* Property Concerns Relationships Among People W/ Respect to Things

* Property concerns relationships among people w/ respect to things

I - First Possession

1. Theories:

a. “First in Time”: person who was there first gets ownership

b. John Locke’s theory of labor:

i. first in time not enough

ii. When a man moves something out of the state of its nature and has mixes his labor w/ it, he joins to it something that is his own. It is then his property

iii. accession: one person adds onto the labor of another

2. May have conflict b/t theories and values (ie: stability or fairness)

A . Acquisition by Discovery

1. Discovery: the sighting or “finding” of unknown or uncharted territory

2. Conquest: taking of possession of enemy territory through force

3. Johnson v. M'Intosh (Native Americans v. Europeans)

a. if a discovery of land is made, and a possession taken, it is taken for the whole country (ie: for Britain)

b. Native Americans may have the right to occupy land, but not sell it b/c the land “belongs to the crown”

4. Blackhills Institute v. US (T-Rex fossil)

a. Real property: immovable (ie: land/affixed to land)

b. Personal property: movable

5. Tragedy of the Commons: Each man, pursuing his own best interest in a society that that believes in the freedom of the commons, leads to a ruin of those commons for all

a. theories to fix problem:

a. privatize

b. gov implementation/restrictions

a. ex: Cattle owner finds it personally beneficial to keep adding more and more cattle, but all ranch owners think the same thing and eventually, overgrazing will occur

6. Externalities: you benefit from something that affects someone else, but you are not forced to take into account the costs that go to that other person

a. ex: factory owner does not have to take into account cost of pollution for others (ie: someone suffering from asthma, etc.)

b. no externality once the effect is taken into account (albeit disregarded)

7. One's Person

a. Law of Accession

i. when one adds one’s labor to that of another

ii. owner of “principal materials” usually wins.

iii. Sometimes given to person who adds value:

a. Touchstone is if the labor adds a whole lot of value then subsequent user gets the property.

b. Even then, original owner gets damages for initial value

b. Intentional Intrusions

i. Intrusion:

a. P’s interest in the exclusive possession of his land has been invaded by the presence of a person or thing upon it w/o P’s consent

ii. Trespass:

a. D intentionally

i. enters land in the possession of the other

ii. causes a thing or a 3rd person to enter
OR

iii. remains on the land
OR

iv. fails to remove from the land a thing which he is under a duty to remove

iii. “Entry” may be

a. momentary (ie: walking across land)

b. protracted period (ie: pitching a tent on P’s land)

iv. “Causing a thing or 3rd person”:

a. D, w/o himself entering the land throws, propels, or places a thing on or beneath the surface of the land, or in the airspace above it

b. does not have to be thrown directly and immediately upon the land

c. sufficient if D has knowledge w/ substantial certainty that his act will result in entry of the thing

iv. D liable even if no harm is caused by his trespass

v. Right to exclude = one of the most essential “sticks” in the bundle of property rights

c. Cases:

i. Jacque v. Steenberg Homes, Inc. (delivery path across P’s land)

a. right to exclude one of the most essential sticks in the bundle of property rights

b. series of intentional trespasses can threaten individual’s ownership

c. landowners must feel confident that wrongdoers will be published so they’re less likely to resort to “self-help” remedies

ii. State v. Shack (migrant workers)

a. trespass statute cannot be used to keep out private citizens trying to furnish medical care or legal services to migrant farmworkers

b. property rights serve human values and are not absolute (ie: cannot be used to injure the rights of others)

c. private or public necessity may justify entry upon the lands of another

II - Subsequent Possession

1. Common law remedies:

a. Real property:

i. Ejectment: action for possession (similar to replevin)

ii. Trespass: action for damages (similar to trover)

A. Acquisition of Adverse Possession

1. Elements:

a. Actual entry giving exclusive possession

b. Open and notorious

c. Continuous for the statutory period

d. Adverse and under claim of right

2. Entry:

i. NY statue says “occupation”

ii. w/o permission of owner

iii. starts the statute of limitations

iv. exclusive = not shared w/ general public or owner

3. Open and Notorious:

i. AP must be sufficient to put a reasonably attentive owner on notice

ii. owner does not have to have actual knowledge

iii. reflects sleeping principle: penalize negligent and dormant landowner for sleeping upon his rights

4. Continuous:

i. does not have to be constant (ie: AP can come and go for errands, etc.)

ii. can come and go in the ordinary course given the nature of the property (ie: summer beach house in Howard v. Kunto)

iii. use must equal that of an average true owner in the circumstances (such that observers would regard the occupant as a person exercising exclusive dominion)

5. Adverse and Under Claim of Right:

i. Adverse = “hostile” (asserting against the rights of another owner)

ii. Claim of right = claim of title

a. Acting like a true owner (3 states of mind):

i. Objective: state of mind is irrelevant

ii. Good faith/subjective std.: “I thought I owned it.”

iii. Aggressive Trespasser: “I thought I did not own it, but I intended to make it mine.”

b. AP = only area actually occupied

c. NOT the same as “color of title”

i. deed or other instrument that grants title, but is erroneous

ii. possession does not need to be continuous

iii. AP = not just part actually occupied, but entire property via “constructive possession”

iv. constructive possession of the whole will not trump actual possession of a part by someone else

6. Encroachments:

a. Unintentional: P may have to give up that part of his land

i. P must show he would suffer irreparable harm if removal were denied ii. Balancing test: hardship to P if removal is denied v. hardship to D if it is granted

b. Intentional: D must remove the encroachment, regardless of how costly it would be to him

7. Disabilities:

a. statute of limitations is extended if specified disabilities are present

b. minority¸unsound mind, imprisoned, etc.

c. immaterial unless it existed at the time when the cause of action accrued

8. Cases:

a. Van Valkenburgh v. Lutz (warring families)

i. land is possessed and occupied only when

a. protected by a substantial inclosure

b. usually cultivated or improved

b. Mannillo v. Gorski (steps/walkway)

i. minor encroachment not evident to the naked eye = not open and notorious

ii. owner must have actual knowledge of AP in this circumstance

c. Howard v. Kunto (deed/land mismatch)

i. tacking of AP from prior possessor to current possessor is valid if

a. the land was intended to be included in the deed b/t them, but was mistakenly omitted

b. the two are in privity

III - Nuisance

1. One should use one’s own property in such a way as not to injure the property of another

2. Nuisance law is elastic and must examine what is fair and reasonable under all the circumstances (Spur Industries v. Del E. Webb Development)

3. Notes:

i. Nuisance:

a. interferes w/ ordinary uses of land

b. structures built out of spite/malice

ii. No Nuisance:

a. interfereing w/ abnormally sensitive uses of land (ie: drive-in theater complaining of amusement park lights)

b. aesthetic eye sores (ie: tasteless decoration)

4. Compare: Trespass

a. Trespass = physical invasion of land

b. Nuisance = subj. to inquiries about reasonableness and amount of harm

5. Lateral v. Subjacent Support:

a. Lateral: support provided to one piece of land by the parcels of land surrounding it

i. duty to provide support that the subj. parcel would need and receive under natural conditions

ii. no duty to support structures on the land

iii. generally, strict liability

b. Subjacent: support from underneath (as opposed to the sides)

i. issues arise when one person owns surface rights and another person owns some kind of subsurface rights, such as a mineral interest

A. Private Nuisance

1. Restatement:

a. D is liable for a private nuisance only if

i. his conduct is a legal cause of an invasion of another's interest in the private use and enjoyment of land

AND

ii. the invasion is either

a. intentional and unreasonable

b. unintentional result of negligent, reckless, or abnormally dangerous activity

b. Interference must be substantial (Morgan v. High Penn Oil)

2. Intentional Private Nuisance

a. Intentional:

i. D acts for the purpose of causing the nuisance

ii. knows that it is resulting from his conduct

iii. knows that it is substantially certain to result from his conduct

b. D is liable regardless of degree of care or skill exercised to avoid the injury

3. Unreasonableness:

a. Unreasonable if:

i. Balancing Test (Restatement): gravity of harm outweighs the utility of D’s conduct

ii. Alt. Balancing Test (Restatement): harm caused by the conduct is serious and the financial burden of compensating for this and similar harm to others would not make the continuation of the conduct not feasible

ii. Threshold Test: focuses on amount of harm to P (ie: did D’s conduct cross a certain threshold into unreasonableness?)

4. Gravity of Harm factors:

a. extent of the harm involved

b. character of the harm involved

c. social value that the law attaches to the type of use or enjoyment invaded

d. suitability of the particular use or enjoyment invaded to the character of the locality

e. burden on the person harmed of avoiding the harm

5. Utility of Conduct factors:

a. social value that the law attaches to the primary purpose of the conduct

b. suitability of the conduct to the character of the locality

c. impracticability of preventing or avoiding the invasion

6. Unintentional Private Nuisance

a. Much less common

b. D liable only if

i. negligent

ii. reckless

iii. abnormally dangerous activity

c. Looks at P’s harm and D’s level of care

B. Public Nuisance

1. Restatement: unreasonable interference with a right common to the general public

2. Unreasonable:

a. conduct involves a significant interference w/ public health, safety, peace, comfort or convenience

b. conduct is proscribed by a statute, ordinance or administrative regulation

c. conduct is of a continuing nature or has produced a permanent and long-lasting effect, and, as the actor knows or has reason to know, has a significant effect upon the public right

3. Who can sue?

a. Public agencies (ie: city attorneys or state attorneys general)

b. Private parties

i. who have suffered a harm different from that suffered by other members of the public

AND

ii. they suffered that harm when exercising a “public right” w/ which D interfered

iii. (NOTE - doesn’t have to be property)

4. Spur Industries v. Dell Webb

a. Public nuisance dangerous to public health:

i. Any condition or place in populous areas which constitutes a breeding place for flies, rodents, mosquitoes and other insects capable of carrying and transmitting disease-causing organisms to any person or persons

b. diff. b/t private and public nuisance often a matter of degree

C. Remedies

1. Nothing (ie: all relief is denied and D is allowed to continue activities)

2. Injunction: enjoin D’s activities

a. where nuisance has been found and damages are substantial

b. Balancing of Equities Test/”comparative injury” (Estancias Dallas Corp. v. Schultz – air conditioning case)

i. court will consider:

a. injury to D and the public by granting the injunction

AND

b. injury to be sustained by the complainant if the writ be denied

3. Damages: allow D to continue activity but require payment of permanent damages (Boomer v. Atlantic Cement Co.)

a. for continuing and recurrent nuisance

b. where injury to P is slight compared to the cost of removing the nuisance

c. allows big companies to pay everyone off and licenses a continuing wrong 4. 4. Purchased Injunction: Enjoin activity but require P to pay D (ie: Spur, where P was responsible for bringing residential housing – ie: “public” – near D’s cattle farm )

IV - Zoning

A. Legislative land use control (usually city council)

B. Assumptions behind early zoning:

1. Segregation of Uses is Desirable

2. Central Goal is “Wholesome” (i.e. single-family) Housing

3. Open Space is Important for Healthy Living

4. Effective Regulation Can Protect Against Change

C. Highly local in character (ie: regulation must be considered in connection w/ surrounding area)

D. Must find their justification in some aspect of police power, asserted for the public welfare

E. Euclidean Zoning (Village of Euclid v. Ambler Realty Co.)

1. Use districts

2. Area districts

3. Height districts (a.k.a. “bulk” districts – “floor area ratio”)

F. Devices for flexibility:

1. Variances

2. “Special Exceptions” (in CA “conditional use permit”)

3. Zoning amendments (ie: changes in statute)

H. Aesthetic Regulation (State ex. rel. Stoyanoff v. Berkeley – modern home in traditional area)

1. matter of public welfare (ie: beauty of neighborhood is for the comfort and happiness of the residents and sustains property value)

2. court will not substitute its opinion for that of the legislative body (ie: architectural board) unless oppressive, arbitrary, or unreasonable

V - Eminent Domain/Regulatory Takings

A. 5th Amend: Nor shall private property be taken for public use, w/o just compensation

B. Public Use

1. Rule:

a. If no public use then gov can’t take it at all

b. If public use then gov can take, but must compensate the owner

3. Kelo v. City of New London (pink house taken for development space):

a. “public use” = public purpose

b. can transfer from one private owner to another if for future public purpose

c. community redevelopment programs need not be on a piecemeal basis (ie: lot by lot, bldg. by bldg.)

C. Eminent Domain

1. Power of government to force transfers of property from owners to itself (ie: condemnation)

2. Inverse Condemnation: Suit by landowner against gov over whether there has been a taking and if compensation is due

D. Physical Occupations and Regulatory Takings

1. Measuring and Balancing Rules

a. PA Coal v. Mahon (couldn’t mine coal b/c of house on land)

i. Nuisance? (regulating nuisance is not a taking)

ii. Average Reciprocity of Advantage

a. both parties are receiving some benefit from the regulation

b. if there is ARA, prob. not a taking (inverse not necess. true)

c. ARA can serve as implicit compensation

iii. Extent of Diminution in Value

a. land use regulations almost always pass this test, except total wipeouts

iv. Conceptual Severance (aka the “denominator problem”)

a. for diminution in value, what is the change in value being compared to? The whole property? A piece? (ie: if a section of land is taken, do you say "100% of that section of land is taken" or "1/10 of the WHOLE property is taken”?)

b. Penn Central Transportation v. City of NY (Grand Central = Historical landmark)

i. 3 factor balancing test:

a. economic impact (on the claimant, particularly)

i. what is the baseline?

a. future profits not materialized yet?

b. current profits?

b. interference w/ “distinct investment-backed expectations”

c. “character of the governmental action”

i. physical-ish?

ii. ARA?

iii. singling out?

iv. important gov interest?

c. Cases:

i. PA Coal:

a. no public nuisance if only dealing w/ private houses

b. 3 groups of property rights treated separately:

i. surface

ii. support

iii. minerals

c. dissent: property value ought to be viewed as a whole

2. Categorical Rules

a. Per se taking (Loretto v. Teleprompter Manhattan CATV) i. Character of governmental action:

a. physical invasion v. use

b. temporary or permanent

ii. Temporary occupation and use restrictions = balancing test

iii. Permanent physical occupation = per say taking

a. No balancing test used

b. Size of the taking is irrelevant (except in determining compensation)

c. Level of interference irrelevant (ie: substantial or not)

d. 3rd party requirement (ie: fire extinguishers are not per se taking b/c owner buys, installs, and maintains and they are owner’s property, even though mandated by the city and outside of owner’s control)

iv. No new legislation or decree w/o compensation

a. Exception (Lucas v. South Carolina Costal Council)

i. proscribed interests were not part of title to begin w/

ii. based on background principles of the State’s law of property and nuisance already place upon land ownership

i. State must point to these bg principles, not just claim “nuisance”)

b. How to figure it out:

a. state nuisance law (ie: apply nuisance analysis)

b. Restatement

c. longstanding use by similarly situated property owners d. allowing others to continue

b. Total Wipeout Rule

i. R: When the owner of real property has been called upon to sacrifice all economically beneficial uses in the name of a common good

ii. no balancing – a per se rule

c. Cases:

i. Palazzolo v. RI

a. Diminution in value must be 100% for a total wipeout

c. if P still has value in the property, then Penn Central analysis applies

c. mere fact that a statute is pre-existing doesn’t make it a bg principle (ie: in cases of passage of the title) ii. First English

a. “Temporary taking”: if a gov regulation is found to be a taking and the gov repeals it, the property owner is entitled to compensation for the time that the regulation was in effect

iii. Tahoe-Sierra Preservation Council. v. Tahoe Regional Planning Agency

a. temporary restriction that causes a diminution in value is not a per say taking (b/c property will recover value once the restriction is lifted)

E. Exactions

1. Definition:

a. Something required by a permit-granting authority (usually a local gov) in exchange for a permit

b. Sometimes in the form of land, sometimes in the form of $ (thus, a fee)

2. Essential Nexus test (Nollan v. CA Costal Commission – beach access)

a. the condition substituted for the prohibition must further the end advanced as its justification, otherwise it’s invalid (ie: permit condition must serve the same governmental purpose as the development ban)

2. Rough Proportionality Test (Dolan v. City of Tigard – expanding store 2x)

a. fit of the nexus must be a reasonable relationship

b. must be related in both nature and extent

ESTATES:

VI - Possessory Estates

A. Estate:

1. interest which is or may become possessory

2. measured by some period of time (even if indefinitely)

B. Types of Interests:

1. Possessory Interests:

a. any entitlement that gives one the right to the land at a given moment

b. holder has the right to possess the land now

2. Future Interests: will or might give a person the right to land at some future date

3. Concurrent Interests: Multiple parties have simultaneous rights to possession

C. Wills:

1. Testator/testatrix:

a. person who writes the will

i. devising real property

ii. bequeathing personal property

2. Intestate: someone dies w/o a will

a. Q: whether their issue will receive the property

b. w/o issue, property will escheat to the state

c. heirs

d. per stirpes (by branches – ie: each child gets 1/3)

3. Substitutes for a will: