PROPERTY II OUTLINE

I.  TAKINGS

  1. Test
  2. Laws affecting property rights cannot be:
  3. Arbitrary; or
  4. Irrational
  5. Exceptions;
  6. Race – Strict Scrutiny
  7. Gender – Intermediate
  8. Basis
  9. 5th/14th Amendments
  10. “Nor shall any property be taken for public use w/o just compensation”
  11. Per se Takings
  12. Permanent Physical Occupation (Virtual per se Taking)
  13. Physical Invasion or Destruction
  14. Gov’t right to exclude others
  15. Easement/Permanent inability to exclude others
  16. Deed to Gov’t Entity
  17. Destruction of Economic Value
  18. Permanent Physical Occupation’s Nollan/Dolan Test
  19. A permanent, physical occupation is a taking, UNLESS:
  20. There exists a close fit/nexus between the legitimate State interest & the regulation/means;
  21. A rough proportionality exists to justify the amount taken with the relative need
  22. Destruction of Economic Value
  23. Taking to deny ALL economically viable use of property
  24. Not enough to just diminish the value some or even a lot
  25. Takings by Regulation
  26. Going “Too Far” determined by a multi-factor/balancing test
  27. Economic impact on investment-backed expectations (more likely a taking)
  28. Physical invasion of property (more likely)
  29. Public program promoting the broad common good (less likely)
  30. Restriction that even allows the owner some benefit of the restriction (related to public good) (less likely) (not one of the factors)
  31. Comprehensiveness/Reciprocity applies restriction to all/many others in similar situations (cannot arbitrarily single out one plot) (less likely)
  32. The property is noxious or use is a nuisance (less likely)
  33. Acquisition of rights for governmental use (more likely)
  34. Summary

1.  Investment Backed Expectations

2.  Physical Invasion

3.  Broad Public Purpose

4.  Comprehensiveness or Reciprocity

5.  Noxious Use

6.  Acquisition for Gov’t Use

  1. Remedies
  2. Inverse Condemnation: Property owner brings suit to force the restriction to be repealed and to require just compensation for the time the property was taken
  3. Price Regulation
  4. Cannot be arbitrary or irrational
  5. Hope Test: Must allow return of Cost + Reasonable Return
  6. Modern Trend: Must allow return of Cost (not including inefficient expenses) + higher Return

II.  ZONING

  1. Basic Test
  2. Constitutional: ARBITRARY & UNREASONABLE
  3. SZEA: SPOT ZONING or FURTHERS COMPREHENSIVE PLAN
  4. Euclidian Zoning
  5. DEFINITION:
  6. Allows municipalities to divide area into areas and classify the permissible land uses
  7. LIMITATION:
  8. Cannot be arbitrary or irrational
  9. SZEA – Standard State Zoning Enabling Act:
  10. Comprehensive Plan: all zoning must promote the comprehensive plan & purpose (health, welfare, morals, safety, etc. of general public)
  11. Districts: any size or shape allowed, so long as not arbitrary or irrational
  12. Spot Zoning: zoning not conforming to the comprehensive plan (single parcel given different treatment w/o showing of changed condition)
  13. Upzoning: changing zoning to a more valuable use
  14. Downzoning: changing zoning to a less valuable use
  15. Extension Zoning: change zoning based on needs to extend boundaries to nearby plots with natural migration to same use as nearby land
  16. Evolving, Unwritten Plan: the zoning ordinance is, in itself, a comprehensive plan
  17. Decisions determined on whether there exists a rational basis
  18. POLITICAL PROCESS:
  19. Zoning is more of a legislative task because it is inherently political
  20. AESTHETICS
  21. Disfavored: limitations on aesthetics, especially if vague, lead someone to guess and arbitrarily decide what is okay
  22. Grotesque, Unusual, & Non-Conforming are about all that can accurately be removed
  23. Site-Plan-Review: more intrusive requirement to submit plans to city and more unpredictable
  24. EXCLUSIONARY ZONING
  25. Cannot be arbitrary, irrational, or based solely on the category of people
  26. NIMBY
  27. AUTHORITY & ENFORCEMENT
  28. Zoning Authority: provides guidelines and manner for changes and exceptions to be made
  29. Requires a public hearing be held
  30. Zoning Commission: more political & makes recommendations and holds public hearings
  31. Must issue a report before Zoning Authority takes over
  32. Board of Adjustment: appointed board that hears and makes adjustments as an administrative body
  33. Non-Euclidian Zoning
  34. FLEXIBILITY
  35. Special Use Permit (SUP): uniform guidelines allowing an exception
  36. Conditional Use Permit (CUP): more flexible & negotiated exception
  37. Floating Zone: broad standard, w/o specific condition, so that can later apply for specific zoning type w/i broad standard
  38. Cluster Zone: imprecise zoning requirements for PUD development
  39. Non-Conforming Use: hardship granted based on existing use, even if land adaptable to other uses
  40. Amortization: grace period after zoning change to allow time for the non-conforming use to continue
  41. Generally to recoup some of the investment costs/vested rights
  42. Majority: vested rights don’t begin until use of property
  43. Presumption is that it is valid, & owner has burden of proving that loss is so substantial as to outweigh public benefit
  44. Short amortization may be a taking & require compensation
  45. Hardship/Variance: permanent exception in cases where the parcel is treated differently because of land characteristics make it unsuitable for zoned use

III.  SERVITUDES

  1. Definitions
  2. Dominant Estate – parcel that obtains the benefits
  3. Servient Estate – parcel that is burdened
  4. Affirmative Use – gives privilege to exploit the land of another
  5. Negative Obligation – prevents the landowner from doing something
  6. Affirmative Obligation – duty to maintain or pay something
  7. Appurtenant Servitude: Serves a particular parcel, the dominant estate, and is not personal to the particular holder, and is transferred with the dominant estate
  8. Servitude In Gross: Does not involve a dominant estate but gives rights in a servient estate, and can be transferred independent of the dominant estate
  9. Easement
  10. DEFINITION: non-possessory interest providing dominant estate with rights to the servient estate
  11. CREATION:
  12. Express: easement created in a deed
  13. Stranger-to-the-Title Rule: Old rule that an interest could not be granted to a 3rd Party
  14. Proper language specifies which is the dominant & servient estate, & is specific on the type of easement granted
  15. Operation of Law:
  16. Necessity: easement granted when property is divided by a common owner, and is now landlocked, and an easement is needed to get to or use the property:
  17. Grant from common ownership that creates a land-locked parcel
  18. Reasonable necessity or absolute necessity
  19. Grantee owns the landlocked parcel
  20. Prior Use: easement given b/c a prior owner used the easement out of reasonable necessity, & needs:
  21. Grant from common ownership
  22. Pre-existing, continuously used way of access meant to be permanent
  23. Necessity
  24. Prescriptive: Adverse-possession type easement requires:
  25. Open & notorious use
  26. Adverse to the claim of right
  27. Exclusive use by the dominant estate
  28. Uninterrupted
  29. Continuous for at least 10 years
  30. Public Dedication: public dedication requires:
  31. Landowner acted with donative intent to induce belief that he intended to dedicate the property to public use
  32. Landowner was competent (owned the fee)
  33. Public relied on these acts & will be served by the dedication
  34. There was an offer & acceptance of the dedication
  35. Estoppel: servient estate has acted inequitably, to the dominant estate:
  36. Representation communicated to the promisee
  37. Representation was believed
  38. Promisee acted in reliance on the communication
  39. Equity: court wants to give one b/c it is fair (mutual mistake)
  40. LOCATION:
  41. Free-floating, fixed by custom, metes & bounds
  42. Right away can be moved, unless:
  43. Otherwise agreed,
  44. Landowner bears the cost,
  45. Landowner does not frustrate access,
  46. No increase the burden on easement holder
  47. Does not significantly lessen the utility
  48. SCOPE:
  49. Look at the express terms of easement conveyance
  50. If not clear, look at the circumstances & extrinsic evidence
  51. Easement holder cannot change to extend burden to servient land
  52. Other: cannot change burden, but can increase burden
  53. Cannot extend easement to another parcel of land
  54. Real Covenant (Covenants that run w/the land)
  55. DEFINITION: interest in land to limit land use, & bind future owners
  56. PROCEDURE:
  57. Intent to burden later owners;
  58. Language & circumstances at that time show intent for perpetual covenant
  59. Touch & concerns the land;
  60. Covenant must be about the property/land
  61. Vertical privity
  62. Owners of land must have received it through direct succession of full title, traceable to covenanting parties
  63. Horizontal privity; (some places)
  64. Original covenanting parties must have made the covenant in connection with a conveyance of an interest in land
  65. MINORITY: conveyance of easement is sufficient transfer
  66. BUSINESS: consider the reasonableness of the covenant (such as non-competition)
  67. Equitable Covenant
  68. Even if no express covenant, buyer is on notice when all other nearby land has appearance of having the covenant
  69. Unexpressed in deed, but necessary for equity
  70. License
  71. DEFINITION: temporary, non-possessory privilege to use for prescribed purpose
  72. Profit
  73. DEFINITION: right to enter land to exploit products of the land
  74. Terminating
  75. Abandonment: Termination by abandonment must have a definite act showing intent to abandon, and not merely lack of use
  76. Changed Circumstance/Equity:
  77. Court may remove servitude where conditions have changed and affected the property so that it is no longer possible to secure benefits of original covenant intentions
  78. Merely not enforcing a covenant is usually not enough to for changed circumstances
  79. Contract/Amendment: where covenants allow change, they can be removed or amended according to the deed (or agreed by both parties)

IV.  FUTURE INTERESTS

  1. Fee Simple (Defeasible Fees)
  2. Absolute: Permanent transfer of all rights w/no future interests
  3. EX: To X & X’s heirs
  4. Determinable:
  5. Interest in land that exists so long as condition precedent exists
  6. EX: while, during, until, so long as
  7. It terminates automatically on the breach of a condition
  8. Grantor retains a possibility of reverter, unless otherwise specified
  9. Subject to Condition Subsequent:
  10. Interest in land until condition subsequent occurs
  11. EX: provided that, but if, upon condition that
  12. Terminates on action of the future interest holder
  13. Grantor regains a right of entry unless otherwise specified
  14. Subject to Executory Limitation
  15. 3rd party has the future interest if the condition is not met
  16. 3rd party has an executory interest
  17. Life Estate/Tenant
  18. Grants the property interest for the lifetime of the person
  19. EX: To X for life… or To X, and then to…
  20. DUTIES: consume only through regular use
  21. Remainder
  22. 3rd party gets the piece of the life estate after the life estate
  23. Vested
  24. Remainder: no conditions (other than termination of life estate) and owning party is ascertained
  25. EX: to A for life, then to B & his heirs
  26. Remainder subject to Open: future interest held by a group, where one or more are in existence while others are not ascertained
  27. EX: to A for life, then to B’s kids (at least one child is born)
  28. Remainder subject to Divestment: subject to a condition subsequent
  29. EX: to A for life, then to B and his heirs, but if B does not marry C, then to grantor
  30. Contingent
  31. Subject to a condition precedent or owned by an unascertained (not yet identifiable or living) party
  32. Thus, an unfulfilled condition depends on a future event, or an unascertained party will take the property
  33. NOTE: Reversion is maintained if the condition is not met, unless otherwise specified
  34. EX: to A for life, then to B if he gets married
  35. EX: to A, then to B’s heirs (alive person has no heirs)
  36. EX: to A for life, then to B’s children (if no children yet)
  37. Reversion
  38. Grantor retains a piece of anything not given away
  39. Analysis
  40. Principle of Conservation: All parts of the fee must be accounted for
  41. Future interest = present ownership and future possession
  42. Anything unaccounted for is a reversion
  43. Vested remainders are clear…Contingent Remainders are unclear

V.  PERPETUITIES

  1. Poem/Rule
  2. No interest is valid
    It just disappears
    Unless it must vest
    Within the lives in being
    Plus 21 years
  3. Thus
  4. A possibility that it will not vest means that it is an invalid transfer
  5. Oddities
  6. Fertile Octogenarian: a person can have kids no matter at what age
  7. Precocious Toddler: a mere child can have a child
  8. Magic Gravel Pit: property can exist in current use forever

VI.  LEASING

  1. Types of Leases
  2. Fixed Term: tenancy for a specified period of time
  3. Transferable
  4. Term ends on a specified date
  5. Periodic: extends successive periods automatically unless notice is given
  6. Non-Transferable
  7. Continues unless notice is given
  8. Notice must be substantially compliant, not exact
  9. Option: extends lease for a period of time, with option to continue
  10. Terminates unless notice is given
  11. Tenancy at Will: Terminable at the pleasure of either party
  12. Tenancy at Sufferance: Lease ended, but allowed to stay until the landlords tells the person to get out
  13. Statutory Tenancy: statutory regulations of the above
  14. Trespass: retains land after lease
  15. Transfers
  16. By the Tenant
  17. Assignment: Tenant wants to assign the leasehold itself, with all the interests
  18. The landlord generally allows it only with consent
  19. MAJORITY: can refuse consent for any reason
  20. MINORITY: only refuse for commercially reasonable objections
  21. Sublet: Assigns only a portion of the interest & gives a right to enter
  22. By the Landlord - Subordination
  23. Lessor will want a clause that makes the lease subordinate to a future lien
  24. Attornment
  25. Must pay rent to a landlord that has obtained the underlying interest from the former
  26. SDNA (Subordination, Non-Disturbance, Attornment)
  27. Tenant agrees to subordinate lease to the mortgage, but has right to get notice that lease is still valid
  28. New landlord will, in the event of transfer and acceptance, recognize the lease terms & duration
  29. New landlord may accept or not accept lease, & if accepted the tenant must recognize new landlord
  30. Holdovers
  31. American: landlord’s promise is to not withhold possession
  32. English/Majority: landlord’s promise is to deliver possession
  33. Holdover Clause: may indicate that if party holds over, he must pay double rent, etc.
  34. Acceptance of holdover on a periodic lease can become another periodic lease for the same term (if so desired by the tenant)
  35. Take/Retain Possession “Going Dark”
  36. Silence: tenant’s desire b/c can leave at any time, & only has to pay rent
  37. Continuous Operation: requires continued use for the intended purpose
  38. Use Clause: limits the tenant to specific uses
  39. Abandonment/Desertion: requires some occupation, but not continuous use
  40. Quality of Premises
  41. Lease is mutually dependant, so tenant can withhold rend or offset payments for deficiencies by the landlord
  42. Duties may be inferred
  43. Restoration
  44. If not stated, and not at tenant’s fault, the tenant has no duty to restore after destruction
  45. Fixtures – items affixed to the property are integral to the property, are to remain with the property
  46. Intent
  47. Means