Property Law
Introduction
Thoughts:
1) property rights are not absolute
* heavily regulated by the state
* one person’s right is another’s restriction
2) Property law serves human values
* efficiency
* justice
* administrability
I. The Concept of Property – Introductory Themes
Pierson v. Post (76-79),
Fox hunting
Post chasing fox on public land
Pierson grabs fox and takes it
Post didn’t own & didn’t take away natural liberties of the fox
Reward success rather than effort
Too complication to enforce pursuit rule
Modern relevance: justification, IP issues, neighbors land use.
Arguments Used
Authority
Custom
Consequences
Administrability
Labor
Fairness
Regulation of Land Use
II. Regulation of Owners’ Rights as Against Others – The Right to Exclude
Trespass – Intentional intrusion on property possessed by another
1) Intent – Voluntary act
2) Intrusion
Exceptions:
1) Consent
2) Necessity
3) Public Policy
Remedies:
1) damages
2) injunction
3) declaration
4) criminal
A. Common Law Limits: Public Access
State v. Shack (104-08),
Farmer owns land and allows migrant workers to live on premises
Boston College Property Law (Fall 2008) Joseph P. Liu
State workers who were giving legal and medical help were told they could only
visit if supervised by Shack. Lawyer/Medical aid were arrested for trespassing
Court: Owner’s property rights don’t supercede rights of workers to get help.
―Employer may no deny associations customary among citizens.‖
o NJ Law doesn’t include right to bar access to government services.
Example of competing interest, balancing farmer and employee’s rights
Uston v. Resorts (116-18)
Uston is a card counter who was blocked from going to a casino
In NJ no right to exclude
Court: More owner opens property to public use, the more restrictions on right to
exclude.
Hypo: Can store exclude homeless people
B. Statutory Limits: Anti-Discrimination
Civil Rights Act of 1964 (124-25),
1) discrimination
2) race, color, religion, national orgin
3) place of public accommodation
a. affect commerce / state action
b. in number of following areas (restaurants, etc)
c. sexual orientation & gender – not included in 1964 act.
- Civil Rights Act of 1866 (125-26),
- New Jersey Law Against Discrimination (132-33)
Dale v. Boy Scouts (133-40),
Dale long time boyscout
Became troop leader
In college announced he was gay, boy scouts saw article and said Dale was no
longer welcome.
Dale sues under NJ LAD, are boyscouts a ―place of public accommodation‖? (SC
says no)
SC – boy scouts have right of expressive association
C. Constitutional Limits: Free Speech
Lloyd Corp. v. Tanner (153-58),
Tanner owns shopping mall
Lloyd passing out into about war resistance in mall, asked to leave
Lloyd filed suit for freedom of speech – argue mall is town center
Courts: no rights – private property and protest doesn’t relate to the business. (ie
strike could be there)
Hudgens v. NLRB (158),
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Boston College Property Law (Fall 2008) Joseph P. Liu
N.J. Coalition Against the War v. JMB Realty (158-60),
right upheld under state constitution
could pamphlet in private space
NJ has more free speech than constitution
Pamphleting would not interfere with normal uses of property
o No evidence it would have a financial impact
United Food v. Crystal Mall (160), Notes (161-63), Problems (163-64)
III. Regulation of Relations Among Neighbors – The Right to Use
A. Water (Rights, Flooding)
Armstrong v. Francis (232-35),
Developer puts in pipe diverting water from the property
Water erodes neighbor’s property and smells
Example of conflicting land use
Armstrong – right not to be harassed
Francis – right to develop
Court: Armstrong entitled to relief
Doctrines
1) reasonable use – reasonable use of own land
2) common enemy – emphases the possessors privilege to rid his land of surface
water. (some states qualify no right to artificial) [absolute rule]
3) Civil law – emphases privilege of possession, by duty of possessor to other land
owners who are affected by expulsion of surface water off land
* Court notes that most states lean towards reasonable use.
B. Support (Lateral, Subjacent)
Arguments
Rights
Utility
Administrability
o Clear, consistent, easy to apply
o Good for social utility
o Doesn’t protect land above for development – ie could remove support,
but keep natural support level – difficult to develop
Noone v. Price (243-47),
2 houses on a mountain
Price’s house had a retaining wall in ill repair
Noon’s house began to slide. They sue Price for not maintaining the wall.
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Boston College Property Law (Fall 2008) Joseph P. Liu
Lower court improperly ruled summary judgment for D. appeals court: p should
have opportunity to prove it would have fallen even without house.
In end, court found no evidence to support the negligence claim.
Adjacent Support
Land in natural state must support land for adjacent property – strict liability
o Different rule for land w/ buildings
If land slips in direct result of additional weight, no obligation to support
additional weight.
If you are supporting weight, allowed to remove support with notice to neighbor
and allow them to remedy (can’t remove without any notice)
Absolute right to dig
cost imposed on own land, instead of neighbor to support land.
Reasonableness Rule
reasonable support needs to be provided
Mass. Gen. L. (250), & Mass. Building Code (250),
laws are way to resolve issues
requires to get a license.
If you get a license, need to support additional pressure at your own expense.
(adjoining property)
Enforcement: systems of building inspectors to enforce
Doesn’t address lawsuits
Friendswood Dev. Co. v. Smith-Southwest (251-58)
Friendswood has wells and draws up water to sell
Smith-Southwest’s property is sinking and eroding
Absolute property rights (removed h2O from own property v. right not to be
harmed (sinking land)
Cite English law – right of owners to draw water
o Close to absolute property rights (as long as no malice)
Some cases precedent – based on right to use water, but don’t address subsistence
Court: change the rule, but prospectively. Will impose negligence in future.
Unfair to apply to Friendswood, since they purchased property relying on the rule.
Noted general trend twds reasonable use in property laws.
TX legislature then passes TX water code.
Reasonable Use test
1) was conduct wasteful
2) full of malice or negligence and/or
3) proximate cause of subsidence of neighboring land
C. Nuisance (Pollution, Light & Air)
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Boston College Property Law (Fall 2008) Joseph P. Liu
Nuisance – right to use and free from harm
1) unreasonable use or property
2) substantial harm to use & enjoyments
3) includes pollution, noise, vibration, smell (to some extent light & air)
p. 278-79: Water and Support distinct categories b/c of past. All other incidents are
included in nuisance – conflicts of use.
Rights-based fairness – look at harm nature, distribute issues. Who is bearing cost? Who
is at fault?
Utility- based – look at cost & benefits. Incentives – will be affect how people act? Cost
of avoidance
Remedies
- calabresi-malamed (p.279)
- sometimes liability rule rather than property rule
- can continue nuisance as long as pay for future damages to parties harmed
- what types of harm does nuisance apply: 1) affects transfer 2) equity loan
Page County Appliance v. Honeywell (273-76),
appliance store sells tvs
travel agency gets computers which interfere with tv displays
computers lead radiation – manufacturer was aware and could have fixed
Page receives damages
Court asked if Appliance store had a hyper-sensitive use.
Appeals court sends to lower court – to define reasonableness.
Court Factors:
o Manner in which activity is being conducted
o Place in which activity is being conducted
o Priority – who was there first
o Gravity of harm
o Utility of conduct
o Nature of activity being harmed
Fontainebleau Hotel v. Forty-Five Twenty-Five (284-85)
neighboring hotel wants to build and addition
addition would block sunlight and cause a shadow on the pool
Holding: No decision that you have right to free flow & air across you neighbor’s
property
o Lower court: injoinder b/c cant harm neighbor
o Appeals court: cant use to harm a ―legal entitlement‖ of a neighbor
o ―If built for useful & beneficial purpose, it does not give rise to a cause of
action…regardless if it was partly for spite
Preference to development
o If policy demands a restriction than need to amend zoning laws
Had they applied nuisance:
o Could have moved location
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Boston College Property Law (Fall 2008) Joseph P. Liu
o Constructed partly b.c of spite
o On beach, sun is an issue
o Priority of location
o low for consideration a wide range of usage
Law & Economics
Basic claim that legal rules should be set so as to maximize social wealth, if so,
then efficient
Maximization
o Pareto Superiority – one party better off, no one worse off
o Kaldor-Hicks – gains to those better off are greater than losses to those
worse off
People who are better off could in theory compensate those who
are worse off
Efficiency doesn’t address distribution of wealth, only that society is better off
Coase – in presence of a transaction cost, who you give entitlement may matter
o Types of costs
Bargaining, negotiating, contract costs
Strategic behavior
Imperfect information
Inability to agree on splitting surplus
o If transaction costs exceed social surplus, no bargaining will occur –
inefficient result & depends on who gets entitlement
o Courts
Should try to lower transaction costs
Where costs are too high, court should award entitlement to party
who values it more
o Critique
Willlingness to pay – not a good measure of social utility, (may be
broader critiques, some outside econ)
Welath & Endowment seem to win out since have ability to value
more
Prah v. Maretti (302-07)
Solar panels that heated house
Neighbor wants to build house which would block light
Court remanded to determine whether it was a reasonable use (trial court had
granted summary judgment)
considerations to see if there was a nuisance
o take nuisance doctrine
o also show that conduct is unreasonable
Remedies
Property Rule
o Plaintiff’s Entitlement: (injunction) p can get an injunction ordering the d
to stop the harmful conduct; if the d wants to commit the harm, d must
offer p enough money to induce p to agree to give up p’s right to be free
from harm
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Boston College Property Law (Fall 2008) Joseph P. Liu
o Defendant’s entitlement: (dismiss the complaint) d has legal liberty to
commit the harm without liability; if p wants to prevent the harm, p must
offer d enough money to induce d to agree to stop the harmful conduct.
Liability Rule
o Plaintiff’s Entitlement: (damages) p can get damages from p for
committing the harm, but no injunction; d is free to commit the harm if d
is willing to pay a damages judgement
o Defendant’s entitlement: (purchases injunction) p can stop d’s conduct if p
is willing to pay damages as determined by a court to compensate d for d’s
loss of profits
Inalienability Rule:
o Plaintiff’s Entitlement: d has no right to commit the harm; any agreement
by p to allow d to commit the harm is unenforceable
o Defendant’s entitlement: d has the right to engage in the protected activity;
any agreement whereby d gives up the right to engage in the conduct is
unenforceable.
Approaches to land use settlements
o P veto rights
Easement for lateral support of land
Prior appropriation of water (veto rights in first user)
Natural flow doctrine for diffuse surface water
o Reasonableness doctrines (middle position: it depends)
Nuisance doctrine
Negligence (lateral support of structures)
Reasonable use doctrine for water
Malice doctrine for spite fences
o D privilege (damnum absque injuria)
Common enemy rule for diffuse surface water
No easement for light and air
Free use or absolute ownership of ground-water
IV. Regulation of Agreements Between Parties – The Power to Dispose
Right to dispose
o Sell
o Transfer
o Split/divide
o Subsequent use
o bequeath
A. Involuntary Transfers (Adverse Possession, Prescriptive Easements)
Adverse possession – involuntary disposal of property
o Actual Possession – act as an owner (ordinary use an owner would exert)
o Adverse or hostile – non-permissive
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Boston College Property Law (Fall 2008) Joseph P. Liu
1) true owner – no permission, what does silence infer (most juris.
presume not persimission, so hostile)
2) occupier – mindset not relevant – all needs no permission as
long as act of land. (some juris. require good faith)
o Open & notorious – obvious that reasonable landowner knows/would see
someone occupying
Notive sufficient to put reasonably prudent owner on notice
Not actual notice
o Exclusive – not sharing with others or public
Consistent with actual owner
Cant claim if a bunch of people are using equally
Not public use
o Continuous – no breaks, but doesn’t mean you cant leave land
consistent with use of an owner. (Contextual.)
o For Statutory period
o Claim on color of title – variant, claim not based on occupation, but faulty
deed. Occupy land - basis for adverse possession (only if actively occupy)
Brown v. Gobble (179-184),
Fenced in yard includes 2 foot tract of land inside gobbles yard
Brown owns on title and want to put a road/path on it
Gobble’s claim they own it
Gobble needs to prove standard of proof
o Clear and convincing evidence
Neither party knew land was theirs
o Gobble thought property wasn’t theirs, simple mistake
o Satisfy intent? Court says yes, as long as acted dominion over it.
Continuous - 10 years (in this jurisdiction)
o Gobble using tacking or previous owners
o Fence in place since 1937
Appeals court returns to lower court – the initial award to brown didn’t take all
factors into consideration
Repose in border disputes – don’t want to open long settled practices
Nome 2000 v. Fagerstrom (187-91),
Large tract of land
Fagerstrom build cabin, have camp ground etc on Nome 2000’s land
Custom – Nome 2000 – under native American tradition not owners of land just
stewards
o Court doesn’t apply custom in this case
Court uses objective test & indicators, not subjective
Court remanded to trial court - Fagerstrom gets ownership of a portion of the
disputed land (trial court determines portion)
land owner had responsibility to police their property
if give permission no adverse possession
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Boston College Property Law (Fall 2008) Joseph P. Liu
Reasons for adverse property law
limit on waste, rewards productive use
don’t have to productively use, just need to make sure others are using it
interest of parties
old doctrine need to be done away with, induced reliance
tension between legality & practice
Pros Cons
promotes ownership gives rise to lawsuits
clears rights modern suryeying maybe not
limits going back in time needed or efficient
prevents disputes protects expectations of those on
deters waste/promotes use the land
not as much ___ to real land owner
remaining property would harm
expectations
land owner negligent on reliance
Policy Questions:
Good faith – should jurisdictions have good faith requirement?
o Think brown v. gobble – if knew had enclosed others land, than knew they
were trespassing
o What hinges on fairness, wrong doing, incentives to act w/in the law
o No good faith – lend of utility, ensure not wasted, easier to enforce?
Proscriptive easements
Same as adverse possession, but less than full interest
Similar analytically to adverse possession and give for many of same reasons
Exception: can acquire a positive easement, but cannot acquire a negative
easement through proscription
o 1) notice – how do you know claim
o 2) restricts development
Easements
o Owner of easement is responsible for maintenance
o Just as permanent as any land interest
o Can pass it on to future land owners
o Scope of right is limited
o Current owner can still use as long as they don’t interfere with other’s
right
o Easements – created by a grant
Affirmative right to use other’s property (ie right of way)
Allows others onto your land
o Negative easements – right to prevent others from using their own
property (ie cant block view)
Courts don’t grant negative easements
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Boston College Property Law (Fall 2008) Joseph P. Liu
o Courts grant proscriptive easements
o Transfer property – no compensation
o Issues:
Proof of scope of easement
Permission to use land
Community Feed v. Northeastern Culvert (207-10),
neighbors fight over gravel area driveway – overlaps both properties
feed store owners use for trucks to turn around
possibly for as long as 70 years
Northeaster wants to construct a fence
court grants an easement
B. Servitudes
1. Easements (By Estoppel, Implied, Express (Appurtenant and In Gross))
Easements by Estoppel
created by law without affirmative intent of either party
based on arrangements between known parties
o pre-existing relationship
what are limits or ability to restrict land use
o encumber & restrict
o make things complex
o tension between formal legal rules and accommodation
Holbrook v. Taylor (321-23),
had road for mining company
later sold land and others built a house
then blocked use of the road – tried to sell it to neighbor, but negotiations broke
down
o road was used to get to the house during construction
No proscriptive easement – court ruled they had permission to pass over land
Right by estopple – sufficient reliance
o Right b/c invested in repairing the road & building house
o Need permission
o reliance on permission
Rase v. Castle Mountain (323-28),
Ranch owns lake & land
Allows others to build cabins around lake – written agreement signed
Later sells land and new owner tries to evict cabin people
o Cabins were transferred & improved upon
o Written agreement said could terminate w/ 30 days notice, but agreement
not really enforced.
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Boston College Property Law (Fall 2008) Joseph P. Liu
constructive trust – form of a remedy that courts impose when fraud & property
are transferred to a third party if buyer knew of fraud prior to purchase. Buyer has
some restriction on use of property. (imposed by law)
ward was aware of license before purchase, court rules that people can sell for fair
price to ward or remain for upto 13 years.
Tension between formal & informal
o A) enforce formal requirements
Clearer rules
Incentive to learn rules of law
Harsh results
o B) enforce accommodation
Encourage trust
Facilitate neighborliness
Hinders planning & investing
Granite Properties v. Manns (333-39),
Easement by necessity:
don’t want people to buy land – locked land
may affect intent of parties
unlikely that people would buy land locked piece of land
Finn v. Williams (339-40),
dominant estate – benefits from easement
servient estate – land easement is on (burdened)
apertinent – runs with land, tied to ownership
ingross – not connected with land (tied to a person)
Green v. Lupo (350-52),
identity of people who can use easement
scope of use
appurtenant easement – only adjacent properties can hold
o benefit of access to land
Cox v. Glenbrook (353-58)
use of a easement for single estate, then later owner wants to develop and expand
road
considerations
o identity of people who can use
o physical extent of easement
o extent of use
Express easements – most common way easements are created
generally need to be in writing
Usually in form of deed, kept in registry
Can be bought & sold
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Boston College Property Law (Fall 2008) Joseph P. Liu
Negative easterments were historically restricted to:
o Lateral support
o Water ways
o Light & air
o If not one of these categories use a covenant
Termination
o By agreement
o On terms (time limited)
o Abandonment
o Adverse possession
o By merger (properties owned by same party)
o Subject to application of changed doctrine
2. Covenants, Equitable Servitudes
a. Requirements for Covenants (and equitable servitudes)
i. Writing
ii. Intent
iii. Notice (actual, inquiry or constructive)
iv. ―touch and concern‖ or Reasonableness test
v. Privity of estate(horizontal and vertical)
1. not for Equitable Servitude
2. note: 1st 3 reqs same for easements
3. Vertical Privity: Relationship between original covenanting
parties and the successors to their land
a. Land lord tenant does not satisfy vertical privity
(some jurisdictions have relaxed and allow this)
4. Horizontal privity: Relationship between the two original
parties of the covenant
b. Covenants v Equitable Servitudes
i. Modern view treats them the same, but some jurisdictions treat
them differently
ii. Don’t need privity of estate for equitable servitudes
iii. Equitable servitudes settled through injunctive relief and real
covenants through money damages
iv. Covenants cannot be held in gross
Davidson Bros. v. D. Katz (367-76)
grocery store owns two pieces of land
not making profits, so closed one store
sold land it with a covenant not to open a grocery store
applies reasonableness standard – 8 factors
o some jurisdictions have eliminated
Whitinsville Plaza v. Kotseas (376-77),
*non-compete contract does apply b/c of touch & concern
* requirement of privity
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Boston College Property Law (Fall 2008) Joseph P. Liu
POLICY Q: how enforceable should covenants be?
- original narrow use
- now wider range, out subjecting to review
- injuctions or damages make more sense?
o Liability rule – damages (contract law) – efficient
o Posner: property had value, Market should value, not court. So generally
impose injunction, but not always, bargaining may break down
Evans v. Pollock (395-99),
common plan doctrine
o applies a reciprocal negative servitude
o when does court apply?
When plot of land is sub-divided and substantial number of plots
have restrictions (substantially uniform) under a common plan
Sanborn v. McLean (399),
Covenants on a number of residential lots, but not all
Court finds a common plan and restricts commercial use
Responsible for inquiry notice
Riley v. Bear Creek (399-400),
first property does not have covenant
weight given to first owner if covenant not on deed to restrict use.
Concern: it would be binding without sufficient notice
Dissent: mistake or oversight, they had thought they were restricted and agreed to
provisions, but later found out they weren’t.
El Di v. Town of Bethany (411-05),
doctrine of changed conditions –court rejected covenant and allowed alcohol to be
served.
Standard for changed conditions:
no longer substantial benefit to dominant estate
fundamental change to neighborhood and the restrictions are incapable of
enjoyment
very significant changes in neighborhood
o so much so, it doesn’t make sense to enforce
Ways to terminate
relative hardship doctrine – compare benefit to burden , if burden is much greater
than the benefit, court can overturn
aquience - failure to enforce
estoppel - orally represent and induce reliance
laches - statute of termination
Covenants:
Benefits:
help facilitate development
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Boston College Property Law (Fall 2008) Joseph P. Liu
sercure in ownership of land
avoid conflicting land use, avoid nuisance
Costs
restriction can harm other land owners
land use changes over time, but these bind for long time
prevent evolution of land use to new uses
Mass. Gen. L. (419-20),
Blakeley v. Gorin (420-24),
block of light in alleyway
court say they can build, but sends to trial court for damages
3. Homeowners Associations and Condominiums
Instead of covenant burdening the land, create an association in charge of management,
enforcing fees, passing bylaws and enforcing covenants.
a. Mini-gov’t: homeowners vote and elect board members
b. Created for security, convenience. Association can make changes that
affect individuals’ property for the betterment of the community.
c. Give up a lot of your rights to freedom of personal property when join
an association (condo), and courts will not often come to rescue if
bylaws against your personal interest.
d. Condo: Each unit individually owned. Common areas shared.
Association makes rules
e. Co-Op: Each unit is owned by corporate entity and buy shares for a
lease. One defaulting payer makes everyone else responsible.
4. Subject to reasonable test
Appel v. Presley (429-32), Notes (432-33),
Removing the covenants to increase sale was a reasonable change by the association.
Note: Developer controlled the association since had not sold a majority of the land yet,
so questionable about how reasonable (to the community) this really is
O’Buck v. Cottonwood (483-85),
TV antenna on roof
Cause leaks, repairs roof and then forced to get a different company without
antenna
Courts ruled reasonable
H: Condo given authority to make reasonable changes (bylaws) by homeowners.
These were reasonable changes because of leak problems on roof and desire to
maintain uniform exterior for value of property
o If don’t like it, don’t live in condo. Doesn’t matter that relied on the fact
that could get TV antenna, still other options for getting TV
Neuman v. Grandview (485-88),
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Boston College Property Law (Fall 2008) Joseph P. Liu
F: Controversy over using common area for religious purposes. 70% of
community doesn’t want this and board bans it.
H: Rule reasonable (avoid controversy) and even asked for by a majority of the
community. Does not violate right to peacefully assemble because not state actor.
If don’t like rules, don’t live in condo.
a. If condos/association given right to make bylaws, they can make any
reasonable changes, even after people have lived there, even things owners
didn’t think about when moved in or things going against what the owners
had relied on
b. They have flexibility to make changes to fit changing concerns/needs
4. Limitations (Restraints on Alienation)
Alienation: the right to transfer your property to someone else
a. Restraint on Alienation: A limitation on who one can transfer their interest
of land to
b. Traditional view: any restraint has been held invalid
i. Any restraint on Fee simple (land with complete ownership) was
invalid
c. Modern view: Will not enforce absolute restrictions, but will enforce
reasonable limited restrictions (i.e. for 3 days) – court is more skpectical -
review for reasonableness
i. Absolute alienation generally struck down
ii. Approval clauses may be upheld
d. Pro – Should allow restraints: Enables control of future use of land,
enhances value of property (neighbor’s), promotes the interest of
neighbor’s themselves, prevents a concentration of wealth over time,
promotes liberty of current owners
e. Con- Should always have free alienability: Promote efficiency by allowing
it to shift within the market, prevent concentration of land, rights of
landowner should trump
f. Five types of Restraints
i. Direct Restraint on alienation/transfer
ii. Consent to sell provisions: Servitude requiring the grantor or the
association to transfer the property
iii. Rights of first refusal
iv. Leasing restrictions
v. Restraints to keep housing affordable
Horse Pond v. Cormier (451-53),
charities are exceptions to restraints – must comply even if unreasonable
reasonable test – 100% agreement is unreasonable & unlimted
Northwest Real Estate v. Serio (453-54),
prior approval clause (prohibited sale without prior approval for 5 years)
o courts wouldnt enforce – repugnant to fee
o newer coiuld would look at reasonableness
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Boston College Property Law (Fall 2008) Joseph P. Liu
Riste v. Eastern Washington Bible Camp (454-55),
church started community
would let people sell to non-members
unreasonable
Aquarian v. Sholom (455-58),
right of first refusal
since in order to get first right had to break rules
o couldn’t buy back for market vaule unless you breached
Wolinsky v. Kadison (458-60),
once have an offer current owners can match
upheld by courts – no economic loss
Resonableness test – unreasonable if:
no time limit
too strict
impose significant restriction on sale
prevents from moving to most valued use
C. Estates and Future Interests
I. Fee Simple
a. Fee Simple Absolute
i. Future Interest: none
ii. ―O to A‖ or ―O to A and his heirs‖
b. Fee Simple Determinable
i. Future Interest: Possibility of Reverter
ii. ―O to A, so long as used for residential purposes‖
c. Fee Simple Subject to condition subsequent
i. Future Interest: Right of Re-Entry
ii. ―O to A so long as used for residential purposes, but if not so used,
O shall have a right of re-entry‖
d. Fee Simple Subject to executory limitation
i. Future Interest: Executory interest
ii. ―O to A so long as used for residential purposes, then to B‖
II. Life Estate
a. Life Estate w/ Reversion
i. Future Interest: Reversion
ii. ―O to A for life‖
b. Life Estate w/ Remainder
i. Future Interest: Remainder
ii. ―O to A for Life, then to B‖
iii. Contingent Remainders
1. ―O to A for life, then to B if B graduates from college‖
2. ―O to A for life, then to B’s children‖ if B has no children
yet‖
iv. Vested Remainders
1. Absolutely vested (―O to A for life, then to B‖)
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Boston College Property Law (Fall 2008) Joseph P. Liu
2. Vested subject to open (―O to A for life, then to B’s kids‖ if
B has kids)
3. Vested subject to divestment (―O to A for life, then to B,
but if B has flunked out of law school, then the property
shall revert to O‖)
III. Fee Tail
a. Future Interest: Remainder or Reversion
b. ―O to A and the heirs of his body‖
c. Interest transfers through the bloodline upon each owner’s death. Once
bloodline runs out, goes to future interest holder (grantor s heirs or 3rd
party)
d. Mostly abolished
IV. Leasehold
a. Future Interest: reversion or remainder
b. ―O to A for 10 years‖
1. Formation and Interpretation
Wood v. Board (516-18),
F: Woods deeds land to be used for hospital in memorium of fallen soldiers. Land used
for hospital for 40 years, but now want to sell it for commercial land. Woods say this
was a defeasible fee which they have a future interest (right of re-entry or reverter) and
using the land for anything but hospital triggers the future interest.
H: No legal language suggesting reverter/right of entry, so will interpret as a fee simple
absolute. Burden on grantor to be clear if intend future interest. Favor interpretation that
keeps land use efficient and flexible by not having a future interest attached
Edwards v. Bradley (521-23), Notes (523-27)
Lilliston grants Jones land that says she can’t try and sell it or else it will transfer to
jones’s kids. Jones’ dies and grants it to all but one of her kids in her will. The one kid
sues, claiming it is a life estate w/ remainder to all the kids upon Jones’s death The rest
of the kids argue it is a fee simple subject to executory limitation. The contingency is
that Jones doesn’t sell it, and since she didn’t (died) and then becomes a fee simple
absolute that she can give to whomever she wants.
I. Note: Kids could also have argued that it was always fee simple absolute, but
weaker argument since seems to be a future interest (contingency)
H: For ambiguous conveyances: 1) try to interpret intent of grantor and 2) try to rule
against forfeitures (presumption against forfeitures)
2. Limitations (Rule Against Perpetuities, New Estates, Waste)
a. Traditional rule: If future interest MAY vest 21 years after every party
involved in the grant dies (life in being), then it is invalid
b. Policy: Avoid ―Dead hand control‖ and allow free alienability of land
(unencumbered). Land should not have permanent restrictions on them
that can last forever even in spite of changing conditions. Move property
to most beneficial uses, yet allow some ability to control grants
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Boston College Property Law (Fall 2008) Joseph P. Liu
Central Delaware v. Greyhound (541-45)
options fall under rule of perpetuities
here wait & see rule also applies
Texaco v. Samowitz (545-46),
long term lease with option to buy
option is valid
o doesn’t not hinder improvement or marketability
o could assume land lord was compensated for their interest
Cambridge Co. v. East Slope (546-49),
contingent right, but court doesn’t apply perpetuities
could locate holder of right since condo made them register
restatement: should look directly at intent-restraint on alientation
Rule Summary
1) Able to ready to apply basic rule
a. Determine type of interest
b. Whether valid
2) Aware of statutory changes
a. Wait & see rule
b. Uniform statutory rule against perp.
3) Modern applications
a. Options & pre-emptive rights
b. Options – subject to rule
c. Pre-emptive – more leniently applied
Johnson v. Whiton (528-29),
property left to ―heir’s on father’s side‖
cannot create new estates
strikes language which violates
Moore v. Phillips (553-56),
mother resided in farm house in life estate, left to children by father
not obligated to sue mother (house ill-maintained)
didn’t find prejudice in the delay
Lewis v. Searles (561-64), Frug (564-65),
left to niece if unmarried, if married each got 1/3
courts find restraint valid, meant to support until married not punish
1. interpretive rules
2. perpetuities
3. restraints on alienation
4. no new estates
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Boston College Property Law (Fall 2008) Joseph P. Liu
5. waste
a. neglect or misconduct resulting in material damages
(voluntary or permissive)
6. public policy (race, marriage, etc)
a. racially restrictive restraints (now several ways to
strike)
b. statues
c. common law
d. 14th amendment
e. Housing discrimination
f. Right to marry freely
i. Some allow condition on marital status
g. can’t create own types of conveyances
Regulation of Market for Housing
V. Common Ownership
Olivas v. Olivas (576-78)
divorce
constructive ouster (some jurisdictions don’t have constructive ouster)
o court decided that he left and wasn’t ousted
Carr v. Deking (580-81),
farmer
father dealt with the guy and the son subject to lease since they were tenancy in
common
either party has full property rights & can use rights without knowledge or
consent of other
Tenhet v. Boswell (581-84),
join tenants
can only lease what you own – property transferred on death – lease void
o prevents burdening of property
one leased to third party without telling
did it become fee-absolute when he died, therefore not subject to the lease
Kresha v. Kresha (584-85),
father leases to son
mother sues
tenancy in common
transfer of property does not invalidate lease
lease survives divorce, but not death
A. Tenancy in Common (o to A&B as tenants in common, share of ownership)
a. Default for shared ownership
b. Parties disagree on use
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Boston College Property Law (Fall 2008) Joseph P. Liu
i. Partition or sever
ii. Sell & split proceeds
c. Shares can be sold or given to heirs
B. Joint Tenancy (o to a & b as joint tenants)
a. Each has full right to posses
b. Used to require equal shares
c. Unity of time, title or possession
i. Equal right to posses
d. Right of inheritance pass equally to other owners
e. Can sever by conveyance to another party (both sides must convey??),
then changes to tenancy in common
f. Immediately transferred upon death saves on probate in will
g. Last survivor has fee simple absoulte
C. Tenancy by entirety (o to a & b as tenancy in entirety)
a. Marital property
b. Only available to married couples
c. Each has full right to posses plus survivor
d. Limitation on right to alienate (usually need consent)
e. Protection of attachment by creditors
f. Only recognized in 20 jurisdictions (or so)
D. Rights & Obligations of Co-Ownership
a. Duty to share in both benefits and burdens
b. Entitled to leave without permission of others
c. Share in burdens and expenses
i. Mortgage, insurance, taxes
ii. Major improvement do not have obligation to share
VI. Landlord Tenant Law
A. Leasehold Estates
New Jersey Anti-Eviction Act (642-44),
Vasquez v. Glassboro (644-50),
looks past documents at relationship
implied certain obligations
tenant obligated to pay rent
options if fails?
o If tenant is present
Action to evict
Breach ends LL/T relationship
Seek back rent
Most states don’t allow self-help
o If hold over, pays rent
Accept new tenancy
Evict (need to be careful about accepting rent payments)
o If leaves, not paying rent
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Boston College Property Law (Fall 2008) Joseph P. Liu
Accept surrender of the lease (tenant may be liable for damages)
Re-let on tenant account (tenant pays difference in rent)
Wait & See
Landlord could sue for rent as it comes due or wait until
end of lease and sue for all back rent
Many states have rejected this and landlord must take
reasonable steps to mitigate
Sommer v. Kridel (663-67),
tenant had change in circumstance and couldn’t afford apartment, wrote landlord
landlord didn’t accept and made no efforts to rent
court: LL waited to long to rent – encourages abuse by landlord, unfair to tenant
court: more related to contracts duty to mitigate
Right to possession
tenant has right to posses
if can’t occupy, LL has breached lease
some states tenant has to start procedure for evict other tenant that is occupying
the apartment
can LL transfer to new party?
o Yes, new owner has to honor contract
Can tenant transfer to new party?
o If lease is silent on right to sub-let or assign
Assignment – transfer of entire interst – new tenant directly responsible to LL
Sub-let – transfer of partial interest – new tenant not direct to LL, most actions
must go through original tenant
If new tenant doesn’t pay, original tenant must pay, but then can sue sub-tenant
If tenant doenst pay landlord, LL can evict new tenant and tenant can sue original
tenant
Kendall v. Ernest Pestana (683-88),
refusal of allowing a sub-lease transfer
Majority rule: can refuse for any reason
Minority rule: only withhold if commercially reasonable reason for refusal
Here court takes minority rule
o Lease is conveyance, lessor on obligation to look at anyone but leasee for
rent
o Approval clause unambiguous and clear
o Stare decisis – shouldn’t depart from majority rule
o Lessor has right to realize increased value of property
Slavin v. Rent Control Board (688-90),
* no duty to act reasonably in residential
* can only evict if breach covenant, he sub-let which was a breach
(trend towards acting reasonably)
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Boston College Property Law (Fall 2008) Joseph P. Liu
C. Habitable Premises (Constructive Eviction, Implied Warranty)
I. Constructive Eviction
a. A type of breach of the implied covenant of quiet enjoyment
i. Implied terms are ones not are not necessarily in lease but are
mandated by law
b. Landlord has an implied duty not to interfere with right to quiet enjoyment
and not to interfere with possessory rights.
i. Interference with posessory rights would be locking you out or
barging into home. Can sue with injunction, trespass.
c. A defense to not paying rent
d. Complete constructive eviction: must be so bad that no reasonable person
would stay
i. If do stay, possibly evidence it wasn’t that bad
II. Implied Warranty of Habitability
a. When there is sub par conditions, but falls short of a constructive
conviction (partial/complete).
b. A greater duty on landlord to provide and fix things beyond just quiet
enjoyment
i. Note: Prior to 1970’s, needed to bargain for right and was an
independent promise (needed to pay rent even if landlord failed
this duty and would need to sue).
What must landlord provide?
- under common law, no obligation to ensure land is in certain condition, just need
to provide tenant with possesory right
- case law has evolved now some rights
- right to posses
o includes right to enjoy
o covenant of quiet enjoyment
o breach is a failure to deliver land to tenant & provide possession
- quiet enjoyment is a high standard
o causes of action the tenant can bring
nuisance – unreasonable intereference with enjoyment
batter/torts/negligence
trespass
breach of implied warranty of inhabitability (greater duty than
quiet enjoyment) – implied in every residential lease
o difference?
Remedy – in others get damages or injuctive relief
Quiet enjoyment – get abatement – allows tenant to stop paying
rent
Minjak v. Randoph (701-03),
constructive eviction
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Boston College Property Law (Fall 2008) Joseph P. Liu
do not need to abandon premises, if you move out of portion of premises – allow
for rent abatement
unreasonable to move out to get relief (especially if housing is scare)
deprived tenant of benefical use
Blackett v. Olanoff (703-05),
lounge and apt owned by same person
quiet enjoyment conflicts were forseable
landlord had a duty since it was foreseeable and he rented out both
Javins v. First National Realty (709-14),
issue: whether violations allow for tenants not to pay rent
link conditions to obligations to pay rent
move away from old property laws
modern apartment dweller purchases bundle of services – little interest in land
below
contract doctrine should apply
o city dwellers don’t have ability to make repairs
o draws on trends in consumer protection
o expect minimum level of livable conditions
DC housing code – applies to all housing, so imported into every lease – makes a
baseline you wont allow to go below
Downside: cant contract for less, forces landlord involvement, duties make it
harder to evict tenants
Retaliatory Eviction:
c. Any type of retaliation (not just eviction, e.g. rent hike) in response to
tenant trying to assert their rights
d. Effectively applies only to refusal to re-rent premises (i.e. does not renew
month to month tenancy) since landlord always have to give reason for
normal eviction
e. Justification: rights don’t mean anything if by exercising the, the landlord
evicts you, raises sent or takes other retaliatory actions.
i. Normally can not renew a lease for nearly whatever reason
ii. This is a limit to that
1. Note: Obviously could not evict someone (end lease early)
because of retaliation. Always burden on landlord to prove
a legitimate reason for eviction if evicting (terminating
lease early) as opposed to usually no need for reason for
not renewing lease, which this is an exception to
Hillview Associates v. Bloomquist (726-30),
trailer part forms association and complains about conditions
court held that evictions were retaliatory, residents could not be evicted. Although
some limits, the resident who was in a physical altercation with staff could be
evicted.
If you try to assert your rights as a tenant, landlord cant retaliate
Prove?
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Boston College Property Law (Fall 2008) Joseph P. Liu
o Show reasonable business decision, not lack of paying rent, etc. landlord
need non-retaliatory reason for evicting.
o Eviction may not be effective if within a few months of tenant complaint.
Landlord can provide non-retaliatory reason, but tenant can try to prove
it’s a pretext.
Imperial Colliery v. Fout (730-32),
applies only to tenancy issues
coal miner lived in housing connected to employer
they had right to evict
outside scope of doctrine
Robinson v. Diamond Housing
landlord doesn’t want to improve premise to bring upto code, instead wants to
remove from the market
court: must bring upto code, then need a non-retaliatory reason to evict.
Limits/Issues:
live below building codes
may not be able to make repairs
limits ways to remove bad tenants
increased rents
trade-off
judicial adaptation to rules
VII. Discrimination in Housing
A. Discriminatory Treatment
Fair Housing Act of 1968 (817-22),
prohibits discrimination of sex,race, religion, family, disability
note not sexual orientation under federal rules
prohibits
o refusal to sell, rent
o less favorable terms
o advertisements which include preference
o steering
exemptions
o single family homes with less than 3 units
o sold or rented by you (no broker) & provided you don’t advertise
(expressing a preference)
o multi-family housing which is owner occupied
Asbury v. Brougham (822-26),
denied a black woman from renting an apartment said non were available
also say no children, but exceptions have previously been provided for others
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Boston College Property Law (Fall 2008) Joseph P. Liu
court: must show
1) prima facie case of discrimination
member of a racial minority
applied for & was qualified to rent
denied opportunity to rent, inspect or negotiate
housing opportunity remained available
2) burden on the defendant to show non-discriminatory reason
3) pretext
U.S. v. Starrett (826-30),
* complex used quotas to maintain a balance
* court looked at legislative history dual goal
1) eliminate discrimination
2) promote integration
* court stuck down policy saying the cap acted to limit, not promste
* dissent: not meant to apply in this situation
B. Disparate Impact
Huntington Branch NAACP v. Town of Huntington (871-77),
multi-family housing was limited to one area of town
court finds no legitimate interest for zoning
plaintiff must show prima facie case of discrimination
defendant must show 1)bona fide & legitimate justification 2) no alternative that
discriminates less
usually must show that something is site-specific – and not a pretext
Southern Burlington NAACP v. Township of Mount Laurel (899-907),
required addition of zoning to allow for low income housing
minority view: most states allow zoning practices that mt. laurel had
court recognizes that interest of taxes, but find other factors outweight
o same plan in neighboring town
court says NJ state law, not FHA (state delegates zoning to towns in exercising
needs to be cognizant of the welfare of everyone in the STATE)
Property and Sovereignty
VIII. Zoning
Allows for:
1) Flexible administration system
Can rezone
Grant special exceptions or variances
2) Comprehensive
3) Proactive
4) Predictable
5) Specific detailed rules
Restricts:
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Boston College Property Law (Fall 2008) Joseph P. Liu
1) Use
2) Area, physical limitations
Lot sizes, height, etc
3) Avoid nuisance before it occurs
Issues:
1) Subject to political process
2) Gov has power to affect land use directly
3) Affect property rights
4) Reflects a policy balance
Can create a town plan
Avoid conflicting uses
Provide some protection to property rights
Limitations
1) Constitutions limits (external limits0
Takings clause in 5th amendment – bars from taking without
compensation
Regulatory takings rules decrease/eliminate property value
2) Internal
prior non-conforming uses
variances
vested rights
Town of Belleville v. Parrillo’s (922-25),
Zoning changed, grandfathered a restaurant
Wouldn’t allow it to change to a disco
Court: towns need to alter land use to meet needs of citizens
Code can put time limit on non-conforming uses
Prior use could continue in same manner, but proposed change was too substantial
Cochran v. Fairfax County (925-30), Notes (930-31),
zoning cases where zoning variances were granted
o must allow for reasonable & beneficial use of property
o possibly b/c of features of lot
standard: only when there would be an avoidance of an unconstitutional right
(high standard)
o public interest
o unnecessary hardship
o convenience is not enough
Variances aren’t free, come at a cost to other land owners
o Don’t want to give unfettered access to towns to grant variances, need
more scrutiny
o Politics other enter local zoning board - grant/deny based on relationships
Stone v. City of Wilton (931-35), Notes (935), Problems (935-36)
zoning board changed multi-family housing area, property had been bought and
plans drawn, but no building
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Boston College Property Law (Fall 2008) Joseph P. Liu
court gave deference to zoning board
for racial discminiation you need proof
Vested Right
o Requires a substantial investment – case by case
How much invested
Time & money
Doctrine
Conflict of power/flexibility to change to meet changing needs
Protects expectations of property
To what extend should indiv. Prop owners bear the cost
IX. Takings
Takings area
Question of distributional fairness
o Are the benefits and burdens fairly distributed to the population at large
Think about efficiency based arguments
o Utilitarian concerns and efficiency concerns
Reliance interest
o To allow land owners to invest secure that their investments will bear fruit
o If you make it too easy for the government to change rules, then are you going
to inhibit investment?
Regulation
o Maybe takings law forces the government to do the cost benefit test
o Are we willing to pay the amount it costs in terms of reduction in property
values?
Transactions costs
o Is it costly to compensate a lot of people as opposed to few
Moral hazard
o If people know they will be compensated all the time ,they are not going to
take into account the possibility that someone might not like something like a
weapons facility in the middle of a city
Institutional rule
o Administrability
o To what extent should courts defer to legislative judgment
o Should courts be suspicious of these regulations? Deferential?
o Is there a role for the courts to stand up for property rights of individual
owners?
Supreme Court has also included exceptions to the three part test
o (1) permanent physical occupations
o (2) regulations that would deprive property owners of all economic value
A. Taking
How do we draw the line between garden variety variations and takings?
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Boston College Property Law (Fall 2008) Joseph P. Liu
Three part test used by the court:
o Extent of economic harm
Could be economic harm in general
o Investment-backed expectations
Invested money in reliance of this use
o Character of government action
Three part test
o Basic general test courts apply to determine if it is a taking
o Courts balance three factors, getting at the broader question, is it fair to ask
property owner to bear the cost of that particular regulation
Exceptions
o Permanent physical occupation (lorretto – cable box)
o Regulations that eliminate all economic value
Miller v. Schoene (957-58),
trees cause damage to apple trees, forced to cut down
not a taking
o unavoidable choice between two incompatible property rights
distinction btwn create a good and prevent a harm
o often no compensation in preventing a harm
analogy to a nuisance case, but doesn’t decide if it’s a nuisance
Penn Central v. New York (959-65),
created a historic zone
not a taking – not all rights were taken not entitled to compensation
look at exent to which regulation has eliminated rights to use property
Look at 3 part test
o Economic impact
o Interference with investment backed expectation
o Character of gov action
Garden variety – usually ok
Eminent domain – singling out indiv prop owners
disproportionately
Keystone Bitnuminous v. deBenedictis (965-66),
PruneYard Shopping Center v. Robins (976-79),
Pruneyard’s argument that this amounts to a taking:
o You’ve taken a very important right—the right to exclude
o By changing the law in this way, you have extracted a very fundamental stick
from the bundle of rights
Court says: not every destruction or governmental action is held to be a taking
o Should the property owners be forced to bear the burdens alone?
o Court looks at three part test
Says not a lot of economic harm to have people leafleting occasionally
They still have the power to manage with respect to time, manner, and
place
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Boston College Property Law (Fall 2008) Joseph P. Liu
o The mere fact that you are allowing third parties to be on the property is not
dispositive for a taking
o Focuses on economic impact
over state’s rights
o State’s have wide latitude in defining what property means under state law
o This case isn’t that different from other cases where the state courts essentially
redefine their property laws to limit the rights to exclude
o They are all examples of where courts of legislatures are adjusting property
rights—just a normal function
o Not a taking, no compensation
Marshall’s Concurring opinion
o Acknowledges that of course states must have the power to redefine property
laws and values, so we would not want to say that every time we do that it is a
taking—would free the common law
o He does suggest that there is a limitation
There is this ability to redefine property in all these different ways
On the other hand, in an extreme case a court could go too far
If a court approached a core right (say removed the right to exclude
completely from every piece of property) that might be going too far
o We give the state a lot of deference to administering their property laws, but
there will be a limit
But this case does not approach that limit
Court said that in this case there is no taking—shopping mall, only allowing leafleting
on a temporary basis
Loretto v. Teleprompter (979-84), Notes (990),
Talking about a very small portion of space
Right on the part of cable companies to attach fixtures to your building
Court said that this is a taking
o Any permanent physical occupation is a taking by its nature
o Takes away your basic right of property to do whatever she wants
Court does not apply the three part test—neglects it entirely
When it comes to things like permanent physical occupations, we’ll have a
categorical rule saying that permanent physical occupations are per se takings
Traditionally ownership of property involves ownership of dominion
o Removing that is different from other regulations we’ve discussed before
Do you think the court go it right? Do you think it is persuasive?
o Looking contextually, Loretto is not suffering some huge amount of harm—
only 1.5 cubic feet of space
o If you applied the three part test, it would probably be ok
o Loretto did not know that this was on there when she bought the building—no
investment-backed expectation
o When you buy a property you have the right to use it and dispose of it in any
way you’d like
At the very least, majority does draw a hard and fast line
o Dissent:
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Boston College Property Law (Fall 2008) Joseph P. Liu
Would this be ok if the cable company did not specify where the cable
had to go (look at mailboxes—landlords must have them on property,
but they can put them wherever they want, so that is ok)
Physical invasion are more intrusive
o Court wants to draw a hard rule saying that this category should be treated
differently
o Dissent calls this into question
Does this hard line that we’ve drawn make a lot of sense?
How permanent is this?
Only a regulation for people who run apartment buildings
Lucas v. South Carolina Coastal Council (991-1004),
taking if no economic viability remains
if regulation bard harmful or noxious use that render valueless, then it is different
– no compensation, not a taking (not this case in lucas)
Scalia
o Provides no limit if you allow for noxious use exception – too broad
o Should look to state’s property rights to see if it was a property right the
owner had prior to regulation change
o Would significantly protect property rights
Blackman
o Scalia is looking for a limit, but common law does not provide one
o Give legislature power to define
o Judges can manipulate benefit/ harm
Kennedy
o Limit is investment backed expectations of property owner
o Common source – nuisance law, but alos things that would expect to be
regulated (ie environmental)
o Common law may be too narrow
Palazzolo v. Rhode Island (1004-07),
* not a taking – allowed building on part of property
Issue: severing property, is it a taking if no use on one portion? Court is undecided
B. Public Use
Kelo v. City of New London (1051-66),
standard: ―economic interests of a community are public use‖
deference to legislature – economic development is a public interest, creates jobs,
increased tax base, etc
limits:
o seems to need to be tailored to needs of city
o one piece of property given to another individual may be problematic
Kennedy: upheld ask long as ―rationally related to a conceivable public purpose‖
(more lenient)
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Boston College Property Law (Fall 2008) Joseph P. Liu
O’Connor (dissent) – all property now vulnerable as long as ―upgraded‖ – blurs
public/private lines
o Here secondary benefits
o In other cases addresses there were extreme harms
o Economic development is not public use that falls within the limits
Thomas: do no believe that this court can eliminate liberties expressly enumerated
in the constitution
o Public use means that the government or its citizens as a whole must
actually employ the take property (higher standard than o’connor)
o Public ownership test
If in fact gov will own
Use & employed by public or gov
―real‖ public use requirements, not a public purpose
Either gov use or private, but open to the public (ie
railroads, airports, etc)
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