Property

Murr v. Wisconsin (facts)

2 plots of land under federal protection, P's parents purchased the two lots and arranged transfer to P, the lots were not big enough to develop on separately under Wisconsin law; P wanted to sell one plot and build on the other, but the merger of the lots under Wisconsin law prevented this, sued for takin. Major question was what the denominator was: the lots separately, or together?

What is a fee simple determinable?

A fee simple so limited that it will end automatically when a stated event happens. If the event happens, there is automatic transfer. A fee simple determinable can continue forever, but if the land ceases to be used for school purposes, fee simple will come to an end and will revert back to O, the grantor. It is accompanied by a future interest, which is retained by the transferor

What is a fee simple subject to a condition subsequent?

A fee simple that does not automatically terminate but may be cut short or divested at the transferor's election when a stated condition happens. It is not automatically terminated when the stated event happens. Unless and until re-entry is made, the fee simple continues.

O conveys Blackacre to A for life, and then to B forever. What estates do they have?

A has a life estate. B has a remainder in fee simple (future interest)

Who has standing for sue for a public nuisance?

A private party can only sue if they have some sort of special injury, different than that of the general public. Otherwise, the P has to be state, local, or maybe federal prosecutors, attorney generals, etc. who can represent for the public that has been affected

What is the concept of waste?

A should not be able to use the property in a manner that unreasonably interferes with the expectations of B. This goes back to the idea that even though B has a future interest, they still have present rights. They can sue A now even though they don't possess the land if A is causing their future interest harm in the way they are using the land. The greater A's interest, the more freedom A has in using the property and the more tenuous B's interest, the less protection given to B

What is a public nuisance?

A significant interference with the public health, public safety, public peace, public comfort, and public convenience OR proscribed by a statute, ordinance, or administrative regulation

What rule came out of Lucas?

A state regulation that completely deprives private property of all economic value constitutes a taking and requires compensation. Complete destruction of economic value = per se taking

What is a private nuisance?

A substantial and unreasonable interference with the use and enjoyment of property

What is the difference between a trust and a life estate?

A trust is generally considered more desirable than a legal life estate. The trustee holds the legal fee simple and as manages of the property may be directed to pay all the income to the life tenant or to let the life tenant into possession. A life tenant can be made a trustee so legal life estates should almost always be avoided in favor of a trust.

What is devising?

Act of leaving real property to someone. The recipient of the devisee

What were the two issues in Van Valkenburgh?

Actual possession and claim of title.

What are the three categories of waste?

Affirmative waste, permissive waste, and ameliorative waste

Civil Rights Act of 1866

All citizens of the US shall have the same right, in every state and territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real property and personal property. The Act bars all racial discrimination, private and public, in the sale or rental of property (Jones v. Alfred)

Who has management powers in community property?

All community property states give the husband and wife equal management powers. In most states, the statutes require both spouses to join in transfers or mortgages of community real property. The community property must be managed for the benefit of the community. Each spouse must act in good faith in exercising authority, but good judgment is not necessary.

What are collaterals?

All persons related by blood to decedent who are neither descendants nor ancestors. Includes siblings, cousins, aunts, uncles, etc. Rules for determining which of these inherit are complicated

What is the occupancy theory?

Also called the first in time theory. I was there first, so it's mine

What is City of Edmonds claiming?

An exemption under 3607(b)(1). This exempts any reasonable local, State, or Federal restrictions regarding the maximum number of occupants permitted to occupy a dwelling.

What is a property rule?

An owner can stop anyone from interfering with his property. They can sell it for any price they want and can set their own price.

What is a defeasible estate?

Any estate may be made defeasible, meaning it will terminate prior to its natural endpoint upon the occurrence of some specified future event

Estancias Dallas Corp v. Schultz (facts)

Apartment complex next to P's home; AC unit right next to P's house, noise interfered with their activities, value of the land went down because of it

What does copyright protect?

Artistic or other creative expression, not ideas

What was the policy reason behind the court's new rule in Popov?

As a matter of fairness, P should have had the opportunity to fully catch the ball and to hold on, otherwise the case would be dictated by viiolance

What is a fee simple/fee absolute?

As close to unlimited ownership as our law recognizes. Largest estate in terms of duration and can last forever. It is also alienable.

What is the diminishing marginal utility of money?

As you get more and more money, each subsequent dollar is worth less and less or causes less and less happiness

What is the difference between an as-applied challenge and a facial challenge?

As-applied: in this particular case, is there a problem or a constitutional violation with the statute? Facial: in virtually every case, the statute is going to be unconstitutional

What is the Tragedy of the Commons?

Assumes that with respect to common property, in the presence of externalities, society will act contrary to its best collective interest. Individuals are acting in their own best interests, which causes society to be acting against its own best interest. How can you get a group to give up short-term individuals for the long-term interest of the group?

What are the origins of the FHA?

Attempts by federal government to combat discrimination, particularly racial discrimination, go back to adopting the 14th Amendment. Tis prohibited only state, not private action, but Supreme court decisions have expanded it to include private as well.

What if T devises Blackacre to A and B and then A conveys interests to C?

B and C are tenants in common

O owns Blackacre. O has two children, A and B. B dies testate, devising all his property to W. B is survived by three children. O then dies (assuming per stirpes). Who gets what share?

B doesn't own anything because he died before O so he couldn't transfer anything to W. Therefore, A gets 1/2 and B's three children get 1/2 that they can then split equally.

O conveys Blackacre to A for life, and then to B forever. A dies and then B dies, who owns Blackacre?

B's heirs because B got the remainder in fee simple

Why could you not argue that the previous scenario was a gift?

Because it was purchased with community property money

What was another reason they chose to read the FHA the way they did in Roommate.com?

Because they can be read narrowly to exclude roommates, or broadly to include roommates, they chose the one that avoids raising the most constitutional concerns

What is reciprocity of advantage?

Both sides are burdened by restrictions, but also benefit from the regulation.

What are the three options the court has in Sawada?

Both spouse's shares are reachable (would have to overturn precedent), neither spouse's shares are reachable, or debtor spouse's share is reachable

What is per stirpes?

By representation of. Equal share for people of a particular generation

How did the court reach their conclusion in Penn Coal?

By splitting the property into three estates: surface estate, mineral estate, and support estate. They are measuring the diminution of value only against the support estate, not against the property as a whole so they determined it did constitute a taking

What are ancestors?

By statute, parents usually take as heirs if the decedent leaves no issue

Cedar Point Nursery (facts)

CA regulation grants labor organizations the right to take access to an agricultural employer's property in order to solicit support for unionization, organizers attempted to take access to property owned by P, blocked from entering another of P's properties, resulting in current suit

What is inception of right rule?

Character of the property is determined at the time the wife signed the contract of purchase. But community is entitled to a return of the community payments plus interest.

Kelo v. City of New London (facts)

City of New London was in economic decline, state officials targeted it for economic revitalization; development plan encompassed 7 parcels; city council approved the plan and authorized NLDA to purchase or acquire property by eminent domain. Ps live there. Question was whether the development plan served a public purpose such that it can be seized through eminent domain?

City of Edmonds v. Oxford House (facts)

City zoning code defines family as persons related by genetics, adoption, or marriage, or a group of five of fewer unrelated persons. Oxford house had more people living there but are arguing disability (recovering addicts). They claim the city can't enforce the zoning ordinance because enforcing it is a refusal to make a reasonable accommodation for disabilities

What is the pro rata sharing rule?

Community payments "buy in" a pro rata share of the title. Whatever the percentage of the community funds that were put in, they get that percentage in returns

Community Property vs. Common Law Concurrent Interests

Community property exists only between spouses, whereas tenancy in common or joint tenancy can exist between anyone. Unlike tenants in common or joint tenants, neither spouse acting alone can convey their undivided 1/2 share of community property, except to the other spouse. In community property states, if a spouse dies intestate, their share of the property passes to the surviving spouse. After the death of one spouse, the entire community property received a stepped-up tax basis for federal income tax purposes. So there is a considerable tax advantage in holding property as community property rather than in a common law concurrent ownership form.

What are externalities?

Costs and benefits a resource user is not forced to take into account when making decisions about how to use the resource. It can be positive or negative, must is mostly used in the negative

How could you argue that the decision in Popov actually follows Pierson?

Could argue that him hitting the ball with his glove and stopping the momentum was like "wounding" it

How might AP help in US Steel?

Could argue that workers are APing the land. They are actually and productively using the land and have been for years, therefore ownership began to shift to them. D would distinguish though saying there was no claim of title. Also the workers did not exclusively possess the land and the corporation did not really abandon or neglect the property

What is the effect of transferable development rights?

Court is saying that the economic impact on Penn Central isn't really that bad because they have these TDRs. There is criticism of this saying this should just be part of compensation, not factoring into diminution of value

What if someone has a license to do business and OSHA comes onto the property to do health inspections?

Court says this is fine

Does social custom give P property rights over D in Ghen v. Rich?

Court says yes, the social customs should not be disturbed. Because without these customs being upheld, the industry would cease to exist; no person would engage in it if the fruits of their labor could just be taken by any finder.

Swartzbaugh v. Sampson (facts)

D and P are husband and wife and joint tenants, D leases party of the land to a third party, P was against the lease and wants to break it to get the third party off the property. Question was whether one joint tenant, who has not joined in leases executed by her co-tenant and another, maintain an action to cancel the lease?

Van Valkenburgh v. Lutz (facts)

D bought two plots of land next to a triangular lot that technically wasn't theirs. They built a structure, tended gardens, sold veggies, did jobs for neighbors, etc. P bought nearby plot and bad blood developed between them. P then bought triangular lots. D cleared out his things, but maintained he had a right to pass through. P blocked his path with a fence so D sued. In this action, D admitted P was the owner of the land but still claimed he had a right of way through it. They ruled in favor of D. Current action is brought by P against D to get him off the land and D claimed AP

Mannillo v. Gorski (Facts)

D built a house on lot adjacent to P, and built a concrete walk that imposed on P's by 15 inches; D is claiming it by AP, P is saying since the possession wasn't hostile, it doesn't qualify for AP

Spur Industries v. Del E. Webb (Facts)

D had a feedlot, P had a development nearby, construction extended towards the feedlot, then complained that the homes close to Ds lot were unfit for sale because of flies and odor.

Authors Guild v. Google (facts)

D made digital copies of P's books for a public search function; users can determine whether a book contains the searched work; they can only see small snippets of the text. Question was whether this was fair use?

Boomer v. Atlantic Cement Corp (facts)

D operated a cement plant; P was nearby and alleged injury from dirt, smoke, vibration, etc. Injunction was initially denied, but temporary damages were allowed.

Is the decision in Ghen consistent with Pierson?

D would argue that the decision in Pierson is about rejecting custom. If you reject custom in this case, then D wins. Policy argument here seems the same as the dissent in Pierson, which was rejected, so how do those square? P would argue he is following Pierson because under Pierson if you mortally wound something, it's yours

What are the majority of FHA claims?

Disability claims and family status claims

What is necessary under FHA?

Discriminatory motive need not be proved. Proof of discriminatory impact or disparate treatment is enough. Once P establishes either, D must then justify the action as one taken in pursuit of a bona fide, compelling governmental purpose, with no available alternative.

What does the court distinguish between in Oxford House?

Distinguish between the idea of maximum occupancy restriction and family definition. Maximum occupancy restrictions are about overcrowding, health, and safety concerns. Family definition is about establishing family neighborhoods.

What did the District court initially rule and did the Supreme Court uphold it in Cedar Point?

District court initially ruled it was not a per se physical taking because it did not allow the public to access the grower's property in a permanent and continuous manner. But the Supreme Court ruled it did constitute a per se physical taking

What terminates a tenancy by the entirety?

Divorce

What was the issue in Gorski?

Does it matter whether or not the taking of the land was intentional or under a mistaken belief that it was theirs for the purposes of AP?

What are the two options for termination of marriage by the death of one spouse in a common law state?

Dower and forced share

What is community property?

Earnings of each spouse during marriage should be owned equally in undivided shares by both spouses. The assumption is that both husband and wife contribute equally to the material success of the marriage, and so each should own an equal share of property acquired during the marriage. This includes earnings during the marriage, and the rents, profits, etc. of future earnings

What is the test after Nollan?

Essential Nexus Test: there has to be an essential nexus between the problem that the development creates and the exaction that the government requires as a condition for the permit

What did the court rule in Keeble and what theory was it based on?

Every man who has property can employ it for pleasure and profit and interfering with that livelihood could generate an action. The case is based on productivity and interference with livelihood

Why did the court decide it was fair use in Authors Guild v. Google?

Factor 1: copying the book to enable a search function is highly transformative, no profit motivation, different in purpose, character, expression, meaning, etc. Factor 3: finding fair use us more likely when small amounts or less important passages are copied. While they copied the whole book, the whole thing is not publicly available Factor 4: Snippet function means this is not a substitute for the book, no loss in sales

What does traditionalism look at?

Factors outside the actual text such as what Congress intended

What did the Supreme Court rule on D's attempted distinctions in Koontz?

Failed exactions still have to undergo N/D scrutiny, doesn't make a difference whether they approved or denied it ultimately. Monetary exactions also have to undergo N/S scrutiny

Why was there an exemption for maximum occupancy in the first place?

Family status in FHA has a specific meaning that has to do with families with children. You can't refuse to rent or sell to someone on the basis of the fact that they have children. Without this provision, if one person has 12 children in a 1-bedroom apartment, the landlord couldn't say that was not allowed, the family would just sue.

If courts are unsure whether something is a fee simple determinable or a fee simple subject to a condition subsequent what do they lean towards?

Fee simple subject to a condition subsequent

Where does tenancy by the entirety exist?

Fewer than half the states

Why did the court rule there was no claim of title?

For one part, they said it didn't count because he knew it wasn't on his land. For the other part, court said it doesn't count because he thought it was his land. These are contradictory- rulings don't make sense. Can't decide between Maine Doctrine and innocence standard

What is a possessory interest?

Gives one the right to the land in any given moment. The present owner has a right to possess currently. This person can only transfer what they currently own, can't transfer the rights of the owner of the future interest.

What is a reversion interest?

Goes back to the original owner. For example, if O conveys Blackacre to A for life, A has a life estate and O has a reversion interest

What factors are taken into consideration when determining whether the gravity of the harm is greater than the utility of the conduct?

Gravity of the harm: extent of the harm involved, character of the harm involves, the social value that the law attaches to the harmed parties, the suitability of the particular use/enjoyment invaded to the particular environment, and the harmed party's ability to avoid the harm. Utility of the Conduct: the social value the law attaches to the primary purpose of the conduct, the suitability of the conduct to the character of the locality, the impracticability of preventing or avoiding the invasion, and whether there are other options available

What was the old rule for possession?

Gray's Rule: complete control of the ball is when the momentum of the ball and the momentum of the fan while attempting to catch the ball ceases, and the first person to pick it up becomes possessor.

What is the innocent claim of title?

Has to not be intentional. You claim it as yours but you don't know it actually belongs to someone else, you think it's yours

What would you advise H if you were his lawyer?

He could give the life insurance to D, keep the house as joint tenancy, and then split the rest. That way D gets more than she would the other way. This type of problem comes up a lot with second marriages where there are children from a first marriage

What did the P have standing in Spur?

He had a special injury in the loss of profit by people not buying homes next to the feedlot. Everyone has the injury of the flies and the smells, but the P has the additional loss of sales, a direct monetary injury

H dies in a state that gives the surviving spouse an elective share of 1/2 of decedent's property passing by will or intestacy. During his life, H took out a life insurance policy for $60,000 payable to W. H and W also bought a house worth $60K in a joint tenancy. H dies, owning Blackacre, worth $90K, stocks and bonds worth $20K, and $10K savings account. He bequeaths all of his estate to his daughter by a first marriage, D. What is he trying to do here?

He is trying to give Blackacre, the stocks and bonds, and the savings account to D

What was the theory behind the dissenting opinion in Pierson v. Post?

He used a policy argument claiming the decision should be based on helping people kill more foxes. Almost like labor theory: why would you train hounds, get up early, and pursue foxes if someone else could come in and capture it

What are heirs?

Heirs are persons who survive the decedent and are designated as intestate successors under the state's statute of descent. No one is the heir of the living. While someone is still alive, you have no way of knowing who their heir is going to be. Today in all states, the spouse is designated as the intestate successor of some shares in the decedent's land.

What if B dies?

His heir is now a tenant in common with C

Popov v. Hayashi (facts)

Home run baseball hits P's glove, unclear whether it was secure, P was tackled, ball came loose, D picked it up, whose property was the ball?

What is character of the governmental action?

How public interest based is the governmental action? Is the government singling you out? Some kind of discrimination? The more the government singles you out, the less the public interest concern will apply and the more it leans towards takings. Property owners will try to get towards saying they are being singled out

What is escheating?

If a person dies intestate without any heirs, their property escheats to the state where the property is located

What are exceptions to the Lucas rule?

If enforcement of a regulation is essentially the same thing as the government engaging in a common law nuisance abatement action, then it is not a taking. Even though this wipes out all economic use of the land, it's still not a taking because it would have been a nuisance anyway and you're not allowed to have that, so nothing was taken from you. You can't take something that someone doesn't have to begin with. This is also known as inherent limitations on title. The judges determine what property is, if judge made law says it's not your property, then regulations can't take it away.

What is the threshold test for determining if there is a nuisance?

If it is substantial, then it is unreasonably, therefore it is a nuisance

Why does it matter which fee simple it was in Mahrenholtz?

If it was a fee simple determinable, then when it stopped being used for school, then Harry would have inherited it automatically and then he could have given it to Ps. If it was a fee simple subject to conditions subsequent, then it was still D's property because Harry never re-entered.

What if there is no will?

If someone dies without a will, the property is divided up according to the estate's intestacy statute. Dying without a will means that you die intestate. If someone dies intestate, their heirs receive their property

Can granting damages cause efficiency problems as well?

If the court doesn't value the damages very well, it might under-internalize the externalities. For example, in Boomer they underestimated the damages. If you don't estimate the damages well, there could be over or under-deterrence

How do liability rules apply to AP?

If the original owner is protected by a liability rule they can't kick AP off but can take them to court for damages. If AP is protected by a liability rule, they get kicked off but can be compensated for leaving.

How do property rules apply to AP?

If the original owner is protected by a property rule, they get to kick AP off their land. If AP is protected by a property rule, then they get the land and the other gets kicked off

What is the Chevron Doctrine and how could it apply to FHA?

If the statute isn't clear on its face, a reasonable construction by an administrative agency gets deference. If HUD is the agency that is supposed to administer FHA, then there is deference to their construction of the statute.

What if the workers lived on the property, how could you make a reliance interest argument that would change the analysis?

If there is a relationship between the two parties based on that property, sometimes property rights would shift, especially when the relationship has a power dynamic to it. Reliance interest would change this because it would shift the right to exclude to the workers living there, then they would have the ability to let people onto the land

If they were using the Restatement test what would change?

If they found the value of the oil company was much higher than the gravity of the harm, they would say it was a nuisance but D would just have to pay damages

Can there be community property in a common law state?

If you move from a community property state to a common law state, the community property travels with you. But if you acquire property in the common law state, you can't take it as community property.

What are the distributional effects of utilitarian efficiency?

If you're maximizing the total amount in society, this doesn't tell you anything about the distribution of that wealth. There is a value to equality that doesn't mesh with the value of efficiency.

What is the difference between a disparate treatment case and a disparate impact claim?

In a disparate treatment case, P must establish that the D had a discriminatory intent or motive. Disparate impact claims challenges practices that have a disproportionately adverse effect on minorities and are otherwise unjustified by a legitimate rationale.

What are the two options when it comes to mixing community property with separate property?

Inception of right rule and pro rata sharing rule

What is the difference between intentional and unintentional nuisance?

Intentional doesn't have to be malicious and you don't have to want it to happen, but you have to know you're doing it. Nuisances are almost always intentional. They also must be unreasonable. Unintentional means you don't know it's happening and this usually takes us to torts instead

What is issue?

Issue is synonymous with descendants but does not just include children, but further descendants as well. If any child of the decedent dies before the decedent, leaving children who survive the decedent, child's share goes to his or her children instead.

Why is the restatement test criticized?

It basically means that whether or not something is a nuisance depends on who you're harming. For example, if you're in an area with lower property values, then you could afford to compensate, but if you're in a more expensive area, you couldn't and would have to shut down

Where does eminent domain come from?

It comes from the 5th Amendment, saying nor shall private property be taken for public use without just compensation.

So what did the court decide in City of Edmonds v. Oxford House?

It does not fit the exemption because it is not about health and safety, because if they were related, more than five people could live there, so it is clearly without families.

What would a textualist say about Oxford House?

It doesn't matter what they meant when they wrote it, all that matters is the actual text

What are potential issues with utilitarianism?

It equates value with willingness to pay. Economic productivity is always good, all other things equal, but the problem is other things are never equal. And utility might not be the best or the only reason fro justifying a property regime (excluding others, individuality, liberty, pride, etc.)

O conveys Blackacre to A for life, remainder to B and her heirs. B then dies intestate without heirs, who owns Blackacre?

It escheats to the state

What was the court really deciding in Sawada?

It had already been decided in previous cases that the non-debtor's share cannot be reached by the the debtor spouse's creditors. What they are deciding here is whether the debtor spouse's share is reachable by the debtor spouse's creditors.

What is the Maine Doctrine?

It has to be intentional, as in you know it's not your land and you take it anyway and claim it as yours

What is the Restatement Test for nuisance?

It has to be substantial, but even if it is substantial, this doesn't mean it's unreasonable. Unreasonableness has two prongs: the gravity of the harm has to be greater than the utility of the conduct (remedy is usually damages) or the conduct is serious and D can compensate without shutting down (remedy here is most likely damages)

What is the four unities are in place?

It is a tenancy in common, not a joint tenancy

How is a fee simple determinable created?

It is created by certain language. Any words with a durational aspect could imply this.

What is personality theory?

It is important to you personally or a vital element of you. Example would be a wedding ring- you can't really value that on the market

How is the Civil Rights Act narrower than FHA? And how is it broader?

It is narrower in that it only reaches racial discrimination, does not deal with discrimination in the provision of services and facilities, and does not prohibit discriminatory advertising. But it is broader because it is not limited to dwellings and doesn't have any of the exemptions of FHA

Why did the court rule Nollan was a taking?

It is not constitutional if the condition substituted for the prohibition utterly fails to further the end advanced as the justification for the problem. It is impossible to understand how a requirement that people already on public beaches be able to walk across P's land reduces obstacles to viewing the beach or how it helps remedy additional congestion

What is the problem with Dolan?

It satisfies Nollan in that there is a connection between the problem created by the development and the condition. But there was still the question of whether it was going too far in relation to the actual impact of the development?

Is the presumption towards a tenancy in common or joint tenancy?

It used to be that joint tenancies were favored but today it is the opposite. A tenancy in common is created unless an intent to create a joint tenancy is expressly declared. It has to say "to A and B as joint tenants, not as tenants in common." Anything less might not create a joint tenancy. Some state statutes also require an express provision for survivorship in order to create a joint tenancy and a few states have done away with joint tenancy entirely

How is a fee simple created?

It used to be that you had to include words indicating that the land was inheritable such as "to A and his heirs." No longer necessary to use this specific language, it's just assumed to be so unless stated otherwise

What if Post owns a piece of property and Pierson comes onto his land and kills and takes the fox?

It would belong to Post still based on Ratione soli: if it's on your property then it's yours. This is a policy to discourage trespassing.

What is the mill arguing in US Steel?

It's their property, so they can do whatever they want with it, including shutting it down

What is a joint tenancy?

Joint tenants together are regarded as a single owner. In theory, each owns the undivided whole of the property. They have a right of survivorship.

What is probate?

Judicial supervision of the administration of the decedent's property that passed to others at the decedent's death. Probate is costly and time-consuming

What does textualism look at?

Just the text. They use dictionaries, original meanings, etc.

What is labor theory under acquisition by creation?

Labor is your own and belongs to you, so by removing something from its natural state and adding your own labor to it, it becomes your own.

What is bequeathing?

Leaving personal property to someone. The recipient is the beneficiary

Legislative vs. Ad Hoc Exactions?

Legislation is more general, Ad Hoc is more scrutinized. Therefore, since N/D focus on individualized determination, they don't really apply to legislative actions

What is affirmative waste?

Liability results from injurious acts that have more than trivial effects. Injurious means acts that substantially reduce the value of the property in question.

What are canons of construction?

Like tie-breakers. We have the statute, we're not exactly sure how to read it, when in doubt, read it this way

What is partition by sale?

Liquidates the property to its cash value and divides the cash

What is a work of authorship under copyright?

Literary works, dramatic works, pantomimes and choreographic works, pictorial, graphic, and sculptural works, motion pictures, sound recordings, and architectural works. Literary works includes computer programs. Ideas are not covered, copyright only protects expression of ideas

What is an exaction?

Local government measures that require developers to provide land and services in kind (sidewalks, servers, etc.) or pay money (impact fees) as a condition to getting project approval. One way to realize you're dealing with an exaction is: In the absence of the condition would it be considered a taking? They want a property right, but they're not just taking it

What is the endowment effect?

Losing something is worse than gaining something is good

What are the three possibilities for claim of title?

Maine Doctrine, innocent, or Connecticut Doctrine

Tenancy by the entirety is...

Marital property in a common law state

Community property is ...

Marital property in a community property state

If the cost to abate is greater than the damages to the P, then is granting an injunction an efficiency problem?

Maybe, because you're eliminating benefits and saving costs, but you're not saving as much as you were benefitting, so it's a net loss

What does the dissent argue in Koontz?

Money is not property.

What is economic impact of the regulation?

Most likely this means looking at diminution of value

Can joint tenancy ever arise by intestate succession?

No

Can there be a tenancy in common in a community property state?

No

Was Texas Department a disparate impact claim?

No because it relied only on statistical disparities and that is not enough unless P can point to D's policies causing that disparity. "Racial imbalance does not, without more, establish a prima facie case of disparate impact." "Courts should avoid interpreting disparate-impact liability to be so expansive as to inject racial considerations into every housing decision"

What is the general rule regarding ouster?

No co-owner can exclude another from the property. If there is an ouster, meaning you deny another co-owner access, then that is actionable, but until them, sole possession of the property by one co-owner is not actionable

Did the new rule solve Popov?

No, because D was not a wrongdoer. D's claim is complicated by P's pre-possessory interest, but P cannot demonstrate full control.

Is there reciprocity of advantage in Penn Central?

No, because not everyone is limited by how much you can build on top of your building, just the 400 owners who hacve been designated historic properties out of thousands of buildings in NYC. The burden is entirely on these owners, no one else

Was there reciprocity of advantage in Penn Coal?

No, because the coal company is not benefitting from it, just being damaged

Does copyright protect names, towns, and numbers of people in the directory?

No, because there is no creativity there.

The plaintiffs in Kelo asked the court to adopt a bright-line rule that economic development does not qualify as public use, did the court adopt this?

No, because there is no way of distinguishing economic development from other public uses they have previously recognized.

Does it matter whether the physical appropriation is temporary or permanent?

No, duration only bears on the amount of compensation due, physical appropriation is always a taking

Does it matter whether the union organizers gave P notice in Cedar Point?

No, it's not notice at issue, it's the right to exclude

Does public use necessarily mean it has to be used by a public entity?

No, private entities can also seize property through eminent domain, as long as it serves the community as a whole.

Does joint tenancy require probate?

No, probate is avoided because no interest passes on the joint tenant's death. This is part of why joint tenants are so popular, particularly between husband and wife, because it is basically the equivalent of a will, but without probate

Can a husband or wife defeat the right of survivorship by conveying to a third party?

No, they can only do so together. They are considered to hold as one person at common law

Was conceptual severance at issue in Penn Coal?

No, they take it for granted because that's just how Pennsylvania divides it up

Did the court balance the equities in Estancias?

No- they didn't need to because usually balancing the equities places great emphasis on public interest, but this case does not reflect the benefit of the general public. There is no shortage of apartments or evidence that the public would suffer by not having a place to live if there was no AC unit in the building.

Are facts copyrightable?

No. But a compilation of facts can be copyrighted if there is a minimal degree of creativity. There has to be some originality from the author

Does textualism look at what Congress intended?

No. It's made up of so many people who all have different interests, so how could we know what they intended?

Can disparate impact claims be based solely on statistical disparities?

No. P has to show that a D's policy actually caused that disparity.

Can a joint tenant pass their interest by will?

No. Their interest ceases at death, there is nothing to pass on

Minimum lot size in an undeveloped area increased from ½ acre to 1 acre. Development in the area is limited to single-family homes. A private developer challenges the ordinance, and establishes that the mean household income of AA households in the country is $30,000 less than the mean household income of whites, and that the increase in minimum lot size will lead to an increase of $30,000 from $150,000-$180,000 in the value. Did the plaintiff make out a prima facie case for disparate impact?

No. This alone does not show any impact, just that there might be an impact. But it doesn't really specify what that is

Same facts but P also demonstrates that the population of the municipality is 5% black and that the workforce is 30% black?

No. This still doesn't tell you anything about who can afford what.

Does the equal shares portion of the four unities still apply today?

Not really, courts kind of ignore it

What property theory is Pierson v. Post based on?

Occupancy: first to have it, meaning kill, wound, capture, etc.

What is a pure public good?

Once it's produced, you can't restrict its use to only people who have paid for it. Examples include public radio, the National Defense, or the 405

What if there is a conveyance to A for life and then A transfers the life estate to B, how long will be have the estate?

Only the duration of A's life, not B's. If B dies during A's lifetime, the estate will pass to B's heirs until A dies

What are the three requirements for copyright protection?

Originality, work of authorship, and fixation

Delfino v. Vealancias (facts)

P and D own property as tenants in common, P owns 2/3 interest and D owns 1/3 interests; D occupies a dwelling and a portion of the land from which she operates a garbage removal business; no one is in actual possession of the remainder of the property; P plans to develop the property, upon partition into residential lots

Riddle v. Harmon (facts)

P and her husband purchased real estate, she did not want her part of the estate to pass to her husband at her death, P granted to herself an undivided 1/2 interest in the property to terminate the joint tenancy

What are the steps for a disparate impact claim?

P establishes a prima facie case of disparate impact. Then this shifts the burden to the D to show a bona fide reason for alleged discrimination. Sometimes called the business-necessity defense. The P would then have to show that there is a less restrictive means

Koontz v. St. Johns River Management District (facts)

P had 14.9 acres of land, wanted to develop 3.7 acre northern section and offered to offset the effects by foreclosing any possible future development on the 11 acres southern section by offering a conservation easement. District said no, it would only approve if P either reduced the size of the development to 1 acre and deeded the rest to the district, or he could proceed as planned if he also agreed to hire contractors to make improvements on District-owned land several miles away

What was the issue with the open and notorious prong in Manillo v. Gorski?

P is claiming the area was so small it wasn't sufficiently open and notorious for them to have known earlier. Most of the time, the court asks whether they should have known the other party was encroaching, here they are asking if they did know. This is not common and the court doesn't decide it. They remand the case to decide

Roommate.com v. Fair Housing Council (facts)

P operates a website that helps people find roommates; when users sign up they create a profile with info about sex, sexual orientation, and whether they have children; users can also list preferences for roommates and can search based on these. The question is whether the anti-discrimination provisions of the FHA extend to the selection of roommates?

Penn Central v. City of New York (facts)

P owned Grand Central, terminal was designated a landmark, P wanted to construct a multi-story office building on top of the terminal; P applied to the Commission in charge of landmarks with two plans, both were rejected. The question was whether the restrictions imposed by NYC's law on P's exploitation of the terminal site effect a taking of their property for a public use?

Nollan v. CA Coastal Commission (facts)

P owned a beachfront lot surrounded by public parks/beach areas; P wanted to demolish a house on their property and rebuild it, they were told the permit would be granted if they allowed the public an easement to pass across the beach portion of their property

Dolan v. City of Tigard (facts)

P owns a plumbing and electric supply store, P applied to redevelop the site, City Planning Commission granted the permit subject to conditions: required that P dedicate a portion of her property within the floodplain for improvement of a storm drain system and that P dedicate an additional 15 foot strip of land as a pedestrian/bike pathway

Morgan v. High Penn Oil Company (facts)

P owns land with a trailer park, D has an oil refinery very close by; emits nauseating gases and odors, impairing P's use and enjoyment of the land. They use the Threshold test

Feist Publications v. Rural Telephone Services (facts)

P publishes telephone directory with white pages (their subscribers) and yellow pages; D is a publishing company and competitor; D used white page listings without P's consent.

Lucas v. South Carolina Coastal Council

P purchased residential beach lots intending to build two homes on the lots; South Carolina enacted Beachfront Management Act which barred P from building any permanent habitable structures on his lots, P sued claiming the act constituted a taking

Keeble v. Hickeringill (facts)

P set up a decoy pond on his own land, D knew about the pond and fired 6 guns to scare away the birds.

Ghen v. Rich (facts)

P shot and killed a whale, which sank, it was found miles away and sold to D at auction, P then found out and claimed the whale. Custom in the area was that the fisherman shoots the whale, they sink, then rise a few days later, and whoever finds them sends word so the owner can claim it

Moore v. Regents of UC (facts)

P sought treatment for leukemia at D medical center; D said they had to remove P's spleen, he consented; spleen was retained without P's knowledge for research, established a cell line and got a patent worth billions. Question is whether your cells are your own property even after they leave your body?

Pennsylvania Coal v. Mahon (facts)

P wanted to prevent Penn Coal from mining under their property in such a way as to cause a subsidence of the surfaces and of their house; P and D had signed a deed that conveyed the surface to P but reserved the right to remove all the coal underneath and required P to waive claims for damages; P is claiming those rights were taken away by the Kohler Act

International News Service v. Associated Press (facts)

Parties are newspaper competitors, P is suing D to retrain pirating of their news in a few ways: bribing P employees to furnish news to D before publication, and copying news from bulletin boards and early editions of P's newspapers and selling them to D customers.

In re Marriage of Graham (Facts)

Parties married for 6 years, wife was employed and paid for expenses while husband pursued his education, just after he graduated, they filed for divorce; no other marital assets accumulated during the marriage. The question was whether the masters degree in business administration constitute marital property which is subject to division by the court?

Did the P have any other remedies in Swartzbaugh?

Partition. But she wouldn't want to do this because she wants to keep the right of survivorship. She could also partition the fraction of the property leased, but the third-party would still be able to be there, which she doesn't want. She can also request Mesne profits or accounting

Why did the court rule your cells were not your property?

Patented cell lines are factually and legally distinct from the cells themselves. They tried applying statutory laws but they don't really apply. Basically they kick it to the legislature and there is still no complete answer on it

If there is no reciprocity of advantage, how do we determine if it is a taking?

Penn Central Test: Economic impact of the regulation; the extent to which the regulation has interfered with distinct investment backed expectations; and the character of the governmental action

What if its not a total wipeout?

Penn Central factors

What is per capita?

Per person, every person gets equal share

Where do you draw the line between physical and non-physical invasion in trespass?

Physical is supposed to be something the naked eye can see. Noise, smells, etc. are treated as nuisance cases, not trespass. Certain kinds of air toxins are treated as trespass cases.

Why would someone want to argue that it is a regulatory taking rather than a physical taking?

Physical taking is a per se taking, meaning the government would definitely have to pay, while regulatory talking requires Penn Central analysis, so they might not end up having to pay

What is partition in kind?

Physically partitions the tract of land into separately owned parts

Pierson v. Post (facts)

Post was chasing a fox with dogs, Pierson saw him chasing the fox but killed the fox himself and took him. Question was whose property it was.

What are the requirements for actual possession under Van Valkeburgh?

Premises has to be protected by a substantial closure or was usually cultivated or improved. Court says D didn't cultivate the entirety of the premises and so claimed he didn't meet this. But they don't really define what "actual use" was.

Why couldn't the wife in Graham get a portion of the future earnings?

Previous cases had held that a person's earnings capacity should not be recognized as a separate item of property, but could be taken into account as a factor to consider when dividing marital property or alimony. The problem was that they had no marital property and did not request alimony.

What is Demsetz's theory of property?

Private property is better than communally-owned property because private property reduces externalities by transforming the external costs into internal ones. This does not eliminate externalities but reduces them

What is separate property?

Property acquired before marriage and property acquired during marriage by gift, devise, or descent. In some states, the income from all property, separate and community, is community property, but in other states the income from separate property remains separate

What is marital property?

Property acquired during marriage by whatever means such as earnings, gifts, or inheritance. Or property only acquired through earnings of either spouse during marriage.

What is the rule of equitable distribution?

Property is divided by the court, in its discretion, on equitable principles. The concept of fault is sometimes included and sometimes not. Many equitable division statutes authorize a court to divide all property owned by spouses regardless of the time and manner of acquisition. Other statutes authorize courts only to divide marital property. In some states equal division is required and in others, it is only a presumptive rule

What is the utilitarian view of property?

Property is human-made. It is a social institution and utility is the only reason for the property system. Maximization of utility, meaning the greatest good for the greatest number, is the goal. Today, this implies maximization of wealth, specifically.

What happens upon divorce at common law?

Property of the spouses remained the property of the spouse holding title. Property held in tenancy by the entirety was converted into a tenancy in common

How is Cedar Point different from PruneYard?

PruneYard is generally open to the public. You can't be in a position where you insist on the right to exclude while at the same time having a piece of property, in this case a shopping center, that is open to the public. IN Cedar Point, the growers were not generally open to the public

Sawada v. Endo (Facts)

Ps were injured when struck by a car operated by D, D and his wife owned a piece of land as tenants by the entirety; after the accident but before the suit they conveyed the property to their sons, they didn't have liability insurance, shortly after the trial, D's wife died. The question is whether the interest of one spouse in real property, held in tenancy by the entirety, is subject to levy and execution by his or her individual creditors?

What are the factors in determining fair use?

Purpose and character of the use (is it transformative?); the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work

Why did the Court rule it was a per se physical taking?

Rather than restraining the grower's use of their own property, the regulation appropriates for the enjoyment of third parties the owner's right to exclude. The right to exclude is a fundamental element of the property right and cannot be modified at the discretion of the government.

Copyright holders have the right to prevent others from...?

Reproducing their work, creating derivative works, distributing copies of the work to the public, and performing the work by digital audio transmission

What are the future interests in a life estate?

Reversion and remainder

What is the future interest called in a fee simple subject to a condition subsequent?

Right of entry

What was added to the Nollan test after Dolan?

Rough Proportionality

What is conversion?

Saying someone stole something from you. Claiming conversion is begging the question that it was in fact your property to begin with

What is mesne profits?

Saying that you are possessing a 50% share in this lease, given what you're doing, you have effectively ousted me, and so I want my share

What are the two conceptions of inherent limitations on title?

Scalia: inherent limitation on title = common law nuisance Kennedy: inherent limitation on title includes backgrounds customs and the whole of our legal tradition. If a statutory framework or regulatory scheme are part of these background customs and the whole of our legal system, then they are part of the inherent limitation on title

What is a trust?

Separates the burden of property management from the benefits of ownership. The person who establishes the trust is called the settler. This splits the ownership between a trustee and a beneficiary. The trustee has legal title to the property, they are supposed to take care of the property. The beneficiary has equitable title to the property, they get all the benefit from it.

H and W marry, they live in Ohio. From H's earnings during marriage, H accumulates personal property worth $500K. Under Ohio law, there is an elective share. Then H and W move to Texas, a community property state with no elective share. H then dies and leaves all his property to his daughter. What about W?

She is screwed. The money was earned in Ohio so she can't argue it's community property under Texas law, but she also doesn't get an elective share because he died in Texas. You could advise the wife to have her husband buy a house worth $500K and make it joint tenancy or elect to make it community property

What would the wife in the last scenario probably do?

She would already get the life insurance policy and the house and then would use forced share to get half of the rest.

Why might the wife in the previous scenario actually want to argue that it is a joint tenancy?

So that she could have a right of survivorship. Then she would get the whole thing because H can't will his interest in joint tenancy

What is an example of a condition that would have been constitutional in Nollan?

Some condition that would have protected the public's ability to see the beach notwithstanding the construction of the new house such as height or width limitations, ban on fences, etc.

What are the problems with attempting to bargain your way out of it?

Some people balance things differently or not necessarily monetarily (Schultz) and there can be so many people involved that transaction costs are high

What is the Connecticut Doctrine?

State of mind doesn't matter, all that matters is that you possessed land that was not yours. This is ultimately what most states have decided on to use

What is a right of survivorship?

Surviving tenants get what's left after one joint tenant dies. It is automatically divided equally among whoever is left

What are tenants in common?

Tenants in common have separate but undivided interests in the property. The interest of each is descendible and may be conveyed by deed or will. There are no survivorship rights between tenants in common.

If T devises Blackacre to A and B, what are they?

Tenants in common.

What if the value of the oil company was much higher than the value of the P's use?

That doesn't matter under the Threshold test

What was the distinction D and the trial court attempted to make in Koontz?

That it wasn't an exaction because the District did not approve P's application on the condition that he accept their demands, instead they denied his application because he refused. Basically that it's not a taking because they didn't actually end up taking anything. They also made a distinction between demand for interest in real property (N/D) and a demand for money

What did the court decide in Sawada?

That neither spouse's shares are reachable.

What if D had set up his own pond on his own land right near P's?

That would be fine - he had as much right to do that as the P.

What if New London had taken the land to construct a rail line?

That would be fine because it is used by the public even though it would be a private company building it

What if you create a compilation of facts and someone else, without knowledge of your compilation happens to create the same one?

That's fine because it is original to them. Doesn't have to be novel, just original to you

What if D only set up his own pond for malicious reasons?

That's fine. The case isn't about malice, it's about D being unproductive or wasteful with resources.

H is married to W. H saves $5K out of his earnings. He then uses that to buy a lot, taking title in H and W as joint tenants. He dies, devising all his separate and community property to his son S. Who owns the lot?

The $5K is community property. The question is whether the fact that they took title in the land as joint tenants, which changes the community property status. He can't change the status by himself, so if she didn't consent it's still community property. So the son would have half and the wife would have half.

What did the court rule in Spur?

The D had to stop, but since D was there first and P encroached on D's feedlot with his development, P had to compensate D to move his feedlot. This is known as a purchased injunction. It allows P to obtain the injunction, but only if P compensates D. This is known as a coming to the nuisance problem

Mahrenholtz v. County Board of School Trustees (facts)

The Huttons executed a warranty deed in 1941 in which they conveyed 1.5 acres out of 40 to the Trustees of the School District; deed provided that this land is to be used for school purposes only, otherwise to revert to Grantor's herein. They conveyed the remaining 38 acres to the Jacqmains. Huttons left an heir when they died intestate in 1951. Property conveyed to D held classes til 1973, when it was used for storage purposes. Jacqmains and Hutton's heir conveyed the land to the plaintiffs. The question was whether the deed granted to D a fee simple determinable or a fee simple subject to a condition subsequent?

What do they decide in High Penn?

The damage is substantial, therefore it is unreasonable and so they grant an injunction

What is strict scrutiny?

The government must show that what it is doing is necessary to achieve a compelling government interest.

What is rationale basis review?

The government must show that what it is doing is related to a legitimate government interest (court uses this in Kelo).

What is intermediate scrutiny?

The government must show that what it is doing is substantially related to an important government interest

What are the two important consequences of a life estate?

The grantor of a life estate could control who takes the property at the life tenant's death. As land, stocks, and bonds came to be viewed as income-producing capital, trust management for the life tenant developed. Meaning one person manages property for the benefit of the life tenant, paying the life tenant the income generated.

Texas Department of Housing v. Inclusive Communities Project (facts)

The idea is that Texas is distributing money for low-income housing in such a way so as to reinforce segregation.

What is labor theory?

The idea that people deserve what they work for.

What was decided in International News Service?

The news itself is not copyrightable, but the expression is, meaning its publication. News gets its property value from being spread. By D spread the news and making a profit, they are taking something P spent time, money and effort on and profiting without doing their own labor. This makes news a type of quasi-property

If you have two ways of reading a statute, and one might create a Constitutional problem and the other wouldn't, what do you go with?

The one that does not create a Constitutional problem

Why is the second prong of the partition by sale test problematic?

The owners have different interests. If they had the same interests, there wouldn't be a case, so whose interest do you focus on?

What is a life estate?

The person with a life estate only has a lifetime tenure.

Partition by sale should be ordered only if two conditions re satisfied, what are they?

The physical attributes of the land are such that a partition in kind is impracticable or inequitable. And the interests of the owners would be better promoted by partition by sale

What is eminent domain?

The power of the government to force transfers of property from owners to itself. This is also called condemnation. If the government takes your property under eminent domain, and you get compensated, this is a liability rule. If the government has to buy the owner out, then it's a property rule.

How is the Chevron Doctrine a pro-executive canon of construction?

The president appoints the leaders of the agencies in question

What is the separation of power critique of traditionalism?

The president doesn't sign legislative intent, just signs the statute, so you can't look at intent because that cuts the president out of the lawmaking process in a way

What is a remainder interest?

The remainder goes to a third party

What is dower?

The surviving spouse would get 1/3 of all the late husband's property. She would get this in a life estate as a place to live while the rest of the property could be descended in any way. This was only if the decedent didn't leave the wife anything after their death, kind of an emergency situation

What is a forced share?

The surviving spouse, widow, or widower renounces the will and then elects a statutory share of the property. Often it's half the property, or if there are children 1/3

What is a quiet title action and an action for ejectment?

The true owner can bring an action for ejectment within the SOL. Alternatively, the AP can bring a quiet title action, although this is not technically required for ownership to transfer. An action for ejectment cannot be done unless the P, their ancestor, etc. possessed the property within the last 15 years

What is fixation under copyright?

The work must be fixed in some kind of tangible medium, such as a printed page, CD, canvas, or computer hard drive. Human skin can even count, allowing tattoo artists to copyright their work

What was the traditionalist reading of Roommate.com?

There is no indication that Congress intended to interfere with personal relationships inside the home. This would pose significant privacy and safety concerns. Said liberty protects the persons from unwarranted government intrusions into a dwelling or other private places.

What is the dissent arguing in Nollan?

They are arguing about the standard of scrutiny. Dissent it saying it's close enough, majority says it's not close enough and needs to be interpreted more strictly.

What are the steel workers arguing in US Steel?

They are suing under a theory of promissory estoppel: contract with employees where the employees acted in detrimental reliance on the company's promises to keep the mills open if they were profitable. They argue they have a property interest because of the long-standing relationship between the community members and the corporation. Because of the nature of the expectations that have been generated, the property rights begin to shift a little (reliance interest) and the workers still have some rights to the property

What did the court rule in Popov?

They both had equal right to the ball so the court ordered it sold and the proceeds split

Does the remedy have to prevent US Steel from shutting down?

They could just say they want compensation for the community, job training, severance, etc. This is a liability rule- not going to make you shut down, but you have to provide compensation

What did the court decide in Boomer?

They found there was an error in not granting the injunction, and it should be granted but conditioned on the payment of permanent damages because the economic consequences for shutting down are in huge disparity with the gravity of the harm, and the cement plant cannot abate the nuisance without shutting down.

What did the court decide in Mahrenholtz?

They had to make their decision solely based on the judicial interpretation of the words of the grant. "for school purposes only" shows that they want to give the land to the school district only so long as it was needed and no longer. This triggers a mandatory, rather than permissive return. Therefore, a fee simple determinable was created followed by the possibility of reverter.

What was the court basing their decision on in Sawada?

They kind of claim it's inherent in the nature of tenancy by the entirety. They want to protect the house within marriage and families. This gives married couple an advantage over unmarried people who own land, houses, etc.

What are the elements of adverse possession?

They must have actual possession of the property, possession must be continuous for the statutory period, there must be a claim of title, and it must be open and notorious so that a reasonable person would be on notice that someone is on their property

What did the court rule in Dolan?

They ruled it was not proportional. They asked for the title to the greenway instead of just leaving it open, which was not proportional because of the right to exclude. They also didn't give enough specificity about how the bike path is needed because of increased traffic.

How does Penn Central make a conceptual severance argument?

They said by not letting them build on top of the station, they are taking all of their air rights away from them. 100% of the air rights = 100% decrease in value. The court says no, they are focusing on the parcel as a whole, so they are not severing. This is a distinction between Penn Coal and Penn Central

What did the court rule in Graham?

They said education was not property because it has no exchange value, no transferable value on open market, it is personal to the holder, it terminates on death and is not inheritable, and it cannot be assigned, transferred, sold, or conveyed.

What did the court decide in Vealancias?

They said it is in the interest of all the tenants in common that the court must consider, not merely the economic gain of one tenant or one group of tenants. Partition by sale would force D to give up her home and jeopardize her livelihood, therefore, no partition by sale.

What did the court rule in Swartzbaugh?

They said no, you can lease without consent from your co-tenants. A lease by one joint tenant to someone else does not sever the joint tenancy.

What did the Court decide in Roommate.com?

They said the FHA stops at the door. They had to decide what constitutes a "dwelling" under the FHA and decided the apartment as a whole is a dwelling under FHA. The rooms within the apartment are not dwellings.

What did the court decide in Gorski?

They went with the Connecticut Doctrine- state of mind doesn't matter because the same result occurred: the rightful owner is ousted

When is community property mixed with separate property?

This arises when the property is acquired before marriage but part of the purchase price is paid after marriage with community funds

What is Cosean Bargaining?

This assumes that giving the injunction to the P will result in a negotiation over the sale of the injunction at a fair price. Meaning a price between the cost of abatement and the damages to the P. Injunctions also don't have to consider non-monetary and non-economic values

Same facts, but P also demonstrates that 20% of black workforce would be able to afford $150,000 homes but only 5% would be able to afford $180,000 homes

This by itself wouldn't be enough. It shows an impact but you also have to show that it is disparate compared to other groups

What is a tenancy by the entirety?

This can be created only in husband and wife. It is similar to a joint tenancy in that the four unities are required plus a fifth one (marriage) and there is a right of survivorship

What is ameliorative waste?

This consists of uses by the tenant that increase rather than decrease the market value of the land. Today a significant number of courts reject this view and hold that a tenant may change conditions so long as the market value of whatever is left is not diminished by these actions

What interest is created if A and B take title as joint tenants, A provides 1/3 of the purchase price, B provides 2/3 of the purchase price, and they intend the proceeds from the sale of the property to be divided 1/3 and 2/3 if sold during their lives?

This is a joint tenancy, even though the shares are technically unequal

What is a fee simple subject to executory limitation?

This is created when the grantor transfers a fee simple subject to a condition subsequent, and in the same instrument creates a future interest in a third party rather than in himself. It's like a fee simple determinable except the third party has the possibility of reverter. If the condition is broken, the land would automatically revert to the third party instead of back to the original grantor. The future interest in the third party is called an executory interest

What is permissive waste?

This is essentially a question of negligence, or failure to take reasonable care of the property. Example: letting a water pump fall into disrepair resulting in the loss of grass, tress, etc.

What does it mean for the fee simple to be alienable?

This means the owner has the right to sell freely. During life, O can convey his fee simple to another. If O owns the fee simple at death, it passes under his will or descends to his heirs. Creditors can also reach the fee simple and sell it to pay debts in default

What if they said the union gets to run the plant but they have to pay the company?

This would be a liability rule for the union workers

What was the justification given for the request in Nollan?

This would make it easier for the public to get to public parks on either side of the property. They are arguing that there is a legitimate interest in protecting the public's ability to see the beach and also in preventing congestion on the beach

What are the four unities essential to a joint tenancy?

Time, title, interest, and possession. The interest of each must be acquired at the same time, all joint tenants must acquire title by the same instrument or by a joint adverse possession, all must have equal undivided shares and identical interests measured by duration, and each must have a right to possession of the whole

What are obstacles to collective action to fight tragedy of the commons?

Transaction costs like negotiation costs, especially if lawyers are involved. Holdouts- even if 99 people out of 100 could agree, if it's commonly owned property there could still be holdouts driving up the price. Free Riders- refusing to contribute but taking the benefits still.

What are the Murr factors for determining the denominator?

Treatment of the land under state and local law (big importance, like in Penn Coal), physical characteristics of the land (topography, etc.), and prospective value of the regulated land (in Murr the combined value of the plots is greater than the value separately)

What is trespass?

Trespass is a physical invasion of property as opposed to nuisance which is just interfering with enjoyment of property. Under trespass, P can prove liability simply by proving physical invasion

Local 1330 v. US Steel (facts)

US Steel had two plants in an area, town had come to rely on those plants, they became obsolete. US Steel said they would close them if they didn't become profitable, workers worked to make them profitable, US Steel shut them down anyway

H purchases land for $20K, using $5K of his separate funds as a down payment. H then sells the land for $40K, what would the community get back?

Under the inception of right rule, the community just gets back what it puts in, so $15K. Under the pro rata rule, they get the percentage they put in. They put in 75% of the payments, so they get 75% back. So $30K

What is productivity theory?

Wanting to use the land in the most productive and efficient way possible

What is the denominator problem?

What are you measuring your diminution in value against? The whole property? Or are you dividing it up into separate estates?

Why was there a problem with the character of the governmental action in Penn Central?

What is historic preservation? What classifies as a historic property? There are no real standards and every case is different. However, the court says there is no evidence for this, this is part of a clear and comprehensive plan

What are problems with the Lucas test?

What is the denominator? What are we measuring economic deprivation against? The whole property or pieces of the property? Private property lawyers want to get into Lucas territory, this could depend on your ability to sever the land.

What is the original meaning in terms of textualism?

What would a reasonable person at the time, looking at this phrase or word, think it meant?

What can creditors of the managing spouse reach?

Whatever community property the creditor spouse is legally entitled to manage. So if husband and wife are equal managers, creditors of either one can reach the property

What is reliance interest?

When a non-owner comes to rely on access to the property, the law sometimes recognizes that person's interest. It is most commonly seen in a relationship where there is a power dynamic involved and the person with less power relies on their access to the land. It protects the non-owner's reliance on her relationship with the owner that made access to the land possible

What is the new rule for possession the court decides on?

When an actor undertakes significant or incomplete steps to achieve possession of a piece of abandoned property, and the effort is interrupted by the unlawful acts of others, the actor has a legally cognizable pre-possessory interest in the property

What is distinct investment backed expectations?

When government officials change the rules in the middle of the game. For example if someone spends money on a piece of property with the understanding of doing something particular with it, but before they can do that, the government changes the rules and does not allow them to

What is the avoidance canon?

When in doubt, read a statute so that it avoids constitutional problems

What is accounting?

When one co-tenant has determined that their co-tenant is basically gettin 100%of the rent and they deserve 50% of it. This is getting the actual payment from the person leasing the property.

When are injunctions good?

When there are two or fewer parties to litigation, and there are reasons to think the parties could negotiate.

What is the pro-damages argument?

When utility is greater than the harm, and measuring damages is relatively clear, damages are good. Damages are also good when there are many parties to litigation or other negotiating problems

What is an estate?

When we talk about owning property, what the person actually owns is an estate in land. An estate is an interest which may or may not become possessory. An estate is measured in some period of time, even if indefinitely

What is conceptual severance?

Whenever you have a chunk of land and you divide it up into separate estates. This goes with the denominator problem

What was the question in Penn Coal?

Whether the Kohler Act was a legitimate use of police power or if it constituted a taking which would require compensation?

What could be wrong with the custom argument?

Who developed the custom? Who is the custom for? Who does the custom favor and not favor? Could there be conflicts of custom within one industry?

What is a future interest?

Will or might give you the right to land at some future date. It is a future interest, but it exists in the present time. The owner of a future interest still has rights now

How is labor theory different from productivity theory?

With labor theory, they would deserve what they worked for even if it is not the best and most productive use

What is originality under copyright?

Work must be the independent creation of the author and there must at least be a minimal degree of creativity

What if Post killed the animal but then Pierson picked it up?

Would still be the property of Post, because he killed him first

After a joint tenancy is created can one joint tenant voluntarily give exclusive possession to the ohter?

Yes

Can there be a joint tenancy in a community property state?

Yes

If a joint tenant dies, is his share still subject to federal state taxation?

Yes

Can someone unilaterally terminate a joint tenancy by conveying her interest from herself as joint tenant to herself as tenant in common?

Yes (Riddle v. Harmon)

O conveys Blackacre to A and his heirs. If A dies intestate without issue, will Blackacre escheat to the state?

Yes it would go to the state, unless there are other heirs (parents, siblings, etc.)

Can joint tenants change their interests into a tenancy in common?

Yes they can do so by a mutual agreement to destroy at least one of the four unities. One of the joint tenants can also convert it into a tenancy in common unilaterally by conveying his interest to a third party. This severs the joint tenancy

Can the wife in Graham get back what she put into her husband's education?

Yes, but she's asking for a share in his future earning capacity, not restitution. That was the problem with the case

Can creditors come after a joint tenant's interest in property?

Yes, only while they are still alive. This would sever the joint tenancy. However, if the creditor waits until the joint tenant has died, the interest has disappeared and there is nothing the creditor can seize.

Was the Spur Industries case a public nusiance?

Yes, there was a statute directly on point with this case, so the court had no option but to declare it a public nuisance

Are disparate impact claims cognizable under the FHA?

Yes, they are recognizable

Despite private developer's request, no land outside the area is zoned for multiple family housing. Proposed to build multiple family housing, and to permit occupancy by tenants receiving federal rent subsidies. 28% of black town residents would qualify, and 11% of white residents would qualify, although in actual numbers, many more white residents than black residents would qualify

Yes, this is disparate impact

The city doubles its funding for housing code enforcement in order to prevent neighborhood deterioration. Result is an increase in rents in low-income areas disproportionately occupied by members of minority groups

Yes, this would be disparate impact

Do children share equally?

Yes, used to be oldest male inheriting

If I earn money as community property, and then my spouse and I move to another state, is it still community property?

Yes. Community property is characterized when it's earned, generally. On death, the law of the decedent's domicile governs for inheritance law.

Can spouse's waive the protection given by Sawada?

Yes. For example, if they wanted to borrow against it when taking out loans so that the bank can reach it

Can spouses freely change the character of their property?

Yes. They can do this by written agreement or, in some states, by oral agreement. They can convert community property into separate property and vice versa.

ex) Case where P raked heaps of manure he found in a public street intending to carry them away but before he could do so, D hauled them off himself. Does this fall under labor theory?

Yes: the first to find it and enhance its value by their labor has the rights to it

What is balancing the equities?

You balance the equities after the threshold test to determine what remedy to give. The court considers the injury which may result to the D or the public by granting the injunction, as well as the injury to be sustained to the complainant if the injunction is denied. If the court finds that the injury to the complainant is slight in comparison to the cost to abate, an injunction will be refused and P will be allowed to seek damages instead.

What is a liability rule?

You can't stop anyone from interfering but you can take them to court for damages. You can't kick them off and the court decides the price for you

Why did the wife not ask for alimony in Graham?

You could only ask for alimony if you weren't able to provide for yourself, so she was not eligible for this.

What is Demsetz's solution to the Tragedy of the Commons problem?

You should privatize community property. Problems with this is that it assumes a seamless transition