Property

Pocono Springs Civic Association v. MacKenzie

ABANDONMENT (1995) PA Buys land that won't perc. Tries to sell/give away and can't. Stops paying HOA fees and taxes. Notarized statement that they intended to abandon. Holding: Perfect title real property owners can't abandon

Edwards v. Sims

AD COELUM RULE/ASSESSION/CAVES: KY, 1929. Facts: Edwards discovered entrance to cave. Developed cave and land as tourist attraction. Neighbor, Lee, believes part of cave is under his land and sought injunction and survey. Edwards appealed court's decision to grant Lee's request. Appeal dismissed as interlocutory. Edwards files action against judge, Sims. Issue: Does the court have the power to command a survey of the land? Holding: Yes. If part of the cave is under Lee's land, then Edwards is trespassing on that part. Analysis: Title-based theory. This isn't abandoned property. Evidence was presented that the cave might be partially on Lee's land, so the court can order a survey to settle the issue and quiet the title. Ad coelum doctrine. Dissent: Occupy/Exercise Dominion. Ad coelum no longer applies (airplane example) and this is doing injury to Edwards for nothing. Lee is not making use of the cave. Entrance is on Edwards' property.

Moakley v. Eastwick

ARTIST RIGHTS Facts: Artist brings claim under state Art Preservation Act (also intentional and negligent infliction of emotional distress for "declaration of his rights, injunctive relief, and the assessment of damages. Claimed that a church destroyed part of the mural he made for a previous church, violating act. Holding: Court finds statute was not retroactive and avoids question of church's property rights. Analysis: Statute applies to "fine art" that is moveable. Immoveable art must be protected by "writing." Purpose of the Statute is to protect artist integrity/reputation. Statute was modeled on CA statute, which included "whenever created" language, which was removed. Artist could not have relied on Act when he created mural because it wasn't law.

Carter v. Helmsley-Spear

ARTIST RIGHTS Facts: Second circuit reversed injunction preventing destruction of sculpture because it was "work for hire" and therefore not "visual art"

Newman v. Sathyavaglswaran

BODY AS PROPERTY Facts: CA statute authorized removal of corneas unless coroner knew of objection. Granted immunity from suit for following statute. Parents of dead children sue under 1983 violation by taking property without due process. Coroner argues that parents had no property right in the dead bodies. Court reviews historical concept of property, including Roman (gave body as property to heirs) and Europe/English (gave body as property to church). CA statute gave duty to dispose of body to list of people → Right to exclude → Property That there is no legal way to sell the property does not mean it isn't property. The government must justify it's deprivation of right of process. Notes: Dissent → state had the right and is assigning duty to next of kin. Therefore, next of kin does not have the right.

Moore v. Regents of UC

BODY AS PROPERTY Facts: Moore's excised cells were used in medical research, resulting in profits for doctor who removed Moore's spleen. Doctor did not tell Moore he would use the cells. The doctor used the cells to create an entirely new line of cells. The patent and contract were based on the new line. Moore sues for failure to obtain consent and for conversion. Court finds that failure to obtain consent will cover this case and there is no need to extend conversion law. Moore did not have possession/interest/intention to keep the cells. State statute limits what can be done with body parts (UAGA → can't sell, CA Statute → can't exclude). Risk to research is too great. Legislature can do a better job of regulating that conversion law. Notes: Concur1: This is a moral issue, Moore is looking to sell his body (except this concurrence allows state to set a price and admits doctor made a profit), Concur/Dis: This is conversion. Donors retain rights, unauthorized use, breach of fiduciary duty is not enough. Dis: If doctor can call it property, why can't patient? Moral issue, using the patient in unfair, scientists can buy organs.

40 West 67th Street v. Pullman

CO-OPS/EVICTIONS: NY, 2003. Facts: Crazy man in cooperative apartment. Targeting older couple upstairs. Eventually, co-op meets and votes him out. He does not attend the meeting. What is the standard of review of co-op decisions? Business Judgment Rule: deferential, assuming it is in good faith But what if the association is arbitrary and unfair? Defendant must prove bad faith Outside the scope of authority Does not further corporate purpose

In re Estate of Filfiley

CO-OWNERS Facts: Cotenant (daughter) of account withdraws all money in account the day before other cotenant (Mother) dies. Husband wants a piece of that money. Issue: Did that action sever the joint tenancy? Holding: No. Withdrawing the money does not sever the joint tenancy. If both joint tenants are alive and one takes out more than half, the other tenant can go after the withdrawing tenant for anything more than half. How is this true if they are undivided interests? The closer something is to money, the more likely a court is to split it, unlike real property which is a right to possession.

Delfino v. Vealencis

CO-OWNERS Facts: Helen owns small partition, lives on land and uses it for livelihood. Wants partition in kind rather than partition in sale Court holds that partitions in kind are favored Property rule (instead of liability rule) Interests of owner, can it be partitioned? Helen lives on land If there is a physical partition that does not sufficiently reflect value of interests, one party may have to pay owelty to equalize value

Gillmore v. Gillmore

CO-OWNERS Facts: Tenants in common to ranching land. D is grazing so much land that P cannot graze any lifestock. P sends letter telling D to change and there is no response. P sues claiming ouster Court agrees that there is ouster and allows contribution and accounting action Act of exclusion Actions necessary prevent cotenant from entering

Peckham v. Milroy

COVENANTS Facts: Milroy wants to operate a home daycare. Peckham has been complaining of addition to house and then the day care. Residential neighborhood with covenant that prohibits home businesses. "Several home businesses operated in the [neighborhood] in violation of the restrictive covenant." (p. 1047). Peckham complains that home daycare was noisy, too many cars, etc. Peckham told Milroy that she was violating the covenants and also complained to zoning officials. Peckham sues to enjoin daycare in 1997 after 2 years. Issue: Is the covenant abandoned because there were other businesses operating in the neighborhood? Holding: No. The small number of home businesses are not enough. Analysis: Abandoned convent: habitually and substantially violated. Four home businesses over decades out of 40 blocks of homes is not enough. Other claims: (Equitable) Laches and Estoppel. Laches: 1. Knowledge or reasonable opportunity, 2. unreasonable delay by plaintiff, 3. Damage to defendant resulting from delay. Peckham didn't know that they were building a daycare and he did object to the project, so there was no delay. Defendant was not damaged because they were going to remodel anyway. Estoppel: 1. an admission inconsistent with a claim assert later, 2. action in reliance for the act, 3. injury when the party is allowed to change his assertion. None of this applies here. Court also found that covenants are not against public policy.

Bolotin v. Rindge

COVENANTS Facts: Subdivision of land, adjacent to Wilshire Blvd. Covenant for only single-family homes. Owner of undeveloped lots wants to build commercial building. Claims that conditions have changed. More commercial building. Appellate Court: The Question is not, "Would there be diminution in value?" as the trial court applied. It is whether there is a changed condition. Changed condition means: enforcement is inequitable or would harass the constrained party without benefit to the other party, or, the condition is obsolete. Developer claims that this is a huge burden on them because they can't sell the land as residential and can't get as much money. Argument that there is no benefit to current residence is more subjective. Has the character of the neighborhood changed (Commercial buildings all over)? Result: Appellate court sends back to trial court to resolve the issue of fact. Notes: The law disfavors finding changed conditions and favors enforcing the covenant. Courts are less likely to find change of condition on the edges, rather than the center.

US v. Corrow

CULTURAL PATRIMONY Facts: Corrow buys and sells Native American artifacts. Buys a jish from a widow, who negotiates with him. Corrow told widow he was going to sell it to another Navajo, but attempts to sell it to a dealer instead in what turns out to be a sting. Accused of breaking NAGPRA and other laws that make it illegal to sell N.A. artifacts. Asserts that the statute is vague with no fair notice. Holding: Corrow had fair notice and statute is not vague. Analysis: NAGPRA → cultural patrimony → ongoing importance to NA culture. Jish cannot be owned or sold in NA culture (considered inalienable by tribe) → Respect for Native Human Rights. All experts were in disagreement about some details, all agreed you couldn't sell jish to non-Navajo. He was also warned by an expert generally. Cultural patrimony is communal -- no personal rights, inalienable, uniquely linked to personhood BUT does it protect human rights if the widow can't sell?

Johnson v. M'Intosh

DISCOVERY/NATIVE AMERICAN LAND: SCOTUS, 1823. Facts: White settlers buy land from NA. Later, US grants "same" land to other white settlers. Issue: Who owns land? Holding: The US, as the discoverer, had dominion over the land and could grant it. The NA had only occupancy. Analysis: Hx of discovery shows that occupied people were protected and allowed to exist, but lost their right to transfer the property. In this case, NA could not be assimilated into US, so when all the historic transfers were done, in the end, the US was granted all land even though NA occupied the whole time. grants title to M'Intosh, stating that US conquered land and invalidated rights of previous owners *US has Title/Dominion Right (Sovereignty) while Native Americans have only occupancy right *US has power to not recognize/extinguish NA rights/transfer while NA are on land (hx of European transfers) Already transferred land, this would mess our chain of title up-->*Expectation* Ways to extinguish rights: Purchase/Treaty Conquest Normally when a group invades another, the inhabitants are assimilated, but in this case they can't be because there weren't established property rights, different culture, fought back, using land just for wilderness Who is going to put it to use? Benefit society? -->*Use* Notes: Not really the same land, probably a made-up controversy. Courts repeatedly used the idea that NA could not be assimilated/understand property as an excuse to take away their property rights.

Kelo v. City of New London, Connecticut

EMINENT DOMAIN City of New London declares a distressed community. Pfizer agrees to come to area. New London wants to redevelop land using eminent domain to make area where Pfizer is coming "super awesome." Hire a development corporation (extension of the city with city authority). Wants to make a state park, residential, small village, R&D office space, museum, retail. Corporation able to obtain all but 9 people's lots voluntarily. 9 homeowners hold out. Holdouts not blighted, not in poor condition, one person was born in house, one person like waterfront view. New London argues economic development is a public use. 5-4 decision, (1 concurrence, 1 separate dissent)

Berman v. Parker

EMINENT DOMAIN Facts: Southwest DC revitalizating. 5000 residents in homes which were beyond repair. Congress wanted to condemn (condemn: (legal opinions) to exercise eminent domain) a part of it and rebuild it as schools and streets and sell for private ownership. Store owner claims his store was not blight. Was creating a "more attractive community" public use? Unanimous court holds that it is a public use because it is within the power of the legislature to make communities better. Look at community development as a whole, not individually.

Midkiff v. Hawaii

EMINENT DOMAIN Facts:22 people owned 70% of property on one island and were renting out various buildings. Government wanted to take some of the land and sell it to others to increase homeownership. Pure redistribution. Unanimous court held it was a public use.

Garner v. Gerrish

ESTATES - Donovan executes a lease to his friend for 'quiet enjoyment .... Gerrish can terminate at a date of his own choice...' (p.590) - Donovan dies and executor, Garner, new landlord, questions why he cannot terminate the lease when he wants unilateral termination idea is not rooted in property law? life estate? strict contract interpretation? - court found that the lease terminates when Gerrish chooses or when he dies. no category of lease, did court create a new lease? how does this square with Whiton? - no transfer of ownership of property This is a leasehold estate and not one of the freehold estates. Leasehold has more freedom of contract as opposed to a freehold estate (bound by numerus clausus)

Johnson v. Whiton

ESTATES NUMERUS CLAUSUS Royal gives 1/3 to Sarah - later when a purchaser attempts to buy, there is a weird conveyance to Sarah and "heirs on Father's side" - like a life estate with a fee tail?? (not quite) - Or is Royal just trying to keep the property from going to other family if Sarah dies without children? - court determines that Royal's conveyance is unclear and deems the grant a fee simple absolute. WHY? (1) can't create a new type of estate / inheritance. (numerus clausus) (2) to the extent that Royal is trying to make a fee tail - legislation abolished. It is a restraint on alienation.

Brokaw v. Fairchild

ESTATES and WASTE- life estate to children (4 mansions, must be nice) remainders to their issues contingency - if any children die without issue, there is a remainder back to Issac's children) - George (son) wants to tear down mansion to make into apartments (rental of mansions not in high demand in NYC) future interest holders do not want to tear down mansion the apartment buildings would convey to them and they would make money is improvement a waste? we don't care if it's going to make everyone money. doctrine of waste doesn't care what the objects are either (motivations - emotional attachments or hatred of George) the present possessory holder doesn't have sufficient ownership to create 'permanent change' to the inheritance how is this injury? the inheritance is the residence, not the land. The residence is permanently changing <-- Test - there can be waste it there is economic benefit for everyone - future interests, even contingent ones, may bring actions against waste!

Eads v. Brazelton

FIRST POSSESSION, LOST/ABANDONMENT: AK, 1861. Facts: Brazelton seeks/finds wrecked steamboat hoping to recover lead. Starts process by marking trees and leaving temporary buoys, but is detained on other matters. D comes along later and recovers lead. Court assumes D did not know about Brazelton. Issue: Did Brazelton take possession of wreck? Holding: No. His intent to possess was not enough. Analysis: Lead was abandoned by original owners based on "term of loss," lack of effort to recover since wreck and recovery of some but not all of the stock. Brazelton's temporary markers only indicates his intent to possess, but is not enough to warn others that he has possession (example: could have left his boat above the wreck, was not required to have "manual" possession). Notes: Brazelton was not "diligently moving towards use." Mining cases.

Popov v. Hayashi

FIRST POSSESSION/HOME RUN BASEBALLS: CA, 2002. Facts: Barry Bonds' record-setting baseball. Popov catches first, but unclear whether he has control of it, then engulfed by mob trying to get it. Ball rolls away and Hayashi grabs it. Issue: Who owns ball? Holding: They both do. Sell it and divide the proceeds. Analysis: When ball landed in mitt, Popov had "pre-possessory" interest, even if he couldn't prove full possession. Hayashi was not a part of the mob, so shouldn't be punished and had unambiguously taken possession.

Pierson v. Post

FIRST POSSESSION: NY, 1805. Facts: Post is hunting a fox. Pierson sees fox, sees that Post is hunting it, captures it anyway. Issue: When does one possess a wild animal? Holding: Must capture or mortally wound animal to be in possession. Analysis: Ancient texts, UK cases that are different are based on statute or between owner of land and hunter.

Medico-Dental Building Company of Los Angelos v. Horton and Converse

LEASES Building with multiple medical/dental tenants with a ground floor pharmacy (defendant). Pharmacy lease says that the pharmacy has exclusive right to sell drugs in building. In Dr.'s lease, it says he cannot interfere with Horton and Converse lease. Landlord stops contacting pharmacy. The pharmacy leaves. Landlord sues for rent. Court holds no rent is due. Intent of pharmacy was to have exclusive access. Breach of lease. Shift: In past cases, intent didn't matter. BUT in this case parties were very explicit in their leases. Court does not say they are overruling old cases. This could fit in old cases like in Smith But looking based on contract, there was a breach that went to the heart of the consideration, so it is void.

Paradine v. Jane

LEASES Landlord sues for unpaid rent. Tenant claims that he isn't on the land and can't profit from it because it has been occupied by Prince Rupert during Civil War. Court holds tenant is still responsible for rent even though he can't profit from it. A promise is a promise. Tenant assumed the risk. Lease conveyed right of quiet use and enjoyment of property. If he had bought the property, he couldn't have sued the seller If there had been record profits, the landlord couldn't come and take some What about landlord maintenance? (Does he? Not at common law) Landlord sues for unpaid rent. Tenant claims that he isn't on the land and can't profit from it because it has been occupied by Prince Rupert during Civil War. Court holds tenant is still responsible for rent even though he can't profit from it. A promise is a promise. Tenant assumed the risk. Lease conveyed right of quiet use and enjoyment of property.

Sutton v. Temple

LEASES Tenant rents land to raise livestock. First night, 4 cows die. Discover there is poisonous paint in manure. Fences off manure. 4 more cows die. Discover all the grass is covered in the poisonous paint. Decides to leave the property and refuses to pay. Sutton (landlord) sues for rent. Temple claims there is an implied warranty that the "eddish" was edible, not poisonous. Court rules that there is no such warranty. Temple bears the risk. Court tries to distinguish from Smith v. Marrable in which Court held that furnished vacation homes must be properly furnished. Difference between personal property and land. When you rent the furnished vacation home, the lease says "furnished" specifically. Nothing in this lease included a warranty. Default is no warranty. Personal property always had an implied fitness for use warranty; not so with land Purchasing land for investment means it might not work out, can't hold seller/landlord liable Land is rented generally. Can't prepare for every possible use. Buyer/Lessee beware Information costs: who could find out easier? Comparison to Paradine v. Jane

Smith v. McEnany

LEASES Tenant with covenant to occupy and repair. Landlord builds wall that goes about 2 feet into property. Does not interfere with tenant's use (storage of wagons). Tenant responds by not paying rent and not repairing. Tenant argues that he has been evicted. Landlord argues that if there is an eviction, then the rent should be apportioned based on the amount of the eviction. Landlord argues that for eviction, the land must be uninhabitable. Landlord sues for rent. Court holds the 9 -24 inches is an eviction. The tenant should have enjoyment of the whole land, which is not divisible. The wrongdoer (landlord) does not have the right to decide how much he wronged the tenant. Physical eviction. But the eviction does not end the lease or the covenant to repair. Can refuse to pay rent, but must still repair. (Difference from material breach in contract) If wall is removed, then use and enjoyment (rent) is back. Property rule. Modern day: covenant to repair is probably a monetary expense Historically: repairs were done yourself Compared to other wall cases: One said the wall had to come down, other said they had to pay (property vs. liability) Physical ejectment (outser) by landlord excuses duty to pay rent

Blackett v. Olanoff

LEASES and CONSTRUCTIVE EVICTION Landlord leases to nightclub which is ridiculously loud. Disturbs tenants. Told landlord to correct the problem, some unsuccessful attempts. Tenants left. Landlord brings suit for rent. Tenants claim constructive eviction, meaning they were so deprived of use and enjoyment that is was an eviction. Court found there was constructive eviction because the landlord did not get the situation under control although he could have because the lounge's lease specified how loud they could be. Elements of Constructive Eviction Substantial and sustained deprivation of use and enjoyment (would a reasonable tenant vacate?) Landlord could, but did not, control situation (doesn't matter what intent was, just actions) Tenant must give landlord notice and cannot wait too long Tenants actually leave? Not required in all jurisdictions but is required in majority. Shows how bad the issue is. BUT if tenant must leave, what happens if the court does not find constructive eviction? Responsible for rent.

Javins v. First National Realty Corps

LEASES and IMPLIED WARRANT OF HABITABILITY Very famous judge that was moved from the South because he was getting death threats for his opinions. This opinion changed the face of lease/tenant law. Three tenants in one building entered into three separate leases. All three stopped paying rent in April. Landlord sought possession of apartment on grounds that there were 1500 housing code violations. Judge finds that there is an implied warranty of habitability (IWH) in residential leases. Does not find whether there were actually violations. In common law, there was no implied warranty Judge starts by saying that the nature of common law is to adapt to circumstances. In past, leases were focused on land. Today, the focus is on shelter. Tenant may not know how to repair and tenant is not there permanently so there is no incentive. Tenant is not a stand alone farmer. Implied warranties in consumer protection laws, such as car purchases As things become more complicated, we rely on the manufacturers to put out something we can trust. Plus, we have an entire series of laws related to housing, it is natural that there would be an implied promise that the house you are renting will meet those codes. Judge says IWH is NOT waivable, but Restatement of Property says it should be. Waivable argument: makes for more expensive, less available housing Non-waivable: information costs, bargaining power Coasian Argument: transaction costs Radin: Inalienable, we just don't trust the markets. Will prices go up? We don't know. Enforcement is very poor. Acting in shadow of law: can have really clear rights, but people will do what they can get away with Must plead that the violations happened after they moved in: coming to the nuisance, waiver, this is what the contract was for, duty to repair may only extend to what broke since contract started. Duty to repair: shift from lessee to landlord. Illegal lease doctrine: Housing violations means lease is void, but doesn't help tenant

Sommer v. Kridel

LEASES and MITIGATING DAMAGES Tenant signs lease. Before he gets the key, sends letter that marriage didn't work, doesn't have means to pay lease. Asks to be released. Landlord never responds. Someone comes and asks to rent apartment. Landlord says it is already rented. 16 months later finally rents apartment, then sues original tenant for all back rent. Landlord claims that under common law, there was no duty to mitigate. (Transfer of property, it's tenant's now. Independent Covenants) Mitigation is a contract theory. Court finds duty to mitigate and overrule previous case. Basic fairness. Landlord must make reasonable effort to rent property. Each apartment is unique, so even if there is another apartment, still have to make reasonable effort for specific property.

In re Kerr

LEASES and SURRENDER. Tenant signs 2 year lease, pays first 2 months. Month 3 doesn't pay and declares bankruptcy. Month 4, landlord finds new tenant. Very discounted agreement. Landlord sues original tenant in bankruptcy for the original period. Did the releasing of the property end the lease and discharge duty to pay rent? Court says yes. When landlord relet the building for 2 years more than the original lease, that was acceptance of the surrender. Even though the lease said the landlord could relet the property, because it went on for 2 more years, that's different. Surrender Doctrine: common law recognized as contract. Lessee makes offer that says, "I abandon this lease." If landlord accepts, lease is over.

Wood v. Leadbitter

LICENSE (1845) UK P buys ticket to watch show on D's property. D has P removed. Court holds license is not property right and can be revoked at any time (in personam)

Marrone v. Washington Jockey Club

LICENSE (1913) SCOTUS Racetrack refuses admission of ticketed patron. Ticket is not a property right and can be revoked (in personam). When it is revoked, person becomes trespasser. Can sue for breach of contract (damages).

Hurst v. Picture Theatres

LICENSE (1914) UK Ticket to cinema, asked to leave because staff thought he didn't have ticket. Reversed Wood v. Leadbitter. Was a tort to forcibly remove patron.

ProCD v. Zeidenberg

LICENSE (1996) US 7th Software license in package. License is not a piece of property so not preempted by copyright law, not an in rem right. This is an agreement between software company and user.

Intel Corporation v. Hamidi

NON PHYSICAL TRESPASS (TO CHATTELS) Facts: D, an ex-employee, sent emails to mass numbers of Intel employees, disparaging company. Intel sued for trespass to chattels for use of company's email system. Holding: CA law does not encompass emails that don't damage the system. Analysis: Non-physical: Emails that don't harm do not "interfere with the possessor's use or possession of, or any other legally protected interest in the personal property itself." T to C requires injury. This did not overburden or harm the system. This is different than spam, which slows down systems or hurts ISP's reputation. Interest in employee productivity is not the same. Employees are not chattel. Internet as physical space theory is rejected. Risk of reducing freedom of communication. Dissent: Email system was created to enhance productivity, which this reduced. Right to personal property free from interference. newspaper accumulation argument. Also, Intel cannot exclude D. Dissent 2: This is not common internet, this is an intranet. Intel should be able to rely on courts if self-help fails. No nuisance to personal property.

Hendricks v. Stalnaker

NUISANCE Facts: Neighbors. Stalnaker's existing well gives poor water, so he drills a new one right as the Hendricks are attempting to install a septic on their property. Lower court declares new well to be a nuisance because it prevents septic installation due to setback requirements. Issue: Is the well a private nuisance by being a "substantial and unreasonable interference with the use and enjoyment of" the Hendrick's land? Holding: No, the well was reasonable. Analysis: Actions were intentional, although not malicious. Wells are reasonable uses for property. The situation could easily be reversed and the septic could be considered the nuisance. Hendricks did not show that the balancing of interests favored their septic and generally interests would favor the less intrusive well. Reversed. Notes: Issue of neighborliness can be considered along with harmful invasion, community standard and who was there first. Nuisance can impinge upon both parties rights of ownership.

Hecht v. Superior Court

PSEUDO BODY PROPERTY Facts: Adult children of deceased want frozen sperm destroyed. Deceased left several instructions that sperm be used by gf if she wanted to have children. Court held that sperm is "interim" property because of its ability to turn into a person. At time of death, deceased had clear interest in sperm, clear intentions, this is property that can be sold. Storing the sperm gave deceased a duty/ownership. Court does not discuss validity of will or contract and remand to probate court. In case of embryos, court would have balanced interest, with more weight given to life, but there is only one gamete donor here. Note: Court had to find sperm was property or probate court would not have jurisdiction.

Nahrstedt

Prohibition of cats in deed of condo (CCR). P buys unit and has 3 indoor cats. Refuses to get rid of them. Condo assesses fines every month. P claims she didn't know, cats are indoor cats so the prohibition is "unreasonable" as applied to her. "Unreasonable" is from CA law Only inside (unreasonable), allows birds (just as noisy, so arbitrary), future legislation against it, therapy Compare with Jacques, Right to use and enjoyment (however you want), autonomy, not hurting other people, not causing a nuisance BUT it's in the deed. Expectation of other tenants and the buyer. Court focuses on reasonableness as it applies to development itself, community as a whole.

Symphony Space, Inc. v. Pergola Properties, Inc

RAP Facts: Sale lease back deals for tax purposes--> for-profit will transfer property to non-profit, which leases back to for-profit. Symphony Space leased back to Broadwest with an option to buy. Broadwest sells their interest to Pergola. Option to buy is treated as a future interest subject to RAP (Right of first refusal is distinct from Option in NY) MD explicitly says Options are not subject to RAP Pergola wants to exercise option and Symphony doesn't want to, claims the option is void based on RAP Court holds the option is void based on RAP The longest time until there would a certain answer (the last time they could buy) is 2003, which is 24 years after formation BUT What is the measuring life? There isn't one. Black Letter: When there is a corporation and therefore no measuring life, then the perpetuities limit is 21 years. Pergola argued that RAP doesn't apply to corporations and this argument was rejected. Pergola argues for "saving interpretation," which court rejects because there is express language to the contrary. (The dates are specifically stated) Pergola argues for "wait and see" approach, which court rejects as against NY precedent

Mountain Brow Lodge v. Toscano

RESTRICTIONS ON ALIENATION· What if one conveys property with a big restriction on use which as a result can heavily impact alienability? Facts: Toscano conveyed land to P for the use and benefit of the lodge only, and upon failure of property to be used by P or if sold by P, to revert back to grantors (Toscano family). Lodge sought suit after their death seeking quiet title. They said the conditions should be void as against public policy. There were two conditions: Restriction of sale Must be used in a certain way [for lodge only] Holding: The provision explicitly restricting the sale of the property is void as public policy (absolute restraint against alienation). However, the provision restricting the use of the land to a fraternal lodge is a valid restriction on use, as part of a defeasible estate (fee subject to a condition subsequent). It is valid to restrict the use of land, even if such restriction hampers or even completely impedes alienation. But can't restrict the sale of land. There is a difference between an explicit statement of not selling or transfer, but the condition subsequent is ok, although it has the same effect. Black Letter Express Restraints on sale - void. Restraints on use- OK The gray area is what to do you do if it is still used by the second party, but maybe not owned?

Jacque v. Steenberg Homes, Inc.

RIGHT TO EXCLUDE Facts: Mobile home delivery wanted to go through Jacque's property. Jacque refused under all circumstances, due to erroneous fear of adverse possession. Mobile home delivered anyway. Assessed a $30 fine. Jacque sued and received $1 nominal damages and $100,000 in punitive damages. Issue: Whether a nominal damages award for intentional trespass can support a punitive damages award? Holding: Yes. Punitive damages can be awarded. Analysis: All trespass is harm. The value of owning property is in exclusion. (Penner essentialist view of property). There is an individual interest: fundamental right, adverse possession fear, security and autonomy. Individual's reasons for exclusion don't matter. Societal interest: deter vigilante, integrity of system. Punitive damages fill the gap of those that would escape prosecution.

Shelley v. Kraemer

RIGHT TO EXCLUDE, ANTI-DISCRIMINATION (1948) SCOTUS When judge/police enforce a racially restrictive covenant, it becomes state action that violates the 14th Amendment.

Attorney General v. Desilets

RIGHT TO EXCLUDE, ANTI-DISCRIMINATION (1994) MA Landlord does not want to rent to unmarried couple because of religious belief against "fornication." MA statute is more restrictive than FHA. Court holds that landlord did violate, but courts must decide whether it is substantial enough to be unconstitutional. Substantial burden vs. sufficiently compelling interest.

McConico v. Singleton

RIGHT TO EXCLUDE, CUSTOM (1818) SC P tells D not to hunt on his land, despite common custom to allow hunters. Court says there is no injury. 1.) Forest and forest animals are common, 2.) statutes allow, 3.) military trainings, 4.) need for food. Economic efficiency and burden of protecting

Ploof v. Putnam

RIGHT TO EXCLUDE, NECESSITY (1908) VT P's ship in sudden storm. Docks to D's land. D's agent unties boat, damages ensue. P sues under trespass for untying boat. D claims right to exclude. Necessity allows P to dock. Examples: Sheep dog momentarily on other land while chasing away sheep, Traveler with sudden obstruction, Throwing out casket to save passengers.

Uston Resorts International Hotel, Inc.

RIGHT TO EXCLUDE, PUBLIC ACCOMMODATIONS (1982) NJ Black jack player who counted cards can't be excluded because 1.) statute didn't give casino authority to exclude and 2.) Casino was a public place and must accept unless person is dangerous Opposite holding in Brooks v. Chicago (1986, IL) because statute is different and market will correct abuses.

Hinman v. Pacific Air Transport.

RIGHT TO EXCLUDE/AD COLEUM Facts: Hinman sues to prevent low flying aircraft above home. Looking for injunction and $90,000 damages. Aircraft were flying at 150 ft. but Hinman was not using the space occupied by airlines. P appeals decision Issue: Does a property owner have the right to exclude others from the airspace above his property? Holding: No. A property owner's rights do not extend "to the heavens." Analysis: Examined ad coleum principle that property owners own everything between heaven and hell. Concluded that property meant the right to exclude and owners can not exclude others from air. Also, Hinman wasn't currently using the space so airline wasn't impinging on his right to use and enjoyment. It would be impractical to require airlines to negotiate for airspace with all owners. If the close proximity limites Hinman's full enjoyment of his land, he may have a case, but he does not have a general right to exclude. Notes: Court is worried about commons(no property rights) vs. anticommons (too many property rights) Tragedy of commons: To few property rights and no one has an incentive to care. Ad coleum is still good law to some extent, absent zoning. 4 ways to create an exception for air travel: 1. Dominion and control, 2. Actual harm, 3. Social benefit from air travel, 4. Public property.

Berg v. Wiley

SELF HELP Facts: Berg leased space for a restaurant. Violated numerous codes and kept remodeling which violated lease. Wiley, landlord, gave 2 weeks notice to remedy. At end of 2 weeks, Wiley attempted to change locks, Berg asserted right to possession. Monday morning changed locks with sheriff. Re-leased property. Argued that Berg abandoned property. Jury awarded damages and judge found illegal use of self-help. Holding: Wiley did not have a right to change the locks. Analysis: There was a judicial process, no self-help needed. (Forced Entry and Detainer). Common law required peaceable entry that is legally entitled. Wiley's means weren't peaceable.

Williams v. Ford Motor Company

SELF HELP Facts: Jointly owned car granted to wife in divorce, husband must make payments but doesn't. Signs voluntary repossession authorization to creditor. Tow truck comes to repossess car. Wife comes out yelling. Then asks to get stuff out of the back, is allowed. No further protests, then reports car stolen. Holding: Creditor could take car. No conversion. Analysis: Wife did not breach peace or object to car being taken. Dissent: She did what she could to stop them. When there is any objection, the re-possessor should use judicial process.

Mullendore

Security Deposit that was only for the purposes to offset the risk of default did not "touch and concern" the land so the covenant does not run with the land (when it changes hands) Does not benefit land, does not need to be spent on land. A contract that doesn't run with the land is in personam Intent to run with the land, touch and concern, etc.

Loretto v. Teleprompter

TAKING Running cables and a silver box. Holdout problem. Teleprompter was compensating the owners 5% of gross revenues from property. New law limits compensation to $1. (no indication that old law wasn't working). $1 was what state would pay for eminent domain, so there is a hint. Claim is permanent trespass, cable is physically invading her property. So it is a trespass or taking. Court of Appeals found it was a valid use of police power. Supreme Court did not say it wasn't a valid goal, but it is a taking and requires compensation. 1) Economic Impact 2.) Investment Backed expectations...but Court does not balance. This is found to be a per se taking. PERMANENT PHYSICAL INVASIONS BY A THIRD PARTY ARE PER SE TAKINGS

Penn Central Transportation Company v. City of New York

TAKINGS Beax-art style. Original plan included office building, but it wasn't built that way. Plan to add office building. NY has landmark laws and deemed Grand Central Station a landmark (partly in response to Penn Station destruction). Buildings get designation as landmarks (owner is told), can challenge, but in this case they didn't. Get development rights for other properties and expand where you can transfer the rights. Applied for a permit to make changes, denied. Sue and challenge landmark law as a regulatory taking. Landmark Preservation Act goes too far. NY has taken away property rights. Eminent Domain is a forced sale. NY isn't doing that. They still own the property. Justice Brennan holds that it isn't a regulatory taking. Limiting someone from the most profitable use is the not the same as limiting someone from all profitable use. p. 1273 Disproportionate burden on one entity. Look at facts. This case sets the standard for Penn Central Balancing Test, p. 1273 (standard for analyzing regulatory takings, this is the test we use) Economic Impact What can you use? What is still permitted? Denominator factor Interference with (reasonable) investment-backed expectations Character of Government Action How close is it to a physical invasion? How close is it to nuisance regulation? For this case: Economic Impact: They can still use it the way they have been using it. It's not that you can't use the rights at all, you just can't do it the way you want to. Investment backed expectation: Because it doesn't change the present use, it can't interfere that much with your expectation. It's a train station. When you bought it, it was a train station. It wasn't enough that they had entered into a contract. You can also transfer your rights or you can try with another design. Character of Government Action: Not a physical invasion. (But it is preventing use, and it isn't nuisance-like) Dissent: Why should company pick up the tab alone? It benefits everyone. Only 400 buildings in all of Manhattan have this designation. What benefit is Penn Central getting?

Pennsylvania Coal Co. v. Mahon

TAKINGS Common law says you have a right of support if you sell land below your property. PA law allows owners to waive it. In 1920s, coal was so valuable, it was being mined until houses and roads collapsed. Pa passes law that says you can't mine to the point that the occupied house above collapses. PA recognizes 3 estates: Surface, Subsurface (Mineral), and Support Hx: PA Coal owned all the land. Sold the surface to the Mahons, but not the subsurface or the support. This was explicitly in the deed (that PA Coal expressly waived, and Mahons expressly waived anything that happens due to subsidence) Kohler Act is passed saying that you can't remove the supports such that a house collapses. Mahons decide to sue to enjoin PA Coal from mining out the columns. Justice Holmes: It is the Mahons fault and this is a substantial taking from PA Coal, who still has property rights to both Subsurface and the Support. The cost the Mahons paid did not include Support, so if they now require it, then it is taking it from the Coal Company for free. "Short-sighted" Mahons. Is this an easement? (Pollution easement) Public policy. Do we want a bunch of holes? Holding: Regulation that goes too far and becomes a taking. As applied to this case, need just compensation. Private Contract. Mahons rolled the dice. This not a public safety issue. Diminution in value of support right is 100%. Regulatory Taking: "Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law." p. 1259 Every restriction is taking away some value. "The general rule is that while property may be regulated to a certain extent, if regulation goes too far, it will be recognized as a taking." p.1261 Is this something that the government can validly do within its police power or is this something that the gov't needs to use eminent domain. Brandeis dissent: This seems to be doing a good thing. If they were releasing toxic gas, we wouldn't let them do that. This is a major public safety issue. Value is relative. It includes all the other parts that they have mined. (Denominator problem. What do you measure it against?) The columns are a small portion of their property.

Lucas v. South Carolina Coastal Council

TAKINGS Isle of Palms, barrier island off of Charleston. Early days of coastal environmental management. Purchased property, then law changed. Where Lucas buys lots, not even in permit zone at the time. Buildings on either side. 1-2 years after purchase, Beachfront Management Act draws baseline between two further eroded points on the island. Starts with Court of Common pleas. Trial court finds that there is "no economically viable use left in the land." South Carolina Supreme Court did not find a taking because it was "classic nuisance regulation" and "preventing harm." Supreme Court: new category of per se taking: when a regulation takes away "all economic value." Dissent: This will highlight the denominator issue. Majority says we can dodge this using the trial court's determination. Dissent: what if you take 98% of property value, what do we do? We go to Penn Central. If the restriction conforms with background limits on property, its ok to restrict and if it removes 100% of value, its not a taking (it's not a taking if you aren't changing anything). Shift from is something being taken to is something even property? Scalia example: denied permit to fill dry lake bed such that it will flood neighbor's property, you never had a right to do that, so not a taking. Also, if you own a nuclear reactor and discover it is on a fault line and they say you can't operate it, then it isn't a taking. Justice Scalia is worried about changing property rights, must be an inherent limitation from common law. Dissent also says this is unnecessary and too powerful for the scope of the problem. Also, the history is wrong. (Firebreak cases) The Court approaches the parcel as a whole when it is a restriction on use. It is disfavored to subdivide a property and say 100% of this piece has been taken. (different from Mahon) Swings with whether court wants to find a taking (property rights) Lucas is high water mark.

Irons v. Smallpiece

TRANSFER (1819) UK Transfer of colts. No actual delivery, no gift.

Lauderbaugh v. Williams

TRANSFER (1962) PA Restriction on buyer land to member of association. Membership admission were vague, no motive, no time limit. Absolute restraint is against public policy. Could exclude many people. Restraint must be reasonable.

Foster v. Reiss

TRANSFER, CAUSA MORTIS (1955) NJ Letter before surgery telling husband to whom to give belongings. Husband claims all. Court held no delivery of belongings: Donor must give, not enough for donee to take. Even though property was in donee's home, he did not have possession because he didn't know where they were. Causa mortis does not apply because at the time the husband took the note, wife was under ether or in coma and not able to do business. (Dissent: this is formalism. Her intent is clear.)

Baker v. Howard County Hunt.

TRESPASS and REMEDIES Facts: Dr. and wife own land where doctor is experimenting with animals. Hunt club allows pack of dogs to trespass. Dr.'s wife is bitten. Club apologizes, but continues. Dr. shoots dogs and sues for injunction. Issue: Is there trespass and is an injunction appropriate? Holding: Yes. There was intentional trespass and the only adequate remedy is an injunction. Analysis: Series of trespasses with an intent to continue. Property rights outweigh social benefit of fox hunting. Individual dog may not be considered trespass first time, but pack of dogs are trespassing and D knew. Law cannot adequately value damages to experiments. D plans to continue in actions. 3. P was justified in shooting dogs, so hands are clean. Injunction should have been granted even though remedy for trespass is usually damages.

Pile v. Pedrick I and II.

TRESPASS and REMEDIES and PROPERTY VS. LIABILITY Facts: Building footings on neighbor's property 1 ½ inches due to faulty survey. P refuses all relief except removing footings and will not allow D on property to remove. Must tear down. Chancellor ordered parties to split court costs. Affirmed but modified to include 1 year time limit. Notes: Unintentional trespass became intentional because it continued after D's knowledge. Continued trespass is appropriate for equity.

Golden Press v. Rylands

TRESPASS and REMEDIES and PROPERTY VS. LIABILITY Facts: Minimal footing encroachments. Lower court ordered removal. Cost of land taken is $55, cost of removal is high. Good faith exception to injunction and no interference with use/enjoyment of land. P did not pursue legal action until after work was completed. Reversed. Notes: Most jurisdictions are closer to Golden Press now. Different if initial trespass is intentional. De minimus exception and slippery slope argument.

Eyerman v. Mercantile Trust

WASTE (1975) MI Can't raze architecturally significant home, even if that's what will wants. Against Public Policy: adjoining property, landmark, owner vs. successor (dead hand), capricious (Dissent: Emotional opinion, owner has exclusive control←Majority)

Village of Euclid v. Amber Realty Co

ZONING Facts: Community concerned about encroaching industry from Cleveland and adopted a novel zoning scheme. Restrictions on height, usage, area. Zoning is cumulative: U-1: Single Family U-2: Multifamily, Single family U-3: Apartment, Multifamily, Single family, etc. Amber Realty owns a lot that is zoned U-2,-3 and -6 and then they can't sell it for an industrial use. Diminution of value to 1/4 of what it would be. Allege violation of due process and equal protection. As applied challenge: The law may be fine, but as applied to me, it is unconstitutional. Facial challenge: the law is unconstitutional. Amber brings facial challenge. Therefore they don't say anything specific about what they want to build. Ask for injunction of entire zoning ordinance. Issue: Is the zoning ordinance unconstitutional? Holding: No. It is completely rational. Analysis: Court think there would be more success with an as applied challenge. Or Amber can vote for a new city council (check on police power, reflects community preference). Holds that zoning is facially constitutional. State has police power to determine what can be done with land as it benefits welfare of state. "Reasonable basis." Public safety and quality of life. Apartments destroy residential communities, easier to have fire department, less traffic, etc. Doesn't need to be the best reason, just a rational reason. Court makes reference to nuisance. Regulation of apartment buildings is novel.

Southern Burlington County NAACP v. Township of Mount Laurel

ZONING Facts: Zoning designed to keep taxes low by limiting the number of school children. Also had requirements that drove up price of property. Over zoned for industry to encourage business. Intential drive to have only upper-middle income residents. Groups representing minorities and low-income people sue. No allegation of racial animosity, just unconstitutional for denying housing resources. Issue: Is this zoning plan unconstitutional? Holding: Yes, based on NJ State Constitution. Every city must provide a fair share of lower income housing. Analysis: Zoning is part of the police power, which promotes the general welfare. Part of general welfare is a fundemental right to shelter (under NJ Constitution). If there is a zoning scheme that denies that right, such that there is no realistic possibility of lower income housing, it looks like it will violate the NJ Constitution and municipality has burden of proving why this isn't so. Because Mount Laurel couldn't show why, it must provide their fair share of regional lower-income housing. Keeping taxes low is not a legitimate reason. Note: NJ is very far out. Public duty elements. Limit on exclusionary zoning. Varying degrees in other states. (PA does not go as far)