PROPERTY

CAPTURE, FINDERS, & GIFT......................................................................................3

EXCLUSION AND ACCESS..........................................................................................4

ADVERSE POSSESSION..............................................................................................4

EASEMENTS..............................................................................................................5

COVENANTS.............................................................................................................8

ESTATES AND FUTURE INTERESTS..........................................................................11

RULE AGAINST PERPETUITIES.................................................................................14

E&FI RULES OF INTERPRETATION...........................................................................14

CONCURRENT INTERESTS.......................................................................................16

LEASEHOLDS...........................................................................................................18

REAL ESTATE TRANSACTIONS.................................................................................22

INTELLECTUAL PROPERTY......................................................................................26

TAKINGS.................................................................................................................27

ARGUMENTSDoctrine: blackletter lawPolicy: better for societyTheory: better reflects a general conceptual approach

THEORIESOWNERSHIP

Right of O to control P Sticks (exclude, transfer, possess, use) bundled

SOCIAL RELATIONS (SINGER) P as “system” that distributes resources Effectuates “relations” and “values” through law Os and non-Os may have entitlements Sticks can be unbundled Property is a system of rights & duties, distributing valuable resources among members of

society, owners & non-owners, expressing human values and shaping human relationsLAW & ECONOMICS (Wealth maximization)

P should promote wealth maximization Title to party that “values” it most to minimize transaction costs Liability v. P rules

PERSONHOOD (RADIN) P exists in a hierarchy of fungibility P that constitutes self not commensurable by money Ownership should be regulated to promote human flourishing Market v. inalienability

LABOR THEORY (LOCKE) We own our labor/extension of ourselves When we mix our labor with something it becomes ours Take things from nature, take from the common

RIGHTSMainly exclude, transfer, and useSellGiveRentDevelopKeep (forever)Will

HideDivideRecreationExtractSustenanceInvestConserveDestroy

ACQUISITIONBuyReceiveFind Create TakeInherent rights from God/Nature

JOHNSON v. M’INTOSH (98)

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US: government has exclusive right to title through doctrine of discoveryNA: right of occupancy (use and exclude, no transfer), extinguishable through conquest or purchaseNo recognition of transactions between NA and individual citizens

CAPTURE, FINDERS, & GIFT

CAPTURE

PIERSON v. POST (152) (Fox hunting)To acquire rights over P in nature, must establish possession, or relative possessionMajority: possession is capture which is mortal wounding or actual controlDissent: rights from a reasonable prospect of taking

POPOV v. HAYASHI (156) (Baseball)Gray’s rule: “actor must retain control of the ball after incidental contact with people and things”Pre-possessory interest where significant but incomplete effort interrupted by unlawful acts of others

FINDERSLost: accidentally misplaced; F cannot claim titleMislaid: intentionally left, O forgets where; F cannot claim titleAbandoned: intent to relinquish ownership; F can claimPossession is 9/10s of lawF v. Third Parties: F prevails unless wrongdoingF v. True Owner: TO prevails unless abandonedF v. Premise Owner: F prevails unless trespassing

WILLCOX v. STROUP (168) (Civil War papers)Chain of title murky but policy in favor of party in possession

Stability: encourages improvements and avoids disruption, uncertainty, and litigationPersonal interest in family papers

Plus, public already had access to papers through USC’s archive

GIFTMust have:1) Intent to transfer 2) Delivery, physical or constructive3) AcceptancePossible conditions attached to engagement rings, i.e., marriageStatutory exceptions: prenuptial agreements

WHAT CAN BE OWNED

MOORE v. REGENTS (231) (Mo cell line)Patients have no P interest in removed tissues after signing consentDoctors have fiduciary duty to disclose future uses of tissue (informed consent)Policy: encourage scientific innovations (using donations, not sales) and informed medical decisions

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CHARRIER v. BELL (171) (Indian burial items)Finders’ law does not include claims to burial items; neither lost, mislaid, nor abandoned

EXCLUSION AND ACCESS

TRESPASS1) Intentional intrusion: objective standard, being on P2) Property3) Owned by someone else4) Not privileged

Privileged when: Consent of OwnerNecessary to prevent more serious harms to persons or PEncouraged by public policy

JACQUE v. STEENBURG HOMES (28) (Delivering mobile home)Right to exclude is sina qua non of propertyPunitive: reprehensibility of crime, potential harm, comparable rewards in similar cases

Deterrence needs to be great or company will violate again

ACCESS

STATE v. SHACK (3) (Migrant workers)Privileged consent when providing access to available government services

Providers must have reasonable accessSocial relations: right to exclude limited by duty to prevent more serious harm

RIGHT TO EXCLUDEInnkeepers/common carriers have nonePrivate/public facilities: reasonable exclusion/access

To what extent is P open to public?What interests underlie desire to access/exclude? Security, expression, discrimination?

Private facilities: so long as not violating anti-discrimination lawsCivil Rights Act 1964: no genderMinority: non-owners have right of reasonable access to P opened to public (USTON)

USTON (16) (Card counter)All private businesses open to public must have reasonable right of access (minority rule)Majority rule: absolute right to exclude unless innkeeper/common carrier

COLORADOStatute arresting any person able to work and support himself for loiteringVoided for vagueness and denial of due process and equal protection

ADVERSE POSSESSIONCircumstances where non-permissive possession ripens into legal title

1) O sues to eject based on trespass, AP counterclaims with action to quiet title based on AP

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2) AP brings affirmative claim to quiet title based on AP, O defends with titleNo AP against government (including COLORADO)Split on whether AP transfers subsurface mineral rights

CLAIM OF RIGHT1) Adverse/hostile2) Actual3) Open and notorious4) Exclusive5) Continuous6) Statutory period: must prove all elements for durationSome jurisdictions, must be in good faithBurden of proof on claimant, sufficiency of evidence must be clear and convincingCOLORADO: actual, adverse, hostile, under claim of right, exclusive, uninterrupted for 18 years

Preponderance of the evidence standard -> clear and convincing for affirmative claims

BROWN v. GOBBLE (281) (2 feet strip)AP continuous through tacking; previous Os had used land as theirs

NOME 2000 v. FAGERSTROM (289) (Squatters)F on land since time immemorial but divested of title by TEE-HIT-TON and AK Native Claims SettlementAP is objective: not what Fs believed or intended but whether possession was hostile

Claim limited to land actually used in a way to put a reasonable O on notice

McLEAN v. KIRLIN (COLORADO)Lead to changes in law:

Clear and convincing standard for affirmative claimsMust have reasonable good faith belief that claimant was true ODiscretionary damages (market value of lost P + taxes with interest)Preponderance of evidence standard for defensive claims

COLOR OF TITLE1) (Defective) title2) Possession3) Payment of taxes for statutory periodCOLORADO: color of title, possession, and payment of taxes for uninterrupted 7 years (good faith)

ROMERO v. GARCIA (287) (Widow’s marriage gift)Void deed: missing signature of member of community (signed by father in law, but not MIL)But deed clear enough to establish boundaries and R paid P taxes

EASEMENTS

Servitude: general term for non-possessory right/obligation that runs with landEasement: 1) permanent, irrevocable right 2) to use or enter land 3) in writing

AFFIRMATIVE

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Common and not restricted by subject matter

EXPRESSIn writing, intended, necessary for use/enjoyment

Appurtenant: dominant and servient estates; benefited and burdened parcelso Benefit runs with the land by definitiono Burden runs with land unless no notice

In gross: only servient estate; only individual with right to enforce benefito Historically: neither benefit nor burden ran with the lando Modern: depends on language of grant (plain language and intent)

GREEN v. LUPO (458) (Motorcycles)WA: strong presumption for appurtenant, if anything in deed indicates intention to be appurtenantHeld appurtenant and assignable to future Os, even after land subdividedBurdened/servient: right to restrictions that do not unreasonably interfere with contemplated use

COX v. GLENBROOK (463) (Golf course)Benefited/dominant: right to improvements in spirit of original easement (appurtenant language)Easement is apportionable but cannot be widened past original intent or undue burden on servient

HENLEY v. CABLEVISION (468) (Telephone plus cable lines)Non-exclusive right: grantor retains rights over land use; grantee has permission to do specific thing

Grantee cannot give permission to third partiesHere, exclusive right: easement exclusive to grantee and apportionable to third partiesGrantee can expand scope of easement to include uses consistent with original intent

NON-EXPRESSNot in writing, by conduct, exception to Statute of Frauds

Estoppel Implication/previous use Necessity Prescriptive easement Constructive trust Public trust

BY ESTOPPELTransforming a license into an easement by estoppelEquitable remedy preventing O from denying access to licensee who reasonably relied to detrimentTest: where licensee shows reasonable detrimental reliance on the terms of a license

Usually, expended money with O’s knowledge/approvalRemedy: servient must allow ongoing access

HOLBROOK v. TAYLOR (427) (Built house)Haul road on H’s P permissibly used by T to build a house, then H revoked permissionPermission to use road may not be revoked

CONSTRUCTIVE TRUSTEquitable remedy imposing on O a burden on P for benefit of wrongfully deprived party

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Stopgap measure when other easements don’t work; halfway remedy

RASE (429) (Lake cabins)Promising right of occupancy during purchase then evicting after is constructive fraudCabin Os get 13 years possession or can accept payment for buyout

BY IMPLICATION/PREVIOUS USEPrevious common ownership of tractsPrevious use in a visible and continuous mannerUse reasonably necessary for enjoyment of dominant estate

Burden higher when grantor is claimant

GRANITE PROPERTIES (439) (Grocery store delivery)No easements in title but survey would have found consistent use of driveway, necessary to operation

BY NECESSITYPrevious common ownership of tractsAfter sale of one parcel, no other options except over previously joined landDo not have to show prior usePolicy: effectuate intent (no enforcement if parties intended to be landlocked)

Promote efficient utilization (petition to public official and compensation to O)

FINN v. WILLIAMS (446) (Donut hole land)Where O conveys parcel with no outlet except over O’s or strangers’ land, O must grant wayRight of way can lie dormant through several transfers as long as there was once unity of title

PRESCRIPTIVE EASEMENT1) Open2) Notorious3) Adverse4) Continuous for statutory period5) Acquiescence by person against (passive, not preventing use)No negative PEs to stop neighbors from blocking access, only positive to allow accessGrowing exceptions to no PE/AP against government or by the public

COMMUNITY FEED (311) (Gravel driveway)PE granted: general outlines with reasonable certainty, open and notorious, uninterrupted (by tacking),

O had not denied permission until after statutory period tolled

PUBLIC TRUSTPublic interests in government-owned landsPowers to exclude must be reasonably and lawfully exercisedTest: whether means of access ensures reasonably satisfactory public use of public lands

MATTHEWS V. BAY HEAD IMPROVEMENT ASSOCIATIONPublic has right to land covered by tide -> public has right of access over dry sand owned by quasi-publicStill has right to exclude if reasonably and lawfully exercised in furtherance of public welfare

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NEGATIVEUncommon and restricted by subject matterModern statute: protects conservation, historic preservation, solarNow, restricted subject matter goes into covenants

LICENSEInformal, temporary, personal, usually revocable grant to use or enter; no writing; not servitude

TERMINATIONAgreementOwn termsMergerAbandonment, if intended by conduct of easement holderAdverse possessionMarketable title acts: easement has to be renewed periodically in record

COVENANTSContractual promise regarding land use binding original parties, may run with land (servitude)

REAL COVENANTSPENCER’S CASE Writing Touch and concern*: use and enjoyment of land, market value Intent: express, “heirs and assigns,” presumed if touches and concerns Notice (burden side) Privity: a relationship between two parties

o Horizontal*: between original contracting parties Mutual: simultaneous; landlord-tenant, mortgagor-mortgagee, easements Modern: instantaneous at buy-sell

o Vertical privity*: between successors in interest of original contracting parties Strict: requires total alienation; sale Relaxed: would allow landlord-tenant Modern: non-hostile nexus with a future possessor

Damages or injunction, from law courts *Standards vary

WHITINSVILLE PLAZA v. KOTSEAS (481) (CVS)Relaxed vertical privity: sued both landlord and tenant for violationPrevious O on claimant side cannot sue

Benefits in gross: held by person without a direct interest in land, i.e., previous owner, not enforcedReasonable non-compete agreements touch and concern the land

1) intent and original purpose; 2) original consideration/value of covenant; 3) express restrictions; 4) writing, record, notice; 5) reasonableness in time, area, and duration; 6) unreasonable restraints, i.e., monopoly; 7) interference with public interest; 8) changed circumstances

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EQUITABLE SERVITUDETULK v. MOXHAY (created equitable servitudes) (Town Square => private individual, covenant survived even though no privity)

WritingTouch and concernIntentNotice (burden side)

Injunction only (and discretionary), from equity courts

WINN-DIXIE STORES V. DOLGENCORP (477) (Grocery store & dollar store)In writing, non-compete intended and touches and concernsBurdened lessee would had constructive notice from nationwide practice and previous dealings

IMPLIED RECIPROCAL NEGATIVE SERVITUDESMay be enforceable if:Common scheme/general plan

Restriction in all or most deeds to P in the area Recorded plat showing restriction Restriction in the last deed Observance of restriction by residence Language (runs with the land, intended to be mutually enforceable)

Intended beneficiaries Who enforces/benefits

Statute: developers must record a declaration with common scheme and intended beneficiaries

EVANS v. POLLOCK (502) (Marina)Common scheme can apply to parts of a subdivision for IRNSIRNS in lakefront subdivision with single-family residence restriction but not on hill with unsold lots

SANBORN v. McLEAN (506) (Gas station)Inferred intent and constructive/inquiry notice from residential restriction on 53/91 lots

RILEY v. BEAR CREEK (506) (Snow tunnel)O given actual notice but deed contained no restrictions; not bound by architectural control committee

COLORADO COMMON INTEREST OWNERSHIP ACTP ownership with mandatory assessments; not all residential subdivisionsDeclaration must be recorded and signed by grantor, not just subdivision plat

ABRIL MEADOWSDid not comply with CCIA, cannot enforce even with actual notice of restrictions

TERMINATION OR NON-ENFORCEMENTCommon law

Fundamental change in conditions (=> no substantial benefit to dominant)Relative hardship: harm to servient greater by a considerable magnitude than benefit to dominant

Statute: codifies some common law, specific circumstances

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• Acquiescence: complaining party has tolerated pervious violation of the covenant • Abandonment: complaining party has tolerated violations of the covenants by owners of other restricted parcels in the neighborhood covered by the covenant • Unclean hands: complaining party has violated the covenant himself • Estoppel: Owner of servient estate changes his position in reliance on the oral statement of dominant estate owner saying they won’t enforce the covenant. • Laches: if covenant has been ignored/ breached from substantial period of time (less time than prescriptive E) the court may find that unexcused delay in enforcing covenant prompted investment in reliance • Marketable title acts: as w/ E many states have marketable title statues that terminate restrictive covenants if they are not re-recorded after a specific time• Merger: if burdened/benefitted estates come under common ownership the covenants will terminate • Release: all parties affected may agree in writing to terminate • Prescription: open and notorious violation of the covenant w/o permission for the statutory period may terminate the covenants by operation of the statue of limitations • Expiration in instrument (if covenant expires naturally) • Violates law or public policy (includes racially based covenants—Shelley v. Kramer) • Language in instrument: Many subdivisions or condominium associations are subject to covenants that terminate w/in a stated number of years if not periodically renewed. • Prescription. Open and notorious violation of the covenant w/out permission for the statutory period may terminate the covenant (SOL).

EL DI v. BETHANY BEACH (519) (Dry town)Fundamental change in conditions (liquor sold nearby, brown-bagging), acquiescence/abandonment by change in zoning (allowing commercial) => change in intended character of neighborhood that renders benefits underlying the restriction incapable of enjoymentUnreasonable and inequitable to enforce restriction on alcohol sales

BLAKELY v. GORIN (527) (Ritz-Carlton)Relative hardship analysis (“best use” law and economics policy analysis)

Covenant impeding use of property in order to protect light and air = unreasonable, $ damages Statute: enforceable only when providing an actual and substantial benefit, not if harm is greater than benefit by a considerable magnitudeCite to changing character of area to invalidate covenant preserving light and air

Only damages for loss of light and air

COLORADO STATUTESVoids unreasonable solar restrictionsNothing based on race or religionSupreme Court voids modifications of covenantsPrevents use of P for hazardous waste storage

HOMEOWNERS ASSOCIATIONCreated by declaration filed by developer prior to sale of first lotCreates power to sue breaches of covenantsOnly owners (not tenants, family members) have right to voteCONDOS

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Created by a declaration with local office or registry of deedsOwnership interests/voting determined by size of unitCOOPERATIVESCorporation owns building, individuals buy shares of corporation and lease individual units

RACIALLY RESTRICTVE COVENANTSGenerally deal w/ them by (1) statute; (2) cy pres; (3) rule against forfeitures; (4) or allow to fail.

SHELLEY v. KRAEMER (Racially restrictive covenants)EPC claim: courts enforcing a racially restrictive covenant = state action under 14thParties had already willing contracted for sale

EVANS v. ABNEY (Racially restrictive park)Trust failed of essential purpose (whites only), reverted to heirs, permissibly closed parkCy pres would have allowed the state to keep the park open to meet “general purpose” of the gift (charitable), but found to not apply

FAIR HOUSING ACT OF 1968: Bans discrimination on grounds of race, color, religion, or national origin in sale or rental of housing. Exception for single family and owned occupied buildings of 4 or less units. Damages: Compensatory + punitive (Intentional infliction of emotional distress?)Dual goals of discouraging discrimination and encouraging integration not met.

CRITICAL RACE THEORY (CUMMINGS)1) Racism is so pervasive so as to be nearly unrecognizable

Need to expose racism where it exists2) Challenge experience of white European Americans as normative standards

Change storytelling and narrative3) Attack liberalism and interest convergence theory

Not enough for whites to tolerate minority advancement where it serves their own self-interest4) Expose flaws in color-blind view of society

Justice only from recognizing and changing societal willingness to tolerate racism

ESTATES AND FUTURE INTERESTS

STEPS1) Classify present possessory estate.2) Is there a future interest?3) Is the future interest enforceable?

a) State the title.b) Does the RAP potentially apply? FI cannot be executory interest that is uncertain to happen.c) If yes, is the RAP violated? Must be vested and closed for no longer than lifetime + 21 years.d) If yes, what is the remedy? Strike the title.

4) If yes, has the triggering event occurred?

THEMESOwnership v. societal values

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Dead hand control v. contemporary circumstancesConsolidation v. dispersalFeudalism to market capitalism

NATUREPurchase: O to A.Limitation: and _____Fee simple absolute: O to A and heirs; modern: O to ALife estate: O to A for life.Term of years: O to A for __ years.

LIMITATIONDeterminable: ends early by own terms; until, so long as, while, during

Before punctuation mark ending description of A’s estateCondition subsequent: interrupted if grantor takes action; but if, provided, on condition, however

After punctuation mark ending description of A’s estate

GRANTOR FUTURE INTERESTFee simple: no future interestFee tail, life estate, term of years: reversion (waits patient for natural end)FS determinable: possibility of reverter (waits for event to occur)FS condition subsequent: right of entry (right to interrupt if condition occurs)

GRANTEE FUTURE INTERESTFT, LE, ToY to A (inherently limited estate) then to B: remainder

Vested remainder: ascertained person (born and identified) and not subject to condition precedentAbsolutely vested: O to A for life, then to BVested subject to open: O to A for life, then to B’s children (B has one child)Vested subject to total divestment: O to A for life, then to B, but if B gets married, then to CCondition precedent: condition other than prior estate ending that must be met

Contingent remainder: unascertained person or subject to condition precedentIf condition is fulfilled and person born and identified, becomes vested remainder

FS determinable: executory interestShifting: title goes from grantee to grantee; O to A for life, then to B.Springing: title goes from grantor to grantee; O to A if and when A reaches 30.

FS subject to executory limitation: executory interest

REGULATORY RULES1) Rule prohibiting creation of new estates2) Rule against unreasonable restraints on alienation3) Rule against perpetuities4) Interpretive rule prohibiting waste of present estate5) Prohibition on invalid racial conditions6) Rule against unreasonable restraints on marriage

DEATHO to A for life, then to B for life, then to C.

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Title: A has PPE in LE, B has VR in LE, C has VR in FSAA dies after conveyance -> B gets PPE, C has VR in FSAB dies before A -> A has PPE in LE, C has VR in FSAC dies before A and B -> A has PPE in LE, B has VR in LE, C’s estate has VR in FSA

REMOVING CONDITIONSO to A and heirs, but if A divorces, then to B and heirsTitle: A has PPE in FSSEL, B has shifting EI in FSAA divorces -> A divested, B has PPE in FSAA dies without divorcing -> A’s estate has FSA, B has nothing

VESTING OF CONTINGENT REMAINDERO to A for life, then to A’s first child if A graduated from law school.

At conveyance, not in law school and no childrenTitle: A has PPE in LE, 1st has CR in FSAA graduates -> A has PPE in LE, 1st has CR in FSAA graduates and has a child -> A has PPE in LE, 1st has VR in FSA

ALIENABILITYReversion/remainder can be sold to someone else

MERGERCommon law: same person owns LE and next vested interest but with CR in between

Vested interests merge, CR destroyed1. O to A for life, then to B for life, then to C

A conveys LE to C -> no CR, B still has VR in LE2. O to A for life, then to B for life if B has reached 21, then to C

A conveys LE to C -> B’s CR and LE destroyed, C has FSA

CONTINGENT REMAINDER DESTRUCTIONCommon law: if condition not met by end of preceding, CR destroyed, goes to next vested estate Modern: no destruction, moves onto next vested estate subject to condition being met

O to A for life, then to B if B reaches 35.Title: A has PPE in LE, B has shifting contingent EI in FSA, O has reversion

A dies when B is 19Common law: B’s CR destroyed, O gets reversion to FSAModern: O gets reversion then becomes O to B if B reaches 35.

O has FSSEL, B has springing EI in FSA

SHELLEY’S CASESame document, conveys a LE to grantee, AND a remainder that that grantee’s heirs => conveyance to grantees heirs is read as a conveyance to the granteeCommon law: LE in grantee with remainder to grantee’s heirs becomes FSA in granteeModern: abolished; grantee’s heirs have CRO to A for life, then to A’s heirs

Common law: A has FSAModern: A has LE, heirs have CR

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DOCTRINE OF WORTHIER TITLEWhere inter vivos conveyance creates FI in grantor’s heirs, no CRO to A for life, then to O’s heirs (O is still alive)Title: A has LE, O has reversion

Can be trumped with express language

RULE AGAINST PERPETUITIESTo limit dead hand control, promote alienability (transferability), while preserving O’s intent and liberty

RULE1) Future interest is void 2) unless it is certain to vest (or fail)3) within 21 years after the death of some life in being4) at the creation of the interest

COVERED FIsContingent remainders: O to A for life, then to B if B has gotten marriedVested remainders subject to open: class gifts where some interests are vested and others are not

O to A for life, then to A’s grandchildren (A has one grandchild)Executory interest: O to A while A serves in the army, then to B

O to A and heirs; however if B marries, then to B.

NOT COVERED FIsFuture interests in grantor: reversion, possibility of reverter*, right of entry*

May be limited by statuteVested remainders except class gifts (subject to open)

STEPS1) State the title.2) Does RAP potentially apply?3) If yes, is the RAP violated?4) If yes, what is the remedy?Not whether the interest might vest and close but whether there is any possibility it might notREFORMSWait and see doctrine: court will wait out perpetuities period to see if interest vestsCy pres: if conveyance has limitation greater than 21, reduce to 21 IF it would vest interestUniform statutory RAP: must vest within 90 years after date of creation

Only gifts or wills, not commercial transactions*Cut-off: some jurisdictions, possibility of reverter and right of entry void after 30 years of creation

E&FI RULES OF INTERPRETATION1) Is conveyance ambiguous?

If no, plain meaning governs.2) Apply interpretive rules.

Grantor’s intentPresumption against forfeiture

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OthersNot absolute rules

Use policy rationales: protect owner’s rights and security, protect possessor, facilitate market

AMBIGUOUS CONVEYANCES

WOOD v. FREMONT COUNTY (616) (Hospital)Presumption for fee simple absolute in favor of stability and alienability

Insufficient evidence of grantor’s intent of FSD or FSSCSLimitations must use plain language and convey grantor’s intent to create FSD or FSSCS

CATHEDRAL v. GARDEN CITY (619)Presumption for fee simple absolute even in charitable cases

Court still found right of entry, but no reverter

(619) (Creditor prevention)Life estates can be conveyed by implication or explicit language as long as there is intentLimiting conditions on fee simple absolute void, unless granted to corporations

Goes to unconditional right to alienate

WASTEVoluntary: active trashingPermissive: neglectAmeliorative: increase value

MOORE v. PHILLIPS (650) (Gma not taking care of property)Life tenant also has duty to not waste, other than normal wear and tear

NEW ESTATESJOHNSON v. WHITON (626) (Heirs on father’s side)Rule against creation of new estatesIf ambiguous, must fit into existing category; heirs on the father’s side -> fee simpleMA: one of few to allow FT but must be drafted consistent with rules

ALIENATIONBalancing utility/harm for restraints on alienationFSA: no restraint, repugnant to feeLesser estates & charities: more readily restrained

Term of years: T cannot subletCATHEDRAL: found FSSCS interruptible with right of entry

HORSE POND FISH & GAMERule against unreasonable restraints on alienation

Factors include: duration, number of people affected, why restraint was imposedCovenants for gifts and charitable organizations cannot be dissolved even if conditions unreasonable

MARRIAGE

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Donative transfer to prevent any first marriage: invalidDonative transfer to prevent some first marriage: valid unless unreasonableDonative transfer to prevent remarriage: valid if by 1st spouse and reasonable

CONCURRENT INTERESTSOwnership shared simultaneously among more than one person/entity

TENANCY IN COMMONWhere two or more people simultaneously own P with no right of survivorship

1) Creation in writing: “O to A and B as tenants in common”2) Each has right to possess whole3) May have different fractional interests4) May have inter vivos transfers5) Descendible and devisable (other TC has no right of survivorship)

OLIVAS v. OLIVAS (TC) (671) (Girlfriend)Only duty to pay rent to T not in possession if there is actual or constructive ouster

Constructive ouster: joint occupation is impossible or impracticalVoluntarily moving out is not ouster; remaining T has no duty to pay rent to leaving T

CARR v. DEKING (TC) (674) (Farmland)One T has right to possess whole; therefore, can rent entire P without other T’s permissionOther T has to accept terms of lease, even after death of lessor TC

JOINT TENANCYWhere two or more people own P with a right of survivorshipMust be united in: time, tenancy/title, interest, and possession

1) Created at same moment in same written conveyance2) Each has right to possess whole3) Must possess equal fractions4) Inter vivos transfer leads to severance and TC5) Not descendible or devisable (JT has right of survivorship)

CANTERBURY v. TAYLOR (COLORADO)Individual can convey to himself and others as JTs without straw man; intent not formalities

Right of survivorship: if JT dies, interest transfers to other JTs in equal fractionsSeverance: JT severed if one JT transfers interest during lifetime

By SPAM: sale, partition, agreement, and mortgage (in title theory states; CO is lien)

TENHET v. BOSWELL (JT) (675) (Leased JT)One JT leases P without consent of second JT then diesLease does not sever JT but ends upon death of lessor JT, surviving JT gets ownership without lease

RULE OF INTERPRETATIONIf ambiguous, interpret as tenancy in common

OBLIGATIONS AND RIGHTS

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Co-owners must share expenses, maintenance and repairIf only one co-owner in possession:

Rent to others? Generally, no duty to payOuster? If actual or constructive, pay rent

TENANCY BY THE ENTIRETYHistoric marital P: H had legal power to act for entirety; prenups and trusts to protect W’s P rights

Dower: W had LE in 1/3 of H’s estateCurtesy: H had LE in all of W’s estate

Old common law: marriage was “feme couvert” (from “feme sole”); H had full controlMarried Women’s Property Acts: married women get same right to K and hold P

TE: marital entity still controlled by H but W has right of survivorshipAbout 20 states still have it, CO has recently abolished

Elements:Legally marriedPartition only by divorceInterest of one cannot be sold, etc. without other’s consent

ROS cannot be destroyed by unilateral conveyanceCreditors cannot attach P to satisfy debts of only one spouse w/o consent

SEPARATE PROPERTYDuring: each separately owns and manages P acquired before and during marriage

Subject only to choice to intermingle and duty of supportDivorce: equitable distribution of both Ps to achieve fair result based on multiple factors

Including increase in value of separately owned P and debts incurred during marriageDeath: dispose by will or if intestacy forced share depending on other descendantsCOLORADO: excludes P individually acquired by gift/inheritance and excluded by prenup

Intestacy: get 50-100% depending on other descendants

COMMUNITY PROPERTYDuring: P acquired individually during or after by gift, devise is separate; all other community

Both have to consent to alienation/mortgage; fiduciary duty to “community”/other spouseDivorce: get own separate P plus half of community P, equitable distribution

Prenups determining separate or community must have fundamental fairnessDeath: right to dispose of separate P and half of community

PRE-NUPTIAL AGREEMENTSEnforceable unless:

Lack of voluntarinessUnconscionableInsufficient disclosure of information (not fair and reasonable)Substantial injustice

HOMESTEAD LAWSProtection for primary residence from debts of decedent spouse so long as survivor lives

Can stay in homeLimits in equity and law [CRS 38-41-201]

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KRESHA v. KRESHA (679) (Lease to son)Non-consented lease to son survives after W granted entire parcel in dissolution proceedingsSimilar to H leasing fee simple interest and W holding remainder

SAWADA v. ENDO (682) (post Married Women’s Property Acts)Group 1: TE same; H may convey entire estate, subject to H’s creditors and W's ROSGroup 2: interest of debtor spouse subject to creditors, subject to ROS, except homesteadsGroup 3: no unilateral conveyances, creditors cannot reach interest or ROSGroup 4: unilateral conveyances and creditors can reach interest and ROSMajority: group 3 so long as non-fraudulent; dissent: group 4

Separate Property – Adopted by CO. During marriage Each spouse separately owns and manages property acquired before and during

marriage, Subject only to (1) choice to intermingle (2) duty of support

On Divorce Equitable distribution is subject to a wide range of factors such as economic need, status, rehabilitation, contributions of the parties, and sometimes fault (gives trial judge great discretion).

On Death A spouse may dispose of her P by will. Many states provide for a statutory forced share of the decedent’s estate, effectively allowing the widow or widower to override the will and receive a stated portion (usually one-third to one-half) of the estate.

CO revised statues: “Marital property” subject to equitable division, no fault jurisdiction, Intestacy (amount inherited at death): 50%-100% depending on whether other descendants

Community Property – During marriage All P acquired during the marriage, including earnings, is community P and is

owned equally by both spouses. Analogous to a partnership [Most states allow spouses to change or “transmute” their property from separate to community P, and vice versa, by written agreement]. Both have to consent to alienation, mortgage

On Divorce Equitable distribution is subject to a wide range of factors such as economic need, status, rehabilitation, contributions of the parties, and sometimes fault (gives trial judge great discretion). Each gets separate property + ½ community (CA) Equitable distribution (AZ, TX, WA)

On Death A spouse may dispose of her separate P and ½ of the community P by will.

LEASEHOLDS

TYPE OF LEASEHOLDSTerm of years Lasts for a specified period of time determined by the parties—set in

lease. The death of either party does not terminate the tenancy.- comply w/ SOF; termination set in lease

Periodic Tenancy Renews automatically at specified periods unless either the landlord or

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the tenant chooses to end the relationship.- e.g. month, termination set by statute

Tenancy at Will Unspecified duration, in theory terminate w/o notice but most jurisdictions require 1 month

- Traditionally, death of either L or T terminates tenancy at will.Tenancy at Sufferance A tenant rightfully in possession who wrongfully stays after the leasehold

has terminated- Holdover T ; short in duration → until L accepts rent or evicts

Term of years: must comply with SOF; termination set in leasePeriodic tenancy: renews at specific period; termination set by statuteTenancy at will: unspecified duration; in theory terminate at will but most require 1 month noticeTenancy at sufferance: holdover tenant, short in duration; L either accepts rent or evicts

Tenants and Landlord’s Duties/RightsTenant Landlord

Pay rent Right = Evict but w/ [summary] process Relet/find new tenant

Repair [general upkeep + report problems to L; NO waste = don’t remove fixtures]

Duties = Mitigation (Sommer)- Even if T is breaching party

Obey other covenants or “material terms” of the lease [subletting, special repairs, etc]Obey law [noise, nuisance, etc]Relinquish possession → L’s reversionary interest → conflicts about occupancy

Laws on rent acceleration clauses and security deposits [781]

COLORADO TERMINATIONTenancy may be terminated by notice to quit in writing:

1 year or longer tenancy, 3 months notice6 months – 1 year tenancy, 1 month notice1 – 6 months tenancy, 10 days

TENANTS’ DUTIESRepair: based on common law obligation of life tenant not to commit waste

Basic repair and upkeepNo removal of fixtures; what can’t be removed without substantial harm to PContract/express agreement controls on repairs and fixtures

Pay rent: for failure to pay L’s recourse depends on if T stays or goesIf T defaults and stays:

1) Sue for back rent (and possession)2) Summary process (judicial process)No self-help (even in CO)

If T defaults and goes:1) Accept surrender: look for new T

Sue for back rent + damages (agreed – fair market) + reasonable costs of finding new TNo future liability for T

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2) Refuse surrender and re-let on T’s account: look for new TSue for back rent + (agreed – new (reasonable) rent) + reasonable costs of finding new TOriginal T liable if new T fails to pay

3) Ignore, wait, and sue: don’t look for new TWait to end of term then sue for full amount, qualified by duty to mitigate

Obey other covenants or materials terms of leaseObey law (nuisance, noise, etc.)

SOMMER v. KRIDEL (774)L has duty to mitigate damages from defaulting T; burden on L to prove reasonable mitigation

COLORADO MITIGATIONL has duty to mitigate, at least in commercial leasesUses mitigation in calculating damages

OCCUPANCY CONFLICTST’s right to assign or sublet: if lease silent, T has right

Assignment (entire term): T2 assumes T1’s duty to pay rent to LL and T2 have “privity of estate”, primary liabilityL and T1 still have “privity of K”, secondary liabilityT1 and T2 also have “privity of K”

*May be different if there are express termsSublet (term portion): T2 pays rent to T1 who is still liable to L

L and T2 have neither privity of estate nor KL and T1 still have “privity of K”, primary liabilityT1 and T2 also have “privity of K”, liability between

*May be different if L2 expressly promises to pay L; L may get injunction to pay rent

KENDALL v. PESTANA (758) (Assignment restrictions)Majority: where lease requires L’s consent for assignment, L may withhold consent arbitrarily

Args: Freedom of ownership, freely bargained for K, stare decisis, L has right to increased market valueMinority (CO): L can’t withhold consent unreasonably; use commercial reasonableness

Commercial Reasonableness: financial responsibility of assignee, legality of use, suitability of P for use

Args: Unreasonable rest. against alienation, duty of good faith and fair dealing

SLAVIN v. RENT CONTROL (763)No requirement of reasonable for L to withhold consent to assign/sublet in residential leases

Later extended to commercial leases

COLORADOCurrent trend to reasonableness, unless L negotiates for absolute right to withhold

LANDLORD DUTIESProvide possession

Common law and leasesIncludes covenant of quiet enjoyment

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Provide P that meets minimum standards of habitabilityEmerging in common law, regulations, statutes, leasesImplied warrant of habitability (CO)

COVENANT OF QUIET ENJOYMENTT has right of possession, not to be disturbed during tenancyL cannot deprive T of P during leasehold“Dependant” covenant: T’s duty to pay rent contingent on L not breaching covenantImplied term in every state by statute or common lawActual eviction: physical exclusion from possession

Traditional: Entire rate abatement for actual evictionR2: partial rent abatement for partial actual evictionT sues L for termination, damages, injunction

Constructive eviction: SINGSubstantial Interference with quiet enjoyment by L’s actions or failure to act; chronic problemNotice: T must give L notice and reasonable opportunity to fixGo: if L fails to fix after reasonable time following notice, T must vacate

Partial constructive eviction: deprived use and enjoyment of portion of P (MINJAK)R2: deprived use and enjoyment by L or someone in L’s control (BLACKETT)

MINJAK (782) (Dust and elevator shaft)T’s defense to not paying rent: unable to use 2/3 of loft due to L’s renovation and disruptive neighborsCourt finds constructive eviction and grants rent abatement (still using 1/3 of loft)

BLACKETT (785) (Cocktail lounge)Traditional: constructive eviction only when L interferes, not third partiesBlackett rule (adopted by R2): L liable for third parties whose conduct L could legally control

Probably not limited to only Ts or extended to all TsOther third parties: only 2; duty not to permit nuisances and duty to control common areas

IMPLIED WARRANTY OF HABITABILITYT has four options after breach, no need to vacate:

Move out and terminate lease (rescission)Repair and deduct (if allowed by statute)Reduce rent or withhold until court determines fair rental value (separate account)Injunctive reliefRemain in possession, pay rent, and sue for money damagesAdministrative penaltiesCriminal penalties

Traditional: “caveat lessee”; L has no implied duty and T must pay regardless, except for latent defectsMajority: “implied warranty” and L’s breach may affect T’s duty to payDe minimus v. “material” defect (what is habitable?)

1) Seriousness of defect and impact on habitability2) Length of time3) L’s notice4) T’s conduct5) Can P be made habitable?

No retaliatory eviction: Ts who report housing code violations cannot be penalized by L

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Satisfied by positive law (e.g., local housing code) or independent judicial conclusionCommercial leases have no implied warrantyLandlord must be given notice and reasonable time to fix itNon-waivable and no assumption of risk in most states even through express terms

Defect after lease commences subject to materiality inquiryCO allows T to bring private actn based on housing code (poss injnction, damages, sp enforcmt).

JAVINS (792) (1500 housing code violations)Court held IWH in housing code regulations, equitable defense to nonpayment

Historical, contract, and regulatory arguments

BLACKWELL v. DEL BOSCO (COLORADO)No IWH based on stare decisis2008 CO adopted IWH after municipal codes unenforced

REAL ESTATE TRANSACTIONSThree step process:

Pre-K stage: decision to sell, listing with broker, negotiations and offerPre Sale Agreement signed

Executory period: inspections, mortgage financing and loan application, appraisal and credit check, title examination, document preparationClosing, deed delivered

Post-closing: warranties of title, title insurance issued, deed and mortgage recorded

OFFERPrecursor to Pre Sale Agreement; disfavored compared to PSAContains: P description, purchase price, expiration date, signed by buyerMay be enforceable but doesn’t offer either B or S legal protections of PSA

Trend to be enforceable (if “essential terms” included): in writing, uses brokers, Ks should be binding

BROKERSCommon law duties: fiduciary duty to represented party and none to other party except to disclose adverse material facts

CO statutory duty for seller’s: includes title, physical condition of P, environment hazards (adverse material facts

Buyer’s: B may employ several, have no enforceable duties to SCO transaction brokers: represents neither side, responsibility only to deal itself

Exercise reasonable skill and care, disclose all adverse material facts, account for all money received, assist in complying with contracts and closing

PURCHASE & SALE AGREEMENTIn writingMaterial terms: P description, intent to sell, price, closing datePromises: convey good title, inspection, accurate description, no material defectsSignedGenerally deed takes place of PSA after signing

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ORAL K ENFORCEMENTPart performance: partial payment of purchase price, take possession of P, make improvementsEstoppel: reasonably reliable promise, reliance to promisee’s detriment, justice requires enforcementConstructive trust: fraud

BURNS V. MCCORMICK (850) (Old guy asks for care in exchange for house)Housekeeping and support are not part performance; no enforcement of oral promise

GARDNER V. GARDENER (854) (Black sheep brother tries to keep full title despite not getting loan)Land conveyed to brother as security for loan; no loan = brothers want P backOnly oral agreement but part performance overcomes SOF to allow in parol evidence

HICKEY V. GREEN (852) (Dirty double dealer)Oral promise to sell land plus deposit check and sale of current house requires estoppel

BREACH OF PSA (what constitutes a breach) Provide marketable title (S)

o “Unencumbered fee simple, free from reasonable doubt”o No encumbrances or mortgageso Not based on claim of adverse possessiono Not violating a zoning ordinanceo Can be waived

Refrain from any false statement of material fact about P (S)o Caveat emptor except: misrepresentation, fraudulent suppression, fraudulent

nondisclosureo S’s false statement of material fact, known to be false, reasonably relied on by B, causes

damageo Latent/patent defects

Reasonable efforts to obtain financing (B)o Warranty of habitability (builder of new home)

Remedies: specific enforcement, damages, rescission, lien on P

JOHNSON v. DAVIS (859) (Liability for nondisclosure, fraudulent concealment)S claims to have fixed ceiling stains; Bs discover gushing water after signing PSAOld common law: caveat emptor, little duty to discloseCurrent: no false statements (misfeasance) but not liability for nondisclosure (nonfeasance)Here: liability for nondisclosure of latent material defects, fraudulent concealment

DEEDS, RECORDING SYSTEM, & TITLE PROTECTION

DEEDResolves disputes between B and S after closing

ContentsPartiesP descriptionStatement of grantor’s intent to convey

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Grantor’s signatureCannot fail for lack of consideration

Delivery“Actual” delivery typical but mere “possession” is not enough

Present intent to transfer title + acknowledgement (notarized declaration)(generally)“Constructive delivery” also rests on intent

CO: acknowledged and recorded deed is evidence of delivery

TypesQuitclaim: S conveys title, no guaranty that it is goodSpecial warranty deed: S conveys own title since acquired, no defects prior to thatGeneral warranty deed: S conveys seisin, right to convey, encumbrances, QE, further assurances

Present: breached, if at all, at deliverySeisin: own interest purporting to conveyRight to convey: no restraints on alienationEncumbrances: no mortgages, servitudes other than those disclosed

Future: not breached, if at all, until B is disturbed in possessionWarranty (embodied in deed): will defend B if sued by someone with titleFurther assurances: will cure defectsQuiet enjoyment: won’t be disturbed by someone with legitimate claim of title

MARKETABLE TITLE: “unencumbered fee simple, free from reasonable doubt”, no encumbrances or mortgages, not based on claim of AP (majority view), not violating a zoning ordinance

BFP = bona fide purchaser is someone who paid money value and had no notice of the previous purchase of the same property [usually substantial pecuniary value, it does not have to be fair market value].

RECORDING SYSTEMResolves disputes between 2 Bs after closing

Purpose: state statutes to settle disputes between two subsequent purchasersCommon law (first in time, first in right) inequitable

Types (O to A, then again O to B; dirty double dealer)Race statute (rare): whoever records first winsNotice statute (1/2 states): B must be Bona Fide Purchaser (paid value and had no notice) to win

over AActual: B directly informed of A’s purchaseInquiry: B could have ascertained by inspecting PRecord/constructive: if A’s deed was properly recorded

Race-notice statute (1/2 states including CO): B must be Bona Fide Purchaser and record first to win over A (must have no notice of A’s purchase)

ApplicationsWild deed: deed null if entered on the records by grantor unconnected to chain of titleEstoppel by deed: grantor without interest cannot deny validity if later acquires interestShelter: BFP can convey, even to third party, with notice of an earlier transaction

Torrens systemquasi judicial proceeding to determine title, incontestable (high cost, not mandatory)

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SABO (880) (Dirty double dealer)Race-noticeL conveys to H before receiving patent from BLM, then to S after receiving patent; both recordedS wins; must follow chain of title BLM to L to S, L to H would not be in chain before L received patentThis is weird because of deed by estoppel by which if one transfers property that one doesn’t own and then come into ownership of that property it automatically transfers

ZURISTRASSEN V. STONIER (Brother forged deed)Forged deed = void ad initioPossible arguments: estoppel (representation, reliance, detriment), waiver (right, knowledge, intent), ratification (full knowledge + intent)

McCOY v. LOVE (889) (Fraudulently procured deed for mineral rights)Forged deed is voidDeed procured through fraud is voidable

Unless it has subsequently passed to a BFP, then too late to void

MORTGAGES Promissory note: promise from borrower to repay lender principal plus interestMortgage: additional promises from borrower (attached to P)

Pay note, maintain homeowner’s insurance, pay P taxes, pledge P as collateral to secure repaymentTitle theory: lender holds title, borrower has “equity of redemption”, non-judicial foreclosuresLien theory: borrower holds title, lender has “lien” in P, usually requires judicial foreclosure

Bank’s rights: foreclosure cuts off equity of redemption OR transfers title permanentlySell P to recover value of loan and can sue to recover difference (now often prohibited)

Statutory right of redemption = allows the mortgagor to buy back the property for the price bid at the foreclosure sale for a designated period (often a year) after foreclosure. - Try to encourage negotiations b/w owner/bank (can occur before or after foreclosure)- Many states do not do this b/c it decreases the market value of the P at the time of the foreclosure sale since the buyer cannot possess the P immediately and, in fact, has no assurance it will ever be able to possess the P.

CURRENT FORECLOSURE PRACTICES1) Borrower has right to bid2) Public notice3) Prohibition of deficiency judgments by bank against borrower (some states)4) Judicially supervised sale (some states) v. bank power of sale (others)5) Statutory right of redemption (for some period before foreclosure)6) Negotiation between owner and bank

FREMONT INVESTMENT & LOAN (84)AG brings injunction in quest to slow foreclosures and protect individual homeownersBank practices must be affirmatively permitted by statute, not silently allowed => unfairness standard was not retroactively appliedSubprime loans are considered unfair practices in violation of Consumer Protections Act and in violation of Massachusetts Predatory Home Loan Practices Act. An Injunction against foreclosing on these loans serves public interest.

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INTELLECTUAL PROPERTYConnections to RP: bundle of rights, non-owners’ rights, restraints on marketability, change over timeDepartures from RP: how to own an idea? How to exclude others from something intangible?

TRADEMARKName, symbol, or type of packaging that indicates the the source of goods or servicesOwners have exclusive right to use; particular good or service in a particular area

To protect consumers from confusion of different companies using same/similar namesTo promote competition by protecting a firm’s reputation

Distinctive under common law: relationship between mark and product considering:a) 1) Arbitrary or fanciful (Kodak)

2) Suggestive (Coppertone)3) Descriptive (Holiday Inn)4) Generic (computer)

b) Protection turns on if mark has acquired secondary meaning (source identifying)Sources of law:

Common law origins with many state remedies still availableCommon law: as long as use of TM continues; states: terms varyLoss by: abandonment, improper licensing or assignment, genericity

Commerce Clause, then federal statutes extending state protection (Lanham Act)10 years, renewable so long as used in commerce

Federal causes of action:Infringement: likelihood of consumer confusion

Injunction, D’s profits, damages sustained by P, costs of action, treble damages for bad faithDilution: blurring or tarnishment of famous marks

Injunction, damages only if willfully traded on the P’s goodwill in using the markState cause of action: exclusive right but no independent cause of action

Claim under state unfair competition lawPassing off and misappropriation of a distinctive mark

QUALITEX (189) (Dry cleaning pad)Lanham Act: any word, name, symbol, device, or combination thereof Common law: mark had acquired secondary meaningFunctionality limitations: prevents others from using features essential to product use/purpose

COPYRIGHTOwners of original works of authorship fixed in a tangible medium of expression have exclusive right to:

Copy, distribute, perform, or display; publish; make derivative worksLife of the author plus 70 years; corporate: 120 years after creation or 95 years after publication

Then enters public domainFederal law: Constitution, Art. I, § 8, Cl. 8; federal substantially preempts state

FEIST (195) (Phonebook)Facts not copyright-able, but compilations can be if sequence is originalFunctionality limitations: only so many compilation sequences can be original

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SUNTRUST BANK V. HOUGHTON MIFFLIN CO.GWTW TWDGParody = fair use?Balancing between property rights and speech rightsPromote the progress of science and the useful artsPurpose and character of the rightNature of the copyrighted workAmount and substantiality of the portion usedEffect of the use upon the market/value of the original work

PATENTGrant of a property right to inventor, differs from TM and copyrightFederal, exclusive right for:

1) Machine, method, composition2) Novel3) Non-obvious4) Useful20 years from date application was filed, extensions may be availableEffective only within US, territories, and possessions

Types:1) Utility: who invents or discovers any new and useful process, machine, article of manufacture,

or composition of matter, or any new and useful improvement thereof2) Design: who invents a new, original, and ornamental design for an article of manufacture3) Plant: who invents or discovers and asexually reproduces any distinct and new variety of plant

MOORE v. REGENTS (from earlier)Patients have no P interest in removed tissues after signing consentDoctors have fiduciary duty to disclose future uses of tissue (informed consent)Policy: encourage scientific innovations (using donations, not sales) and informed medical decisions

TAKINGSPrinciple: bar government for forcing some individuals to bear whole society’s burdensFifth: private P cannot be taken for public use without just compensationFourteenth: state cannot deprive any person of P without due processQuestions:

Who is a person (for Fifth protection)?What is private P?What does it mean for P to be taken?What counts as public use?What is just compensation and when is it due?

Types:Eminent domain: Fifth power to take private P for public use with just compensationDirect condemnation: government sues individual to take PInverse condemnation: individual sues government for taking without just compensation

Government taking types:Government condemnation: explicit takings, i.e., taking home to build highway

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Regulatory takings: not intended but has same/similar effect, e.g., statute preventing coastal development or diminution of economic value of P

Remedies: compensation or terminate regulation and pay for damages while in effectArguably not a taking when advances legitimate government interest and owner retains some viable use

Low “rationally related” standard of review

KELO (1074) (Blighted area)Intersection of public and private interests but economic development can be a public use

KENNEDY: only if public benefits outweigh private useO’CONNOR: only if P’s nature justifies taking (blight) and no alternativesTHOMAS: only if fully public ownership, use by public, or common carrier

PENN CENTRAL (1108) (Historical landmark)Ad hoc test for regulatory takings:

1) Economic impact of the regulationa) Reasonable interference with investment backed expectations? Only after historical

landmark declarationb) Remaining uses/diminution of value? Still maintain current functions

2) Character of the government actiona) Physical invasion? No, only airspaceb) Public good? Yes, preserves spirit of neighborhood, etc

TELEPROPTER MANHATTAN CATV CORP.Economic impact: minimal, reasonableCharacter of action: physical, public goodPhysical invasion => taking => requires compensation

Comparison to mailbox, etc, seems forcedTaking from a to give to b?

INDIAN TAKINGSProperty under the 5th amendmentrecognized title is compensable under the 5th amendmentcould be recognized through treaty/statute/executive orderaboriginal title must pass through federal gov't first (must be sanctioned by federal gov't) => without government recognition nobody can obtain title recognized by the 5th amendment

TEE-HIT-TON (109) (Alaska timber)Indian “right of occupancy” non-compensable under Fifth; not private P

Especially since tribe had not been specially recognized by CongressRemedy needs to be political solution through CongressMere possession does not constitute ownership for purposes of the 5th A. Alaska Native Claims Settlement Act (1971) → $1B to extinguish aboriginal title in AK

SIOUX NATION (114) (Black Hills subsistence rations)As trustee of Indian lands under Treaty of 1851, US must make good faith effort to award fair equivalent of recognized title

Did not, was a taking without just compensation

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Indians = extraconstitutional entities

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