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Flashcards in Real Property Deck (28):
1

Freehold Estates - Present Possessory Estates

  • Fee Simple Absolute
    1. "To A and his heirs" or "To A"
    2. absolute ownership of potentially infinite duration
    3. devisable, dscendible, alienable
    4. no future interest attached
  • Fee Tail
    1. To A and the heirs of his body
    2. Lasts only as long as there is a blood line of descendents to grantee
    3. passes automatically to grantee's lineal descendants
    4. reversion to grantor, or remainder to third party
  • Fee Simple Determinable
    1. "To A so long as", "To A until..." To A while". Grantor must use clear durational language
    2. Potentially infinite, so long as event does not occur
    3. Alienable, devisable, descendible, subject to condition
    4. Possibility of Reverter held by grantor
  • Fee Simple subject to condition subsequent
    1. To A, but if X event happens, grantor reserves right to reenter and retake"  Grantor must expressly reserve right or reentry
    2. Potentially infinite, so long as the condition is not breached and threafter until the holder of the right of entry timely exercises the power of termination
    3. Alienable, devisable, descendible, subject to condition
    4. Right if entry/pwer of termination held by grantor
  • Fee Simple Subject to Executory limitation
    • To A, but if X event occurs, then to B
    • potentially infinite, so long as stated contingency does not occur
    • Alienable, devisable, descendible, subject to condition
    • Executory interest, 
  • Life Estate
    • To A for life
    • Measured by life of transferee or by some other life
    • Alienable, devisable, and descendible if the some other life is still alive
    • Reversion to grantor or remainder to third party

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2

Future Interests

Grantor and Grantee

In Grantor

  1. Reversion - created when grantor grants estate of shorter term than his own (O to A for Life)
  2. Possibility of reverter - future interest held by a transferor of a fee simple determinable (O to A so long as X)
  3. Right of Entry/Power of termination - created when grantor grants estate by a fee simple subject to a condition subsequent (O to A but if liquor served, O has right of entry)

In Grantee

  1. Remainder - future interest that has the possibility of becoming possessory at expiration of prior estate and cannot divest that estate.
    1. contingent remainder - created in an unascertained person or subject to a condition precedent or both.  "to A if A reaches age 30"
    2. Vested remainder - created in an ascertained person and possession subject to no other condition precedent
      1. indefeasibly vested - holder certain to acquire interest (O to A for life, then to B)
      2. vested remainder subject to open - reaminder vested in a calss of persons
      3. vested remainder subject to defeasance - remainder that will be eliminated if a condition subsequent occurs (to A for life, and then to B, but if B ever sells liquor on the land, then to C)
  2. Executory Interest - Future interest in a grantee, which must shift or spring to become possessory
    1. Shifting - inrerest shifts in case of contingent event
    2. Springing - interest springs out in the future (upon condition)
  3. Transferability - Vested remainders are fully transferable, descendible, and devisable.  Contingent remainders and executory interests are fully transferable, descendable and devisable, provded survival is not a condition to the interest's taking
  4. Class Gifts -
    1. The rule of convenience - absent express contrary intent, a class closes when some member of the class can call for distribution of her share of the class gift
    2. Survivorship of a class member to the time of closing is usually unnecessary unless survival was made an express condition

3

Validity of Freehold Estates - Future Interests

  1. Destruction of Contingent Remainders - contingent remainders are destroyed if not vested at time of termination of preceding estate.
    1. "to A for life, remainder to A's children who reach 21" - if A has no children who are at least 21 at time of death, property reverts to grantor.
    2. Abolished in most jurisdictions.  Property reverts to grantor, A's children have springing executory interest
  2. Rule in Shelley's Case - a remainder in a life tenant-grantee's heirs is deemed to be in a life tenant herself
    1. To B for life, then to B's heirs - B has a fee simple.  B has no heirs while living, therefore. 
    2. B's heirs have a contigent remainder.  However, the contingent remainder has been abolished in most jurisdictions
  3. Doctrine of Worthier Title - A remainder in the grantor's heirs is ineffective, so grantor has a reversion.
    1. To B for life, then to my heirs at law.  B has a life estate.  grantor has a reversion
  4. Restraints on Alienation (transfer) -
    1. 3 types of restrictions
      1. Disabling - Can't state that any transfers of land are no force or effect
      2. Forfeiture - can't state the grantee forfeits the land if there's a tranfer
      3. Promissory - can't have a covenant forbidding alienation
    2. Effect of Rule
      1. if fee simple conveyed - all restrictions are unenforceable
      2. if life estate conveyed, disabling restraints will not be enforced, but others will be.
      3. if leasehold conveyed - restraints allowed
    3. restraints on marriage ?
    4. Rule Against Perpetuities - No interest in a property is valid unless it must vest, if at all, no later than 21 years after some life in being (measuring Life) at the creation of the interest.  If there's any possibility the interest might vest more than 21 years after a life in being the interest is void.
      1. Result - the effect of every contingent or executory must be known w/ certainty no later than 1 years after the death of all lives in being. 
      2. 4 Steps
        1. classify the future interests - 
        2. What are the conditions precedent to the vesting of the future interest
        3. find a measuring life - anyone alive at  time of transfer and named in the transfer or inferred in transfer as being central to the conveyance
        4. will we know with certainty, within 21 years of the death of the measuring life, if a future interest can take?  Two possibilities
          1. Executory interest vest only when they become possessory
          2. contingent remainders vest whtn the contingency occurs, and they become certain to become possessory
      3. Two Bright line Rules
        1. a gift to an open class that is condition on the member surviving to an age beyond 21 violates the common law RAP.
          1. Many shifting excetuory interests violate the RAP.  An executory interest with no lmit on the time within which it must vest violates the RAP. To A and his heirs so long as the land is used for farm purposes, and if the land ceases to be so used, to B.  Violates RAP
            Charity to charity exception -
      4. Reform of RAP
        1. Wait and See Approach - majority approach.  looks 
        2. Uniform statutory Rule against Perpetuities - codifies the common law RAP an din addition, provides for an alternative 90 year vesting period.  
        3. Cy Press Doctrine - Court can reform invalid interest to make it valid

4

Concurrent Ownership - Joint Tenancy

Joint Tenancy - each tenant has the right to possess the entire parcel with right of survivorship

  1. upon death, co-owners interest is immediately transferred to remaining joint tenants in equal shares.  
  2. Creation - To A and B as joint tenants with the right of survivorship (4 unities must be present
    1. Time - rights acquired at the same time
    2. Title - all joint tenants must acquire title by the same instrument (document)
    3. Interest - all joint tenant must have identical interests in the property 
    4. Possession - each tenant must have an equal right to possess the whole property
  3. Termination - the right of survivorship may be severed and the estate converted to a tenancy in common by SPAM - Sale, partition and mortgage
    1. Joint tenant can sell or transfer her interest during her lifetime
    2. Mere fact of entering into a contract for sale will sever the JT.  under the doctrine of equitable conversion, the JT is severed on the date of contract
    3. 3 ways to partition - voluntary, in kind (physical division via judicial action, forced sale 
    4. Effect of mortgage
      1. minority view - title theory of mortgage - mortgage severs the JT as to that encumbered share
      2. Majority view - lien theory of mortgage - mortgage will not sever the JT
      3.  

5

Concurrent Ownershp - Tenancy in Common

Tenancy in Common - each tenant has right to posses the entire parcel, no matter how small her fractional interest.  but there is no right of survivorship. 

  1. Upon deaht, co-owners itnerest goes to heirs
  2. fractional ownership only determines how the purchase price will be divided when property is sold
  3. Creation - To A and B or To A and B as joint tenants.  The only unity required is possession
  4. Termination - may be terminated by partition

 

6

Concurrent Ownership - Tenancy by the Entirety

Tenancy by the Entirety - husband and wife each has an undivided interest in the whole estate and right of survivorship

  1. Creation - To H and W.  Tenancy by the entirety may be presumed in some states where the 4 unities are present plus marriage
  2. Termination -
    1. divorce,
    2. mutual agreement
    3. execution by a joint creditor
  3. Involuntary Partion is not an option
  4. Creditors to one tenant cannot attach interest to property

7

Concurrent Ownership = Rights and Duties of Co=Tenants

Rights and Duties of Co-Tenants

  1. Possession - each party has a right to possess in whole
  2. rents and profits - co-tenant is possession has right to retain profits from her own use of property.  But she must share net rents from 3rd parties and net profits from explaining the land (mining, foresting, etc)
  3. Encumbrance - joint tenant may encumber her interest, but may not encumber the interests of other co-tenants
  4. Partition - Co-tenant has a right to judicial partition, either by phyusical division among co-tenants or by sale and division of proceeds
  5. Expenses - all co-tenants must contribute to necessary repairs.  there is no right of contribution for the cost of improvements.  all contribute to taxes or mortgage payment paid on the entire property.  but reimbursement to a co-tenant is limited to the extent of expenditures that exceed the rental value of her use.  

8

LT - Leasehold or Nonfreehold Estates

  1. Tenancy for Years
    1. A lease for a fixed determined period of time. does not have to be for years, just has to have known termination date from the beginning of the lease.
    2. No notice needed to termintate the tenancy. it ends on specified date
    3. a term of years greater than one year must be in writing
  2. Periodic Tenancy
    1. A lease which continues for successive or continuous intervals
    2. Creation
      1. may be created expressly "To T from month to Month"
      2. or by implication
        1. Land is leased with no mention of duration, but provision is made for the payment of rent at set intervals. 
        2. an oral term of years is in violatoin of the statute of frauds creates an implied periodic tenancy, measured by the way rent is tendered
        3. Holdover.  Landlord allows Tenant to stay beyond lease term.  then tenancy arises by way rent is tendered
    3. termination - must provide notice
      1. usually in writing
      2. notice must be at least equal to the length of the period itself.  exception is year to year tenancy, only 6 months notice needed
      3. parties may lengthen or shorten notice provisoin by agreement
      4. periodic tenancy must end at the conclusion of a natural lease period
  3. Tenancy at Will
    1. no fixed duration
    2. need expressly agree to a tenancy at will, otherwise it will be consdiered an implied periodic tenancy
    3. may terminate by either party at any time
  4. Tenancy at Sufferance
    1. when T has wrongfully held over past expiratoin of the lease
    2. allows L to recover rent
    3. lasts until
      1. L evicts T or
      2. elects to hold T to a new tenancy

9

Tenant's Duties

T's liability to Third Parties
  1. T is responsible for keeping the premises in reasonably good repair
  2. T is liable for injuries sustained by 3rd parties T invited, even where L has expressly promised to make all repairs
  3. when invitees sue T, T always looses. 

T's Duty to Repair

  1. Where the lease is silent
    1. T must maintain the premises and make ordinary repairs
    2. T must not commit wste
    3. Fixtures
      1. T must not remove fixtures, even if she installed them.  Fixtures pass to the owner of the land.
      2. Where it is unclear that a chattel is a fixture.  T may remove chattel that she installed as long as removal does not cause substntial harm to premises.
    4. If the lease expressly proved that T has a duty to maintain the property in good condition for duration of the lease
      1. At Common Law, T was resonsbile for any loss to the property, including loss attributable to nature
      2. today, T may terminate the lease if the premises are destroyed wihtout her fault

T's Duty to Pay rent

  1. T has duty to pay rent
  2. If T breaches this duty, and remains in possession of premises, LL may
    1. evict 
    2. continue the relatinoship and sue for damages
    3. LL cannot engage in self-help (i.e. change locks)
    4. Self-help is punishable civilly and crminally
  3. If T breaches duty, but leaves the premises, LL may SIR
    1. S - Surrender - LL can treat T's abandonment as imlied offer of surrender.  If unexpired term is greater than once year, then surrender must be in writing
    2. I - Ignore the abandonment and hold T responsible for unpaid rent
    3. R - Relet the unit.  Mitigate his damages.

10

Landlord Duties

  1. Duty to deliver possession
    1. english rule - majority - actual possession required.  T can get damages for prior Holdover T
    2. american rule - legal possession only required
  2. Implid covenant of quiet enjoyment
    1. applies to residential and commerical
    2. T has a right to quiet use and enjoyment without interference from LL
    3. Breached by actual eviction when L wrongfully evicts T
    4. breached by constructive eviction when SING
      1. S I- Substantial interference - attributiable to L's asctions or failure to act
      2. N - notice - T must give L notice of problem.
      3. G - Get out - T must vacate within a reasonable time after L fails to fix problem
  3. Implied warranty of habitablity
    1. applies only to residential leases - not waivable
    2. standard - premises must be fit for basic human habitation - look to housing code, etc
    3. when breached T may MR3. Move, repair, reduce, remain
      1. Move out and temrinate
      2. Repair and deduct cost from future rent
      3. Reduce rent or withhold all rent until court determiens fair rental rate
      4.  remain in possession and pay rent and then seek money damages
    4. Retaliatory eviction - If T lawfully reports L for housing code violations, L is barred from penalizing T
  4.  

11

 Easements

  1. Affirmative Easements - The grant of a nonposessory property interest that entitles its holder to go onto and do something on another's land, is called the servient tenement
    1. the privilege to lay utility lines, etc
    2. Created by PING
      1. P - Prescription - adverse possession.  remember COAH
        1. C - continuous use for statutory period
        2. open and notious use
        3. actual use
        4. hostile
      2. Implication - if previous use was apparent, and the parties expected use would survive
      3. necessity - landlocked setting
      4. grant - if more than one uear, must be in writing
  2. Negative Easements - the grant of a nonpossessory property interest that entitles its holder to prevent the sevient landowner from doing something that would otherwise be permissible
    1. 4 categories - LASS (light, air, support, stream of water from artificial flow. california allows negative easement for scenic views.)
    2. can only be created expressly
  3. An easement is either appurtenant to land or held in gross
    1. Appurtenant - when it benefits the holder in his physical use
      1. it takes 2 to make an easement appurtenant
      2. it passes automatically with the dominant tenement, regardless of whether it is even mentioned in the conveyance with the servient estate (unless new owner is bona fide purchaser without notice of easement)
    2. In gross - confers upon its holder only some peronsal or pecuniary advantage that is not related to his use
      1. right to place billbord, right to fish, hunt, right to lay power lines
      2. only one parcel involved
      3. not transferable unless it is for commercial purposes
  4. Termination of an easement - END CRAMP
    1. E - Estoppel - servient owner materially changes her position upon reasonable reliance on easement holder's assurance, then easement holder is estopped from enforcing the easement
    2. N - necessity - if created by necessity, it expires as soon as the necessity ends
    3. D - destruction of servient land will terminate easement
    4. C - Condemation  of servient land by eminent domain will terminate easement
    5. R - release will teminate 
    6. A - Abandonment of easement will terminate easement
    7. M - merger doctrine - easement is extinguished when title to the easement and titel to the servient land become vested in same person
    8. Prescription - adverse possesion - interference with an easement which is COACH

12

The License

The LIcense - a mere privilege to enter another's land for some delineated purpose

  1. not subject to the SOF, so no need for a writing
  2. Freely revocable at the will of the licensor, unless estoppel applies
  3. the classic license cases
    1. tickets - freely revocable licesnse - you can get kicked out of show at any time
    2. neighbors talking by the fence - creates an unenforceable oral easement which is a freely revocable license
  4. estoppel will apply to bar recovatoin only when the licensee has invested substantial money or labor or both in reasonable reliance on the license's contiuation

 

13

The Profit

Entitles its holder to enter the servient land and take from it the soil or some substance of the soil

This shares all the rules of easement

14

Covenants

  1. Promise to do or not do something related to the land (not an easement because it is not a property interest)
  2. can be negative (restrictive covenant) or affirmative (affirmative covenant) i.e. promise to paint common fence
  3. Distringuish equitable servitude based on the remedy
    1. P wants money then it is a covenant
    2. P wants injunctive relief, then it is equitable servitude
  4. Burden will run with the land when
    1. Writing - burden is in writing
    2. Intent - covenant is intended to run with the land
    3. Touch & Concern - the promise affects the parties legal relations as land owners
    4. Horiztontal and vertical privity
      1. Horizontal - nexus between the original promising parties
      2. Vertical - nexus between the seller and purchaser
    5. Notice to purchaser that parcel is burdened with covenant
  5. Benefit will run with the land if
    1. Writing
    2. Intent
    3. Touch and Concern
    4. Vertical privity

15

Equitable Servitudes

  1. Promise accompanied by injunctive relief
  2. will bind successors if:
    1. Writing -
    2. Intent
    3. Touch and Concern
    4. Notice of burden to successor
    5. Equitable Servitude
  3. Implied equitable servitude - will hold an unrestricted lot holder to a restrictive covenant if
    1. there was a general scheme of residential development which included the purchaser's lot
    2. The lotholder had notice of the promise contained in the prior deeds
      1. Actual notice
      2. inquiry notice - neighborhood conforms to a common scheme
      3. recorded notice
  4. Defense to equitable servitude
    1. changed conditions - where the party seeking release from the terms of the equitable servitdue must so that changed conditions are so pervasive that the entie area has changed

 

16

Adverse Possesion

  1. Elements
    1. continuous occupation
    2. open and notorious - such that the usual owner would see it 
    3. actual - entry onto land cannot be hypothetical, it cannot be symbolic
    4. hostile - the possessor does not have true owners consent to be there
  2. possessor's subjective state of mind is irrelevant - knowledge of encroachment does not matter
  3. tacking - one adverse possessor can tack on the time of another adverse possessor as long as there is privity between the two and no ouster
  4. Disabilities - SOL will not run against true owner who is afflicted with a disability at the inception of the adverse possession

 

17

Land Conveyance

  1. Two Steps
    1. the land contract, which endures until step 2
    2. the closing, where the deed become our operative document
  2. the land contract
    1. the standard - satisfy the statute of frauds
      1. writing
      2. signed by party to be bound
      3. must describe the land
      4. state some consideration
    2. exception  to SOF - the doctrine of part performance. if you have
      1. Buyer takes possession
      2. Buyer rmits all or part of purchase price
      3. buyer makes substantial improvements to the premises
    3. risk of loss
      1. equity regards as done what is done - equitable conversion
      2. thus once contract is signed, B is owner of the land, subject to the condition that he pay purchase price
      3. destruction - if between contract and closing, thep oerpty is destroyed, the buyer bears risk of loss unless contract states otherwise
    4. Implied promises
      1. Seller promises to provde marketable title
      2. standard - free from reasonable doubt (litigation) such as adverse possession, encrumbrances (liens, survitudes may be waived), zoning vilations
      3. Seller promises not to make any false statement of material fact
      4. contract contains no implied warranty of fitness 

18

The Closing

  1. Controlling doc is now the Deed.  
  2. Deed must LEAD
    1. Lawful execution of the deed. must be in writing, signed by granotr.
    2. Description - need not be perfect, only required to be an unambiguous and a good lead.
    3. Delivery - satisfied when grantor physically or manually transfers the deed to grantee.
      1. recipient can reject acceptance and deny delivery
    4. deed's delivered with an oral condition only prescribe to written deed.  oral condition has no effect
    5. delivery by escrow agent is acceptible.
  3. covenants for titel and 3 types of deed
    1. quitclaim
    2. general warranty deed
      1. warrants against ANY defects in title. 
      2. present covenants given
        1. covenant of seisin - grantor warrants that he owns the estate
        2. convenant of right to convey - grantor promises that he has power to make conveyance
        3. covenant against encrumabances - grantor promise that there are no servitudes or mortgages on the properyt. 
      3. future covenants -
        1. covenant for quient enjjoyment - no other party has lawful claim to title
        2. coven ant of warranty - grantor promises to defend against any claims of title by others
        3. covenant of further assurances - grantor promies to do whatever future acts are reasonably necessary toprefect the title
    3. special warranty deed
      1. grantor promises that he has not conveyed this estate to anyone other than grantee and
      2. grantor promsises that the estate is free from encumbrances made by the grantor. 

19

Recording System

  1. Notice Jurisdiction
    1. second Bona Fide Purchaser has superior claim over blackacre than first bona fide purchases.  does not matter who records it first
  2. Race Notice Jurisdiction
    1. the first bona fide purchaser to properly record the deed wins
  3. Only bona fide purchasers protected.  Donees are  not protected.  
  4. Three Chain of title problems
    1. the shelter rule - one who takes from a BFP will prevail against any entity that the BFP would have prevailed against.  If second BFP would have won in the notice or race notice situation above, then so does the person he transfers blackacre to in the future
    2. The problem of the wild deed - a deed is incapable of giving record notice of its existance if it has a grantor unconnected to the chain of title
    3. estoppel by deed - one who transfers property that he has no interested in, is estopped from denying that transfer if he should later acquire the proprety in question

 

20

Mortgage

A mortgage is a conveyance of a security interest in land, intended by the parties to be collateral for the repayment of a monetar obligation.  it is a union between a debt and the voluntary transfer of a security interest in debtors' land to secure a debt. 

  1. Legal Mortgage - mortgage evidenced by writing
  2. Equitable mortgage - as between immediate parties parol evidence is freely admissible to show parties true intent.  
  3. parties rights
    1. mortgagor has title and right to possession
    2. creditor-mortgagee has lien and right to enforce if there is a default
  4. Creditor mortgageee can transfer his interest by endoring the note and delivering it to transferee, or by executing a separate document of assignment.  the mortgage follows the note
    1. if note is endorsed and delivered, then transferee is eligible to beomce a holder in due course.  this means that he takes the note free of any personal defenses that could have been raised against original mortgagee, such as
      1. lack of consideration
      2. fraudulent inducement
      3. unconscionabilit
      4. waiver
      5. estoppel
    2. HDC is still subject to real defenses, such as
      1. material alteration
      2. disability
      3. fraud in the factur (a lie about the instrument)
      4. incapacity
      5. illegality
      6. infancy
      7. insolvency
    3. to be HDC
      1. note must be negotiable, made payable to named mortgagee
      2. note must be endorsed, signed by mortgagee
      3. note must be delievered to transferee
      4. transferee must take the note in good faith, w/o notice of illegality, AND
      5. transferee must pay value for the note, meaning some amount that is more than nominal
  5. Debtor-mortgagor may transfer his interest, but lien remains on the land
    1. subsequent buyer takes property subject to lien
    2. plus, all recording statutes apply
    3. personal liability still be original debtor.  buyer may have secondary liability if he assumed the mortgage

21

Foreclosures 

  1. Must employ proper judicial proceedings
    1. proceeds of foreclosure sale must go to amount owed on note.  mortgagee is allowed a deficiency judgment if in recourse state
    2. if surplus exists after sale, then junior liens paid, then to debtor
  2. effect of foreclsoure
    1. foreclosure will terminate junior interest, but not senior interests.  
    2. foreclsoure does not affect any interest senior to the mortgage being foreclosed.  new buyer has no liability on senior note, but senior note can foreclose if not paid
  3. Priorities
    1. as a creditor, you must record.  without recording, you have no mortgage
    2. once recorded, priority is determined by first in time first in right
    3. exception given to purchase money mortgages.  those always have priority
  4. redemption -
    1. equitable redemption - at any time prior to sale, debtor has right to redeem the land and free it from the mortgage
      1. once sale has occured, right to redemtion is cut off.
    2. statutory redemption - gives debtor statutory right to redeem for some fixed period after sale/judgment has occured.
      1. owner has right to redeem at foreclosure sale price, rather than original debt price.  
      2. owner has right to possess during this period.  
      3. redemption nullifies the sale.  

22

Lateral Support

  1. if land is improved by buildings and an adjacent landowner's excavation causes improved land to cave in, excavator will be liable only if he acted negligently
  2. strict liability does not attach to excavators actions unless plaintiffs show that because of defendants actions, plaintiffs land would have collapsed even its natural state

23

Water Rights

  1. Riparian Doctrine
    1. water belongs to those who own the land bordering the water course
    2. these people are known as riparians who share the right of reasonable use of the water
    3. thus one riparian will be liable if his unreasonble use intereferes with other's use
  2. Prior Appropriate Doctrine
    1. water initially belongs to the state, but the right to divert it and use it ca nbe acquired by individuals regardless of their proximity to riparian areas
    2. RIghts are determined by priority of beneficial use
      1. normal allocation is first in time first in right
      2. any productive usse, including agriculture is sufficien to create appropriate right
      3.  

24

Ground Water

  1. The surface owner is entitled to make reasonable use of ground water
  2. use must not be wasteful

25

Surface Water

water that comes from rain, springs, or melting snow and which have not yet reached a natural watercourse or basin

  1. the common enemy rule - a landowner may change drainage or make any other changes on his land to combat the flow of surface water
  2. many courts have modified the rule to prohbit unnecessary harm to others

 

26

Possessor's Rights

The possessor of a land has the right to be free from trespass and nuisance

  1. Trespass - invasion of land by tangible physical object.  to remove trespasser bring an act for ejectment
  2. Nuisance - substantial and unreasonable interference with another's use and enjoyment
    1. no nuisance if the plaintiff is hyper sensitive

 

27

Eminent Domain

  1. Govt 5th am power to take private property for public use in exchange for just compensation
  2. explicit taking - govt act of overt condemnation
  3. implicit or regulatory taking - a gov regulation that, although not intended to be a taking, has the same effect
    1. economic wipe- out of your investment
    2. remedy - govt must either
      1. compensate the owner
      2. terminate the regulation and pay the onwer damages

28

Zoning

  1. Pursuant to police powers, govt may enact statutes to reasonably control land use
  2. the govt may grant a variance if
    1. undue hardship
    2. that the variance won't work detriment to surrounding property value
  3. the non-conforming use - a once lawful, existing use now deemed non-conforming by a new a zoning ordinance.  It cannot be eliminated all at once, unless just compensation is paid.  otherwise it would be deemed a taking
  4. Unconstitutional exactions
    1. those amenities that govt seeks in exchange for granting persmission to build
      1. such as new street lights, small park, wider roads
    2. to pass constitutional scrutiny, these exactions must be resaonably related both in nature and scope to the impact of the proposed development.