Unit 1 Flashcards

Question

Access & Public Accommodations

Answer 1

Uou as the owner, if you open your property to the public, you can govern the property/have right to govern, but no longer have the right to exclude Access can only be restricted by an announced, equally applicable, reasonable rule

Answer 2

The Takings Clause: nor shall private property be taken for public use, without just compensation 4 Elements: - 1. Private Property: needs to be property involved (typically land) - 2. Taking: gov’t compels the takings of the property (takings clause of 5th amendment) - 3. Just compensation: must pay when gov’t takes, generally is fair market value (FMV) - Public use: must be for the benefit of the public. Typically private a state, but not always (see Kilo)

Answer 3

Narrow view: property will be used by the public Broad view: property will somewhat benefit the public Kelo: Economic benefits are a permissible form of public use that justifies the gov’t in seizing property from private citizens Going from public use (for the public to use) to public purpose requirement (if you can find a justifiable use that you say will benefit the public will allow you to take property) 5 Levels of "Public Use" 1. Taken for public ownership for public or gov’t use 2. Taken for private ownership for public use (Thomas would draw the line here) 3. Taken for private ownership to eliminate a public harm (This is where O’Conner would draw the line) 4. Taken for private ownership to create a public benefit (Where Kelo majority & federal line drawing is) 5. Taken for private ownership for private-only benefit

Answer 4

Authority is police power. Zoning is regulatory law Cumulative zoning: those at the top in the zoning hierarchy could fit into bottom zoning but bottom zoning couldn’t fit in the top Economic Problems of Shared Resources: tragedy of the commons (overuse of a shared resource) & freeriders/public good (insufficient maintenance of a shared resource) Rational Basis Test: to be valid, the zoning must be rationally related to a legitimate state interest

Answer 5

Police power - Sovereign’s inherent power to regulate property & behavior in the jurisdiction - Employed to achieve public purposes: health, welfare, safety, morals, etc. - Everyone is burned & everyone is benefited - No one is paid to compensate for losses caused by the regulation - Zoning is always police power Eminent domain - Sovereign's inherent power to take title to property [by paying “just compensation”] - Employed to achieve public purposes and/or to obtain property for public use - Burden is only on the owner whose property is taken. The public benefits - The owner whose property is taken is paid (taxpayer money) to compensate for their loss

Answer 6

Intent to relinquish ownership + loss of possession Unlike personal property, no real way to abandon ownership in real property/land unless someone is willing to take it

Answer 7

1. Actual 2. Open & notorious 3. Hostile 4. Continuous 5. Exclusive & longer than the statutory period

Answer 8

Acts of occupation like that of a true owner) Have to physically go on the land

Answer 9

Sufficient to put true owner on notice Something that’s good enough use that will put true owner on notice but doesn’t have to subjectively inform them (if they were paying attention they would've realized they were using the land) Reasonable person standard - reasonable use of land Would a reasonable person dropping by property be on notice that you’re in possession/making this ownership type of claim

Answer 10

Possession without permission of true owner Going to presume hostility unless owner can show permission All jurisdictions agree: possession with permission does not qualify as “hostile” One way to defeat adverse possession is to give someone permission to be there At minimum have to show the possessor objectively acted as the owner (not just a guest, etc.) of the property Hostility Approaches: 1. Objective Standard (Majority Rule): the possessor's use of the land is inconsistent with the rights of the true owner, regardless of intent 2. Subjective Intent Approach: this is divided into two main categories: a. Good Faith (Mistaken Belief) Standard Definition: the possessor must genuinely believe they own the land (good faith belief in ownership) b. Bad Faith (Intentional Trespasser) Standard Definition: the possessor must know they do not own the land but intend to claim it anyway 3. Permission as a Defense If the true owner grants permission, the possession is not hostile and adverse possession fails

Answer 11

Pattern of occupation like that of a true owner Don’t need to be there all the time, use it in way someone with that property would use it When someone starts trespass (coming onto land without permission) they start the adverse possession clock Statute of limitations: how long you have to commence action in court Continuity means no break in possession with claim of right

Answer 12

Possession exclusive of true owner & strangers Exclusive one claiming dominion in a way that am owner would

Answer 13

When a grantee believes (in good faith) they have actual title, but the conveyance was defective in some way Legally significant for 3 reasons: 1. Possession under color of title is deemed to be hostile & under claim of rights 2. In some states, holding under color of title reduces the statutory period (not MO) 3. Color of title cna support a claim of constructive adverse possession Can help define the area of adverse possession But can’t only have deed - need to meet elements of adverse possession

Answer 14

Jurisdiction dependent Majority view is objective: intent doesn’t matter as long as possession is hostile & not in line with true owner wants Minority view: must be good faith

Answer 15

Affirmative action: the adverse possessor can institute a "quiet title action." It's the way you formalize your ownership after an adverse possession claim. Can either formalize as true owner defeating adverse claim or adverse possessor & want something on record that you own it (prove all elements). Formal announcement you own title. You are deemed to start ownership if you win claim when you first occupy the land Defense: ejectment action. The true owner may bring an ejectment action, & the adverse possessor may respond with adverse possession as an affirmative defense

Answer 16

Typically, the time period starts on the day the adverse possessor began, but the date of discovery is also a possibility Marengo Cave Co. v. Ross (“the cave case”): possession of land is open & notorious only if it would give clear & unequivocal/obvious notice to the true owner or his agent visiting the land that the owner’s rights are being invaded Boundary Lines (Mannillo v. Gorski): if an encroachment on a small area is not immediately apparent, a court cannot presume that an owner has actual knowledge of it. However, even if the possession is not sufficiently open to put the owner on notice, an innocent adverse possessor might not be able to relinquish the property without great expense or difficulty. In that case, the true owner might be required to turn over the land in exchange for fair market value.

Answer 17

What can delay the statutory period: under age of majority, being insane, & sometimes deployed out of the country or in prison Tolling effects when statutory periods starts - it doesn’t stop it midway. Disabilities that start after the clock starts to run, do not toll the statute of limitations Some have normal period after disability ends of 5 years But weird 20 year limit of that is maximum time

Answer 18

Tacking is for the adverse possessor to claim more time Combining the times/periods of use for those “in privity” Privity: when 2 or more parties own interest in a property, or between an intended successor & the current property owner/adverse possessor

Answer 19

If adverse possessor: - Has a document of title (deed/will) even if invalid (color of title), & - Takes possession of the part of the property described by the document, then - They’re entitled to the whole property described in the document, as long as the other adverse possession elements are met

Unit 1 Flashcards

(43 cards)