them to live together on the property (p671-672)Husband argues – we should adopt a general rule that a separated spouse always can receive rent from the spouse staying Because with divorced couples it’s always impracticable to share the residence Wife argues – if husband left voluntarily he doesn’t get rentShe wants a case by case determination of whether it’s impossible or impracticable to share the residence Husband wants a rule, wife wants a standard Court says – no rent for himThey decide on a case by case standardCarr v. Deking (p674) – third parties and joint ownership Joel & George are co-tenants George enters lease w/ Deking for 10y paid by cropsJoel brings actions in ejectment against DekingJoel loses – Deking leased ? undivided interest which means he can farm the whole thing George leases Deking his whole interest which is ? undivided (1/2 refers to what would happen in partition; undivided refers to present interest)Neither party can exclude the other, or any party they have leased toGeorge doesn’t have to get Joel’s permission to lease his interest *you can only sell/lease/devise/gift/transfer what you own when you’re a tenant in common you own a % undivided interest Tenhet v. Boswell (p675)joint tenancy between Tenhet & JohnsonJohnson leases to BoswellJohnson dies and Tenhet wants the property free of the leaseBoswell argues – when Johnson leased to her, it severs the JT into a TICif Tenhet dies, Johnson gets property – Johnson can’t devise property to someone else (& vice versa)limitation – in a JT you can’t devise your property to someone else JT severed if you sell your property – new co-owners are TICYou can unilaterally decide to sell Issue: does a lease sever the JT & destroy the right of survivorship?Holding:(1) Lease does not sever JT (in Cali, but jurisdictions differ)(2) Lease does not surviveReasoning(2) we’re afraid people will erode JT by leasing(1) Johnson did not intend to sever the JT by leasing selling frees yourself from the relationship, but leasing is temporary(2) any other result would defeat the justifiable exceptions of the surviving joint owner put the burden on 3rd parties to know who they’re leasing from policy reasons for rulewe want to allow for productive use – leasing of JT w/o destroying a JT historical tradition; settled expectations default rule for spouses (Some states) – most spouses want to leave their property to their spousewe like consolidation of ownership – it’s clean policy reasons against ruleyou could just do TIC & give a will to the other tenantwe like autonomySawada v. Endo (p682) – tenancy by the entirety (TBTE)Kokichi Endo + Ume Endo own land TBTEBoth transfer land to sonsKokichi car crash into Sawadas Debate here: court struggling with CL marital property form, when man & woman’s property rights & responsibilities have equalized If creditors could have reached Kokichi’s interest, then the transfer of their property (to their sons) was fraud – if they could not have reached Kokichi’s property interest then the transfer was not fraud Kokichi owns the right of use & possession & right of survivorship (indestructible) & partition as a remedy through divorce only If creditors wanted to grab something it would be Kokichi’s interest Holding - But the court says there is no such thing as Kokichi’s interest b/c it is only understood in the marital unitPossibility – creditors could get Kokichi’s right of survivorship, right to partition, right of use & possession Court rejects this possibility Is it possible for creditors of one spouse to reach the interest of the other spouse?HI insulates all the rights of TBTE from creditorsPolicy reasons for:Prefer interests of family unitReal property is family property & they want use to be for the whole familyUnderlying policy in HI – property heavily concentrated in a few owners – individual single family homes are hard to come by Equality that neither spouse can transact (prior – husbands could, wives could not)Dissent – says both husbands and wives should be able to Policy reasons againstPeople putting everything into TBTE puts creditors into a vulnerable position Here, we’re protecting the vulnerable spouse from the other spouse putting joint property on the line we’re worried about the predatory creditor who tricks 1 spouse into signing interest away & then taking all property interestone spouse can veto the right of the other spouse to obtain credit based upon TBTE property public policy preference of allowing people to unilaterally extricate oneself from a relationshipbut marriage is still a status relationship & you get legal stuff & state recognizes you as married In Re Marriage of King (p696)was cold called; no notes; get from someone else Obrien v. Obrien (p697)is X property? (x = medical license) transferable – noright to exclude – yesmixed labor with it – yessettled expectationsrightsdistributive justicewomen tend to do worse post-divorcewomen tend to do more unpaid work in homeif there are structural inequalities – should this balance out in a distributive justice justification social utility value – yesdivisibility – no courts often have discretion to divide property @ divorce best argument that this is property & PV of FV is proper valuation:you’ve invested and expect future returns incentive argument (efficiency)we want more doctors & if a doctor can be made easier with support of a spouse then we should have licenses as property (that can be divided)marital property rules create defaults for dissolution (etc.) that you’re too emotional to figure out before getting married (or just don’t think about, etc.)Watts v. Watts (p707)if we want to dis-incentivize cohabitation we could give her nothing and say she should have been more careful at the onset but that would incentivize him to not formally marry (the economically dominant spouse) benefit – applicable today when a lot of people “like it but don’t want to put a ring on it”relationship between law & society – we have to be careful about incentive based arguments because society is often not reactionary to court opinions fairness/justice argument – one person gets everything, the other gets nothing even though the two parties behaved the same way maybe this is better where marriage is discriminatory (eg – where gay marriage is illegal)can you contract into marriage-like arrangement when you’re not married?many state statutes/constitutions say that they won’t recognize legal relationships attempting to mimic marriage Hewitt v. Hewitt (p712)benefit: rules are clear & easy to understandbenefit – if we don’t have this, marriage would be dilutedLandlord-TenantLeaseholdsmoving from property regime to a contract regime where parties intentions are what’s importantsublease v. assignment – sometimes comes up on exam Themes of leaseholdsmove from property interests to contract interestsmandatory contract terms? What are they? Can you contract around them?Role of judiciary in enforcing compulsory termsShould policy concerns govern rental market?How to think about relative power of landlords & tenants (distributive justice question)Leasehold estatesterm of years (TOY)can be any set period, not just yearsperiodic tenancy (PT)renews automatically; notice requirement to end it tenancy at will (TW)notice not required in CLdeath of landlord sometimes ended itbut statutes now often require noticetenancy at sufferance (TS)/holdover tenant Covenant (signing a lease you’ll have covenants – elements of contracts and property involved) things part of the common law tenancycovenant of quite enjoyment; covenant to pay rentwe think of them as mandatory terms; you can’t really contract around them Warranty of Habitabilityincreased costs for landlords in summary process proceedings for evictionsintroduced defenses to nonpayment of renttenants can bring affirmative lawsuits, but they usually do not (don’t have means to bring these lawsuits) & usually they defend nonpayment on these groundsobjectionsmakes it difficult for landlords to evict; makes possible evasion of eviction by bad tenants (they can stay there longer than they would have otherwise)forces cash-poor landlords to sell & no longer be landlordssupposed to solve the problem of landlords not taking care of their tenants. Why does it not work (sometimes) – eg. Clifton Terrace building in Javinsstructure of treating it as an individual landlord/tenant problem instead of a class action structural problemmaybe landlord choses to not require rent from people objection & still not fix stuffmaybe people are paying (little $) for what they want & don’t expect landlord to make it bettertenants are unsophisticated & uneducated & don’t know their rights – they don’t want to go to courthousing in the context of neighborhood decline ResidentialCommercialImplied reasonableness for subletSlavin – noKendall – yesDuty to mitigateSomer – yesUsually yes (usually compulsory)Warranty of habitabilityJavin – yes? (we don’t have a case on it)Vasquez v. Glasboro Service Association, Inc. (p737)issue: is a migrant farmworker a tenant or a licensee?If you’re a licensee, when your license ends you have to goIf you’re a tenant, you get notice & summary process Is a migrant farmworker “some other capacity” in NJ anti-eviction law?No (p738)Not like janitor or superintendent becauseNo privacyEmployment not dependent on livingNot living with familiesNo contract terms requiring payment of rentJanitor & super might have that (even if it’s just taken out of their pay)Non-continuous occupancyNJ supreme court doesn’t want migrant farmworkers to be tenants becauseTenants have rights they don’t want to give migrant farmworkers:Subletting power (maybe)Warrantee of habitabilityRights to process before eviction – anti-eviction statute CL rule – employees of owners who lived on premises as part of job/compensation are not tenantsNJ passes statute against backdrop of CL – for janitors, supers, etc. Migrant farmworkers are not tenants but they do not have rights (that look like the anti-eviction law)Contract lawWe have to think about unconscionability & public policy Why the court reads a term into the contract saying you have to give migrant farmworkers some kind of process, similar to summary process of eviction Holding is because it’s contrary to public policyNJ has progressive attitudes towards migrant farmworkers because of their lack of bargaining powerLabor board negotiates their contracts & the contracts are in English & they’re contracts of adhesion – no possibility o f negotiation of terms Holding - Contract has to allow for reasonable time to find alternative housing (p741)Precedent: in cases of unequal bargaining power in the lease contracts, contracts can be unconscionable & there are mandatory termsWe’ve already done it in residential tenants, so we should do it in migrant farmworker cases because they’re even more vulnerable At common law to get rid of tenantsYou could use self helpAction in ejectment – for trespassers (p742)Johnson v. M’Intosh – also an action in ejectment (p98)Legal lawsuit; very slow and cumbersome Can give more protection to tenant than to landownerNot available in this case because the court says they’re not tenants Bottomline – not a tenant but similar rights at backend & no summary process but probably something like it Best argument for this case: it’s fair for migrant workersBest argument against this case: legislature should do it; slippery slope argument Kendall v. Ernest Pestana, Inc. (p758)San Jose Periches (25 year sublease) Bixler (assignment) KendallPerliches (assignment) Pestana Bixler and Kendall Bixler and Kendall have a property interest, not a contract interestPestana doesn’t want to let Bixler assign to Kendall because he wants more money Pestana – owns a reversion (FI); right to receive rentBixler – owns a term of years present interest PestanaArgues he owns a right to consent to the assignment Argument 1 – lease is conveyance of propertyContrary to the plaintiffs contract argument for reasonability – good faith duty in contradicting (esp. in business context) Implies reasonableness in commercial context You must have a reason for withdrawing consent to sublease Reasons forWe like alienability in property law Good faith & fair dealing in contract lawArguments against(1) lease is a conveyance in real property & lessor should be able to chose tenant (p761)(2) they could have bargained to put this term in but they didn’t (p762)(3) stare decisiscourt says they shouldn’t’ be surprised by change in law b/c property law has been changing & CL always changes (pretty weak argument by the court)(4) landlord has right to increase in property valuecourt says they’re trying to get more than they bargained for in the lease – it was a gamble on both sides & leasee gets valueredundant because turns on what he bargained for (leaasor will argue he bargained for rent withholding his right to withhold consent for sublettor)Slavin v. Rent Control Board of Brookline (p763)no implied reasonableness in residential context says arguments for reasonableness only work for commercial leasesrent controlled area so they don’t have an argument to make more money alienability not so important in residential leasesstability & personal preference more important in residential leasescourt is worried about opening floodgates of litigation Duty to Mitigate: Sommer v. Kridel (p774)boy can’t pay rent b/c engagement broke uphistorical case at time of change from property to contract conceptionissue: duty to mitigate in residential? Yesbecause inefficientbecause contract law (with duty to mitigate) makes more sense than property law traditional rules because leases are now so complicated they look a lot more like contracts than a transfer of property interests Minjak Co. v. Randolph (p782)1980s loft space commercial leasecovenant of quiet enjoyment is CL duty for landlords has mostly been overtaken by statutes encouraging warranty of habitabilitydo you have to leave to have a constrictive eviction?Minjak sues to evict Randolph b/c Randolph stopped paying rent. Randolph counterclaimed for warranty of habitability arguing constructive eviction (even though they did not leave) They argue for the creation of partial constructive evictionCourt adopts this rule Facts of living: horribleLeaks, sand, dust (health problems), holes in stairs, empty elevator shaft, bricks fell on headHolding: (p784) “a tenant may assert as a defense to the non-payment of rent the doctrine of constructive eviction, even if he or she has abandoned only a portion of the demised premises unusable by the tenant…”Reasoning: the tenants may not have the means to move out & it’s not fair to make them in order to sue (p789)Blackett v. Olanoff (p785)constructive eviction case (tenants do move out)prerequisite for constructive eviction noise caused by another tenant, not the landlord test for constructive eviction for acts of 3rd parties:disturbing condition was (1) natural & probable consequence of (2) actions landlord could controlwhat the landlord did, what he failed to od, or what he permitted to be done (p786)Javin v. First National Realty Corp. (p792)famous casemoving from property to contract in residential leases with compulsory implied warranty of habitabilityconstructive eviction is mostly eclipsed by this case holding: warranty of habitability implied into residential leases, measured by D.C. Housing Regulationsat CL landlords didn’t have duties b/c value to tenant was the land not the dwelling 2 theories of the case(1) warranty of habitability (CL contract conception)(2) statute allows for private right of action3 reasons(1) CL rule works for facts that aren’t true(2) consumer protection cases require old rule be abandonedhappening @ time of consumer protection revolution(3) urban housing realities dictate abandonment of old rule reasoningunequal bargaining powertenant has no incentive to improve land when they have only a short term leasetenants can be taken advantage of b/c habitability issues can occur during the term of the lease Fair Housing and Real Estate Transactions and the Subprime Mortgage Crisis Affordable Housingyou can increase supply if not enough is being built government can build public housingyou can give more $ to individuals to buy housing (demand)low income housing tax creditcan go to builders – subsidizing & they go with the unit$ that goes with the tenant – section 8 voucherslandlords sometimes discriminate against vouchers (illegally)we have generally been successful in eliminating sub-standard housing in the U.S. (due to the codes we have, etc.)we still do have a problem of affordable housing in most great metropolitan areas (has only gotten worse since ’09 recession)FHA – federal statute Lots of resistance @ time enacted (b/c racial tensions) – civil rights legislation ExemptionsVery small (<3 units) properties are exempt from FHA policies (anti-discrimination policies)Relevant today – FHA doesn’t cover sexual orientation Dramatically under enforced b/c few people have testers & bring lawsuits GoalsProvide housing opportunities for African AmericansEncourage desegregationDe-concentrate racial concentrationsDe-concentrate black poverty in the inner city homelessnessright to housing?We do recognize a right to property; we don’t recognize a right to own propertyLimits & powers of judicial actions Racial segregation in housingracially restrictive covenantssupreme court struck down de jure segregation in housing before they did it in schools but that didn’t dismantle racial segregation in housing – it just privatized itcouldn’t get loans for housing in neighborhoods with black landowners – FHA official policybefore FHA (1968) discrimination in residential sales was legalFHA was intended to remedy this by opening up housing to African Americans Themesin property law we’re concerned that papers (deeds, etc.) reflects real life/property. We need to know who owns what land – so its documented on paper in courthouse (or in MERS)formalities – rules that require jumping through hoops & don’t do anything in & of themselves. In property law we have a lot of formalitiesreason – force us to be very clear about what we’re doingproblem – can create injusticesmimics rule v. standards debatehow we know who owns what tracing title § 12.1.3 sales contract (p840)residential real estate involves contract and property lawmortgage is property interest (requires more than assignment of contract) because its an interest in land. It’s not simply a guarantee of the notenote = borrowing $ = contract lawforeclosure§ 12.1.5 closing (p843)after closing is deeddeed – paper that corresponds with reality §12.3 deeds and title protection (p872)you have to physically deliver deedyou don’t have to record title; but recording it just protects you against subsequent purchasers possession of deed is evidence you own itrecording acts3 regimesrace – whoever records firstrace noticenotice recording doesn’t protect against adverse possession warranties of titledon’t care about this too muchwhen you warranty title you warranty the whole line back (which is why you might not) title insurance usually solves this problem ( so we don’t really need title searches) Ex Ante v. Ex Post Regulationwe have a system of both & they’re not formally interactingAsbury v. Brougham (p931)3 part test for FHA violation (p932)test is not statutory language of FHAcourt comes up w/ FHA 3 part test§ 3604(a) – “because” (p926)same test for a lot of discrimination claims defendant in this case – it was not “because” of race (it’s because child & policies against children); it was his employee, not him; some units closed (p933)brings suit under 42 U.S.C. § 1982 (& FHA)only works in § 1982 is applicable to private action (Supreme Court says it does)Question: was race the motivating factor in denying Asbury the rental apartment?It’s possible it was just an arbitrary decision (eg. I don’t like you) (we’ve seen this in the casino case & when landlords argued it’s a personal decision about who to live with)U.S. v. Starrett City (p936)begins as co-op project (apt. somewhat expensive)then integrated rental project – opposition to program – department of housing and development helped back the mortgage1979 – lawsuit as private parties settled (p936)holding – racial quotas of indefinite duration is not ok (p938)but quotas can be ok when (p938)temporaryto remedy former discriminationfloor instead of ceilingbut none are present here ^dissentfollow statute intention – encourage integrationthat’s what this policy is attempting – to discourage white flightintegrationist theory – in order to get racial indifference, you integrate until you no longer care about race Commonwealth v. Fremont Investment Defense Loan (p84)predatory lending case one way government tried to correct for redlining was to encourage financing mortgages in redlined areas but that led to the problem of reverse redlining (predatory lending)loans are packaged, securitized, & sent to investors which keeps $ coming into the system, but the loans are not good oneshistoryfreemont & attorney general agree that attorney general will approve foreclosures but they deny everyone so freemont withdraws from agreement & attorney general sues freemont under consumer protection statute – massachusets general laws ch. 93A § 2 – “unfair”court says what Freemont did was unfair based on 4 factors (p87)basically – Freemont reasonably should have known these people could never have paid loan back & therefore it is unfair4 characteristics(1) ARM loans w/ intro period < 3 years(2) ARM introductory rate was 3# below fully indexed rate(3) debt-to-income ratios > 50% had Freemot measured @ fully indexed rate(4) loan-to-value ration was 100% (no money down)Freemont arguesEveryone else was doing it (within norm for industry practice)None of these individual statutes say you can’t do these things individuallyWhat’s not prohibited is permittedMass. 183C doesn’t apply here because we’re not “high cost home mortgage loans”Regulating the Use of Land: Private Law RegulationNuisanceRemediesPlaintiff’s EntitlementDefendant’s EntitlementProperty RuleINJUNCTION - Plaintiff can get an injunction ordering defendant to stop the harmful conduct; if defendant wants to commit the harm, defendant must offer plaintiff enough money to induce plaintiff to agree to give up plaintiff’s right to be free from harm DISMISS THE COMPLAINT – Defendant has legal liberty to commit the harm without liability; if plaintiff wants to prevent the harm, plaintiff must offer defendant enough money to induce defendant to agree to stop the harmful conductLiability RuleDAMAGES – plaintiff can get damages from defendant for committing the harm, but no injunction; defendant is free to commit the harm if defendant is willing to pay a damages judgmentPURCHASED INJUNCTION – plaintiff can stop defendant’s conduct if plaintiff is willing to pay damages as determined by a court to compensate defendant for defendant’s loss of profitsInalienability RuleDefendant has no right to commit the harm; any agreement by plaintiff to allow defendant to commit the harm is unenforceableDefendant has the right to engage in the protected activity; any agreement whereby defendant gives up the right to engage in the conduct is unenforceableNuisance – unreasonable interference of property that causes a substantial harm to neighbors property right doesn’t require negligence – wrong only exists because neighbor existscharacteristics court look at to do some cost benefit analysis (p378):fairnesscharacter of harm distributive considerationsfaultwelfarecosts & benefitsincentiveslowest cost avoiderSic utere tuo ut alienum non laedusCL maxim defines nuisanceUse your property so as not to harm othersSettled expectations; rights justificationExternalitiesyou should internalize the cost of your behaviorsocial welfare justificationCoase/cost-benefit/maximize social welfare whose externalitiescosts are reciprocal – both parties have costs involvedformally we don’t care who’s responsible, we just care about costreasonableness is defined differently than in torts (not that the behavior is negligence) protect your land by buying surrounding propertiesget zoning laws to prohibit undesired behavior nearbybuy entitlementpolicy arguments for and against nuisance p412-421Fontainbleau (p384)per se rule you don’t have rights to air & lightnot balancing/reasonableness standard ServitudesServitudeseasementscovenants/equitable servitudes (same thing now)implied reciprocal negative servitudesdeveloper makes a subdivision scheme of development Servitudes – agreements to do/not do something on your landmaterial is about binding future owners (what makes it different than contract law)runs with the landlicense – permission to come onto one’s property & revocable at will when does license become servitude?Refers to Easements – affirmative right to do something on someone’s lawCovenant – usually an agreement not to do something on your land Negative easements/restrictive covenants Covenants and equitable servitudes are the same thing in practice but are doctrinally different Easements get by:express agreement (in writing)estoppel (Holbrook v. Taylor)prescription (Community Feed Store)Implied from prior use/quasi easement (Granite case)Necessity (Finn case)Elements aren’t as important as the reasoningWhy does the doctrine existIn this case what’s the reasoning?You need a servient (burdened by easement) & dominant (benefiting from easement) estate Negative easement/restrictive covenant agreement not to do something on your landaffirmative easementagreement/permission to do something on someone else’s’ landusually appurtenant to the land (unless intent is otherwise clear from the writing)most easements are affirmativerequirements to run with the landaffirmative easement:noticeintentwriting (but not for easement by estoppel or ____)affirmative covenantan agreement to do something affirmative on your land that benefits someone else (eg – pay homeowners association dues)equitable servitudecovenant enforced in a different way (in equity courts through injunctions) difference with covenants is mostly gone now (it’s historical)for an easement to exist as appurtenant (runs with land) to the land, there needs to be land next to it so there’s land for it to benefit (otherwise its in gross) concern with dead hand control encumbering land w/ restrictionswhy we have so many requirements for creating them scope of easementfuzzyintent & reasonableness weighedcovenantshard to see because (negative covenants) its an agreement not to do somethingwhy real covenants were createdhad strict privity requirementscreated equitable servitudesgave injunction instead of damagesdidn’t require privity now separate doctrines don’t make sense because we don’t have separate law & equity courts benefit is who gets the power to bring the lawsuit to enforce it you only have first amendment rights against the government. Not against private actors state action doctrine (Same with 14th amendment)you can have statutory claims against private actorsState action claimsyou can always bring an action to declare something invalid & that requires a court saying something (enforce it or not – private agreement)so Shelley (and Marsh) says state action is everywhere and the question becomes where to draw the line doctrine has not been expanded since Shelley and Marsh but they remain good law Homeowners Associationstake covenantsvotes apportioned to property ownershipretrofit into covenant doctrine but it doesn’t fit well because it’s not all agreements not to do stuff – it requires affirmative stuff like paying dues Holbrook v. Taylor (p427) – easement by estoppeltest – if licensee reasonably relied on license to make ements at considerable expense, licensor can’t revoke licenseat issue:is reliance reasonablewarrants by estoppel justification for doctrine of easement by estoppel labor, social welfare, settled expectations V. rights, settled expectations justifications in this casespent $ on home improvement roadhad permission you might not be able to contract out of these easements by estoppel on the front end Granite Properties Partnership v. Manns (p439) – easement implied from prior use/quasi easementtest: 3 elements required (p443)(1) common ownership of claimed dominant and servient parcels and a subsequent transfer separating ownership(dominant – benefits from use)(2) notice(3) necessary & beneficial turns into reasonably convenient (b/c notice)tricky parts for GraniteGranite sold the land to the Manns (created their own problem)Court says intent of parties for easements to not be included in the sale Unclear how necessary it isThe doctrine doesn’t say you should look to the use the parties would put the easement to Trick here – grantor wants easement; usually the grantee wants the easement Finn v. Williams (p446) – easement by necessity if a road is dormant, it can still be used as easement because you sold a landlocked piece of property because it passes with the sale of realty CL wants to make sure land isn’t taken off the market because it’s lockedPro development/pro use kind of ruleNo demands on strangersSeller of joint parcel must allow egress & ingress if they sell part of their land Green v. Lupo (p458)Green’s own the dominant land Issue: Lupo’s gave easement for Ingress & egress only to the Green’s personally, not generally ( to the motorcycle hoodlum)Lupo’s argue personal by looking to language of written easement Instrument is kind of unclear because it doesn’t say either “personal” or “to urn with the land”So to fix ambiguity the Court says they’ll look to parol evidence to determine the intent of the parties (but they don’t they presume easement is not personal because that’s the presumption in the jurisdiction) Presumed appurtenant unless intent & writing is clear that the easement is personal/en gross (think – utility land)Policy behind presuming appurtenant ClarityLimits easements to neighbors (you have less people to check with when you buy land)AlienabilityWe want easements benefitting land to be able to be sold to next owners of dominant land Cox v. Glenbrook Co. (p463)easement runs with 80 acre track, therefore it benefits the subdivided trac. The easement can be apportioned if the land is subdividedgenerally the owner of an easement can maintain, improve, repair easement but cannot cause an undue burden upon the servient estateroad can’t be widened to two lanes Winn Dixie Stores, Inc. v. Dolgencorp, Inc. (p477)agreement to not do something on their land:lease to another grocerreal (or negative) covenantcovenant not to compete crest haven plaza gives covenant to Winn Dixie issue: did Dolgencorp have notice of covenant?Holding – yesWD sues Cresthaven – suit pending (they don’t need covenant law – they can sue for breach of contract) WE sues Dolgencorp – suit @ issueDolgencorp says its not enforceable because they weren’t signatories to the lease with WD. They’re not in privity of contract with WD. WD should sue CresthavenCourt rejects this argument & says the burden runs with the subleaseRequirements for a covenant to run with land (1) writing(2) intent(3) notice actualinquiry (reasonable)constructive (recorded)(4) touch and concern[(5) privity of estate (mutual interests in the land)] – we don’t’ really need this anymore now: covenants not to compete touch and concern the land Shelley v. Kraemer (p541) – Plessy still good lawState action case (Marsh v. Alabam was another state action case)Think about Marsh, Shelly, & Neuman (religion case) Legal realists say every law can be made more/less active/passive for state action Weird:Usually these cases have to do with what you can do on the land, but this is about who can own the land – it doesn’t touch & concern the land (maybe – we don’t really know what that means)We also might not have noticeShelly doesn’t have actual noticedoesn’t’ have inquiry notice (other black people have been living there for years)They do have constructive notice b/c Shelley’s agreement was recorded But we don’t know if it was recorded in every parcel Trial court says no intent because it wasn’t valid until everyone signed on – Supreme Court of Missouri overturns this 1926 Kaegan v. Buckley indicated racially restricted covenant might be okso why the change? (political shift)WWII blacks fought against NazisHousing crisis for returning GI esp. black onesBlacks gained some political power post WWIIState actionHolding – court enforcement of racially restrictive covenant is state action in violation of the 14th amendmentThe Shelley’s were in the house at the time of suit so the court would have to remove them and give the property back Voluntary adherence doesn’t’ involve state actionThis is as low as state action can get (?)Neuman v. Grandview at Emerald Hills, Inc. (p586)no religious services in common spaces of condostate action?Honor statue by enforcing it with an opinionU.S. supreme court does not find state action broadly – Shelly & Marsh are unique cases Defers to majority in what to do with public areas because board gets to make choicesReasonableness standardDefers to board – looks like rational review but we don’t’ have heightened review even though religious freedom claims core at issue State action? (lower court says)Private actor can’t violate rights to religion/speechDismiss state action claimThere’s only a statutory right implicatedPrivate/public line doesn’t turn on function – they can look the same O’buck v. Cottonwood Village Condominium Assoc., Inc. (p583)antenna caseO’bucks argue:Argue no explicit authorization to do thisArgue in the alternative it’s unreasonableStandards of reviewCould be reasonablenessCould be business judgment rule (rational basis plus) – deferential Regulating the Use of Land: Public Law RegulationZoningExercise of eminent domain (& exceptions) is an entirely separate question from if there is a regulatory takingIs there a constitutional ability for government to take property and pay for it (through eminent domain) (Kelo)VS – the question in regulatory takings is whether the regulation/statute the government has enacted requires them to pay like they would have to in an eminent domain caseZoning – public law regulation of land useHistorylate 19th Century – housing codes in NYC (1867)regulating health and safety of overcrowded livingearly 20th Century – regulations for certain types of buildings1926 – Euclid case opens door to zoning across country zoning regulation todayplacement of structuresdifferentiation between types of structures set backs Rememberproperty under constitutional protections is protected by liability (not property) regimediminishment/increase in property value results from laws/zoningall regulation can’t be paid for as takings or government will shut down Takings law: things to look atwhat is the property that has been taken? How is it defined (what does the owner own & what is the government taking from the owner?)nuisance exception – how capacious is nuisance to prevent you from doing what you want? Can a state law change its nuisance law to change new situations or does nuisance law freeze when property was bought?General justice & fairness of imposing regulations on some owners but not others Point of eminent domain to force a sale when you have holdouts that can stop a large project from going forward & therefore charge a crazy high amount Village of Euclid v. Ambler Realty Co. (p1100)Euclidian Zoning – on type of structures in certain areas3 basic zones (have now been since sub-divided)residentialbusinessindustrial nuisance zoningzoning is a codification of nuisance law w/ over inclusion “inclusion of a reasonable margin to insure effective enforcement”over inclusiveness doesn’t invalidate law zoning is for public safety, health, general welfare (police power)originally to split housing & industrynow housing is split into single family & apartmentsresult – separating by class & race; very broad discretion – allows almost any zoning lawNAACP v. Township of Mount Laurel (p1014)long standing black community in Mount Laurel – they’re not new people trying to get in; they’re poorer than newcomers in the 1970sthey want to build new low-income housing (b/c their housing is old/rundown) but zoning doesn’t allow itclaims court makes (part of holding):growth/housing is a statewide concerncan’t favor some segments over otherspublic welfare = all of public police power subject to state constitutional restrictionsappropriate housing for everyone (test – make realistically possible the opportunity)fair share of regional need (for low income housing)must zone for public welfare – not for tax rates (fiscal zoning not ok)you can’t discriminate in a way that hurts cities (Newark, Trenton, Camden)Belle Terre case (p996)court says law is okthere has to be a line drawn somewhere and its up to the legislature rational basis reviewdissentthe law is over & under inclusiveworried about race & class distincitons - MISSED CLASS – kelo Kelo v. City of New London (p1074)5th Amendment Takings Clausepresumed power to take land for public useissue – the question in Kelo is what is public use?Issue – what should cities do?If they’re in economic distress, they don’t have much choice; cities dependent on private investment to bring jobs (think GM, Ford, Pfizer)We have inter-local competition between cities who want private parties to come to town Should there be some outside limit on when government can exercise eminent domain even when it is willing to compensate?Arguments for limits on eminent domain:To protect idiosyncratic value that can’t be determinedTo prevent legislative expansion of what counts as a public use (slippery slope)Makes lobbying & corruption easier – if government can take land from one to another – political powers become important (political process failure like election rigging)Worried about politicians making deals & not acting in the public interestOriginal intent argument Arguments against limits (Kelo is rightly decided)Promoting efficiency – 1 person’s interest (holdout) should not prevail over the interests of the whole city – social welfare claimPolitical process argument – voters can vote out politicians if they don’t like their choicesJudicial competence < legislative competence Compensation – to protect minorities. We don’t want majorities taking it unless its valuable to them (Coase theory) – if you want it, buy it – have tax payers buy it if they want it To what extent do you defer to legislatures v. overriding these by courtsState legislatures/local government can pass laws prohibiting eminent domain for economic development All state legislatures did this (b/c people freaked) Solutions to eminent domainRestriction just to blightProblem – broaden what blight means or wait for city to blight without helping at allIncrease compensation for homesCompensate renters (would help low-income minorities)We haven’t done a lot of thisCreate a lot of transparency for economic developmentOtherwise its easy to have corruption Regulatory TakingsAd Hoc (Penn Central test)3 factors to consider:character of governmental actionextent of diminishmentinterference w/ reasonable investment-backed expectations government will arguewants to be preventing a harmwants to look like a nuisancediminishment is smallproperty owner will arguediminishment largebenefiting public good (at your expense) Per Se Takings two categories of regulatory takings:permanent physical invasion (Loretto case)diminishment to $0 value (Lucas case) what do you buy subject to? Zoning changes? New laws?should individuals insure themselves or should the government insure core case where you never need compensation = nuisance & zoning pruneyard note case – shopping malls required to allow free speech people is not a takingcivil rights cases is not a taking Miller v. Schone (p1106)law: we can kill cedar trees if they have sporeslose aesthetic value of trees – but you could sell lumber if it’s a mature tree diminishment of value is considered in ad hoc takings cases (Penn Central) but in this case the court doesn’t carethey don’t own the right to harm other people (sic utere) – they don’t own the right to commit a nuisance a noxious use is per se not a taking regardless of diminishment in value how do you decide if it’s a noxious use?Balancing – harms & benefits – cost benefit analysis (apples > cedar)So your definition of nuisance is imbedded in what you think is the more valuable use Argument for compensation (by government)People should be willing to pay a tax on apples to compensate the cedar growersCedar owners are paying to support apple growers – so they should get paid for that Fairness rationale Penn Central (p1108) – modern ad hoc takings doctrine ad hoc takings each regulation assessed on its own valuesfactors to consider character of governmental actionextent of diminishment interference w/ reasonable investment-backed expectations they don’t tell us how to weigh the factors FactorsGovernment ArguesProperty Owner Argues (try to make it sound like a taking)(1) Character of Governmental ActionPreventing a harm – destroying landmarkPiece of comprehensive plan involving a # of propertiesJust like a height restriction/historic district (which are ok)Benefiting the public (unfairly burdening property owner)Affirmative dutyTargeted (not general zoning)(2) extent of diminishmentLITTLE – just the addition is diminished, everything already existing is still yoursYou still have tradable development rights (TDRs)ALL of the rights(3) interference with reasonable investment-backed expectations (notice)You know about designation as a historical building before entering construction You can still use it as a train station – what it has been for a long timeThey haven’t started building yet – have made no investmentWe made commitments – had air rights when entered leaseProperty’s value included train station & air rights with some right to buildIn NYC skyscrapers are settled expectationsDon’t penalize us for bringing beauty to the world (don’t incentive ugliness) Loretto v. Teleprompter Manhattan CATV Corp. (p1131)announces the rule of a per se takingper se taking – permanent physical invasion of real property that is authorized by the government is a taking within the constitution regardless of the public interest that may be servedlaw at issue – all renters have to allow cable wiresonce there’s a permanent physical invasion there’s no need to look at elements (1) or (3) from the ad hoc test Lucas v. South Carolina Coastal Council (p1144)per se rule: regulation that destroys all economically viable use will be considered a taking unless rooted in background principles of common law nuisance & state property law Beyond Real PropertyIntellectual PropertyIntellectual Property3 doctrinal areastrademarkcopyrightpatentdebate over competition v. monopolycopying is good (lowers prices, brings more goods to market) but creating is good tooencourage innovation by giving (temporary) monopoly to innovatorlegal academic consensus – we over protect IP TrademarkQualitex case (p189) – we didn’t readHas expanded:Risk of confusion brand tarnishment or dilution of brandSpecies of unfair competitionCreates property right in brand logo, etc.To have a trademark you have to assert it constantlyCopyrightwe regard creativity; not labor StealingNot StealingINS v. APXFeist (p195) – phonebookXSony – VCR (in Grokster)XGrokster – P-P file sharingXAereoFeist Publications, Inc. v. Rural Telephone Service Co. (p195)Rural makesLabor argument* social welfare argumentb/c that’s the language in the Constitutionoriginality is importantbecause it’s all about progress – advancement of social welfareyou can’t monopolize facts because we want people to collaborate and build on your work (p198)balancing:incentivizing creative work that will advance social welfareinnovation that comes out of building on other works “fair use”to what extent can people use part of the work; parody work; sample workhow expansive?What is copyrightable (Feist)Not factsNot compilationsPrivileging social welfare; not labor Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd. (p201)Sony test – VCR was capable of commercially significant non-infringing uses so it was okBreyer thinks it fits Sony’s standard Empirical questionsWhat is the technology currently & in the future used for?Will copyright chill technological development?Will this technology increase or reduce copyrightbale stuff; will this technology help or hurt existing copyright holders?The Court is not using the Sony theory to find Grokster liable – they use an inducement rule Fault based theoryRule – “one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.” (p207)Moore v. Regents of University of California (p231) – patent caseempirical questionwill granting a property right in bodily materials chill/reduce/eliminate socially valuable scientific advancesmoral/philosophical questiondo we want a market for body parts (commodification)?Issue: should he have had a property right in his calls that he should have sold/given away?Holding – noCourt is worried about organ-selling (if they find a property interest in his bodily fluids here)Commodification argument on both sidesTo resist property rightWe don’t want you to sell your body in organ marketsIf we treat in an expressive way, body parts as things you can get a conversion for, that will lead to the body being objectifiedIn support of property rights (dissent)Looks like its undercutting sacredness of your own bodyIronic – P can’t sell but D can derive valueCourt – rejects conversion cause of action ConcernsFear of coercion to undergo surgery/surrogacy for financial rewardWe worry about human dignity How you characterize the property right is important Human BeingsIn Re Baby M (p262)Contract like this is void (not voidable or criminal) because (public policy concerns):Worried about best interests of childWorried about profit motive – because we assume most people are not having children for profit but Whitehead is having a baby for profitBest argument for allowing these contractsAutonomy based rights argument – freedom of contract – anti-paternalism Dred Scott v. Sanford (p256)same concerns as Johnson v. M’Intoshconquest gives right to propertycapture rulepossession claimgoes against labor theoryconquest often winswe end and begin the semester the same wayremember initial distribution of property is not established by property law & has to be justified outside property lawtension between property & equality ................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download