Possessory Estates

I. Property – that which is peculiar or proper to any person; that which belongs exclusively to one. A. Real property – Land and generally whatever is erected or growing upon or affixed to land. B. Personal property – everything that is the subject of ownership, not coming under denomination of real estate. II. Possessory Estates A. Terminology: 1. Tenure – The right or mode of occupying 2. Tenant – person who possessed land by any kind of right or titles, whether in fee for life, years, at will 3. Subinfeudation – process of granting part of land to subtenant for service 4. Escheat – when a tenant dies w/ no heirs, property reverts to state 5. Alienable – transferable 6. Remainder – a future interest created in some person other than the grantor or transferee B. Three ways to transfer land: 1. convey by deed 2. die w/ valid will 3. die w/out will and rely on laws of inheritance which tend to favor closest relatives and then extend outwards C. Types of heirs: 1. Issue – descendants, not only children but other descendents. Children inherit the rights of their parents if the parent is deceased. 2. Ancestors – parents 3. Collaterals – all persons related to descendants that aren‘t issue or ancestors ie. brothers, sisters, aunts, uncles, nieces, nephews D. Freehold Estates: There are only certain options in creating deeds. Law likes to be absolute and only allows owner to deed property for fit certain formats. 1. Fee Simple: Estate limited to a person and his or her heirs and assigns forever without limitation or condition. The owner is entitled to the entire property, with unconditional power of disposition during one‘s life, and descending to one‘s heirs and legal representatives upon one‘s death. Unlimited as to duration, disposition and descendabiltiy. Has the potential to endure forever. Cannot be divested. Heirs have no present interest. To ―A and his heirs‖ allows A to sell land, devise it by will thus depriving heirs of the land a. F/S Absolute i. CL – to A and his heirs ii. ML – to A (assume and his heirs) iii. Potentially indefinite iv. Cannot be divested b. Fee Simple Defeasible: --A fee simple that may last forever or which may come to an end upon the happening of an event in the future i. Fee Simple Determinable – limited so that it will end automatically when a stated event happens (ie. grant land to school as long as it is used for school activity). Has a durational aspect – lasts as long as conditions are met. Future interest held by grantor is called a possibility of a reverter. Language includes ―so long as‖ ―until.‖ May be transferred or inherited subject to the limitation 1. DSLUW (defeasible – so long as, until, while) 2. Ends automatically 3. CL – can only inherit 4. ML - may be transferred or inherited ii. Fee Simple Subject to Condition Subsequent – Does not automatically terminate but may be cut short by grantors election. (ie. grant land to school but if not used for school purposes grantor has right to re-enter). Grantor merely has the power to terminate the estate. Future interest called a right of entry. Language includes ―to A, but if x happens‖ ―upon condition that x happens.‖ May be transferred or inherited until the transferor is entitled to and does not exercise the right of entry (must exercise right within a reasonable time after condition is broken) 1. PHiBIsCuS (provide, however, but if – cond sub) 2. Condition must be broken and somebody must reenter 3. CL – can only inherit 4. ML – may be transferred or inherited iii. F/S Subject to Executory Limitation 1. Automatically divests to 3rd party when condition breaks iv. When language is ambiguous, courts have a tendency to rule in favor of more absolute case and would choose F/S-C/S over F/S-D v. Fee simple determinable reverter may be alienable b/c reverter happens automatically. 2. Fee Tail: Estate in which there is a fixed line of inheritable succession limited to the issue of the body of the grantee or devisee, and which the regular and succession of heirs at law are cut off. All end in reversion or remainder. When original tenant and all of his descendants are dead, the land reverts to grantor and their descendants. Only Delaware, Maine, Massachusetts and Rhode Island honor fee tails. One problem with the fee tail is that it is not alienable and children knew that they would inherit the land. a. created in 1285 by Statute de Donis Conditionalibus b. To A and heirs of his body c. Ends after bloodline runs out d. ML - can disentail by deed 3. Life Estate: Estate whose duration is limited to the life of the party holding it. Upon death of the life tenant, the property will go to the holder of the remainder or interest or to the grantor by reversion. Life estates have a future interest. a. Ways to determine an exact value of a life estate: i. Does a life estate have value? Yes b/c you can sell it ii. How do you determine how much to pay? Based on life span (you would pay less for the life estate of someone 95 versus someone 25 – both are worth less than a fee simple. iii. Is there a way to divide up income from life estate? Create a trust where life estate person gets $ earned on principal and the remaindermen receive what is left if trust after death b. Common situation where a life estate is common: Through divorce or death of spouse, individual has a new spouse and wants to care for new spouse for life but want own children from first marriage to obtain assists after death (sometimes includes provisions against new spouse and children—by setting up estate this way it insures that the spouse cannot give estate to new family) c. Can transfer but only the share you have i. CL – if you grant more than your share you loose ii. CL/ML – state can take away for waste or other violations d. Four types: i. For Life of Grantee (to A for life) ii. Pur autre vie (for the life of another) iii. In a Class (to the children of A for life) – remainder does not become possesory until all life tenants die iv. Defeasible (get as long as you don‘t marry or break condition) E. Future Interest 1. In the Grantor a. Reversion b. Possibility of Reverter c. Right of Re-entry 2. In the Transferee a. Remainder – occurs at the natural end of the proceeding estate i. Vested 1. indefeasible a. get all b. to A for life then to B and his heirs 2. subject to open or partial divestment a. life estate b. could have more children 3. subject to total divestment a. ―to A for life then to B, but if B does not survive A, to C‖ 4. rules – a. not subject to RAP b. can only be in an ascertained person c. no condition precedent ii. Contingent 1. rules – a. unascertained person b. or condition 2. who falls into this group? a. Unborn children b. Heirs 3. ―to A for life then to B if B survives A, but if B does not survive A, to C‖ b. Executory Interest – does not occur and the natural end of an estate i. Springing 1. divests the grantor ii. Shifting 1. divests the grantee iii. created by the Statute of Uses in 1536 F. Rules Furthering Marketability 1. Rule in Shelley‘s Case – applies to fee simples and fee tails a. In one instrument that creates a life estate in A and purports to create a remainder in A‘s heirs, and both are legal and equitable the remainder becomes a f/s or f/t in A b. merger applies if there is no intervening life estate c. to A for life, then to A‘s heirs → A has a fee simple d. applies only to remainders and not to executory interest 2. Doctrine of Worthier Title a. Inter vivos conveyance from grantor to a person with a limitation over to grantor‘s heirs (through remainder or exec. int.) = no future interest in land created in heirs; instead there‘s a reversion in the grantor b. O →(deed) to A for life, then to O‘s heirs i. O‘s heirs get nothing and O gets a reversion in fee simple 3. Destructibility of Contingent Remainder a. Remainder in land is destroyed if it does not vest at or before the termination of the proceeding freehold estate (does not apply to vested remainders or ext. int) b. A for life, then to B and her heirs if B reaches 21 i. If at A‘s death, B isn‘t 21, B‘s interest is destroyed 4. Rule Against Perpetuities a. Every interest must be certain to vest or fail within a life in being + 21 yrs b. Applies to contingent remainders, ext. int., vested remainders subject to open and class gifts c. If age is stipulated in conveyance at 21 yrs or less, the remainder is valid whether the person is (un)ascertained or not (works in a one generation scheme) d. If person is ascertained remainder is valid b/c he/she is a validating life e. If age is older than 21 yrs and person is unascertained, it is invalid f. Modern day modifications i. Wait and see – wait to see if contingent remainder vests within perpetuities period; the interest is judged by actual events ii. For 90 years – wait for a 90 year period to see if interest vests or fails – allows one to comply within the perpetuities period or 90 years III. Co-ownership 1. concurrent interest – situations where two or more people have right of present or future interest 2. Tenancy in Common – each owner has a separate undivided interest in the whole a. each tenant in common has the right to possess and enjoy the entire property i. they can make agreements about possession ii. one can possess the whole unless the other co-tenants object b. no right of survivorship i. when a tenant dies, his interest passes to heirs or devisees c. equal shares are not necessary d. Alienability – tenant can sell, give, devise or otherwise dispose of her undivided share in the same manner as if she were the sole owner of the property e. Modern law favors this – if a conveyance is made to two or more people, not HW, they are presumed to take as tenants in common 3. Joint Tenancy – each co-tenant has an undivided share of property and the surviving co-tenant ahs the right to the whole estate. a. Created by deed, will, adverse possession b. Right of survivorship – tenants are regarded as a single owner; when one JT dies, nothing passes to survivors and the estate continues in the other JT c. Four Unities i. Time – must acquire/vest interest at the same time ii. Title – must acquire title by the same instrument iii. Interest – have equal undivided shares iv. Possession – each has right to possession of the whole 1. can agree that one tenant actually occupies with possession and not destroy this unity b/c the other still has this right d. One JT can unilaterally destroy and turn the JT into a tenancy in common – the right of survivorship is destroyed i. This is accomplished by any act that severs any one of the four united ii. Each JT has a right to convey their interest, which results in severance e. At common law this form of ownership was preferred and courts read a devise to two or more people to be a JT. Modern day favors the tenancy in common. f. Can only be created by express words indicating that a JT should be formed i. Some states require that you include language which indicates a right of survivorship g. Mortgages (states split about severance) i. Title theory – mortgage has the effect of conveying the legal title – the lender holds this title – this act severs unity of title and JT ii. Lien Theory – lender does not have the legal title but a lien on the property – does not sever JT (states split about debt) 1. surviving tenant takes other‘s interest subject to mortgage 2. surviving tenant has rights unencumbered by debt – lender looses his security if tenant dies a. if the lender is aware of this rule, they will typically not extend credit to one JT h. Death of JT i. Uniform Simultaneous Death Act says that if there is no sufficient evidence that two joint tenants have died other than simultaneously, the property so held shall be distributed equally to the joint tenants ii. Murder – if one JT murders the other, ct considers it a severance (time) i. Divorce does not sever but the parties can choose to sever if they so intend j. Bank Accounts – O sets up account for A i. True JT - O = ½ and A= ½ interest in money; maintains survivorship rights ii. Payable on death – O has until dies and then $ goes to A iii. Convenience – A gets screwed; A can use $ to pay o‘s bills and then gets nothing 4. Tenancy by the Entirety – created by H+W; held as one person a. Created by the 4 unities + marriage b. Each tenant has the right of survivorship c. Divorce terminates the tenancy d. Neither tenant acting alone can destroy e. Rights of tenants during marriage i. Common law 1. husband had right to exclusive possession which could be conveyed to a third party excluding the wife from possession – creditors could reach the husbands right 2. husband had the right of survivorship to the entire property 3. wife has the right to the entire property if she survived the husband and this right remained with the wife even after the husband conveyed his interest 4. neither spouse could partition or sell the property without other spouses consent ii. Modern law –Married Woman‘s Property Act (2 views) 1. gives HW equal rights to possession during the marriage and forbids either acting alone from conveying his/her interest – creditors of one spouse cannot reach the property b/c neither HW action alone could convey his interest – this serves to protect the family home. 2. gave W = rights to H – either can convey their interest (like H in CL); neither spouse can destroy the right of survivorship of the other – this view enables creditors to seize and sell one spouses interest (keeps that spouses rights so if W creditors attach, if H dies 1st the creditor gets all but if W dies 1st H gets all interest) f. not recognized in about ½ the states 5. Rights and Duties of Co-Tenants a. Each co-tenant is entitled to equal possession and enjoyment of the entire property i. Co-tenants can agree among themselves that one co-tenant has right to exclusive possession b. One tenant may lease his share of the property over the objections of the other tenant, but the lease is only binding for his portion; the lessee has the same rights that the tenant would have if he were in possession – courts divided over whether or not upon the death of leasing tenant, if the other tenants interest is subject to the lease c. Ouster – the wrongful dispossession of a person or exclusion of him from property i. If one co-tenant ousts another, they must pay the ousted cotenant his share of the reasonable rental value of the property ii. Cotenant who cannot access property must demand from the other that she be admitted. Until this demand is made and then denied, there can be no ouster d. Generally co-tenants do not owe a fiduciary duty to one another i. If one has agreed exclusive possession, they do not have to pay rents to other tenants e. When is a duty owed? i. Rents from 3rd parties 1. Any rents or other income collected by one cotenant from a 3rd party must be equally shared with other cotenants ii. Exploiting Natural Resources 1. cotenant is accountable for profits derived from a use of land that permanently reduces its value 2. must pay a proportionate amount of the net profit received from extracted minerals to her co-tenants 3. for farmed land – cotenant is only responsible for rent value not profits iii. Taxes 1. each cotenant has a duty to pay their share of taxes 2. if one tenant pays more than her share, she can compel the other tenants to reimburse 3. if a cotenant is in sole possession, she has duty to pay taxes up to reasonable rental value of property iv. Repairs 1. repairs are voluntary and for this reason if one tenant does repairs, they cannot require other cotenants to pay v. Improvements 1. no cotenant has a duty to improve and cannot be paid for improvements 2. but the improver should get the value added by the improvements a. if A/B co-tenants of property worth $20,000, and A erects building for $10,000 which increases value to $55,000 (land worth $30,000 and building worth $25,000), A is entitled to $40,000 and B to $15,000 6. Partition a. Only applies to JT and tenancy in common b. Equitable proceeding where the court physically divides or sells the property c. Partition in Kind – physical partition or separation i. After partition, each party owns their portion in fee simple ii. If lot cannot be partitioned in equal value, court may require tenant with greater value to pay other tenant to equalize the value d. Partition Sale – sell property and give tenants the proceeds i. This is used if physical partition is not feasible or not in the best interest of all the parties ii. Typically used for houses, apartments, urban lots and commercial property iii. Each co-tenant is entitled to equal shares of the proceeds (if one pays more, they can get more with proof) IV. Marital Property 1. Common Law Marital Rights a. during marriage all of wife‘s property passed under husband‘s control with the exception of clothes and ornaments - jure uxoris b. at death of one spouse i. Dower 1. upon death of husband, W gets 1/3 life estate in all freehold estates (not to leaseholds or remainders) 2. attaches at moment of marriage 3. divorce or death extinguishes 4. H‗s attaching creditors are subject to wife‘s dower 5. W must release her dower for H to sell to another ii. Curtesy 1. life estate in all of wife‘s property 2. H has only if issue was born to the marriage (doesn‘t have to survive) 3. abolished in many states (some give husband dower rights) 2. Modern Statutory Rights a. husband and wife have separate property b. upon divorce i. equitable distribution – in common law states, the poorer spouse is entitled to equitable distribution of a share of the wealthier spouse‘s property ii. professional degrees – 3 views 1. not divisible property – increased earning potential is not property and therefore not divisible 2. provide the supporting spouse reimbursement for the amount of their investment 3. divisible property – earning power is divisible property which may be subject to equitable distribution c. upon death i. elective forced share – available in most common law property states ii. surviving spouse takes part, usually ½ or 1/3, of all real and personal property iii. surviving spouse elects to take the forced share or what was provided in will iv. most states provide protection for inter vivos transfers that defeat spouse‘s elective share 3. Community Property (AZ, CA, ID, LA, NV, NM, TX, WA) a. considers HW a marital partnership where both should equally share in marital acquisitions b. exists in earning of either spouse during the marriage and property acquired through these earnings d. property owned by either spouse before the marriage or acquired by gift, descent or devise is separate property. e. By agreement, community property can be converted into separate property and vice versa f. Upon divorce the community property is divided equally between the spouses 4. property rights are determined by the state of domicile when the property is acquired. If the couple moves from common law state to community state, these rights do not change 5. what happens when you have community property mixed with separate property? b. If a house is purchased w/ the wife paying 1/3 down before marriage and the remaining 2/3 are paid by community assets after marriage i. Inception of right rule – the character of the property is determined at the time the contract to purchase is signed – the house is her separate property ii. Time of vesting – title does not pass to wife until all installments are paid, prior to this, house is considered community property, once fully paid – wife gets all iii. Pro-rata – community payments buy into a pro rata share of title – each spouse gets what they put into it – W gets 1/3 for down payment and ½ of other investment = 2/3 share c. Burden of proof in community property is on the person who wants it to be considered separate property 6. Rights of Unmarried Partners a. common law marriage – where an unmarried man and woman hold themselves out to the public to be married and conduct their affairs like a married couple, they are treated as if they are lawfully married. This has been abolished in most states. b. contracts between unmarried partners i. express contract providing how to divide property is enforceable in most states ii. others will not enforce b/c this would be too similar to common law marriage iii. if enforced, a contract cannot give status rights to the other (inheritance, taxes, spousal benefits etc) c. same sex partners i. may contract but may not enter into marriage and acquire rights granted to married persons V. Waste A. unlawful act or omission of duty on the part of the tenant which results in permanent injury to the inheritance. One must treat the premises in such a manner that no harm be done to them. C. It is not considered waste if property is sold to if money is used to take care of the person (might be if they take all money and spend it traveling). D. It is never waste if there is a current use. E. Waste is conduct by the life tenant that permanently impairs the value of the land a. Rationale behind i. Grantor intends that the life tenant have general use of the land in a reasonable manner ii. B/c technically more than one person has an interest in the land and fairness requires that one shall not impose economic damage upon the other b. Types VI. i. Affirmative – when the life tenant actively causes permanent injury by destroying structures, nature or removing natural resources from the land ii. Permissive – occurs when the land is allowed to fall into disrepair or the tenant fails to take reasonable measures to protect the land from the elements iii. Ameliorating – occurs when the principal use of the land is changed but that change increases the value of the land F. Baker v Weedon – court says it would be waste to sell property now b/c the value of it will increase greatly in the future. It is not waste for Anna to lease farm b/c it does not affect remaindermen interest G. The owners of the remainder may enjoin threatened waste by the life tenant or recover damages Possession A. Acquisition by Discovery or Conquest a. ―in the beginning all the world was America‖ b. discovery of land gave title to the government which discovered it c. Native Americans did not posses b/c not settlers; given the right to occupy their land but could not hold title or ownership d. possession is an elastic word with different cultural definitions e. determination and enforcement of property rights depends on the power of the state to impose its will f. Locke – labor theory of possession – one doesn‘t gain possession until they work the land g. ejectment – a legal action brought by one claiming a right to possess real property against another who possesses the premises adversely or who is a holdover tenant who remains beyond that termination of a lease but who is not a trespasser i. CL- used against intruders and in landlord/tenant relations ii. ML – action to regain possession of a legal title B. Rule of Capture – first in time, first in right a. if wild animal is captured, it belongs to the captor b. must be captured, chasing the animal is not enough c. why do we have this rule? i. competition – society wants wild animals captured ii. ease of administration – easier to determine who captured it as opposed to who was chasing it d. if an animal has been mortally wounded or trapped so that capture is virtually certain, the animal is treated as captured i. but if the animal is in the process of being captured but the ―trap has not shut‖ there is no capture – another may still come in and take unless the captor has used reasonable precautions against escape ii. domesticated animals cannot be captured if they get free iii. captured wild animals which escape are free for recapture for another unless the animal is clearly not a native of that area (elephant in Penn woods) VII. e. custom can sometimes be used to define the legal rule i. when should the court apply custom? 1. if custom is long standing 2. generally accepted – extensive or pervasive 3. affects few people ii. custom needs to be defined narrowly so that it only impacts a small group iii. if you find a custom that affects the majority of the town and the custom is not the same as the legal rule, you should not apply it f. to get damages, you don‘t need to have possession but an interest in pursuit i. law wants to promote competition but to also keep competition fair ii. if a person is in the process of entrapping animals and a competitor wants to also capture the animals, he may try. A person who does not want to capture the animal cannot interfere 1. if A uses a duck decoy pond to capture ducks and a neighbor cannot shoot at ducks to scare them off but can try to kill them when they for own use 2. an action lies in all cases where the violent acts of others is done against a man‘s occupation Law and Economics A. efficiency B. externality – includes external costs and external benefits; every cost and benefit associated with social interdependencies; exist whenever some person makes a decision about how to use resources without taking into account the effects of the decision b/c some of the costs or benefits may fall on others C. transaction cost – include the costs of obtaining information about persons involved, conducting negotiations, coming to terms with the other party and enforcing any bargains made – the more parties involved, the higher the transaction costs D. productivity 1. externality hypo N neighbors J house plans to remove doesn‘t have all trees to send to advantage from send to mill shade - unhappy views as an improvement + $100 - $50 if there an externality? Yes what can be done to alleviate it? Bargain between to two parties for change – make N realize the benefit/detriment of his action consider a context where J would pay N to reduce loss + $100 - $150 what is an efficient use? Keeping the trees is a socially efficient outcome b/c J would lose a greater amount 2 rules: 1. N has right to cut trees 2. J has right to prevent tree cutting under the Coase Theorem – resources should be put to an efficient use regardless of legal rule assume transaction costs are $ 0 if cost to A of installing smoke equipment is $100 and the damage to B from smoke is $50, if the right to emit smoke is given to A, A will continue to do so b/c B would only offer $50 to stop; if the right to stop the smoke is given to B, A will offer between $50 - $100 to buy B‘s ability to stop. If the figures are reversed, A would stop emitting smoke regardless of the right – the market then determines whether the activity will continue not the allocation of rights (only works in transaction costs are 0 or really low) people will continue their behavior is the alternative is too costly externalities may provide a benefit to both parties (if N has rose garden near J‘s property line – may increase value of both properties, but N does not have to keep this garden) E. Ownership 1. if there are 20 emus and 20 owners – a. according to Demsetz theory – systems of communal ownership tends to increase externalities b/c there are more people with rights to do things that will affect others b. creates problems with over killing and over hunting - when we have scarcity, we are likely to see a transition from common property to private property 2. people own emus and tenants in common; each emus worth $1000 a. if one cotenant wants to sell, he can b. rule requires sharing under these circumstances c. he could capture and kill emus every week? – argue that other cotenants have right to do this too 3. what happens when you move from common property to private (partition) a. as a cotenant, one might not consider the health and food for the emus b/c think that someone else will and if one dies, you still have right to others b. private owner would take an interest in the well being of his emus F. Acquisition by Creation 1. a person may acquire property by creating it 2. it is easier to recover for tangible things than to recover for ideas a. absent statute, common law does not provide relief for ideas unless they are in tangible form (books, recorded songs) b. a person cannot copyright an idea but can copyright the expression of it 3. is this fair? a. allowing knock-offs provides accessibility of more products to more people b. increases efficiency – encourages competition and increases quality and number of ideas for improvement c. freedom – leaves people free to make copies (I can buy a dress or tape and copy it for my own use) VIII. 4. balancing factor? a. lessens new products and ideas b/c not large money incentive to keep creating if everyone could copy 5. can avoid these problems by patenting ideas (patents are hard to get and take a long time, this would not make sense in silk dress case) 6. to avoid monopoly and encourage competition, the common law generally allows copying and imitation a. celebrities are an exception – you cannot use their name and likeness without consent for profit 7. rights in body parts a. Moore – spleen fatal to Moore but could be used outside of him to benefit others that need hormones b. Dr recognized the value of the spleen but Moore‘s spleen itself provided doc with the idea c. Court finds no conversion b/c Π must establish an interference with ownership and rights of possession of cells; no evidence that Moore planned to retain cells after removal; finished product different from what was taken (product of invention) d. If doc took spleen and sells to another for transplant at $10,000 is this conversion? Yes – doc didn‘t do anything to make spleen his own e. If doc performs operation and sees what spleen is doing and removes spleen, disposes of it but later based on what he saw, creates a cell line, then who has the property right? Most likely the doc b/c he has done all the work without the use of patients property f. If Moore knew of the value of the spleen, he could have found the highest bidder at a research school g. If you steal sperm of Nobel prize winner from sperm bank, it is conversion but if you go and seduce him for the sole purpose of getting sperm, it is not (argue that this is a gift) Ownership Rights a. Right to use – owner has the right to use as they see fit subject to some rights of neighbors and the police power of regulation b. Right to transfer – owner can transfer property through sale, gift, inheritance or will c. Right to exclude – can exclude others; have the right to exclusive possession i. Law does not allow owner to exclude govt workers from accessing those they benefit – benefits of people are more important than property right ii. Owner may require the visitor to identify themselves and state a general purpose iii. Owner cannot deny worker from things that they need or do things that result in commercial advantage for owner d. Kaiser Aetna case (Hawaiian marina) – fed law says that navigable water is subject to government regulation and is allotted for public use i. Development company dug a connector between lake and ocean – should the public be allowed to enter? No – can charge a fee for public access IX. ii. Court upholds right to exclude others unlike in worker case 1. those who want to enter v those who are already there 2. 3rd party involved iii. requiring access to public of private property may constitute a taking e. move mobile home across property owners land b/c cannot move it around land despite the express prohibition by owner – property owner has the right to exclude and is entitled to both nominal and punitive damages a. what about emergency vehicles? Can cross land b/c of necessity – 0 damages b. pizza delivery – nominal damages (sneaking across yard to deliver pizza will result in a minor intrusion and minor damage c. each scenario deals with the right to exclude – perhaps it is not only the right to exclude but also the reasonableness of the exclusion f. landowner owns the earth below his surface as well as the sky above a. who is entitled to caves that go under two properties? The owner of the entrance or the owner of the surface? Could be considered trespass to enter into portion of cave under another‘s property b. what would be considered trespass? i. Putting you hand into the air space across the property line? Yes ii. Eaves of a carport over property line? Yes iii. Flying over? It depends on how high and for what purpose (can‘t charge money to fly people over your neighbors natural wonder without permission) c. If you seed clouds over A‘s airspace is it trespass to B if he is down the road and doesn‘t get any rain? No b/c you don‘t invade his air space – could possibly be nuisance though Nuisance a. an unprivileged interference with a person‘s use and enjoyment of their land b. one must use their property so as not to injure that of another c. is it fair to shut down Δs business simply b/c it interfered with the neighbors? Interest of the town or area may outweigh the interest of the business d. Test for nuisance: i. Jost test – any unreasonable interference with ones reasonable use of the land is a nuisance ii. Restatement – harm to Π (interference w/ability to enjoy property) must outweigh the social good of Δ‘s action to be considered a nuisance iii. Π must show that activity interferes with ordinary and reasonable person‘s use (doesn‘t take into account hyper-sensitivity of Π) 1. amusement park v drive-in theater (park wouldn‘t interfere w/normal use of property; the drive-in has a sensitive need = no nuisance) e. to determine if there is a nuisance the court considers: depreciation of property value, discomfort created (noise, smoke), fear of harm, social value of conflicting views and who came first f. when to grant an injunction a. first determine if there is a nuisance X. b. then balance the equities by comparing injuries to determine if there should be an injunction i. ct grants an injunction for a private homeowner who is bothered by bldgs air condition but wouldn‘t grant if the building was a hospital b/c the social utility of the hospital is greater than the devaluation of others property g. society demands recourse for people who invest in building a nice home or establishment when the neighbors unreasonably interfere with the quiet enjoyment or value of this property (junk cars/oil refinery) h. court stresses market value over people liking or disliking action – this helps alleviate the hypersensitive user and provides a good indicator if person or use is reasonable i. How do you determine Full Market Value (value of property in a wide open sale if seller wanted to sell) ask experts in real estate, put on market and see what bids you get, compare to other similar property in the area i. Types of nuisance a. Public – that which interferes with rights common to the general public or which affects the public directly (public health/safety) – damage = injunction b. Private – that which causes a substantial interference with the private use of land and is either intentional and unreasonable or unintentional but negligent – damage = $ and/or injunction c. Nuisance per se – public or private wherever it is located regardless of whether the conduct is reasonable d. Nuisance per accidens – is a nuisance b/c of where it is located e. Spur cattle feed case – determined that the feed lot is a nuisance per accidens and public nuisance b/c of flies are dangerous to public health and property is near a populous area; it is also a private nuisance b/c it interferes with owners ability to sell land – ct requires feed lot to move but forces developer to pay damages b/c he was aware of feed lot when he built area and essentially chose to come to the nuisance Eminent Domain a. the federal, state and local governments have the power to take title to property against the owners will b. the 5th amendment requires compensation for property taken for public use c. statutes and judicial decisions also require compensation d. public use i. narrow – public must have the actual use or right to use ii. broad – (modern) condemnation must benefit the public iii. where the exercise of eminent domain is rationally related to a conceivable public purpose, the legislature may take the property iv. a public purpose may be furthered by transferring ownership from one private person to another a. Poletown – want to condemn residential neighborhood so GM can build a plant; there is a problem in the city w/unemployment and industries are leaving; will pay fair market value for home i. All agree that condemnation for public use or purpose is permitted and all agree that condemnation for a private use or purpose is forbidden and cannot be authorized whatever its incidental public benefit and condemnation for a public purpose cannot be forbidden whatever the incidental private gain ii. Court decides that this is a public purpose and Detroit condemns neighborhood and the GM buys in from Detroit b. Hawaii Housing Authority – land in Hawaii was originally owned by the king – a missionary came in and married royalty – creates Bishop‘s Trust who along with the Doles essentially own all of the land in Hawaii – this land was leased for 99yrs to others –these leases are close to expiring – Housing authority proposes an idea which would allow tenants in an area to petition for the sale of the property that they have lived on B. Question as to whose public benefits? 1. good for the majority of Hawaii but bad for the native Hawaiians b/c the Bishop‘s trust supports them C. the USSC says that a state can go to the extreme and find some remote connection with the public good as long as it is rational e. Just compensation i. Typically this is viewed as the fair market value, but the fair market value assumes a willing buyer, and unwilling buyer may want more for sentimental reasons and the inconvenience of a forced sale f. Physical Occupation and Regulatory Takings i. Taking title – if the government formally exercises the power of eminent domain, bringing a condemnation proceeding and taking title to the land, the government has taken the property and must pay for it ii. Taking possession – if the government takes permanent possess of property, without taking title, this is a constitutional taking which must be paid for b/c taking possession is the functionable equivalent to taking title 1. if the government invades the property substantially enough, it must pay for this taking even though it has not undergone a condemnation proceeding 2. permanent possession is any permanent physical occupation regardless of how small the intrusion into the property is and must be compensated for a. Loretto – NY statute allowed the cable company to install cable boxes on the roofs of buildings and drop cable down the side to provide cable access to tenants – ct holds that this is a constitutional taking and landlord should be compensated for the value of the occupation 3. compensation is required regardless of the public interest provided by the taking iii. Regulatory takings – the government can regulate the use of property under the police power for the purpose of protecting the public good. If the regulation places a significant burden on the landowner, it is sometimes considered a taking 1. eminent domain v police power a. when the regulation has the purpose or effect of protecting the public from harm, it is an exercise of police power and is noncompensable b. when the regulation has the purpose of exacting a public benefit it is an exercise of eminent domain and the owner must be compensated 2. Hadachek – Π owns property outside of LA where he makes bricks. City expands their limits and annex this area. City has a regulation forbidding the making of bricks and operating kilns within its limits a. Prior to the regulation, the property worth $800,000, after law worth $60,000 as residential – brick making is not nuisance per se but – ct considered the brickyard harmful and said that he could not make brick there and city did not have to compensate b. A city can change regulations to prohibit existing activities but cannot completely deprive one of the use of his property i. Here, the regulation did not take all value, owner can still use property ii. ―there must be progress and if in its march, private interests are in the way, they must yield to the good of the community‖ 3. how to analyze a. first id the property taken – define this property b. look for the following: i. Did regulation prevent use of land? ii. Has all the value of the land been taken? iii. Is there an interest is public health and safety? iv. Is there a permanent physical invasion? v. Does the rule mess with a property owner‘s right to exclude others? 4. property may be regulated to a certain extent, if the regulation goes too far, it will be a taking – this is question of degree 5. for all building permits – need to consider if there is a close enough connection between the provision and the land development (is what is being required or prohibited strictly related to the right being protected?) a. in Nolan case – permit requires an easement across property to connect beach area – council says their concern is viewing beach from road – the easement would not further this – regulations that specify the height of the house would be ok b/c they directly further this interest b. Lucas – does not allowing owner to build on land remove all value? The court says yes and the government has to compensate, but does it really? There are some who might be willing to pay for this XI. Adverse Possession a. if within a number of years specified by statute, an owner does not take legal action to eject a possessor of land who claims adversely to the owner, the owner is thereafter barred from bringing the action of ejectment. Once the owner of land is barred from suing in ejectment, the adverse possessor has title to the land. b. the owner must be aware of the other‘s use of his property c. the possessor must show an actual entry giving exclusive possession that is open, notorious and adverse under a claim of right and which is continuous for the statutory period XII. Trespass 1. Π must prove act (invasion), intent to enter without consent a. Any intentional use of another‘s real property without authorization and without privilege is actionable as a trespass regardless of harm 2. don‘t have to prove actual damage 3. reasonable mistake does not negate intent element – accidentally entering another‘s land even w/ reasonable mistake is still trespass 4. air space near the ground is almost as inviolable as the soil 5. scope - time/place/conduct may transform lawful entry into non-lawful (failure to remove fence stake after snow season is violation) 6. pollution – court requires accumulation of particles causing actual or substantial damages 7. trespass v nuisance i. invasion of actual property v interference with ones right to use or enjoy property ii. for trespass you only need nominal damage; for nuisance you must prove actual damage to property Easement – a right created by an express or implied agreement of one owner of land to make lawful and beneficial use of the land of another Public easement – and easement enjoyed by the public in general