Not real

Tangible : touchable

intangible no physical existence.

Intent to give

Delivery

If handing over is impracticable  constructive or symbolic delivery allowed ie . key or access.

Hocks money in the box

A gift to take effect in the future is ineffective. If no present interest is created at the time of delivery, there is only a gratuitious promise to make a gift in the future. If no interested is created until death a will is required.

Landowner v. Finder

Lost > 

Landowner as prior possesor v. finder

Mislaid > 

Landowner

Landowner as prior possesor v. finder

Abandoned >

Landowner as prior possesor v. finder

Treasure trove>

Landowner as prior possesor v. finder

Employee>

Plain was mislaid- goes to bank as owner of the plane; not lost so no finders fee.

look to facts and circumstances.

Owner voluntarily relinquished all right, title, and interest.

Intent: may follow or precede delivery

delivery: Handing over unless not practicable

Constructive: Deliver means of access

Symbolic: Handing over symbol of poperty 

Deposit: in receptacle under control of donee

Acceptance : May be presumed if valuable

adjoining owner had absolute duty of lateral support of land in its natural state only.

Landowner held to a reasonableness standard if she with draws support necessary for support of artificial conditions or structures.

continuous

C

Actual 

A

Notorious and open

N

Exclusive

E

Possession exclusive of owner or other strangers.

Hostility

H

Without permission from the land owner.

- objective : actd of occupation

-Minority views- good faith, bad faith

Color of title_ (bad deed)If you have a bad title you can only own what you actually use.

Have to be contiguous parcels Cant be unduly large. True owner cannot be occupying it.

Statute of limitations and adverse possession

Payment of taxes

cant assert against government

New title gained based on operation of law , retroactive to date of first entry record title must be processes through a quiet title action.

Suspend the running of the statute if the owner has a disability at time elements. first start running in favor of the possesor.

under the age of minority

insane

imprisoned 

military service

Nor shall private property be taken for public use without just compensation.

What is the property? Has it been taken? Is there a public use? Has just compensation been paid.

Public use : must the public actually use it

public use = public purpose or benefit

Condemnation- Forcing you to sell it.

Economic revitalization

Was there blight? 

No allegation property was in bad condition.

Public purpose was economic revitalization.

All private property is now vulnereable to be takenand transfered to another private owner so long as it is upgraded.

Does coal company have a duty to prevent subsidence caused by mining.

Today, the Supreme Court quotes Justice Holmes in Mahon for the recognition of the invalidity of a government regulation that goes too far when it takes private property for public use under the Fifth Amendment. Kohler statute was a taking.

Considered a partial taking: Pen central test

1. Severity of the economic impact of reg

2. Extent to which reg has interfered with distinct investment backed expectations

3. Character of government action

permanent physical occupation?

Lucas v. So carolina coastal council

State has no business regulating conduct or has chosen an irrational means to regulate.

Government cannot take land unless it is in the public interest.

Legislative action: zoning and rezoning

rational basis review

Procedural due process n/A

Subject to referenda and initiative.

Action: variance conditional use

Rational basis reviewbut subsatntial evidence required.

Procedural process: Notice and hearing

Bartram v. zoning commn of city of bridgeport

Zoning ammended for one lot.

Supreme court says spot zoning allowed so long as it is not arbitrary or unreasonable and in the best interests of community as a whole.

Is it constitutional for a municipality to reject a conditional use that was determined through legislative process as consistent with the zoning ordinance and provided evidence that it would not affect the values of the surrounding properties, or is the decision arbitrary and capricious?  

Unnecessary hardship test

land cannot yeild a resonable return

plight of landowner due to unique circumstances of landUse will not alter character of locality. Difficulty cannot be self created

Practical difficulties test- balance benefit to landowner vs. harm to public

Significance of economic injury

magnitude of variance sought

difficulty cannot be self created

no other feasable means could avoid difficulty.

Nonconformaing use balanced with public good- reasonable amortization addresses 

Is it a taking? most courts say no unless its unreasonable?

justification for regulating use (dangerous)

financial investment

capital investment

investment realized to date

lease obligations

vested rights and devlopment agreements

no vested rights in continuing zoning as is

landowner may gain vested rights if reasonable reliance- change of position.

NHPA

National historic preservation act

Created national register of historic places

State Historic preservation Officer

Historic preservation fund

Presidents advisory council on Historic preservation.

Legislative vs administrative actions

rezoning- maybe spot zoning

conditional use

variance

Immediate cessation

Amortization periods

Justification for regulating use

financial investment

restricting repairs expansion rebuilding after destruction

abandonement

No vested rights in continuing existing zoning regulations, unless reliance 

Development agreements - contracts

Project must generat a need to which amount of fee bears some relationship

Fees levied must bactually be used for purpose collected

Project must generate a need to which amount of fee bears some relationship.

Fees levied must actually be used for the purpose collected.

Direct connection between fee and benefit to project

Fee must be proportional to beefit conferred

Fair and reasonable: substantially realted to needs arisingfrom development and proportionate to burden created by development

Collection related to benefits accruing to development.

Deposited in separate account-earmarked

localize collection and expenditure

create plan before collecting fees

Spend fees on facilities fo which fees were originally collected

Must spend within six years

extent of harm

character of harm

social value of use invaded

suitability of use to character of the area

Burden on plaintiff to avoid the harm

Social value of the conduct

Suitabilty of conduct to the locality

impracticability of preventing or avoiding the invasion

Public= interference with rights of the public

Private= invasion of interest in enjoyment of land

                                              i.     D’s plant is not a nuisance per se, and that the lower court was justified in holding that it had not become a private nuisance by reason of the manner in which it was operated.  P should have been reasonably aware when she built that land that it was going to eventually be an industrial area.  Ps complaint likely just as much due to other plants in the area, not just D – D authorized by the city 

1.     Court abandoned the rule that injunctive relief is a matter of right – in lieu of injunction, damages may be paid to P based on diminution of the value of property – a fine for polluting property

2.     If a court finds a nuisance, will likely balance the hardship.  A court should exercise its equitable discretion to refuse injunctive relief when there is a gross disparity between the economic consequences of the nuisance and the injunction

1.     Private nuisance – one affecting a single individual or a definite small number of persons on the enjoyment of private rights not common to the public.

2.     Public nuisance – one affecting the rights enjoyed by citizens as a part of the public.  The nuisance must affect a considerable number of people or an entire community or neighborhood

a.     Before a business is declared a public nuisance, there must be a populous area in which people are injured

b.     Courts are concerned w/protecting the operator of a lawfully, albeit noxious, business from the result of a knowing and willful encroachment by others near his business

3.     Where the injury is slight, the remedy for minor inconveniences lies in an action for damages rather than an injunction.

4.     “Coming to the Nuisance” cases – residential landowner may not have relief if he knowingly came into a neighborhood reserved for industrial or agricultural endeavors and has been damaged thereby.   

                                            ii.     Conclusions:

1.     Cattle feedlot was a nuisance; however, D developer “came to the nuisance,” meaning that D developer would have to indemnify the cattle feedlot for its loss/move from the area.   

2.     Permanent enjoyment of the cattle feedlot’s operation is affirmed, but since he brought people to the nuisance, must pay to move the cattle feedlot

Eveans v. Merriweather

Flowing surface water

Riparian rights: owner has right to use water so as to do no injury to any other riparian owner.

ANALYSIS/RULES
-Ct first looks at early cases “ex jure naturae” which held no disruption of natural flow. Some more strictly held no diminution
-Ct draws distinction btwn natural use of water and artificial usage. Can you as much as need for natural, but for artificial must be reasonable.
-Ct rejects natural flow idea and accepts reasonable use doctrine. balancing test (case by case) to be decided by the jury

The intent of the CZMA is clearly to authorize inclusion in the SMA of lands that have a significant impact on the scenic resources in the area and whose development would alter the public views to and along the shoreline. Protection of the coastal area and waters from adverse environmental or ecological impact is only one of the CZMA’s objectives. Another clear objective is protection against interference with or alteration of coastal scenic resources. Where a property or development has the potential for such interference, then it may be included within an SMA even though it is not in close proximity to the coastline.

A) will not have any substantial adverse environmental or ecological effect except, however, where the substantial adverse effect is practicably minimized and “clearly outweighed by public health, safety, or compelling public interest” (B) is Consistent with the objectives, policies, and SMA guidelines of the CZMA; and (C) is consistent with the county general plan and zoning. 

Extends inland from shoreline- upper reaches  of wash of the waves, not including storms and seismic waves. Purpose to avoid permanent losses of valuable resources and preserve public access to beaches

SWANCC

Solid waste agency of northern cook county v. Army corps of engineers

Nexus required between a wetland and a waterway?

YesThe last Justice, Kennedy, agreed with Scalia that there was no jurisdiction in the Rapanos case, but applied his own test – that there could be jurisdiction when there was a “significant nexus” between the wetlands and a navigable waterway.  In 2008, the federal government issued guidance which largely implemented Justice Kennedy’s position as the rule of law. 

Boundrey petion denied - sma can include property if management advances states interest in preserving viewplane

Permit petion remanded msut show that traffic concerns had substantial adverse affect on coastal zone.

A has immediate right to possession present possesory interest

B is the immediate owner of a future interest that will become possesory when A dies.

An estate of indefinite or potentially infinite duration. Often termed fee simple. free of special limitation  condition subsequent.

finite Estates

Fee tail , Life estate, and leasehold

Reversion if held by grantor

remainder if hels by a third party

O>A and his heirs

O>A his heirs and assigns

reversion if grantor

Reminder if third person

• A life tenant may not demolish his inherited building against the wishes of the remaindermen even if the property would be more valuable if demolished. Such action would constitute waste.

Classify the estate based on the possessory estate it follows

following finite estate- reversion or remainder

Remainder - contingent or vested

O> A and the heirs of his body.

O> A and the male heirs of his body

Fee simple determinable

O> A for so long as the land is used for garicultural purposes for the next twenty years.

So long as while

Fee simple determinable

Future interest? 

Must be held by grantor- possibility of reverter.

Moment that limitation is violated it automatically goes to grantor.

If A stays in possesion, SOL for adverse possseion begins to run against the grantor.

"But if" and right to renter is expressly stated,

Future interests granted by grantor, 

when condition is broken, grantor must take action to renter.

O>A for life , then to B unless B marries C in which case Bʻs interest is passed to D

A has a life estate

B has a vested remainder subject to divestment in fee simple subject to executory limitation.

D has a shifting executory interest

O has a fee simple subject to exectory limitation

A has a springing executory interest in FSA

A has a life estate 

O has a reversion in fee simple absolutesubject to an executory limitaion

B has a springing executory interest

Fletcher v. Ferrill

JW > masonic lodge resserving life estate but when property stops being used to benefit orphans it reverts to heirs of JW.

Lodge holds determinable fee

Joint tenancy

Four unities:  time, title, interest, possession.

Based on intenttion of the parties to create

Right of survivorship whch can be destroyed by severence

Common law default if language ambiguous

tenancy in common

only unity of possesion

Modern default if language is ambiguous

Each cotennant must pay thei rfair share of carrying costs for the property.-

repairs 

improvements

bank accounts 

true joint accounts + right of survivorship and right to with draw funds.

in general

condominiums

Holding title to property

sole owner, joint tennant,tenant in common, tenancy by the entirety

distribution at death

dower

tenacy by the entirety

marriage/ joint tenancy

Both H and W have right to transfer current possessory rights in property subject to the others right of survivorship.

 Joint life estate with contingent remainder to survivor.

Breach by one party does not justify breach by the other.

 Hold over tenants can be a great problem for landlords. It makes sense to create a duty for the landlord to promptly deliver possession of the premises because the prospective lessee has no direct legal rights against a hold over tenant, while the landlord does have such rights.

Severence of joint tenancy

by unilateral conveyance

The terminantion of a joint tenancy by converting it into a tenancy in common.

unilateral conveyance, lease, mortgage, divorce

Five unities

no partions allowed

No severnce : joint life estate with contingent remainders in survivor

Death : Dower , curtsye, and modernly the forced elective share to protect surviving spouse.

Divorce: distribution based on how the title is heald alimony rpovided for continuing support

Modernly- equitable distribution

Term of years

periodic tenancy

Tenancy at will 

Tenanancy at sufferance

The court held that a tenant cannot be evicted for reporting sanitary code violations, and this became known as the defense of retaliatory eviction.^[1]

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Federal Fair housing act

(Two ways to prove violation)

Disparate treatment - proof of intent

Disparate effect- dicriminatory practices

Right to go on someone elses property

Right to control how someone else uses their own property.

Destruction

requirement 

estoppel

Abandonement

Merger

condemnation 

Adverse use

release

severence

requirements for prescriptive easement

Chan

Continuous

Hostile

adverse

notorious

Easement by necessity.

Property was landlocked.

 Defendant argues that when the deed was granted to the non-profit, VA law did not recognize negative easements, which invalidates the government’s authority to restrict his activity thereon.

Right of way based on express grant and scope will allow cushman to subdivide track using easement.

MacDonald Properties v. Bel-Air Country Club (1977)

At a country club, several poorly hit golf balls landed on the servient property each day for more than 5 years. The courts held that the country club acquired a prescriptive easement to use the servient property as a rough.