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6. TRANSACTIONS: TITLE ASSURANCE
9/18/2018
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customary contract requirements: title
1. as to who has title-- “record” title “good” title or, “good & indefeasible” “marketable” title “insurable” title this State’s custom: “good & indefeasible,” plus insurance (or sometimes, contract may say “marketable”) 2. as to what exceptions are allowable-- “permitted encumbrances” (listed); or, “usual & customary” 9/18/2018
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Conklin v. Davi: title reqmts of K
K: title must be “marketable” & “insurable;” “permitted encumbrances”; title based on adverse possession; but insurer testifies, willing to insure. Notes 1. record, good, marketable, insurable--which exists here? 2. adverse is both sword and shield 3. “permitted encumbrances” approach 9/18/2018
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title recording acts: three types
1. pure race: a. of 2 BFP’s, first to record gets title. b. policy: clarity. c. disadvantage: sharp practices, by person w/notice. d. North Carolina statute. 2. pure notice: a. BFP w/out notice gets title. b. policy: tempers clarity w/avoidance of sharp practices. c. disadvantage: notice is a messy fact, muddies record. d. Texas statute. 3. race-notice: a. 2nd BFP wins only if 1st to record. b. policy: fairness, but also encourages recording. c. dis-advantage: messy facts. d. New York statute. notice: a. constructive (record), b. actual, c. inquiry. 9/18/2018
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Sanchez v. Telles 1. Texas: pure notice statute
2. O [Montoya] → security → A [Telles]. Telles did not record. Then, O [Montoya] → defective deed, with no exception for Telles’ security → B [Sanchez]. Recorded. Telles records; then, afterward, Sanchez obtains correction deed. 3. Held: for Telles. Sanchez’s unacknowledged deed was nullity, though recorded. Notes 1. what if Sanchez’s deed had been valid & acknowledged? (Sanchez wins, even if not recorded. why?) 2. what if Telles had validly recorded, immediately upon taking his security? (he wins. why?) 3. non-acknowledgment: should it destroy “notice”? 4. what is a BFP? bona fide, value, notice. Wolfner v. Miller: token consideration is not “for value.” 9/18/2018
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race-notice recording statutes
the New York statute 2nd purchaser wins only if 1st to record contrast pure race Vitale v. Pinto O → option to A [Vitale], unrecorded; then O → mortgage to B [Lloyd], recorded. what if Lloyd had no notice? but, held: Lloyd had “inquiry” notice. Notes 1. effect of race-notice: Lloyd wins only if no notice AND recorded first. why? 2. “inquiry” notice: how extensive a search should be req’d? 3. what creates inquiry notice? 4. what interests are recordable? lease, option, etc. unrecordable interests: adverse possession, etc. 9/18/2018
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What result, under race, notice, race-notice?
Figure 1 Second Purchaser Records First Figure 3 Transfer by Unrecorded Interest Holder to Remove Grantee (C) O transfer recording A $ O transfer recording B $ O transfer recording A $ O transfer recording B $ A transfer recording C $ Figure 2 First Purchaser Records First, but after Second Sale O transfer recording A $ O transfer recording B $ 9/18/2018
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interpreting recording acts: reasonable search concerns; chain of title
Ellingsen v. Franklin County: road easement filed in engineer’s office. Held, not constr notice; otherwise, title search “impossible.” [dissent: statute says to file there.] notes 1. concept of chain of title 2. concept of reasonable search 3. still, though, multiple records 9/18/2018
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public recording--document is filed; then, clerk puts it into:
1. grantor-grantee index; and grantee-grantor (reverse) index. 2. title search is based on index. 3. what if not indexed? Howard v. Brunson: no constr. notice title examination 1. follows chain as indexed 2. reas search, only after grantor received title, until grantee received. Misses grants before & after. See Fig. 4. 3. effect on interpretation 4. what you won’t find: improperly indexed, wild deed, before-after 9/18/2018
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3. Held, for D; no constr. notice.
example: an instrument not discoverable by reasonable search— In re Dlott (citing Morse v. Curtis) 1. A → (mortgage) B; B → (deed) C, w/notice; C records; B records; C → (deed) D, BFP. 2. D won’t find B’s mortg by reasonable search! Why? It was conveyed before D’s grantor, C, obtained C’s interest. 3. Held, for D; no constr. notice. 4. Why? Recording act does not expressly answer. Ct interprets according to reas. search. 5. Questioning this rule(?) 9/18/2018
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Nally v. Bank of New York 1. Recording Act cases: always fact-complex
2. Here, contest between 2 mortg holders 3. Order of events: 1. Deed → Nally; 1st mortg; 2d (Owens) mortg 2. Owens mortg recorded 3. Deed & 1st mortg recorded 4. Nally refinances; pays 1st M; gives new M 5. Bank of N.Y. buys new M 4. Reas search: during grantor’s ownership 5. Bank’s position: start search from date deed recorded; no notice of Owens M 6. Owenses’ position: find recorded deed; look at date/execution; that’s start date (Court agrees with the Owenses) 7. Court says date of deed, when grantor Nally got title, controls (not date of recording); thus, Bank’s not a BFP because it had constructive notice 8. Bank claims “equitable subrogation”: someone who pays a creditor “steps into the shoes of” the creditor (Court agrees) 9. But only to the extent paid to creditor! 9/18/2018
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Order of Events in Owens-Bank Dispute
deed to Nally; 1st mortgage; 2d mortgage (to Owenses) all executed recording of Owens mortgage recording of deed to Nally (and of 1st mortgage) Nally refinances: receives $63,000+; pays 1st mortgage; signs new mortgage Bank of NY acquires new mortgage (no knowledge of Owens mortgage) Bank says reasonable search begins here Owenses say (and court holds) reasonable search begins here 9/18/2018
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Marketable title acts 1. English [& Eastern U.S.]
2. Model Act: 40 yr. cutoff 3. problems: a. interests left open by documents are not cut off. b. overfiling. 4. other states: adverse possession tends to cure the problem Abstracts, “Plants;” Torrens System 1. abstracts of title 2. title “plants”: by tract 3. Torrens: why not keep public records by tract? 4. “Certificate” system 5. Problems: a. disuse; b. interpret-ation to avoid unfairness 9/18/2018
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title insurance: contractual liability
Manley v. Cost Control: insurer & abstractor “knew or should have” of wetlands; didn’t warn buyer. But: exceptions in K for “law[s] regulating occupancy, use” and “wetlands designation.” Held, no liab under K, or outside K. notes: 1. wetlands: disastrous for buyer. 2. for so little coverage, why even insure? 3. extra-contractual: why? 4. title commitment or binder 5. different result: L. Smirlock case. Buyer knew, but insurer liable anyway--didn’t expressly except! 6. reliance on title report--? 9/18/2018
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title insurance: extra-K liab
1. reconsider Manley 2. reasons for seeking extra K liab against insurer a. recovery from seller, broker, etc.--possible, but limited; also, solvency a problem b. policy limits: if buyer improves (or appreciation), insurance K won’t cover Somerset Savings v. Chicago Title: claims on 1. K, 2. negligence, 3. negligent misrep.; integration (merger) clause; exclusions (“any law ,” etc.); no consent to bldg permit by transportation agency. held: no liability under K for insurer, but liable as abstractor/volunteer for negl or negl misrep.; merger clause is against pub policy here. notes 1. purchaser’s motivation to seek extra-K? 2. effect on insurers and future insureds? 9/18/2018
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the insurance policy 1. structure--5 parts: a. coverage definition
b. exclusions from coverage (usually pre-printed) c. conditions & stipulations d. declarations page (the particulars) e. exceptions (like exclusions, but negotiable, depending on propty, insured, fee) 2. exceptions and exclusions: are bigger than coverage 3. your auto insurance has a similar structure; likewise, casualty insurance, liability, etc. This info is general, useful. 4. importance of insurance policies and insurance law to lawyers of all kinds! 9/18/2018
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the ALTA (American Land Title Ass’n) Policy
1. structure: covered risks, exclusions, conditions, declarations (Sched. A), exclusions (Sched. B). 2. what language says these are “covered risks”? (a) forged deed, no title; (b) recorded mortg; (c) land unsaleable; (d) landlocked; (e) $10,000 to defend title? 3. what language makes these not covered (“exclusions”)?: (a) zoning law or wetlands; (b) pending unrecorded condemnation; (c) easement known about by insured, didn’t tell; (d) potential claim yet unasserted vs. propty? 4. what is the effect of these events under the “conditions/ stipulations”? (a) judgment; didn’t notify insurer. (b) insured refuses deposition. (c) insured wants to prevent settlement. (d) purchased at $50,000, now worth $250,000 (merger clause). 5. are these “exceptions”? (a) adverse possessor; (b) boundary doesn’t close; (c) prescriptive easement; (d) recorded utility easement, but not excepted in policy? 6. deletions of exceptions for extra premium 7. what’s actually insured? 9/18/2018
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third party liability: notes
1. purchaser looks for liability 2. attorneys: relationship; duty; contract, negligence, etc. Written disclaimer of atty-client relationship is customary. 3. abstractors: negligence/negligent misrep. 4. surveyors: Craig case: seller hired surveyor; buyer recovered because entitled to rely. 5. lender liability: many kinds of claims. 9/18/2018
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title curing 1. what it is: fixing or clarifying title to make a deal work. 2. different methods: further examination, q’claim, boundary agreemt, affidavit Problem 6A: Pravelka-Damani 1. the problem: state of the title 2. the title report: 6 kinds of exceptions 3. items that will remain encumbrances or easily be cured (all but mineral reservation) 4. assignment: counsel the Damanis 9/18/2018
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Problem 6B: Pravelka-Damani
1. continuing the problem: curing 2. economically wise to cure? 3. steps--examine: (a) the mineral deed, (b) deed restrictions on grantee, (c) nonconveyance before restrictions, (d) grantee’s interest released 4. cost? how to bill the client? 5. assignment: letter to title co. requesting deletion; evaluate economics. 6. non-assignments; prepare invoice; locate documents. 9/18/2018
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Morgan, Client & Public Relations
1. why “effort projectn”? 2. defining the problem 3. “niceness” 4. how project effort? a. attention (phone) b. do something now c. treat as important d. suit: uniform e. sell ‘em paper 1. every paper 2. Dear Mr. Jones f. your bill should project effort, too 9/18/2018
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7. TRANSACTIONS: CLOSING, TERMINATION, REMEDIES
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the closing; termination
Closing 1. is an anticlimax 2. documents are executed 3. what’s before & after the closing? 4. the lawyer’s function at closing Termination 1. under an option 2. for failure of a condition 3. when there’s disagreement/ ambiguity: chancy! thought problem: Pravelka-Damani 1. late-discovered easement different positions of parties 4. agreement says: “usual, customary” exceptions 5. generating options 6. counseling Damanis: choices & risks 9/18/2018
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terminating; Pendleton v. Witcoski
1. new zoning discovered during contract period; value much greater 2. seller terminates (risky!) 3. trial j: recission based on mutual mistake 4. appellate affirmance 5. but: isn’t dissenting judge right? (risky!) notes: unpredictability. 9/18/2018
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the “plain English” controversy
1. the HUD-1 example a. does it accomplish “plainness”? b. What other objectives are there? c. Is this “plain” for people used to reading it? 2. What does “plain” English mean? (a) short? (b) easy to read? (c) comprehensive? (d) readable to intended audience (or to lay people)? (e) unambigious? (f) all of these? 3. Your employer uses a time-honored document with long, confusing, technical paragraphs. Should you edit & rewrite? a. yes, if it’s a brief b. maybe, if it’s a client letter c. no, if it’s a contract 4. uses of “less plain” English: compromise, solemnization, evidentiary, economy of production, uniformity, cost of revision, familiarity, experience 5. notes: rewrite release in plain English?; persuasion documents v. preservation documents; revising form files; Plain Language Acts 9/18/2018
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destruction or loss Hillard v. Franklin:
home destroyed during K period; seller kept $35,000 insurance; buyer seeks specific performance. 1. “general rule” 2. nature of equitable remedies notes 1. Skelly v. Ashmore--5 different rules when no insurance(!) Most common rule puts risk on purchaser 2. should the risk be on purchaser (usual common law rule) or on seller? 3. agreement should cover both loss and insurance (see sample EMK, above, placing risk on seller). 4. “equitable conversion”: does it justify placing risk on buyer? 9/18/2018
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remedies damages: basic remedy at law
three kinds a. expectation or bargain damages = market value of loss b. consequential = reasonably foreseeable other losses c. incidental = expenses of “covering” issues about damages a. proof can be technical b. measuring market value: how? when? c. consequential & incidental: what’s included? (distress?) 9/18/2018
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buyer’s damages: Harrison v. McMillan
1. known-untrue representation about foundation: fraud 2. dmgs for emotional: a. not in this jurisdiction; why or why not? b. but: lump sum didn’t differentiate; affirmed(?) 3. market value plus cost of repairs upheld(?) a. usually, it’s “either-or”; why? b. first, repairs: reas. & necessary cost at time & place of breach c. then, mkt value loss remaining after repairs d. not a double recovery; why? e. notes: 1. would a pure benefit-of-bargain measure have been more accurate? 2. is what the court did acceptable? 3. conequentials must have been included; 4. proof of damages; 5. expert (appraisal); 6. time of valuation contractual restrictions on damages: why? 9/18/2018
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liquidated dmgs & earnest $ Kelly v. Marx
1. K says deposits are liquidated damgs 2. lower court used “2nd look”: review amount (1) at contract and (2) later, after loss. Here, buyers defaulted, but seller sold at higher price. 3. this court: one look only, at time of K. Function of liquidateds is to avoid proof problems. 5% ($17K-plus) reasonable here. notes 1. usefulness of liquidateds 2. additional functions of earnest $ 3. “reasonable” estimate, not “penalty”; one-third too much, 5% reasonable. 4. conditions, measure, exclusivity: according to agreement. 9/18/2018
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equitable remedies: specific performance—Hillard v. Franklin court ordered specific performance, with insurance abatement 1. what is specific p? 2. a flexible remedy: nature of equity 3. “inadequate remedy at law” requirement 4. land usually meets requirement: unique lis pendens 1. what it is 2. what it does 9/18/2018
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Ejectmt: D ousted my tenant
1. common l pleadgs 2. forms of action 3. growth: history, not logic 4. fictions today (sometimes called Trespass/Try Title) 1. petition or complaint contents–descrip, interest, possn, ouster 2. possessor is defendant 3. defense: “not guilty” [of the trespass–because I own it!] 4. abstract/title 5. surveyor, etc. 9/18/2018
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APPENDIX C: THE LIFE OF A LAWYER
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the survey statistics 1. What % dissatisfied?
Where I want you to be: satisfied! 2. Why these stats? 3. Compare physicians 9/18/2018
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Is it true? And if it is, so what?
4. What makes diff? (Do we know?) 5. Why this coverage? Mushy content, uncertain answers, “depressing”? 6. If trying to avoid pitfalls, what will be nature of what you study? (a) pleasant things (b) unpleasant ones the goal (remember!) to put you in the satisfactory group! 9/18/2018
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the biggest issue: time!
7. time usage (managemt) (1) billable rec’ds (2) administrative (3) personal life (4) short tm deadlns (5) long tm deadlns (6) wipeouts (flex) (most imp variable?) Problem A: Fast-Lane Divorce 9/18/2018
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adversaries, judges, employers, clients
8. adversary system opposing attys opposing parties judges rules cost unpredict unintended Problem C: The Dollar Auction (Escalation) 9. people “on your side” clients morals intellect popular knowl attitude toward you co-counsel employees saying “NO” Problem B: Milgram, Authority & Obedience 9/18/2018
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business management: does law school teach “against” it?
10. Business mgmt • business plan? • financing? [KONTEST] • personnel? • equip/inventory? • style? • accounting? • systems? • govt/employer? • change/technology? 9/18/2018
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other issues 11. stress • what it is • what produces • what it does
• managing Problem D: The [Non-]Executive Monkey 12. relationships 13. dealing w/failure • law school • practice • Lombardi 14. anger 15. health 16. subst abuse Problem E: Law School–and Obsessive-Compulsive Traits 9/18/2018
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9. LIMITS ON GOVT POWER OVER PROPERTY
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limits/govt power over property
1. sources a. federal constitution b. state constitution c. empowering statutes d. limiting statutes 2. Due Process/Equal Protectn Cls. a. “procedural” due process b. “substantive” due process c. equal protection ● race, etc.: “strict scrutiny” ● gender, etc.: “intermediate” scrutiny ● property: “rational basis”–very little protection of property a. very lax b. reason: deference/democracy c. any “plausible” reason d. even if not actual reason 3. FCC v. Beach Communications [not read] 4. Taking Clause: different--narrower, firmer, more targeted 9/18/2018
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Taking Clause: WHY? Policies:
A. Fairness? 1. Avoids sacrifice of individual to common good. B. Economics? 2. Limiting thoughtless gov’t intervention. 3. Harmonizing competing uses. 4. Encouraging investmt. 9/18/2018
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What’s a “Taking”? (How determine?)
existing precedent (doctrinal)? words and context (textual)? institutions & relationships (structural)? original intent (historical)? what makes sense (policy)? what judges think is “right” (ethical)? Court’s holding in “physical” cases: no general rule; “ad hoc, factual inquiry”; BUT perm physical occupation is a taking. (Virtually per se.) Why? 9/18/2018
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Loretto v. Teleprompter
I. Facts: New York law provides that a landowner must permit a cable television company to install its facilities on his property. TelePrompter installed thin cables across the roof and side of Loretto’s building, together with metal boxes, affixed with nails or screws. II. Held: A taking. III. Principles: A permanent physical occupation is a taking regardless of public interests served. It chops through the entire bundle of rights that makes up property, denies the owner the right to exclude, and presents few problems of proof. Regulations requiring safety or tenant facilities are different, because they do not involve occupation by another party. (The dissent argues that this per se rule is unjustified and that a multifactor balancing test is historically required.) 9/18/2018
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What is “PROPERTY”? What does it MEAN to say you “OWN” something?
(an idea, a car, a wetlands, a home, a trademark, a bank account . . .) “Bundle of Rights” 9/18/2018
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Nollan v. Coastal Comm. “Perm phys occup?”
Does ambiguity defeat purpose of per se rule? How tell whether “perm phys occup” (in close case)? [rt to exclude] Hypothet: street dedication req’d of subdiv developer. “Close fit” requirement 9/18/2018
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Nollan continued: An example of “close fit”
A city usually regulates new subdivision development Requires plat approval. Conditions approval on dedication of streets, etc. Close fit exists; why? Close nexus between the regulatory concern (traffic) and the regulatory means (streets). 9/18/2018
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Nollan continued: Even if p phys occ, State can salvage if . . . what?
Close fit; nexus. 1. Present here? Scalia: No. Lateral easement can’t solve access to beach or view blockage. Brennan: Yes. 2. Why require close fit? (Prevent state’s pretextual sacrifice of chosen indiv?) Brennan: No. 9/18/2018
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Nollan continued: Lateral easemt doesn’t solve psych barrier/access?
view? Why not? 9/18/2018
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Nollan continued: What Scalia wanted to prevent– pretext!
Step 1: City wants a chunk of Jim’s land for a park (but doesn’t want to pay for it). Step 2: City realizes, can’t just “TAKE” IT. Step 3: City identifies a unique (but unrelated) feature of Jim’s land to “REGULATE.” (E.g., it needs drainage.) Step 4: The regulation is, Jim must leave the chunk of land unused and allow recreational activities on it as directed by the city. A “close fit” requirement avoids this. 9/18/2018
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More Cases About Per Se Dolan: “rough proportionality” between regulatory need & amount taken. (Why? Prevents taking a mile when an inch would do.) The “Nollan-Dolan” Test: “if physical occupation, State/City must show 1. “close nexus” between regulation and objective (Nollan) 2. “rough proportionality” between harm cured and exaction taken (Dolan) 9/18/2018
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Lucas: destruction of “all econ benefit”–also a virtual per se taking.
Consider: 1. Indian lands case. 2. Swamp land used for mud racing. 3. Andrus v. Allard (no sale bald eagle parts). Summarizing: 3 Types of Per Se Takings– 1. State requires deed in fee; 2. physical occupation (salvageable with Nollan-Dolan test); and 3. destruction/all economic value. 9/18/2018
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Flow Chart for Takings YES Does gov’t take title? (classic condemnatn)
NO Is there a per se” taking? 1. phys. occup. 2. destruct’n/all value “Nollan-Dolan Test”: 1. close nexus? 2. reas proport’n? YES NO NO Is there a “ regulatory taking”? 1. investmt expect’n 2. degree of phys invas’n 3. public benefit 4. comprehensiveness (reciprocity/advntg) 5. noxious use 6. gov’t use YES YES NO Not a taking Taking 9/18/2018
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“Regulatory” Takings (This is the general case; not a per se rule)
Penn Central v. N.Y. 1. What N.Y. did 2. Zoning’s OK. How historical preserv differ? 3. Regulation v. taking–if goes too far 4. How tell if “goes too far” (too far as to what)? 5. Multi-factor balancing approach 6. How Rehnquist differ from Brennan? a. Multifactor? b. Treatment of factors? c. Who’s right? 9/18/2018
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The Penn Central Factors (as I see them):
1. Econ impact on investment-backed expectations? 2. Phys invasion? 3. Broad pub purpose? 4. Comprehensiveness? (Reciprocity?) 5. Noxious uses? 6. Acq for govt. use? 9/18/2018
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The Penn Central “test”
A good test? What problems w/multifactor test? Why so mushy? Two approaches: 1. Formalism: apply rule rigorously to facts; define rule clearly. 2. Instrumentalism: determine policy factors; apply to accomplish purpose. 3. Advantages? Disadv? 4. Which is Nollan? Which Penn Central? 9/18/2018
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Remedy for Takings: compensation (“inverse condemnation”)
First English Evangelical 1. Remedy obvious? (it’s in the Constitution!) No, govts argued; remedy is repeal. 2. Argument against: deterrence of some proper regulation 3. Argument favoring a. Text of Constitution b. What most likely “deterred”? (most dubious, most damg) c. What if comp not req’d? 4. The “frontier” of Takings cases: moratoriums; processes/multiple rejections–effect of loss 9/18/2018
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state-law restrictions
1. constitutions: Texas’s “taking or destruction” 2. state authorizing laws; prohibitory laws Tex. Gov’t Code ch. 2007: “Pvt. Real Prop. Rts. Prot. Act” notes 1. extends beyond constitutional takings: 25% reduction trigger 2. toothless? (no damages, only recission order) 3. toothless? (exceptions, e.g. municipalities) 9/18/2018
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The “Public Use” Issue The Kelo Case State & local responses to Kelo
Merely giving to another person is not a “public use,” but Public effects from commercial use can be Does this destroy the “public use” requirement? (Or does it preserve legitimate govt functions?) State & local responses to Kelo 9/18/2018
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10. LAND USE REGULATION & ZONING
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nuisance & trespass (common law land use reg?)
1. trespass; “phys invasion” (a workable distinction?) 2. nuisance: a. unreasonable interference b. multifactor balancing c. private nuisance vs. public (general injury) 3. Pestey v. Cushman: dairy operation; treatment w/digestion system (overloaded). Odors more acrid. Jury findings. a. “impenetrable jungle”? b. nuisance: nontrespassory invas’n c. traditional def’n d. redefinition: (1) invasion, (2) prox cause, (3) intentional unreas. interference or unintentional negl. interference e. unreas. conduct not ultimate issue; unreas. “interference” is. (Why?) 4. nuisance is rough; zoning, more refined. 9/18/2018
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zoning: the basic idea 1. “Euclidean” 2. Euclid v. Ambler Realty Co.
a. districts (use, size) b. enforcement & interp c. line-drawing, side effects d. negative economic impact e. due process: upholds 3. SZEA a. grant of power b. districts c. purposes 4. notes: 1. influence, 2. district shape, 3. “comprehensive plan,” 4. financial impact, 5. regional planning, 6. purposes: aesthetics? exclusion? 9/18/2018
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change: comprehensive plan
terminology: “spot” zoning, up- and down-zoning, the struggle (preservatn v. change), “extension” zoning; all inherently political 1. Fasano case: administrative zoning; abandoned (why?) 2. Legislative zoning a. Bell v. Elkhorn: extending commercial to 4th corner. Legislative deference. Zoning ordinance is itself the plan. b. Contrast: some States require explicit written plans 3. notes: 1. plan unenforceable? 2. extension zoning, 3. what is “spot” zoning? 4-5. politics rather than law? 4. San Antonio v. Arden Encino (note case): post-investment change excludes apts; councilman Bannwolf’s “political” motive okay; rational basis; “overall plan” only in passing 9/18/2018
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limits of the comprehensive plan approach
1. exclusionary zoning: invidious criteria, or “NIMBY,” 3. racial, 4. Mt. Laurel litigation, 5. state legislation affecting zoning 2. what about regional planning? (airports, stadiums, hospitals) 9/18/2018
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the zoning process SZEA 1. method of procedure 2. changes (protest)
3. zoning commission 4. board of adjustment 5. enforcement/remedies 6. notes: 1. who are members? 2. politics & contributions, 3. politics/cronyism, 4. zoning comm (quasi-legislative) v. bd of adjustment (admin) doing without zoning 1. advantages a. harmful effects/land use b. costs c. discourages ownership d. prevents regeneration e. exclusionary zoning 2. disadvantages a. harmful uses; grotesque b. under-the-table zoning 9/18/2018
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variance: hardship based on realty’s characteristics (e. g
variance: hardship based on realty’s characteristics (e.g., small, triangular, flooding, RR tracks, etc.) 1. usual approach--South Padre v. Cantu [not read]: city approved plans; overhang; variance ordered a. unnecessary hardship (attributable to land) b. public interest not harmed c. but must be aimed at characteristics of the realty 2. Rancourt v. City of Manchester a. horse stabling where zoning prohibits b. statutes: (1) public interest; (2) special conditions ➔ unusual hardship; (3) “spirit” of ordinance; (4) “substantial justices” c. two approaches to hardship: (1) no other use (strict), (2) interference w/reasonable use (liberal) d. court’s liberal approach: (1) interferes w/reas use, (2) lack of relationship of purpose to specific propty, (3) no injury e. here: large lot, buffered by woods 3. notes: 1. traditional Euclidean, 5. a “narrow escape hatch”--or liberally granted?, 6. variance for reasons “personal to owner”: improper; 7. New Hampshire’s liberal “interference w/reasonable use” std (not hardship req’mt, such as no use) 9/18/2018
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Problem 10A: West York Tigers Stadium
1. the “West York Tigers” 2. the triangular parcel 3. the Tigers v. the Pleasantville Forum 4. arguments con: alcohol, traffic, size, view, appearance, “outside influence,” “special interests” 5. arguments pro: traffic mgmt, parking, highways as buffer, no taller than downtown bldgs, triangular plot otherwise unsuitable, alcohol mgmt, business merchants, biggest taxpayer, fans 6. zoning amendmt? extension or spot zoning? variance? 7. the assignment the politics (and contributions): can you mention? if so, how? zoning--or regional planning? not covered: “conditional use permit 9/18/2018
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subdivision plat approval
1. compared to zoning 2. SCPEA; planning comm’n 3. exactions 4. the process 5. developer-comm’n confl 9/18/2018
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exactions: public dedications
1. legis standards; types 2. the “platmail” problem 3. inside/outside subdivision (e.g., requiring improvement of roads around but outside subdivision: outside is suspect, but sometimes legitimate) 4. Nollan-Dolan test a. close nexus? b. rough proportionality? 9/18/2018
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Ball Devel. Co. v. Va. City 1. Different?: (a) real (b) open-ended (c) harder (d) can’t just say, “I’m liberal/conservative” 2. Factual background a. 2 versions? b. How developed? 3. Documents 4. Notes a. Apply due p; taking? b. taxation? c. escrow: why? d. real case–?? 9/18/2018
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Ball Developmt: Documents
1. Complaint Does it state/claim? What is function? How many claims? 2. Answer: state, fed rules 3. Fact development a. discovery b. affidavits 4. Motions/summ j a. “no genuine issue of material fact” b. Procedure c. 2 versions? 9/18/2018
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environmental regulation of land use
1. the example of CERCLA: how it works a. a “superfund” for cleanup b. recovery from a person if: (1) facility (2) has [threatened] release of (3) hazardous substance (4) causing response costs from superfund and (5) “potentially responsible party” (PRP) ● PRP’s go beyond what you’d think: a. current owners & operators, b. past owners/operators at time of any release, c. treaters/disposers, d. transporters. ● strict liability: innocent owners. 2. cases: Axel Johnson: prior owner caused minor release, but liable for huge release by later owner. Maryland Bank: bank foreclosed; therefore, owner; therefore, liable. Fleet Factors: secured creditor after default had such contact w/owner that it became “operator”; therefore, liable. 9/18/2018
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environmental (CERCLA), cont’d
3. Northeast Doran v. Key Bank: bank posted property for foreclosure; advertised “no knowledge” of hazardous materials; later, learned of them; sold to Northeast without disclosure. Held: Key Bank not liable under CERCLA. Why? 4. Notes: (1) Is Key liable for nondisclosure? (2) environmental audits, warranties, contracts: recall Allen v. Cedar 5. anomalous effects of CERCLA: drove away buyers who would improve; costs enormous 6. Brownfields Amendments 7. Other environmental laws particularly affecting land purchasers: wetlands, endangered species 9/18/2018
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11. SERVITUDES: EASEMENTS, COVENANTS, AND NEIGHBORHOOD GOVERNANCE
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servitudes 1. a “quagmire”?
a. close neighbors b. valuable property c. need for “balancing” d. evolutionary creation e. ordinary folks 2. dominant; servient 3. affirmative use, negative obligation, affirmative obligation 4. different types a. easement b. real covenant (equitable servitude) c. license d. profit 5. servitude or something else? 6. appurtenant v. in gross 7. problems in notes 9/18/2018
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easements: express 1. by deed
2. stranger-to-title rule: A → B, “reserving” to C, gives C nothing 3. Willard v. Church a. McGuigan → Petersen, “subject to” easement for church b. Petersen → Willard, no exception c. result under “stranger” rule? d. court avoids rule e. “subject to” (also says it’s “given”) 4. notes: 1. language: “reserves,” “excepts,” “subject to”; 2. how should it have been done? (convey first to church) 9/18/2018
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non-express easements
1. prescriptive (through use) 2. necessity (severance of a landlocked parcel) 3. prior use (severance, use, reasonable necessity) 4. public dedication 5. estoppel (representation or implication; reliance) 6. equity 9/18/2018
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easements by (1) necessity & (2) prior use
1. easement by necessity a. common owner b. necessity 2. easemt by prior use (implication) b. prior use (apparent, continuous) c. “reasonable” necessity Kennedy v. Bedenbaugh: Mr. S. B. Holley owned landlocked tract and also owned a TIC interest in the frontage tract with his wife, Ms. C. D. Holley. Later, the landlocked tract devolved to Kennedy et al, the frontage tract to Bedenbaugh. Held, no easemt by necessity. 1. earlier, there was unity, but a road existed; thus, no necessity then. 2. S.B. & C.D.’s different ownership = no unity. (make sense?) 9/18/2018
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easements by (1) necessity & (2) prior use (cont’d)
Schwab v. Timmons: neither necessity nor prior use (restrictive) 1. no through road, so no prior use 2. no necessity a. could access by stairway, elevator b. plaintiffs created the landlock 3. how much “necessity”? 4. clashing policies: anti-landlock vs. record certainty notes: 1. distinguish necessity from prior use, 2. Schwab rejects anti-landlock policy, why? (what opposing policy?) 3. why implication for grantee in Schwab but not grantor? 4. Schwab in another juris? statute/frauds; recording 9/18/2018
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easements: (3) prescriptive
3. prescriptive (resembles adverse) a. open/notorious b. adverse (nonpermissive) c. exclusive d. uninterrupted e. required time Han Farms v. Molitor: frequent observable use, without evidence of discussion–held, nonpermissive & adverse 9/18/2018
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easements: (4) public, (5) estoppel, (6) equity
4. public dedication Hatton v. Grigar: 4 reqmts notes: 1. overlap--could Hatton be prescriptive, necessity, prior use, estoppel? 5. estoppel a. representation (by silence?) b. Belief c. reliance d. other cases: more Prospect Devel. Co. v. Bershader: representation--adjacent land could not be built upon”; purchase, improvemts; held, estoppel 6. equity 9/18/2018
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Problem 11A: Del Toro Easemt
1. Sonora, owned by Servano, encircles Del Toro 2. Biggers owned Del Toro, used gravel rd 3. Sale K to Purser (Plaintiff) 4. Servano denies easement unless Purser will swap certain land 5. Purser refuses 6. Biggers then sells to Newman, who agrees to swap 7. Purser sues the 3 8. Plaintiff’s expert, Whit Ness: easement exists 9. Defendants’ expert, Randall: no easement 10. History: the gravel road 11. Theories of easement 12. Cross-exam techniques 9/18/2018
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scope & meaning of the servitude
1. location of easemt: free-floating; fixed by custom; metes? Carrolsburg v. Anderson: servient unilaterally relocated access to parking; less convenient a. majority rule (e.g., Georgia): enforce as is; change requires new agreement b. intermediate approaches New York (minority), c. Lewis v. Young: servient improves, relocates; held, can move, depending on expense, burden, utility d. servient loses either way; why? e. notes: 4. document prep: when floating, relocatable, fixed? 4. the bundle of rights 5. Swaim v. Simpson: adding utilities to access “increases burden”(?) 6. notes: 1. Swaim persuasive? 2. variety of issues, 3. increased burden, 4. growth & traffic 9/18/2018
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Problem 11B: Wheeler Easement
1. tenancy in common, 400 x 200 2. agreed partition: Samantha gets frontage, Diane gets landlocked 3. assignments a. draft a deed for access easemt b. draft language for relocation c. describe (don’t draft) all other easements needed 4. discuss all aspects 9/18/2018
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real covenants 1. requirements a. intent b. touch & concern
c. vertical privity (w/transfer of interest) d. horizontal privity [e. writing, recording] Klefstadt v. Miller 2. commercial settings 9/18/2018
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neighborhood governance
1. covenants create governance 2. but: it’s more than covenants 3. owner’s ass’n (corporation); function; arch. control committee 4. conflicts with landowners 5. analogy to zoning 6. aesthetics: Raintree Homeowners v. Bleimann: non-arbitrariness; floating “plan”; reasonableness 7. notes: 1. more likely upheld than aesthetic zoning; why? 9/18/2018
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governance, continued 1. assessments, liens, expenditures
2. Regency Homes v. Egermayer a. membership: regular & special b. dues to “social club” or to owners’ assn [that operates club] c. touch and concern? d. test: affects benefits & burdens of ownership of particular land e. enhancement? f. expenditure types; legitimacy g. lien foreclosure 3. notes: 1. types of suits, 2. officers, 4. business judgmt v. reasonableness 4. lien foreclosure a. foreclosed owner’s view b. ass’n view c. state regulation 9/18/2018
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12. COMMON LAW ESTATES: POSSESSORY & FUTURE INTERESTS
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common law estates: FSA & life estate
1. simplest possessory estates a. life estate “to A for life ” b. fee simple absolute “to A & A’s heirs” 2. simplest future estates a. remainder (after gift to 3d person) b. reversion (whatever’s not given; reverts to grantor) 3. practice problems 4. Imerys Marble Co. v. J.M. Huber Corp.: grant of marble interest, “not to be sold” by grantees during their life. (1) life estate, or (2) fee simple with invalid restriction? 5. Notes: argumts for life estate? 3. majority reasoning; 4. statutory preference for fee grant (why?) 6. Some state statutes impose fiduciary duties on life tenant 9/18/2018
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reversions and remainders
1. reversions: practice problems 2. two types of remainders a. “contingent”: unfulfilled condition or unascertained party b. three types of “vested”: (1) true vested (2) vested subject to open: may have to share with others defined later (3) vested subject to divestmt: condition subsequent (“to A for life, then to B, but if B doesn’t graduate from law school by 2010, then to C”) 3. identifying ultimate possessory estate: e.g., remainder “in FSA” 4. practice problems about remainders 5. Estate of Zucker: one-half to Mr./Ms. Foreman “or the survivor.” (1) contingent remainder that disappeared when both died? or (2) vested? 9/18/2018
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quick concepts 1. account for entire fee
2. future interest = present ownership (possession is what’s in the future!) 3. if it’s not a remainder & is in a transferee, it’s an executory interest 4. if part of fee unaccounted for, reversion in grantor 5. finite catalogue of estates 6. vested remainders (determined) vs. contingent (not determined) 9/18/2018
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executory interests [NOT RESPONSIBLE]
1. refined remainder def’n: no premature termination of another estate; immediate poss’n 2. if either premature termination or postponed possession, then = executory interest. 3. history: uses; execution of uses to plug loophole 4. springing use (gap), shifting use (terminates) 5. practice problems 9/18/2018
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Possessory & Future Interests
Present Interest Future, in Grantor Future, in Grantee 1. Fee Simple [None] [None] 2. Life Estate 1. Reversion 2. Remainder/3. Executory 3. Fee Simple 4. Possibility of Reverter -- Determinable 4. Fee Simple 5. Right of Entry -- Subject to Condition Subsequent 5. Fee Simple Executory Interest Executory Limitation 9/18/2018
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why do these concepts matter?
1. historical: v. important 2. governs some titles, still today 3. taxes [“bypass”] 4. integenerational control 5. technical rules; still invalidate interests 6. charitable gifts 7. subdiv or condo developmt 9/18/2018
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“defeasible” fees 1. Fee Simple Determ (FSD): condition precedent (e.g., “so long as”); possibility of reverter 2. Fee Simple subj to Conditn Subsequent (FSCS): condition subsequent (e.g., “but if”); right of entry 3. Fee Simple subj to Executory Limitatn (FSEL): future int. to a transferee; exec. interest 4. practice problems 9/18/2018
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defeasible fees continued
Queler v. Skowron: condominium developer declared & deeded entire community but built in phases; deed provided that phase either terminated or not built by termination date “shall terminate & revest in grantor”; developer’s later termination. 1. reason: market flexibility 2. interests of unit owners 3. contrary argumt: Condominium Act prohibits withdrawal (why?) 4. developer wins (why?) 5. notes: 1. what kind of defeasible fee? 2. why used? charitable uses 6. oil & gas lease: a FSD 7. comprehensive problems 9/18/2018
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repealed rules--marketability [NOT RESPONSIBLE]
1. destructibility of contingent r’s: “to A/life, then to B, if reaches 21" 2. rule in Shelley’s Case: gift to grantee/life, with remainder generically to grantees’ heirs = nothing to heirs, FSA to grantee 3. Estate of Hendrickson [4. doctrine of worthier title] 9/18/2018
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Rule vs. Restraints on Alienation (still viable)
Rule vs. Perpetuities: 1. The RULE! 2. Why? 3. balkanized; still (somewhat) operative everywhere The R-A-P Rap! “No interest is valid “(It just disappears) “Un-less “It MUST vest “Within lives in being, “Plus twenty-one years!” [plus an actual period of gestation, if any.] 5. possibility of violation = violation 6. examples: contingent gift to yet-unborn grandchildren “who live to 35 yr.”; gift to “my great grandchildren” 7. Why? See chart! 9/18/2018
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2. when perp period begin? (here, T’s death).
Estate of Kreuzer: To T’s son & daughter, then to grandchildren, to vest upon “last attaining 35 years.” Rule violation. Why? a 5-step method 1. what interests are subject to the Rule? (here, contingent remainders). 2. when perp period begin? (here, T’s death). 3. measuring lives: (son, daughter). 4. what causes vesting? (death of son, daughter, followed by 35th b’day of youngest grandchild.) 5. violation possible? (yes, if son & daughter die immediately while grandchildren young.) 9/18/2018
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Rule against Perpetuities
1. applies to trusts; can apply to options, etc. 2. frustrates dynastic planning 3. perp savgs clauses 4. reform (sometimes judicial, sometimes legis): a. “wait & see”; b. reformation; c. combination of both (Uniform Act); d. charitable 5. movie problem: “Body Heat” 9/18/2018
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