Property Outline – Professor Kieff Property Law Theory
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- Equitable Servitude Theory
- Notice and the Common Plan- must have notice for a covenant to run at equity
- Termination of Covenants
- Πs must show lack of housing and municipality must show substantive valid reason for it
- Due Process - claims require a threshold showing of a liberty hit or a property hit
- General rule: evaluate value at time of taking;
- Evaluate : 1. diminution in value
- Rule: if gov’tal regulation results in permanent physical occupation of property, it’s a regulatory taking
Real Covenant Theory At law (damages action), for the burden of a promise to run, one had to establish: intent for the burden to run (by language or inferable by context) horizontal privity (traditionally landlord-tenant rel’ship, later expanded) vertical privity- successor in int’st to person who covenanted for burden must hold entire durational interest held by the covenator at time covenant was made if landlord-tenant rel’ship, would be present in assignments, but not in sub-leases touch and concern- covenant must “touch and concern the land” At law, for the benefit of a promise to run, there are fewer requirements (b/c more incentive for owner/seller to advertise benefits): intent for the benefit to run vertical privity- the successor need only succeed to some estate (doesn’t have to be an estate of the same duration as the covenator’s) touch and concern Equitable Servitude Theory Req.s for burden of a promise to run at equity (granting of specific performance): intent notice- if notice not in deed, actual or inquiry notice must be present inquiry notice- furnished by facts that would make a reasonable person inquire further and find the covenant; may be satisfied by constructive notice (i.e. recordation) touch and concen for benefit of a promise to run at equity: intent touch and concern The 3rd Restatement not adopted by any court; relaxes req.s; abolishes “touch and concern” doctrine and the privity requirements; baseline grounded in contract and party intent gives servitudes a contractarian flavor w/writing req.s and exceptions for violations of public policy, unconscionability, etc. Eagle Enterprises, Inc. v. Gross- appellant wants fee specified in covenant for supply of water, but resp. has obtained water elsewhere; Held- covenant is not a core essential to property, doesn’t “touch/concern” land; effect- changed circumstances, unenforceable court concerned about dead hand control Notice and the Common Plan- must have notice for a covenant to run at equity Sanborn v.McLean- Δs want to build gas station in a common development; covenant not in McLean’s chain of title; Held- reciprocal negative easement enforced; there is inquiry notice and constructive notice of the original restriction Conservation easements- servitudes that restrict future development of land Termination of Covenants Bolotin v. Rindge- common development w/restriction against commercial use; Held- enforceable; subjective considerations essential (personhood); no proof restrictions will no longer benefit Δs; no changed circumstances changed circumstances doctrine- even if we have good intentions in structuring the arrangement for the future, things could change, don’t want to be too bound drafting w/o relying on CC? sunset provisions, draft states intent Abandonment of a covenant Peckham v. Milroy- home daycare in neighborhood claims covenant unenforceable; abandonment must be habitual and substantial; Held- covenant enforceable, no unreas. delay (laches arg.); no estoppel (Peckam objected at beginning); no abandonment of covenant – few instances not enough Zoning Zoning- regulation of land uses through a general regime permitting and forbidding particular uses of land in certain locations; state and local law; number of varieties (1 is Euclidean) Euclid v. Ambler- Euclidian zoning scheme (cumulative- one zone can use this type, as can those below it); zoning prohibited Ambler from industrial construction; Ambler- due process issue (no rational basis); Held- upholds zoning, there is rational basis (safety, cleanliness) problems w/zoning: requires faith in gov’t actors; sticky, slow to change; fixed set of rules so no coasian bargaining Southern Burlington v. Mt. Laurel- Πs challenge Mt. Laurel zoning ordinance asserting it excludes low/moderate income persons from obtaining housing; Held- Πs must show lack of housing and municipality must show substantive valid reason for it; zoning upheld Rule: Zoning must promote the general welfare, and cannot be motivated by other considerations (i.e. taxing reasons) Government Forbearance – the extent that gov’t should forbear from interfering w/or frustrating previously recognized property rights Charles River Bridge v. Warren Bridge- Mass. has another bridge built near Charles River Bridge (CRV); CRV mad b/c their charter is still running; Held- charter didn’t grant exclusive rights, and can’t read it in; don’t want preemptive force w/initial allocations, new needs arise (creative destruction), destroy old, build new downside- disincentive for investment b/c ppl lose their property, less likely to maintain it alternative- treat it as a taking and have the gov’t pay just compensation for loss of bridge Due Process- claims require a threshold showing of a liberty hit or a property hit Board of Regents v. Roth- prof fired for making anti-war statement; issue- is professorship property, and ok to take away w/out process? Held- no due process problem; due process involves liberty and property, and professorship not clearly related enough to those rights Town of Castle Rock v. Gonzales- woman has restraining order, husband violates, takes kids, police don’t respond for a long time, shootout, kids die; Held- no due process created in restraining order; discretion given to gov’t to under-enforce (want to avoid suits against PDs) Other Limits on Gov’t Action vested rights: presumption against retroactive decision-making many Const. clauses read as limiting retroactivity, but none, standing alone, establishes a broad, anti-retroactivity rule presumption of prospectivity; if gov’t statement is clear in asserting retroactivity, then ok stare decisis- what has been decided, stays decided; particularly relevant in contract and property settings also: government contracts, takings, and treaties Takings Eminent Domain gov’t may to compel a transfer of property rights in return for payment of just compensation constitutional requirements: must be a “public use”, property owner paid “just compensation” Public Use Requirement actual use by public (some state courts) or public advantage benefit (Sup. Ct.’s view – any project w/some public interest rationale) Kelo v. New London- New London approved development plan by private co., used eminent domain to acquire properties in a “blighted” area; issue: plan for taking qualify as “public use”? Held- taking okay, limit- there must be some kind of social benefit problems: home’s personhood value to Kelo; impact on disenfranchised minorities; poss. purposeful targeting or reckless disregard (invidious intent/impact); favoring of a co., political payoff; slippery slope of wealth transfer (O’Connor- dissent) resulted in popular constutionalism/ repudiation of Kelo, public backlash; O’Connor’s dissent better guide for future scope of eminent domain Just Compensation – Valuation United States v. Miller- gov’t orig. took land for reservoir; later taking to build highway around reservoir; issue: at what point to measure fair market value? options: at time of taking (incorp. value added by reservoir) or earlier value (before reserv.); General rule: evaluate value at time of taking; exception: where it’s probable (followed by this court); Held- court shouldn’t have to pay for added value of the dam; earlier value counts b/c this taking was probable problems: allows gov’t to use lowest figure; expectations of landowners dashed, encourages speculators to snatch up land, build expensive stuff there should gov’t pay value of it if used for highest/best use Regulatory Takings Penn. Coal Co. v. Mahon- homeowner sold mineral rights, co. wants to mine, would damage Mahon’s house; state statue- can’t mine if it’ll harm residence; Held: not proper exercise of police power/taking Evaluate: 1. diminution in value (relative value of taking compared to thing taken/ proportionality); 2. need to protect public (from nuisance) (here- can be dealt w/other ways); 3. reciprocity of advantage (here- taking whole value of contract) Penn Central v. NY- Penn wants to build office bldg. on top of station; landmark commission disallowed b/c landmark status; Held- proper exercise of police power; Brennan- no diminution of value, pub. nuisance not serious issue, doesn’t interfere w/Π’s primary expectation (Brennan’s test) (still can use that property in other ways) Renquist (dissent)- no reciprocity of advantage, doesn’t make everyone better off, singles out ppl w/ landmark properties, who pay cost while everyone else benefits Loretto v. Teleprompter- NY statute req. property owners to permit installation/maintenance of cable television wires; Held- is a taking; minor but permanent physical occupation of Loretto's property constitutes regulatory taking of property, just compensation is due Rule: if gov’tal regulation results in permanent physical occupation of property, it’s a regulatory taking (regardless whether it achieves an important public benefit or has only minimal economic impact on owner) Lucas v. SC Coastal Council- Π bought 2 lots on Isle of Palms to build homes on; SC statute then barred his plans; Held- court dislikes “all things considered” analysis from Penn Central, establishes more categorical approach, fears police power exception to taking Epstein- categorical better, easier to predict outcomes, plan, fewer cases go to court; vs. Posner- categories tie you down, better to take each set of factors, analyze efficiency) Directory: outlines -> Property outlines -> Adil Khan Contracts Midterm outline- waldron outlines -> Remedies for breach of promise (1) The Interests Protected outlines -> Basic Process for Assessing Damages: 97 Select interest that deserves vindication 97 a. Restitution 97 outlines -> Chapter Five: Written Documents 1 Unsigned Documents 1 outlines -> Cases and Materials on Contracts outlines -> College of Science and Health outlines -> Evidence outline outlines -> 2. Act, Omission, Status or Circumstances 4 Consequences and Causation 8 Introduction to Mens Rea and Intent 10 Levels of Fault 11 Property -> Property outline Download 266.24 Kb. Share with your friends:
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