question

2 Types of Possession

answer

Physical & Legal

question

2 Concepts of First in Time

answer

First to Capture; First in Pursuit

question

Formalistic v. Instrumentalist Approach

answer

formalistic - precedent and how it aligns with facts instrumental - what is best, the best result that is in sync with how the world works

question

Ratione Soli

answer

"according to the soil" --> Constructive Possesion

question

Rule of Increase

answer

Mama's Baby, Daddy's Maybe

question

Animus Reverteriari

answer

"habit of returning" --> precursor to domestication

question

Rights of Possessors

answer

EDU - Exclude, Destroy, Use for Lawful Purposes

question

Goals of Finder's Property

answer

reTARD - Restore Property to True Owner, Award honest finders, Deliver Reasonable expectations of Landowners, Discourage trespass and other wrongful acts

question

Relativity of Title and Possession

answer

Depending on the circumstances, the law may choose to recognize different persons as the "owner" of the same property which makes title, possession, or ownership is relative.

question

General rule RE: lost property

answer

Finder has superior rights to all else but subject to real owner and any other rightful prior possessor

question

General rule RE: mislaid property

answer

Finder has superior rights to all else but subject to real owner and any other rightful possessor BUT If found on property, owner of property will have better title because creates a duty of bailment

question

General rule RE: abandoned property

answer

First possessor becomes owner UNLESS gained unlawfully (e.g. trespass)

question

What happens if a finder is an employee or invitee?

answer

It usually goes to the landowner

question

What happens if a finder finds something embedded in the soil?

answer

It belongs to the owner

question

What kind of title does a finder have to found property?

answer

Voidable title

question

Bona fide purchaser

answer

an innocent party who purchases property without notice of any other party's claim to the title of that property

question

What kind of title does an AP obtain?

answer

Valid title - but not automatically recorded in the courthouse

question

How does an AP get his valid title recorded in the courthouse?

answer

By filing a quiet title action

question

How may an AP use the land before acquiring title via SOL period?

answer

Can use & transfer property like normal

question

What theories are AP base on and who do they refer to?

answer

Sleeping theory - True Owner Earning theory - AP

question

Elements of AP

answer

CHAO'S - Continuous, Hostile and Under Claim of Right, Actual and Exclusive, Open and Notorious, for Statutory Period

question

When is tacking okay between to APs?

answer

When in privity

question

3 standards to judge hostility in AP when it comes to land

answer

SOS- Subjective: good faith; Objective; Subjective: Agressive

question

Can an AP disclaim ownership?

answer

Yes, but not to persuade TO from suing however if he says "Look, I'll buy the place," then courts can construe it in 2 ways 1) As a disclaimer of ownership 2) As an effort to ward off spurious litigation by the AP

question

In an AP says to the TO ""Look, I'll buy the place," then how do courts construe it?

answer

1) As a disclaimer of ownership 2) As an effort to ward off spurious litigation by the AP

question

How much land does AP get?

answer

With Color of Title = All the land described in the defective deed so long as 1. It consists of a single parcel AND 2. Possessor has occupied a significant portion of the parcel Without Color of Title = only land they have actually, physically possessed for the limitations period.

question

Key points to remember with AP Open and Notorious element

answer

- some states have statutory requirements for this element (e.g. "usually cultivated or improved")

question

Key points to remember for AP statutory period

answer

- sometimes less time is needed if AP has color of title

question

What are the universally recognize disabilities for AP?

answer

IMP - Insanity, Minority, Prisonment

question

At what point do disabilities of TO matter for AP?

answer

At the moment the AP begins

question

What if TO is under two disabilities when AP started?

answer

the disability that is of most benefit (the longer running of the two) will count

question

Two views of AP when it comes to boundaries

answer

ME Doctrine- must be intentional trespass to get AP Modern (Majority) Doctrine - Objective standard but TO must have ACTUAL knowledge (constructive won't work)

question

3 ways court can resolve a dispute when AP has made improvements but not met the SOL

answer

1) if good faith, require TO to sell land to AP 2) Give TO option to purchase 3) If bad faith, require AP to tear it all down

question

3 other ways to resolve boundary disputes outside of AP?

answer

EAA - Estoppel, Acquiescence, Agreement

question

What is the key element regarding AP with chattels?

answer

Open and Notorious

question

What are the two rules regarding AP with chattels?

answer

Discovery Rule - SOL clock does not start as long as the TO is diligently looking Traditional Rule - focus on AP, if AP does not occupy it open and notoriously, then SOL does not start

question

Can you get AP against gov't?

answer

Not generally, but some cities/states make exceptions with longer SOLs

question

Besides conveyance , what are the other Ways to Transfer Property?

answer

LaJAWI - Legislative and Judicial Acts, Adverse Possession, Will, Intestate Succession

question

If a person dies intestate, what is the usual order of succession?

answer

I Ate Cereal Everyday - Issue → Ancestors (parents) → collaterals (other relatives) → escheat to state

question

Inheritance

answer

what the deceased leaves when he or she dies without a will

question

Intestate

answer

when a person dies but does not leave a will

question

Heir

answer

statutorily created person to whom real & personal property goes to at the death of someone intestate

question

Devisee

answer

person to whom real property is left in a will

question

Legatee

answer

Person to whom personal property is left in a will

question

Issue

answer

(CL) decedents and usually follow rule of pimogeniture

question

Liberty of Seisin

answer

Old way of transferring property

question

Types of Deeds

answer

Girls Like Q - General Warranty, Limited/Special Warranty, Quitclaim

question

Parts of a Deed

answer

P-WHAT - Premises, Warranty, Habendum, Acknowledgement, Testimonium

question

Warranty Clause's Covenants

answer

SEC has FEW losses Present - Seisin, Right to Convey, Against encumbrances Future - Warranty, Quiet Enjoyment, Further Assurances

question

How may real property ownership be divided?

answer

Physically Vertically Management rights (LL/Tenant) Temporally (present and future)

question

What are the Freehold Estates?

answer

DELTA - C; fee simple Determinable, fee simple subject to Executory limitation, Life estate, fee Tail, fee simple Absolute, fee simple subject to Condition subsequent

question

Creation of FSA in CL and MPL

answer

CL: To A and her heirs MPL: assumes FSA unless otherwise noted

question

Creation of LE in CL and MPL

answer

CL: To A MPL: "to A for life"

question

LE Pur Autre Vie

answer

LE measured in someone other than the grantee's life

question

What does the following conveyance create? "To A for 40 years, if she lives that long."

answer

NOT LE, Term of Years

question

What does the following conveyance create? "To A for life, but not more than 50 years."

answer

NOT LE, Term of years

question

Can a LE ever be inheritable or devisable?

answer

Only if it is a LE Pur Autre Vie, not by LE because by definition, a LE ends upon death of the holder

question

Creation of Fee Tail

answer

"To A and the heirs of his body"

question

What will you do when you see a fee tail on the exam?

answer

Not that nowadays in the majority of states, an attempted creation of fee tail results in a FSA; Then analyze it under bother

question

Creation of FSD

answer

"To A (so long as, as long as) property used for school" DURATIONAL LANGUAGE

question

Creation of FSSCS

answer

"to A but if premises not used for school, grantor can take back"

question

Creation of FSSEL

answer

"To A but if Z occurs, to B"

question

Are EI always automatic upon violation of the condition?

answer

Yes

question

Match the Future Interest :) 1) Fee Simple Determinable 2) Fee Simple Subject to Executory Limitation 3) Life Estate 4) Fee Tail 5) Fee Simple Absolute 6) Fee Simple Subject to Condition Subsequent

answer

1) Possibility of Reverter 2) Executory Interest 3) Reversion or Remainder 4) Reversion or Remainder 5) None 6) Right of Entry

question

What will you do if you interpret an ambiguous freehold grant on the exam? Ex. "To A, to be used as a parking lot, but if said premises should ever be used for a different purpose, then this conveyance shall immediately become void."

answer

I will note the ambiguity, note that Courts prefer FSSCS, and analyze under both.

question

When does AP SOL start for POR/EI vs. ROE?

answer

For POR/EI - when then condition is violated For ROE - when the grantor exercises his right of entry (but some states may still bar it)

question

General Rule on Alienation

answer

Any total or absolute restraint on alienation of ANY fee simple estate is VOID

question

3 Types of Alienation Restraints

answer

Don't Forget PROMISes - Disabling, Forfeiture, Promissory

question

Types of Waste

answer

Eat And I Vomit - Economic, Ameliorative, Involuntary, Voluntary

question

What is the definition and some examples of voluntary waste?

answer

Affirmative acts that significantly reduce the value of the property - including extinguishing of natural resources cutting down trees, tearing down a house, tearing up the place

question

How do you determine if a sale of land would be appropriate if it is affecting a future interest?

answer

Balancing Test - will it prevent waste - is it in the best interest of all the parties

question

Which Freehold Estates are Freely Alienable?

answer

FSA LE Pur Autre Vie FSD FSSCS FSSEL

question

Is the POR alienable?

answer

At CL: Only inheritable - no inter vivos transfer or through a will UNLESS to current possessor MPL: most states say it is freely alienable

question

Is the ROE alienable?

answer

At CL: Only inheritable - no inter vivos transfer or through a will UNLESS to current possessor MPL: Jx Split - some follow CL - some say freely alienable - very few say mere attempt to transfer inter vivos results in destruction freeing the possessory estate of the condition subsequent

question

Types of Vested Remainders

answer

SO ICDc College - VR Subject to Open - Indefeasibly Vested Remainder - VR Subject to Complete Divestment

question

Is the CR transferable inter vivos?

answer

CL: Not permitted MPL: Freely permitted

question

What are the marketability rules?

answer

MC'S WRAP -Merger -Destructibility of CRs -Rule in Shelley's Case - Doctrine of Worthier Title - Rule Against Perpetuities

question

What is the doctrine of merger?

answer

If a LE and the next vested estate in fee simple, including a reversion, come into the hands of the same person, the estates are merged into a FSA and any intervening estates are destroyed

question

What is the destructibility of contingent remainders?

answer

if contingent remainder is not ready (i.e. still contingent) when the interest before it expires, it is destroyed

question

What is the Rule in Shelley's case?

answer

Shelley's for Grantees If in one conveyance, a LE is created in a grantee and a remainder is created the grantee's heirs, then the remainder becomes a remainder in the life tenant, not in the heirs of the life tenant

question

What is the Doctrine of Worthier title?

answer

Worthier for Grantor If there is an inter vivos attempt by the grantor to create a remainder OR an executory interest in the class of his or her own heirs, no FUTURE INTEREST is created in those heirs instead the grantor retains a reversion

question

To what interests does RAP apply?

answer

EIs, VR-STOs, and CRs

question

At what point would we do the RAP analysis?

answer

When the interest was created - Deed: when conveyed - Will: when testator passes away

question

What is the Uniform RAP?

answer

Provides for waiting for a maximum of 90 years after the creation to see if the interest has vested

question

What are the types of concurrent interests?

answer

Jesus Christ is Everything - Joint Tenancy - Tenancy in Common - Tenancy by the Entirety

question

Which concurrent interests have the right to partition?

answer

Joint tenancy and Tenancy in Common

question

How will you walk through a partition analysis?

answer

1. Note which interests it applies to 2. note that it can be in kind or in sale, but that courts prefer in kind 3. Walk through factors to be taken into account to determine - Number of Co-tenants - Shape of Land (ease of division) - whether or not tenants agree to sale the property - all the tenants' interests

question

What will you do when a grant involving concurrent interest is ambiguous?

answer

1. Note the ambiguity 2. State that courts prefer to resolve ambiguities as Tenancy in Common 3. Analyze under both

question

What are the 4 unities for Joint tenancy?

answer

PITT - possession - Interest - Time - Title

question

How do you sever a joint tenancy?

answer

PS maybe M Partition Sale - lease (sometimes), conveyance (always Mortgage - Lien theory (no); Title theory (yes)

question

If you are in a joint tenancy, in a title theory state, and a joint tenant takes out a mortgage but dies before the other joint tenants, what happens?

answer

Jx split - some say due to right of survivorship, interest is extinguished - others say interest attaches to mortgagers portion

question

What will you do if a grant is to a married couple?

answer

1. Note that most states don't recognize TbyE but in those that do, they construe grants to married couples as TbyE 2. Analyze it under TbyE and the alternative (depending on what is there)

question

How can you sever a tenancy by the entirety?

answer

4 - Ds Death Divorce Dual Agreement Debt

question

How does a Tenancy by the Entirety operate at CL as opposed to MPL?

answer

CL - 2 were 1 and the 1 was him. He could freely transfer and mortgage subject to his wife's survivorship rights MPL - with Married Women's Property Act - 2 ways - Equal right to Unilaterally Alienate (minority) - Neither spouse may unilaterally alienate (majority)

question

When is a cotenant liable to other cotenants for rent?

answer

- if he has ousted the others (ousted cotenants entitled to their pro-rata share of the reasonable rental value) - if he has agreed to pay them reasonable rental value - if he has leased property to a 3rd party

question

When is a cotenant liable to other cotenants for profits?

answer

- only if he has depleted the natural resources on the land to make a profit - if he has ousted other cotenant

question

Which cotenants are liable for mortgages and taxes?

answer

Since these are costs to keep the property, all cotenants are liable for their pro rata share

question

If a cotenant makes necessary repairs on the property, are they entitled to get their money back?

answer

Not for contribution, but in the event the property is partitioned or sold, then entitled to reimbursement

question

What if a cotenant spends money to improve the property?

answer

Not entitled to contribution but entitled to full reimbursement of the value increased upon partition or sale (remember Hughes swimming pool example)

question

How does a cotenant acquire title to the full property by AP?

answer

Since each tenant can possess the property exclusivity, AP must go further and give actual notice and take action inconsistent with joint ownership

question

At common law, when a woman got married, what happened to her property?

answer

She lost legal control of it but acquired a dower

question

What is a dower?

answer

Dower is an interest held by a wife that attaches at marriage, but goes into effect if the husband die.

question

What interest does a dower provide?

answer

1/3 LE to the wife in each possessory freehold estate that the husband solely owned at any point in marriage

question

At common law, how could a dowry be removed?

answer

Divorce or Wife's consent

question

What is a curtesy?

answer

At common law, a LE in his wife's property measured by the first of them to die UNLESS they had a child, then it was measured by the husband's life

question

In MPL, the dower is extinguished and replaced by what?

answer

Elective Share

question

What is an elective share?

answer

MPL replacement to the dower that gives the wife the right to elect the share provided by statute or take according to the deceased spouse's will

question

What are the 3 views of dividing degrees and licenses obtained during marriage?

answer

a. Not property, cannot be inherited or devised so cannot be divided b. Reimbursement for Financial Support: compensate spouse for supporting/economic sacrifices c. Division of increased earning potential as if property

question

What type of interest does a landlord have after leasing his property?

answer

Reversion

question

What are the 4 types of leasehold estates?

answer

Young Pia Was Saved - Term of Years - Periodic Tenancy - Tenancy at Will - Tenancy at Sufferance

question

Which leasehold does not require any notice?

answer

Term of Years and, at CL, Tenancy at will

question

Which leasehold is the default leasehold?

answer

Periodic Tenancy

question

How do you determine the period for a periodic tenancy?

answer

Either previous lease's period or how often the rent payments are due

question

How much notice is required for a periodic tenancy

answer

CL - At least one period before termination UNLESS for period was for more than one year, then it would be 6 months MPL - Sometimes have relaxed the standards and some go by common law

question

After notice, when does a lease for a periodic tenancy end?

answer

At the end of the period

question

If the SOF is not satisfied when creating a lease, which leasehold does it default to?

answer

Tenancy at will

question

What notice is required for a tenancy at will?

answer

CL - No notice MPL - Most states require 30 days

question

Which leasehold terminates upon death of the landlord or the tenant?

answer

Tenancy at Will

question

When you get a question involving a lease, what is your analysis?

answer

1. Address its validity (writing, waiving implied warranty, conditions on subleasing) 2. Discuss theType (address ambiguities, note default and end date; if periodic, note the period) 3. Discuss Duty to Deliver legal (minority) vs. legal & actual possession (majority)

question

What type of leasehold does this create? A leases to B "a house for possession to begin on July 1 at an annual rent of $6,000, payable at the rate of $500/mo."

answer

Year to Year Periodic tenancy

question

What are the two tests for determining a sublease vs. an assignment?

answer

Majority - All or less than all Minority - Intent of the parties

question

What should you ALWAYS discuss when you have subleases and assignments?

answer

Privity of Contract and Privity of Estate

question

If a landlord withholds consent when it comes to subleases or assignments, what counts as a reasonable withholding?

answer

Landlord must have a legit, commercially reasonable purpose as to this particular piece of property (mostly used in commercial leases)

question

What two duties arise from a LL's duty of quiet enjoyment?

answer

Duty to deliver legal possession Duty to refrain from actual or constructive eviction (either LL himself or due to LL's actions/inactions)

question

Jx split on what a tenant can do if he experiences partial actual eviction. What are they?

answer

a. One view: Tenant can vacate and is relieved of paying the rent b. Second view: Tenant can stay in possession and stop paying rent altogether c. Third view: Tenant must pay partial rent

question

What are the elements of Constructive Eviction?

answer

SINFuL of the Landlord - Substantial interference - Notice to LL - Failure by LL to correct - Leaving by tenant

question

How will you attack a Constructive eviction problem on the exam?

answer

1. Note that claim can be for CE or Breach of Implied Warranty of Habitability and that Implied warranty of habitability is better 2. Walk through elements of Both

question

When determining substantial interference of tenant's enjoyment of the premises for CE, what do you want to take into account?

answer

Reasonable Person Standard Purposes for which the premises were leased Foreseeability of this type of interference Duration of inteferance

question

What is Caveat Lessee?

answer

Common Law practice that the LL had no duty to guarantee the condition of the property UNLESS Moe CLAPS - Misrepresentation - Common Areas - Latent defects - Assumption of repairs and done in a workmanlike manner - Public Use - Short term furnished lease

question

How will you walk through an Implied Warranty of habitability claim?

answer

1. CL: Caveat Lessee: No duty to guarantee condition of property unless Moe CLAPS 2. Rule: Rental premises must be offered and maintained in a physical condition that provides safe, decent and habitable housing - this is a warranty and covenant that cannot be waved 3. Breach = RP find premises inhabitable - defined by codes or fitness - AND notice and failure by LL 4. Tenant's remedies —> We Talked and Said Conditions Repulsive - Withhold rent - Terminate and Sue - Continue lease and recover damages - Repair and reimburse self from rent

question

What type of leases does implied warranty of habitability apply to?

answer

Residential

question

What are three defenses that tenant has if place isn't up to par?

answer

Illegal Lease Breach of Implied Warranty of Habitability Breach of Quiet Enjoyment - Constructive or Partial Eviction

question

What is an illegal lease?

answer

A lease that either contracts for some illegal use or a lease entered into when the property had a substantial code violation AND LL had actual or constructive notice

question

If a tenant holdovers, what is the LL options?

answer

treat him as a trespasser or renew the lease

question

If a LL wants to evict a tenant, how must he do it?

answer

After reasonable notice, - at CL: Self using reasonable force or judicial proceedings - MPL: most have abolished self help so must use summary proceedings

question

What are two ways that a tenant can abandon property?

answer

1) Leaving without notifying the LL 2) Trying to give a surrender, but LL doesn't accept and tenant leaves anyway

question

If a tenant abandons, what are the LL's options?

answer

Minority - Due nothing and sue for rent either as it comes due or via an acceleration clause Majority - Treat it as a surrender, accept it, and relet premises

question

When you get a problem where the tenant defaults on a lease, how will you walk through it?

answer

1. Distinguish between abandonment or surrender 2. If abandonment, talk about how LL can choose to accept it (incl. damages owed) 3. Discuss how trend is toward mandatory mitigation

question

Differences between CRA of 1866 and FHA

answer

CRA applies to ALL types of real or personal property but only prohibits discrimination based on race FHA only applies to residential housing, prevents based on race, religion, sex, handicap, and familial status (sexual orientation not included), and has some exceptions

question

What are the exceptions to the FHA?

answer

Does not apply to: 1. Apply to Owner Occupied rental housing of four units or less 2. Sale or lease by owner of a 3 or less single family dwellings

question

If you see an issue that involves discrimination w.r.t. property, what will be your analysis?

answer

1. Note the type of discrimination and say under which (CRA or FHA) it can be a claim 2. Walk through elements of a claim (1) Make out a prima facie case that in protected category, denied, and property remained available or someone not in protected category got it. (2) Burden shift to D to offer a legitimate reason (3) If D offers a legit reason, the P then has the burden to prove by a preponderance of the evidence that the reason was pretextual or is a lie.

question

What is the rule regarding advertising for property?

answer

Cannot advertise in a discriminatory manner - no exceptions apply

question

5 Categories of Easements

answer

PING - N -Prescription -Implication from prior use -Necessity -Grant -Negative

question

When you encounter a problem dealing with easements, how will you do your analysis?

answer

1. Note what type of easement it could be 2. Walk through elements of possible ones (if grant, distinguish between grant or reservation; if reservation, distinguish btw owner (CL v. MPL) and 3rd party) 3. Classify it as in gross or appurtenant 4. Address the scope of the easement

question

Prescriptive Easement Elements

answer

E-NO- CHAO'S - Excusive not always - Continuous - Hostile and Under a Claim of Right - Actual entry - Open and Notorious - Statutory Period

question

Easement by Implication from Prior Use Elements

answer

CREAC - common owner prior to division - Reasonable necessity^ - Existing Use - Apparent Use* - Continual use*

question

Easement by Necessity Elements

answer

CONS - Common Owner - Necessity at Severence^

question

Negative Easements at CL

answer

LAWS - Light - Air - Water - Support

question

When addressing notice, what do you want to address - particularly with Constructive and Inquiry?

answer

Constructive: it was recorded, can't say you didn't know - Some jx require you to search just your title, others all of grantor's conveyances Inquiry: something triggered that you should have inquired - language in a deed - the physical makeup of the property - words by the conveyer

question

With easements by implication, how do courts determine if it is reasonably necessary?

answer

Costly or difficult to use dominant estate OR Would it result in lots of economic waste to duplicate it OR was the price that was paid reflective of the easement

question

For the reasonably necessary element of easements by implication, how is a distinction drawn?

answer

Some courts distinguish between implied reservation and implied grants and employ the English and American Rules English Rule: by grant = reasonable necessity; by reservation = strict necessity American Rule: necessity for reservation is higher than grant but not strictly necessary

question

What does continuous use in the context of an easement mean?

answer

Embodied in a physical, permanent condition - does not necessarily mean constant use

question

For easement by necessity, how strong must the necessity be?

answer

Traditional - Strict Necessity Minority - Reasonable necessity

question

What is the general rule regarding the scope of easements?

answer

Cannot use easement to benefit a piece of land not originally included but courts will make an exception if servient land is not further burdened

question

What is the main difference between a license and an easement?

answer

License is revokable; Easements are not

question

How can a license become revokable?

answer

Estoppel or if it is combined with another interest like a profit

question

How long does an easement by estoppel last?

answer

Majority - lasts until owner receives the sufficient benefit to reimburse himself for his reliance Minority - potentially infinite duration

question

What estates create horizontal privity?

answer

Under CL - Just landlord and tenant MPL - much more relaxed, grantor/grantee; concurrent interests; landlord/tenant

question

How will you approach a question that involves real covenants or equitable servitudes?

answer

1. Determine what remedy is being sought (if damages = RC; if injunction = RC or ES) 2. Determine if the burden or benefit or both is running 3. Walk through the elements 4. Make sure you address exception for ES which is that an implied negative ES can be created via a general plan 5. Always consider the validity - FHA & CRA violations

question

Real Covenant Burden Elements

answer

WITHVN Writing Intent Touch and Concern Horizontal Privity^^ Vertical Privity* Notice

question

Real Covenant Benefit Elements

answer

WITV Writing Intent Touch and Concern Vertical Privity - Lesser estates okay

question

Equitable Servitude Burden Elements

answer

WITVN Writing Intent Touch and Concern Vertical Privity* Notice

question

Equitable Servitude Benefit Elements

answer

WIT Writing Intent Touch & Concern

question

What does the touch and concern element entail?

answer

physical use but not payment of money UNLESS it is rent or HOA fees

question

What are the 7 legal defenses for servitudes?

answer

SWARMED Statute of Limitations Express Waiver Abandonment Release Merger Expiration Eminent Domain

question

Equitable defenses that end servitudes

answer

Changed Circumstances - zoning reclassifications are evidence but not dispositive Acquiescence Unclean Hands

question

How would you attack a nuisance problem?

answer

1. Determine if it is public or private (because that matters as to who is suing and what for) 2a) If private, determine if there is substantial interference (intentional AND unreasonable (if unreasonable --> Jolt test and Utility balancing test) or just negligent) 2b) if public, note factors that interfere with public health, safety, convenience, etc. or if prohibited by ordinance 3. Determine the outcome using balancing of the equities if want an injunction

question

What test do you use to determine if there is a private nuisance?

answer

Jolt Test or Utility Balancing Test

question

When do you use the balancing of the equities test?

answer

Use it to determine the best equitable remedy for a suit to enjoin a nuisance. You weigh harm to P if injunction isn't granted vs. harm to D and public if injunction is granted

question

After you have used the 3 per se rules for regulatory takings, what are the next two steps?

answer

4) Too Far Test from Penn Central 5) Penn Central Balancing test

question

What factors do you look at for the Penn Central balancing test?

answer

Economic impact investment-backed expectations reciprocity of advantage character of government action other available uses of the property

question

How you attack a regulatory takings problem?

answer

1) Loretto per se Rule 2) Hadacheck per se rule 3) Lucas per se rule 4) Too Far Test from Penn Central 5) Penn Central Balancing test 6) make a determination and if a taking, say that just compensation is owed + discuss gov't's options

question

What are the government's options if found to be a regulatory taking?

answer

- pay just compensation before and after - amend the regulation so that it falls below the threshold and pay for before - abandon the regulation and pay for the before

question

What is the 2 step test for exactions?

answer

Essential Nexus and Rough Proportionality

question

Does a requiremnt for the payment of money count as an exaction?

answer

yes

question

What are the jx split regarding aethestic zoning?

answer

- Some say aesthetics okay if coupled with a showing that it will lower the property value - Others say okay on its own - others say not okay at all

question

What is the rule regarding constitutionality of zoning ordinances?

answer

Generally upheld unless arbitrary, capricious, having nothing to do with public health, safety, welfare, or discriminatory

question

What is amortization?

answer

when a city provides that a non-conforming use must terminate after a specified period of time

question

What is the majority v. minority rule when it comes to amortization?

answer

Majority - constitutional if given a reasonable amount of time Minority - Unconstitutional and amounts to a taking

question

3 elements for a variance

answer

Unique to that person, undue hardship on the person, does not mess up comprehensive scheme

question

How do easements appurtenant transfer?

answer

Automatically transfer unless purchaser is a BFP without notice.

question

Do easement in gross transfer?

answer

Only if the easement is for a commercial or economic purpose

question

Other way to make a discrimination claim

answer

Show landlord's intent

question

What is landlord's duty regarding tort liability?

answer

CL- None unless CLAP-N (common areas, latent defects, agreement to repair, public use, negligent repairs)

Property w. Hughes

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