Super Condensed Property Notes For Law School
TRAGEDY OF THE COMMONS: Ocean. Open field.
3 Solutions: Regulation, Private rights, Gang rights.
ANTI-COMMONS: All must agree. Regulated store front. Shared land. Government.
TRESPASS: Coase Theorem economic efficiency if low transaction cost. Externality affects uninvolved. Nuisance?
ADVERSE POSSESION: Actual (improvement), open (normal), continuous (seasonal? Tacking w/ privity), hostile (interfere), exclusive, statutory period, taxes?
ENCROACHMENT: Intentional? Structure cost? Value of land change? Waste? Justice, unjust enrich?
PRIVATE NUISANCE: (1) Intentional, (2) unreasonable, (3) private enjoyment. 3 UNREASONABLE TESTS: Balance (harm v. utility), bankrupt business? Harm too severe? Must be owner. Come to it? Value loss. Trespass?
PUBLIC NUISANCE: (1) Unreasonable interference of (2) public right (HSWM, norm, environment) Clues in zoning laws. Public representative? Individual special harm? Come to it? Injunction.
POLICE POWER: State power delegated to cities. Broad. Protect public rights: HSWM, economic, environment, psychological. Facial (no), injunction. Applied (yes), capricious/arbitrary? Do it right.
ZONING: Careful: Comprehensive (not spot), big picture, consider alternatives, harmonize, public input, use experts.
Nonconforming: Grace period (time, condition), recover cost + balance 1 v. public. No change. Abandon? Hardship variance: No other use. Unique situation. Harmonize? Self-imposed? Taking?
Special exception: Contemplated by zoning code.
Vested Rights: Approval? 3 tests: (1) Quantum (specific $), (2) spent v. total, (3) balance 1 v. public.
Spot Zoning: Individual. No harmony.
TAKING: 14th amendment. Eminent domain (condemnation: blight not req.) Public benefit/use? Just Compensation: Market value, no moving/special costs.
Regulatory: Penn Central: investment backed expectations? Currently profitable? Should public bear burden? How large is the burden? Legitimate public purpose? Alternative right? Loreto: physical occupation is a taking, small = small damages. Lucas: no economic beneficial use. 90%+. Denominator issue: switch to Penn.
Temporary: Label is important. Permanent but later changed = damages for the rental value.
Coming To: Doesn’t bar. Affects investment backed investments because of notice.
EXACTIONS: Essential nexus between public interest and condition AND rough proportion to the public interest and condition.
TITLE: Race (first to record), Notice (last to buy w/out notice), Notice-race.
Types of Notice: Actual, Inquiry (should detect), Constructive (records).
DUTY TO DISCLOSE: Caveat emptor v. must disclose latent defects (undiscoverable things). As is not powerful.
WARRANTY OF FITNESS: Implied. Reasonable period of time. No privity? Builder may still be on the hook.
TENANT RIGHTS: Possess, quiet enjoyment (no eviction) partial or complete; actual & constructive (makes tenant abandon). Periodic, at will, sufferance. Rescind.
Warranty of Habitability: Related to quiet enjoyment. Housing code, health and safety. % decrease of enjoyment = % decrease in rent OR can rescind and move.
LANDLORD RIGHTS: Return substantially same. No waste: affirmative (hurts value), permissive (duty to inform), ameliorative (changes identity). No self-help. Tenant on hook, duty to mitigate. Rent must be stated.
LICENSE: Permission. Incredibly common. Revocable. Defense to trespass or nuisance.
Irrevocable: Investment backed reliance. How long?
EASEMENT: Non-possessory interest in land (to use). Appurtenant (assumed) intent + subsequent servient owner had notice, in gross (divided must act as one). Profit easement to take resources.
Negative: Prevent servient owner doing specific things
Implication: Prior common owner. (1) Intent, (2) visible, (3) permanent, (4) reasonably necessary, (5) subsequent owners need notice.
Necessity: Prior common owner. No practicable route. Ends when the necessity ends.
Prescription: Used long enough. Like adverse Poss. Public prescription tough because permission may be implied and ruins hostility argument.
COVENANTS: Land promises. Equitable servitude remedies easier to obtain than real (monetary). Intent, notice, horizontal privity (original creators) & vertical privity (seller to buyer), touch or concern. Implicated in common plans.
TERMINATION: Merger (united), Abandonment if act of intention, Change in condition if purpose /benefit is gone, Acquiescence if you didn’t protest earlier (laches).
PRESENT INTEREST: Fee Simple (assumed) will pass to heirs, Fee Tail (abolished) pass to oldest son, Life Estate is transferable & will revert back to original.
Defeasible Fees: Determinable durational, creates possibility of reverter, adverse possession. Conditional does not auto terminate, right of entry. Executory a named 3rd party who may benefit from determinable/conditional event.
Leaseholds: Temp. possessor: Periodic, at will, sufferance.
FUTURE INTEREST: Reversion (Life, leasehold). Possibility of reverter (determinable). Right of entry (conditional).
Vesting: (1) No contingency, (2) Specific owner
RULE AGAINST PERPETUITIES: + 21 years. Possible not probable. (1) Ignore present interests, (2) Ignore grantor future interests, (3) Contingent? (4) Open group? (5) Identify lives in being, (6) possible still contigent or open + 21 yrs? (7) Strike.
Tips: Skipping generation, 3rd party’s widow, titles
ALIENATION: Disabling, forfeiture, promissory (maybe ok).
SHARED OWNERSHIP: Tenancy in common (right to all), Joint tenancy (survivorship), unity of (equal interest shares, title, time, possession of entire). Partition. No rent.