THE QUIZ Flashcards
1
Q
What is real property?
A
Land
2
Q
T/F - Each state has its own property law, though most states have similar rules
A
True.
3
Q
What is “blackletter law?”
A
Law that is free from doubt and generally well known.
4
Q
What is the relationship between law and policy?
A
Policy is the rationale behind law - law is backed by power
5
Q
What is meant by the “bundle of sticks” metaphor in property law?
A
A piece of property can have multiple individuals and entities with rights to it – each may have some rights but not possess the full “bundle”
6
Q
What is NOT one source of property law? (Just name one)
A
Restatements????
7
Q
T/F - The laws of the Oregon Territory prohibited slavery but also prohibited free black people from coming to the territory
A
True
8
Q
T/F - Property rights can never be held by a sovereign; they are exclusively held by individuals and corporations.
A
False
9
Q
T/F - A person with property rights has full entitlement to do whatever they want on the property.
A
False - they have certain rights and responsibilities
10
Q
T/F - All people share one set of property rights to public resources as members of the public within a jurisdiction.
A
True.
11
Q
What is the Doctrine of Discovery in property law?
A
Right of discovery against all competing nations by conquest or purchase
12
Q
What best describes Indian title in the US under the law announced in Johnson v. M’Intosh?
A
Right of occupancy subject to doctrine of discovery
13
Q
T/F - In the Pacific Northwest, the treaty fishing tribes have property rights in the form of easements extending off their reservations to usual and accustomed fishing sites.
A
True
14
Q
T/F - The property rights that tribes have were granted to them by the federal government after the tribes were defeated in war.
A
False - Tribes retained their pre-existing right of occupancy
15
Q
T/F - Tribes have only the right to fish at usual and accustomed sites and no right to a fair share of the harvest.
A
False - they have a right to their fair share of the harvest up to a living standard.
16
Q
If a tribe wants to sell a piece of land within its reservation to a private property, what must it do?
A
Get permission from the federal government
17
Q
T/F - Americcan property law has a basis in medieval Catholic doctrine
A
True - Papal Bulls - Discovery doctrine is Catholic
18
Q
T/F - Stevens treaties afford an easement for tribes to access usual and accustomed fishing sites located on private property.
A
True.
19
Q
T/F - Terms in Indian treaties are interpreted according to definitions in Black’s Law Dictionary.
A
False - they are interpreted according to how the tribes understood them at the time of signing.
20
Q
T/F - The public trust doctrine has roots predating the US.
A
True - Roman origins - by law of nature these things are common to humankind
21
Q
T/F - Courts have found it beyond legislative authority to convey a streambed to a private property.
A
True.
22
Q
The court in Robinson found that the public trust originates in what?
A) statute
B) the social compact with government
A
B) The social compact with government
23
Q
The duty of a trustee under the public trust is called ___________
A
Fiduciary duty to prevent substantial impairment of public trust resource
24
Q
T/F - The Lake Michigan case found that conveyance of public trust land to a private party was prohibited where the primary purpose of the action is to benefit a private party.
A
True. The government is trustee for a class of beneficiaries, the public.
25
What describes the defining characteristic of resources subject to the public trust doctrine?
They are resources of public concern
26
What was the traditional geographic footprint of the public trust?
Navigable waterways, streambeds, tidelands, and submerged land under them --
"Fishing-navigation-commerce"
27
What doctrine was invoked to provide public access to the dry sand beaches of Oregon?
Doctrine of Custom
28
T/F - Private property owners that have title to submerged lands along navigable waters must allow public access below the mean high water mark.
True - this is exactly how public trust doctrine interfaces with private property.
29
If a person adversely possesses a corner of a lot covered by a flawed deed, do they gain ownership of just that corner or the whole lot?
They gain the entire lot under Color of Title.
30
What is 'ferae naturae'?
Wild animals -- the government holds them as part of the public trust; they are transferred to individual ownership when that individual deprives them of their natural liberty.
31
What is the time period for determining adverse possession?
It depends on the state/statute
32
Do courts ever look to the subjective state of mind of the possessor in determining an adverse possession claim?
Yes -- courts may apply a test of Good Faith; Bad Faith; or Claim of Right (possessor acts as a normal owner would)
33
What can (nearly) always defeat a claim for adverse possession?
Permission
34
Which implied easement requires a showing of reasonable reliance?
Easement by estoppel
35
An easement by estoppel begins with revocable permission to cross or use land. This permission is called a ________.
License
36
T/F - An easement by necessity could arise 20 years after a parcel was sold without access to a public highway.
True -- easements by necessity can arise at any time.
37
T/F - An easement by prior use requires a showing that, after partition, the use remained "absolutely and strictly necessary" for the enjoyment of the dominant estate.
False - the use must be REASONABLY necessary, not ABSOLUTELY AND STRICTLY necessary
38
A has an easement along a road traversing B's land. Who has the servient parcel?
B has the servient parcel.
39
T/F - Conservation easements, to be valid, must be recognized by statute.
True -- it is a form of negative easement, and all negative easements other than lateral support must be recognized in statute.
40
T/F - A downslope owner is strictly liable to the upslope owner for removing lateral support, causing the hill to slide (assume no house upslope)
False -- the downslope owner is only strictly liable if there is a house upslope that they have undermined.
41
T/F - An easement in gross benefits a particular parcel
False - easements in gross benefit a particular individual.
42
An easement holder may improve an easement if the improvement is reasonably calculated to promote the easement purpose and ______ and ________.
1) doesn't create an undue burden on the servient estate
2) doesn't infringe upon the rights of others
43
A person seeking to terminate an easement for frustration of purpose must show ________.
That the easement has become impossible to use; OR
That the easement no longer serves the intended purpose
44
A is the owner of Parcel A, which has an easement over Parcel B. What happens to the easement if the Parcel A owner buys Parcel B?
Merger doctrine - the easement is terminated
45
A has an easement across B's property. B puts up a fence preventing A from using their easement. What doctrine might apply to terminate the easement, and when would it be terminated?
Adverse Possession or Prescription may apply. The time frame depends on statute.
46
A owns 20 acres of land (Parcel A) and is contemplating sale of 10 acres to B. B will need to have an easement across A’s land to access a public highway. In advance of the sale to B, A (WHO IS A VERY EFFICIENT AND PROACTIVE PERSON) conveys an easement to herself over Parcel A for the benefit of the 10 acres to be sold. Then A sells the 10 acres to B (in a deed that does not mention the easement). Is the easement valid?
No - With doctrine of merger, one cannot convey an easement to oneself; it can only be retained. B would still get an easement because their parcel is landlocked.
47
On a walk, A crosses property owned by B but is unaware the property is private. A thought it was a public park. Is A potentially liable for trespass?
Yes, because they intentionally entered the land. Mistake is not a defense to trespass.
48
The holding in State v. Shack is premised on what grounds?
The scope of the underlying property right -- the farmer's property rights did not extent to the right to exclude government employees from giving aid to workers.
49
T/F - A fire crew knocks down a door of a burning house to rescue a baby inside. What defense applies to trespass in this situation?
Defense of Necessity.
50
The doctrine of trespass enforces what property right?
The right to exclude
51
Some courts are relying on which Constitutional provision to bar enforcement of trespass and loitering laws against the unsheltered?
The 8th Amendment prohibition against cruel and unusual punishment; also the defense of Necessity
52
T/F - Slavery cases are still being prosecuted in the US
True
53
What is the majority rule for imposing liability on a property owner for channeling diffused water onto a neighbor's property?
Reasonable Use rule - land owner is entitled to dispose of surface water in a reasonable manner
54
The civil law doctrine imposes what standard of liability for channeling diffused water onto a neighbor's property?
Strict liability
55
The definition of a private nuisance is:
Substantial unreasonable interference with the use and enjoyment of property
56
What doctrine generally prevents an aggrieved property owner from suing for a nuisance prior to the harm occurring?
Anticipatory nuisance.
57
A public nuisance is defined as an unreasonable interference with ________.
A right common to the general public
58
What is the doctrine of displacement as it relates to nuisance law?
Federal statute displaces (preempts) common law
59
Who can bring an action for public nuisance?
In SOME states, private persons can bring a public nuisance action IF they have a particularized harm different from that of the general public. Otherwise, the government must bring the action.
60
Where a property owner builds a house next to a long-established pig farm, what principle might hinder the property owner's ability to bring a nuisance action?
The principle of "Coming to the nuisance"
61
What is the standard of liability for ultrahazardous activities?
Strict liability
62
What is an example of an ultrahazardous activity? (give just one example)
Disposing of nuclear waste
63
Is "coming to the nuisance" a determinative factor in the nuisance inquiry, or is it just one of many factors?
One of Many
64
What is the major difference between the joint tenancy (JC) and tenancy in common (TIC)?
Joint tenancy has the Right of Survivorship
65
A tenancy in entirety, largely abolished in most states, was for the particular situation of joint ownership for _______.
Legally married couples
66
What are the four unities required to establish a Joint Tenancy (JT)?
Time
Title
Possession
Interest
67
T/F - A JT and TIC can lease without the permission of other co-tenants
True
68
There are three joint tenants, A, B, aned C. A sells to D. What is the relationship between B and C after the sale?
Joint Tenants. But D is a Tenant in Common with B and C.
69
Does a sublease operate to transfer the covenant to pay rent to a subtenant?
No - the covenant does not transfer; it must be assigned.
70
Can a landlord terminate a lease to get rid of a tenant who complains to the housing authority about poor conditions?
No -- that would be a retaliatory eviction
71
T/F - The warranty of habitability is designed to protect quiet enjoyment of a leased property
FALSE - it protects basic living conditions of health and public safety
72
Can a tenant be responsible for damage beyond the security deposit?
Yes.
73
If a tenant leaves before the end of the lease, and the landlord accepts surrender of the lease, the landlord is due what amount of money?
The landlord is always due the costs for finding a new tenant AND the difference between the rent and fair market value. If the fair market value goes DOWN, LL gets the difference. If it goes UP, LL gets nothing.
74
Landlords may not be able to evict tenants in what circumstances?
Cannot evict tenants on retaliatory grounds but those grounds are limited to when a tenant asserts their rights to be complaining to a housing authority. LL also can't evict tenants for discriminatory reasons. Other statutory protections, and rent control provisions may also apply.
75
Traditionally, the defense of "Constructive Eviction for Failure to Pay Rent" required a showing of ________
Substantial interference with living conditions
In restatement second, position is more than insignificant interference with habitation
76
The doctrine of partial constructive eviction allows what?
The T doesn't have to move out -- they just have to pay less rent
77
Can a month-to-month tenancy that was never put in writing be valid under the statute of frauds if it exceeds a year in duration?
Yes, because each agreement is only one month at a time and not for a duration longer than a year.
78
Tenants may not ________ withhold consent to a landlord's request to enter to make repairs.
Unreasonably.
79
T/F - Racially restrictive covenants were found to violate the constitution in Shelley v. Kraemer.
False - It wasn't the covenants that violate the Constitution but the judicial enforcement of racially restrictive covenants.
80
T/F - Restrictive covenants constitute state action that violates the constitution
False - only enforcement of them by the state violates the constitution
81
The difference between covenants and equitable servitudes is that _______.
CCR = damages
Equitable servitude = Injunctive relief;
CCR requires Privity
Equitable Servitude does not require Privity
82
What are some bases for invalidating a CCR?
Unreasonable
Public policy
Violates constitution
Unreasonable restraint of trade
Violates Fair Housing Act
83
T/F - When evaluating whether a CCR is reasonable, a court looks to the particular effect on the burdened party challenging the CCR
False - they look at the entire community, not the particular party. If restriction is stated in the originating documents for the common interest community, then there is a presumption of validity. Test: Only invalid if found arbitrary, or if the burden imposed substantially outweighs the benefits gained. If restriction is enacted by HOA, then look to whether it was reasonable.
84
T/F - Covenants are enforceable in damages
True
85
What types of notice suffice in enforcing a covenant or servitude?
Actual
Inquiry
Constructive
86
What is a necessary finding to impose an IRNE (Implied Reciprocal Negative Easement?
Common scheme of development, AND
Similarly Situated Lots
87
A sells 20 acres to B. One day after the sale, A presents documents to B obligating them to maintain a fence between the properties. Is the privity element met?
A) If A had reserved an easement in original sale, it could meet requirements of mutual horizontal privity.
B) It meets requirement of horizontal privity because the fence obligation touches and concerns both parties.
C) It meets requirements of horizontal privity when either A or B sells to a successor and passes entire estate to that person.
D) It fails to meet instantaenous horizontal privity because they failed to include the easement in the sale.
E) A and D are correct.
Correct answer is E - A and D are both correct.
A - correct because the easement in the original sale is the prior relationship
D is correct if A did not reserve easement in original sale.
B is wrong because it fails to meet instantaneous horizontal privity - Instantaneous privity is where you convey a deed to someone and the covenant is in the deed, so the moment you convey it to somebody it is valid.
88
What is a prior non-conforming use?
Use that is not conforming to CURRENT standards but conformed to PRIOR standards. It is a way to not obey a covenant.
89
What characterizes Oregon's land use law?
Urban growth boundaries - urban areas are restricted in geographic growth to preserve farmland and natural areas.
90
What is the standard for allowing a prior non-conforming use to continue?
No substantial change in the use or intensity of the use
91
What test do courts use in determining whether the grant of a variance is legal?
Undue hardship standard
In some states: as long as proposed use was reasonable, undue burden factor met.
In other states: Must show there is not reasonable use of the property without the variance.
92
T/F - a conditional use (sometimes called special exemption or exception) requires a permit to begin operating
True
93
Are state and local governments subject to constitutional takings restrictions, or do they apply only to the federal government?
Both
94
Name the three instances in which government does not have to compensate for physical takings
Necessity
Public nuisance
Public servitude (2 types - PTD or tribes)
95
T/F - When the government seeks to condemn an easement across private property, rather than condemn the full parcel, no compensation is required.
False
96
In Kelo, what showing would Justice O'Connor have required to allow the taking?
A showing that the taking was to prevent a public harm - property can be taken from private owners for public use if it causes actual affirmative social harm or blight, and the harm has to be direct.
97
T/F - Takings law has evolved so as to broadly interpret "public use" in the Fifth Amendment to mean "public purpose," thereby eliminating the literal requirement of public use.
True.
98
Name the 3 factors to consider in determining whether there has been a regulatory taking in the Penn Central framework
Economic Impact of Regulation
Extent of Interference with Reasonable market-backed Investment Expectations
Character of Government Action -- conferring benefit or preventing harm
99
T/F - Regulatory Takings has not always existed in the 5th Amendment Jurisprudence
True - it was introduced by Pennsylvania Coal Co. v. Mahon
100
The Lucas case did what?
Created per se categorical taking when a regulation deprives land of all economically beneficial use - Carves out from Penn Central test, and requires compensation in that instance unless one of the background exceptions applies
101
T/F - Where a property poses a nuisance to the public, action to regulate it amounts to a regulatory taking
False - there is no property right to create a nuisance, therefore ameliorating a nuisance is not a taking
102
The Just court set forth what principle?
Natural use rule:
1. Use consistent with character of land
2. Use cannot harm others
3. No private property owners can make a non-natural and non-indigenous use of the land if it harms others
4. Not a taking, never had right to make non-natural non-indigenous use of the land to harm others. Has to meet both criteria.
103
Where the Just "natural use" principle is followed, how does it fit into Lucas? How does it fit into Penn Central?
Lucas - the Lucas rule sets forth a categorical exception for denial of all economically viable use. That categorical per se takings is subject to exceptions where the regulation would have been in the background principles of property or nuisance law. There is no compensable taking. The Just natural use principle is an iteration of that public trust exception to Lucas. Consider it an interpretation of Public Trust Doctrine. Penn central: 3 factor test. A restriction that prohibits a non-natural use is preenting a harm to society. It also fits into another factor – reasonable investment backed expectations – a property owner doesn’t have any reasonable expectations to make use of property that is not natural.
104
Can people who purchased property after a regulation was in place (post-enactment purchasers) pursue a takings claim even though they bought the property with the expectation that the regulation restricted development?
Yes - see Pazzolo case. But courts will take into account the fact that the restriction was already in place when applying the 2nd Penn Central factor.
