# Property II (Fall 2013)

Welcome to Property II. We will be using the Dukeminier, Krier, Alexander, Schill, PROPERTY (7th ed.) casebook. In this class, we will cover Adverse Possession, Land Transactions, Title Assurance, the Law of Nuisance, the Law of Servitudes, Zoning, and Takings and Eminent Domain.

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Posted by on Dec 21, 2013 in Property II - Fall 2013 | 0 comments

Hello everyone. I apologize for interrupting your break with this note. I have submitted grades for Property II.  I am very proud of all of you. On the whole, you nailed it. I put together really difficult fact patterns that were quite open-ended, with the intent that there would be many, many, many correct answers. I thought I had considered all the possible answers, but several of you came up with things I didn’t even think of. Well done.

Additionally, many of you incorporated various concepts we talked about in class that were not in the textbook (such as the Coase Theorem, various constitutional concepts, etc.).

Finally, despite all of your concerns, almost every single one of you managed to completely answer the question within the word limit. In other words, the differences between the A, B, and C was not due to an inability to write within the word limits.

First year classes are subject to the school’s mandatory grading curve (see p. 84 of the handbook):

grades assigned in classes of 40 or more students shall conform to a mandatory grading distribution. That distribution provides for a required 9-16 percent for A+/A, a required 16-30 percent for A+/A/A-; a required 16-30 percent for C+/C/C-/D+/D/F; and a required 9-16 percent for C/C-/D+/D/F. The class average shall be 2.85-3.15.

I think you will find that I maximized the grades here. I approached the upper limits of the grades allowed above an A-, and approached the lower limits of grades below C+. In addition, the class average was very close to the upper limit of 3.15 (3.134). In other words, there were more As than Cs, and the class averages were quite high.

Here is the full breakdown.

• Average: 3.134
• A and above – 14.0%
• A- and above – 29.8%
• C+ and below: 17.5%
• C and below: 10.5%

Thank you all for a great semester.

## Prop2 Class 28 – Eminent Domain

Posted by on Nov 21, 2013 in Property II - Fall 2013 | 0 comments

The lecture notes are here and the livechat is here.

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb, nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process, of law; nor shall private property be taken for public use, without just compensation.”

Here are a number of photographs of Susette Kelo and her home, courtesy of the Institute for Justice (the public interest law firm that litigated Kelo to the Supreme Court).

Susette Kelo in front of her little pink house.

After the case, Kelo disassembled the house, and moved it across town. It was moved from 8 East Street (by the water) to 36 Franklin Street.

Note that the entire lot is vacant, except for the stray building–The Italian Dramatic Club.

Here is a satellite photo from 2007 showing several other properties remaining on the lot. Today only the Italian Dramatic Club survives.

It now stands as a monument to eminent domain for private development.

Susette Kelo’s house being disassembled and moved across town.

Deconstruction of Kelo’s Home

Deconstruction of Kelo’s Home

In 2009, Pfizer pulled out of the New London project. The site of Kelo’s home remains vacant. There have been reports that feral cats now reside on the land.

The present site of Susette Kelo’s Home

Via Business Insider, The Hartford Courant reports:

Pfizer Inc. will shut down its massive New London research and development headquarters and transfer most of the 1,400 people working there to Groton, the pharmaceutical giant said Monday….

Pfizer is now deciding what to do with its giant New London offices, and will consider selling it, leasing it and other options, a company spokeswoman said.

Scott Bullock, Kelo’s co-counsel in the case, told the Examiner’s Tim Carney: “This shows the folly of these redevelopment projects that use massive taxpayer subsidies and other forms of corporate welfare and abuse eminent domain.”

Here’s how the Associated Press describes the vacant lot:

Weeds, glass, bricks, pieces of pipe and shingle splinters have replaced the knot of aging homes at the site of the nation’s most notorious eminent domain project.

There are a few signs of life: Feral cats glare at visitors from a miniature jungle of Queen Anne’s lace, thistle and goldenrod. Gulls swoop between the lot’s towering trees and the adjacent sewage treatment plant.

## Prop2: Sample Final Exam Question and Answer

Posted by on Nov 19, 2013 in Property II - Fall 2013 | 0 comments

## The Question

Instructions: You are an associate at a law firm. Your lazy partner, who is quite short on time, asks you to prepare a memorandum of no more than 500 words addressing a situation affecting a client. You are in a jurisdiction that, for the most part, adopts the rules of the Restatement (First) of Property, but is gradually moving towards the Restatement (Third) of Property. The jurisdiction has a “Notice” recording statute. The period required for adverse possession is ten years with color of title, and twenty years without color of title .

Here are all the facts. If you draw any inferences beyond these facts, please explain why you drew those inferences.

On January 1, 2011, your client Aladdin purchased Blackacre from Oliver with a general warranty deed for \$100,000. Oliver told Aladdin that he owned the land in fee simple, and that there were no encumbrances on the title.

Aladdin, who was otherwise involved in a bitter dispute with his girlfriend Jasmine (she acted like such a Princess!), delayed recording until January 1, 2012.

Unbeknownst to Aladdin, Oliver also sold Blackacre to Bambi for \$50,000 on June 1, 2011. Oliver gave Bambi a quit-claim deed, though Oliver never signed it. Bambi recorded the same day, on June 1, 2011. However, the clerk who recorded the deed accidentally wrote “Greyacre” instead of “Blackacre.” Bambi knew nothing about the sale of Blackacre to Aladdin.

Bambi did not enter the property right away, as she was grieving the tragic death of her mother.

On January 2, 2012, Aladdin finally enters Blackacre, and decides to open the forest, which is extremely over-populated with deer, to hunters for a fee. WIthin 24 hours, Aladdin sells out hunting passes for the year for \$20,000.

Gaston, a renowned hunter, enters the land, fires his gun, and kills a deer.

Captain Hook, who owns Whiteacre, which is adjacent to Blackacre, is startled by the gunshot, and comes running over and yells at Aladdin, telling him hunting is not allowed on the land. The Captain is very sensitive to sound.

The Captain says, “Look around at every other plot of land in the area. There is no hunting allowed anywhere in the county!” Aladdin said he didn’t even notice.

Aladdin told the Captain that his land was so over-populated by deer, who were eating all of his crops, that he needed to do something to reduce the number of deer. Aladdin said “this was the only way I could save my land!”

The Captain tells Aladdin that when he sold Blackacre to Donald Duck thirty years ago, the Captain added an easement on the deed, stating that hunting would not be allowed on Blackacre.

Aladdin tells the Captain that he “purchased Blackacre in fee simple from Oliver, not Donald Duck.” Aladdin had no clue who Donald Duck was. The Captain looks confused, and said that he had seen Oliver on the land occasionally over the last 5 years, and before that Eeyore had lived on the land continuously for six years. Oliver claimed he acquired a deed from Eeyore, but it was never recorded. Eeyore obtained a deed to the land from a sheriff’s sale. Eeyore never recorded his deed. However, years later–after Oliver acquired title from Eeyore and entered the land–a court determined that the the sheriff’s sale was based on an invalid foreclosure. Oliver had no notice that the foreclosure sale was invalid. The Captain said he did not mind that Eeyore and Oliver were on the land, as they were quiet. However, the Captain said that Donald Duck was the lawful owner. Aladdin said he had never even heard of Donald Duck.

Shortly thereafter, Bambi, still traumatized from the death of her mother, enters Blackacre, and discovers to her absolute shock and horror, that Aladdin is allowing deer-hunters onto the land.

The Captain filed suit to enjoin hunting on Blackacre, and claimed that the noise from the gunshots constitute a nuisance, seeking \$5,000 in damages. Bambi filed an action to quiet title, and to oust Aladdin from Blackacre.

What are Aladdin’s best defenses against the suits brought by Captain Hook and Bambi? What actions may exist against Oliver? What should Aladdin do (and no, Genie can’t help)?

## The Answer (Exactly 499 Words)

First, the court must determine if Oliver–the common grantor to grantees Aladdin and Bambi–had title to Blackacre. Even though the deed Eeyore obtained from the sheriff’s sale was invalid, he lived on the land continuously for six years under color of title (defective deed). Oliver obtained a deed from Eeyore, so the two are in privity. Oliver’s five years of use may be tacked to Eeyore’s six years. However Oliver only frequented the land “occasionally.” If a court finds that Oliver’s use is sufficient to satisfy the jurisdictions 10-year adverse possession statute under color of title, Oliver had title to Blackacre. If not, Oliver lacked title. But, ultimately, this doesn’t matter as both Aladdin and Bambi were subsequent purchasers for value without notice.

Whether or not Oliver had a valid title to Blackacre, as between Aladdin and Bambi, Bambi has superior title in a notice jurisdiction. Bambi was a subsequent purchaser for value without notice. Though Oliver never signed the deed, the receipt of \$50,000 and actual transfer of the deed is sufficient to imply delivery. The fact that the clerk mistakenly recorded the deed as “Greyacre” rather than “Blackacre” would not change the fact that Bambi has superior title with respect to Aladdin as she took without notice. However Bambi’s misrecorded deed wouldn’t be effective against subsequent purchasers as it outside the ascertainable chain of title. The fact that Bambi did not enter till much later is immaterial.

Though the deed from Captain to Donald 30 years ago contained a negative easement limiting hunting, Eeyore and Oliver jointly obtaining Blackacre through adverse possession following the sheriff’s sale breaks the chain of title. Thus, the negative easement does not apply to Aladdin’s deed. A court may find that there is an implied negative easement against hunting in light of the fact that hunting is not allowed anywhere else in the county. However, it is much less likely that a court would imply a positive easement to permit hunting in light of the fact that hunting was the only way to “save” the land from deer overpopulation. Courts in First Restatement jurisdictions tend to construe the absolute necessity of implied easements strictly, though the modern trend is to recognize implied easements by necessity more easily.

A court may find that Aladdin is liable to Captain for a nuisance, irrespective of any easements, though the Captain’s idiosyncratic sensitivity to sound may weaken this claim. Because Aladdin earned \$20,000 from hunting licenses, and the Captain is only suing for \$5,000, Aladdin should consider settling with the Captain for some amount greater than \$5,000. This will leave both parties better off.

Aladdin could sue Oliver under the general warranty deed for a breach of the covenant of seizin, and seek the return of the \$100,000 purchase price to restore the status quo, but could not recover the \$20,000 for hunting passes. Bambi could not sue Oliver because she only obtained a quitclaim deed, which provides no guarantees.

## Prop2 Class 27 – Regulatory Takings – Balancing III

Posted by on Nov 19, 2013 in Property II - Fall 2013 | 0 comments

Today we cover three cases that wrap up the regulatory takings unit. First, Tahoe-Sierra v. Tahoe Regional Planning Authority, which largely cabins Lucas v. South Carolina. Second and third, two related and rhyming cases on exactions–Nollan v. California Coastal Commission and Dolan v. City of Tigard.

The review session will be on Saturday 11/23 at 10:00 a.m. in room 517. For the first 90 minutes I will administer the exam. At 11:30 a.m. I will go over the exam. You can see the question I will and out here.

The lecture notes are here and the live chat is here.

Lake Tahoe is a large freshwater lake on the border of Nevada and California.

This is the original bungalow from Nolan.

Here is an aerial view of the new Nollan house.

This is the strip of beach behind Nolan’s house where the California Coastal Commission wanted to have an easement.

Here is a photo of the store from Dolan v. City of Tigard, and the creek behind the store.

Here is an aerial view of the property from Dolan.

## Prop2 Class 26 – Regulatory Takings – Balancing II

Posted by on Nov 12, 2013 in Property II - Fall 2013 | 0 comments

Today we will have a very special guest lecturer, Justice Brett Busby of the Fourteenth Court of Appeals.

The lecture notes are here and the live chat is here.

Here is a diagram to explain the property at issue in Lucas.

And here are some photographs of the property at issue in Palazzolo.

This is the land at issue in Severance v. Patterson:

This is Carol Severance, the plaintiff in the case.

You can also learn about the recent Texas Supreme Court opinion, Severance v. Patterson, concerning easements on the beach of the Gulf Coast here and here.

## Prop2 Class 25 – Regulatory Takings I

Posted by on Nov 11, 2013 in Property II - Fall 2013 | 0 comments

Today, we will cover the two main regulatory takings case, both of which involve the word Penn–Penn Coal v. Mahon and Penn Central v. NYC.

The lecture notes are here, and the live chat is here.

Subsidence describes the proces whereby land shifts down due to under-ground mining.

This image courtesy of Wikimedia illustrates subsidence:

Here are photographs of Grand Central station, the site of the famous Penn Central Transportation Company v. City of New York.

When teaching Penn Central Co. v. NYC, it is very important to stress that the proposed construction atop Grand Central Station must be viewed in the context of the then-recently built Pan-Am Building (now the Met Life building).

Here is a map of where Grand Central Station is located:

The Pan-Am Building stands immediately behind Grand Central Station, and blocked any conceivable view of downtown Manhattan. The Commission noted that building above Grand Central would cut off “the dramatic view of the Terminal from Park Avenue South.”

To give you a sense of where Grand Central is, and how it would fit into the city, this diagram is helpful:

Here are blueprints of the two proposed designs to build above Grand Central. The first design, Breur I, would have preserved the exterior and built a tower. “The first, Breuer I, provided for the construction of a 55-story office building, to be cantilevered above the existing facade and to rest on the roof of the Terminal.”

The second design, Breur II, would have stripped the facade and built the tower. “The second, Breuer II Revised, called for tearing down a portion of the Terminal that included the 42d Street facade, stripping off some of the remaining features of the Terminal’s facade, and constructing a 53-story office building.”

## Prop2 Class 24 – Categorical Regulatory Takings

Posted by on Nov 7, 2013 in Property II - Fall 2013 | 0 comments

Today we will cover categorical regulatory takings–that is takings considered under bright line rules without any type of balancing tests.

The lecture notes are here and the livechat is here.

The Fifth Amendment provides:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Here is a photograph of the building at issue in Loretto v. Teleprompter.

Here’s what it looks like today at 303 West 105th Street (it’s probably dark now):

And here is a satellite photo of the roof where all those innvading wires were strung.

## Prop2 Class 23 – Zoning V

Posted by on Nov 5, 2013 in Property II - Fall 2013 | 0 comments

The lecture notes are here. The live chat is here.

To get a sense of how large the Laurel region is in this case, it considers a 20 mile semicircle (Pi * 20^2 = roughly 1,200 sq miles!) of Camden, Burlington, and Gloucester County.

The issue of affordable housing for families is still pressing–see this article from Times.

When Mayor Michael R. Bloomberg announced that the city was planning to develop new super-small apartments — called “microunits” — it represented another step toward his ambitious goal of building or preserving 165,000 homes for poor and moderate-income families across New York by 2014.

But some housing advocates, community leaders and elected officials say this latest proposal only highlights that one demographic group has been left out: large, poor families.

This group includes members as disparate as West Africans in the South Bronx, Hasidic Jews in Brooklyn and Bangladeshi in Queens, who are united by their inability to afford the high prices for large market-rate rentals and their inability to find publicly subsidized alternatives even as the overall housing stock has swelled.

## Prop2 Sample Exam Question

Posted by on Nov 2, 2013 in Property II - Fall 2013 | 0 comments

Instructions: You are an associate at a law firm. Your lazy partner, who is quite short on time, asks you to prepare a memorandum of no more than 500 words addressing a situation affecting a client. You are in a jurisdiction that, for the most part, adopts the rules of the Restatement (First) of Property, but is gradually moving towards the Restatement (Third) of Property. The jurisdiction has a “Notice” recording statute. The period required for adverse possession is ten years with color of title, and twenty years without color of title .

Here are all the facts. If you draw any inferences beyond these facts, please explain why you drew those inferences.

On January 1, 2011, your client Aladdin purchased Blackacre from Oliver with a general warranty deed for \$100,000. Oliver told Aladdin that he owned the land in fee simple, and that there were no encumbrances on the title.

Aladdin, who was otherwise involved in a bitter dispute with his girlfriend Jasmine (she acted like such a Princess!), delayed recording until January 1, 2012.

Unbeknownst to Aladdin, Oliver also sold Blackacre to Bambi for \$50,000 on June 1, 2011. Oliver gave Bambi a quit-claim deed, though Oliver never signed it. Bambi recorded the same day, on June 1, 2011. However, the clerk who recorded the deed accidentally wrote “Greyacre” instead of “Blackacre.” Bambi knew nothing about the sale of Blackacre to Aladdin.

Bambi did not enter the property right away, as she was grieving the tragic death of her mother.

On January 2, 2012, Aladdin finally enters Blackacre, and decides to open the forest, which is extremely over-populated with deer, to hunters for a fee. Within 24 hours, Aladdin sells out hunting passes for the year for \$20,000.

Gaston, a renowned hunter, enters the land, fires his gun, and kills a deer.

Captain Hook, who owns Whiteacre, which is adjacent to Blackacre, is startled by the gunshot, and comes running over and yells at Aladdin, telling him hunting is not allowed on the land. The Captain is very sensitive to sound.

The Captain says, “Look around at every other plot of land in the area. There is no hunting allowed anywhere in the county!” Aladdin said he didn’t even notice.

Aladdin told the Captain that his land was so over-populated by deer, who were eating all of his crops, that he needed to do something to reduce the number of deer. Aladdin said “this was the only way I could save my land!”

The Captain tells Aladdin that when he sold Blackacre to Donald Duck thirty years ago, the Captain added an easement on the deed, stating that hunting would not be allowed on Blackacre.

Aladdin tells the Captain that he “purchased Blackacre in fee simple from Oliver, not Donald Duck.” Aladdin had no clue who Donald Duck was. The Captain looks confused, and said that he had seen Oliver on the land occasionally over the last 5 years, and before that Eeyore had lived on the land continuously for six years. Oliver claimed he acquired a deed from Eeyore, but it was never recorded. Eeyore obtained a deed to the land from a sheriff’s sale. Eeyore never recorded his deed. However, years later–after Oliver acquired title from Eeyore and entered the land–a court determined that the the sheriff’s sale was based on an invalid foreclosure. Oliver had no notice that the foreclosure sale was invalid. The Captain said he did not mind that Eeyore and Oliver were on the land, as they were quiet. However, the Captain said that Donald Duck was the lawful owner. Aladdin said he had never even heard of Donald Duck.

Shortly thereafter, Bambi, still traumatized from the death of her mother, enters Blackacre, and discovers to her absolute shock and horror, that Aladdin is allowing deer-hunters onto the land.

The Captain filed suit to enjoin hunting on Blackacre, and claimed that the noise from the gunshots constitute a nuisance, seeking \$5,000 in damages. Bambi filed an action to quiet title, and to oust Aladdin from Blackacre.

What are Aladdin’s best defenses against the suits brought by Captain Hook and Bambi? What actions may exist against Oliver? What should Aladdin do (and no, Genie can’t help)?

## Prop2 Class 22 – Zoning IV

Posted by on Oct 31, 2013 in Property II - Fall 2013 | 0 comments

The lecture notes are here. The live chat is here.

The First Amendment provides:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Section 5 of the 14th Amendment provides:

5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Here are some photographs of the St. Peter the Apostle Church in Boerne, Texas, the subject of City of Boerne v. Flores. I suppose this church makes an exception to the “Though Shalt Not Kill” Commandment for the Religious Freedoms Restoration Act, which met its constitutional demise within the hallowed walls of this house of worship.

These photographs are courtesy of Hanah Volokh.

Here is a map of the Village of Belle Terre in Long (not Staten) Island. Today, roughly 800 people live in Belle Terre. It is close by to the State University of New York (SUNY) Stony Brook (named because there is a brook with stones on campus). I’ve been there.

And here is a photograph of a sign welcoming you (as long as you don’t have a roommate  to the Village of Belle Terre (courtesy of Ron Talmo):