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Property I
University of Oregon School of Law
Forell, Caroline A.



Spring 2013

The Right to Use One’s Property

Right to Exclude: This right is not and never was absolute. Today the 5th Amendment is very important in that it is the principal means by which a citizen can ensure his privacy against both government and intruders.

Takings Clause – 5th Amendment: “Nor shall public property be taken for public use without just compensation…”

Eminent Domain: An actual piece of land or core right is taken by the government.

Kelo v. City of New London: (pg. 31) The city of New London was in bad economic shape. Big drug company wants to come in and city created NLDC to implement a plan to help revitalize the city based on this new development. Plan calls for developing parcels of land upon which the Ps have homes that they don’t want to leave or sell. City is going to be turning over the land to a private group. NLDC wants to condemn the property and then hand it over to private company. The Ps claim that this would violate the public use restriction of the 5th Amendment. So the issue is whether this can qualify as a public use under the 5th?

i. Holding: Supreme Ct. says this plan is ok. We define public purpose broadly and one is going to be fulfilled here with this taking. Defer to the judgment of the city. The general benefits a community enjoys from economic growth qualified such redevelopment plans as a permissible “public use” under the takings clause. You can give the land to a private party if it benefits the public.

Regulatory Taking: Regulations restrict what a property owner might do with their property.

Lucas v. South Carolina Coastal Council: (pg. 47) In Lucas, P had plots of land on coast. State passed regulation saying could not build on the lots. Lucas sued, saying he should get compensated. Said that they now had no economic value.

Holding: Supreme Ct. no matter how laudable the goal, if the impact of a regulation is to deny the owner any economically viable use of their property, then they must be compensated unless the state can prove that this is a nuisance issue. If the state can prove that the new regulation is similar to those background principles of nuisance law, then will not have to pay compensation.

Rule: Total regulatory taking must be compensated. Exception: Regulation that renders property valueless is not a taking if it prohibits uses of property that were not previously permissible under relevant property and nuisance principles.

Even if you couldn’t get a Lucas claim, could maybe still get a 5th Amendment claim. If there is still some economic use, then would use Penn Central case. (See later)

Not much deference here to state legislature.

Lucas is going to be inapplicable to a lot of cases that come up because of being denied all economic use.

** Both these cases indicate that property rights are not absolute**

Bundle of Rights:

Right to Exclude – Kelo, Adverse Possession

Right to Use – Lucas

Right to Transfer – Gift, Abbott, Fulton, Hood, Sale: class 6 documents

Right to divide into present and future interests

Transfers of Ownership

Involuntary Transfer

Adverse Possession: If a person wrongfully possesses land long enough in a certain manner, the true owner may be barred from recovering possession by statutes of limitation, which prescribe the period, within which a suit to recover possession of real property must be brought. Once such action is barred, the adverse possessor has effectively acquired the title. Elements:

Actual and Exclusive: The adverse possessor must actually enter and take exclusive possession of the property. Exclusive possession means the possessor is not sharing with the true owner or the public at large.

i. Must be using a reasonable percentage of the property

ii. You don’t need to be at the property 24/7 (Peters)

iii. Payment of Taxes would help to show this (and also claim of right)

Open and Notorious: The adverse possession must be readily detectable to a true owner by being the type of occupation a true owner would make.

i. The adverse possessor’s occupation must be sufficiently apparent to put the true owner on notice that a trespass is occurring.

ii. As far as using it as the true owner, nature of the land is going to be taken into account, effect of a fence or other enclosure, acts toward the outside world.

Continuous: Adverse possessor must continuously occupy for the limitations period. This means that the occupation must be as continuous as a true owner’s occupation would be, without voluntary abandonment by the adverse possessor.

i. Requires degree of occupancy and use that the average owner would make of the property.

ii. If the adverse possessor abandons the land and then returns or the owner reenters the land in order to regain possession, this will interrupt the statute of limitations.

iii. Tacking: There need not be continuous possession by the same person. An adverse possessor may tack his possession onto that of a prior adverse possessor so long as the two adverse possessors are in privity – they have voluntarily transferred possession from one to the other.

iv. Tacking is NOT permitted when one adverse claimant ousts a preceding adverse claimant or where one adverse claimant abandons and a new

y, for landholders to determine who would inherit their land upon their death, by permitting bequest by will. Prior to the enactment of this statute, land could only be passed by descent, if and when the landholder had competent living relatives who survived him, and was subject to the harsh rules of primogeniture.

Deeds: (pg. 137) A deed is an inter vivos transfer of real property. Parts of a deed:

i. Premises – initial recitals including heading, consideration and circumstances, operative words of conveyance, description of land and its appurtenances, recitals of reservations, exceptions, conditions or restrictions.

ii. Habendum – Begins “to have and to hold.” Originally was the most vital part from grantee’s view. Told grantee he had possession, that he would hold the land of a certain feudal lord, and that he would render to that lord certain feudal services. Also told him what kind of estate he had.

iii. Covenants of title –

Ø Seisin – The grantor promises that he owns what he is conveying in the deed.

Ø Right to Convey – Grantor warrants that he has the power or authority to convey the property.

Ø Against Encumberances – Grantor warrants that there are no liens, mortgages, easements, covenants restricting use or other encumbrances upon title to the property other than those specifically excepted in deed.

Ø General Warranty – Grantor warrants that he will defend against lawful claims of a superior title and will compensate the grantee for any loss suffered by the successful assertion of a superior title.

Ø Quiet Enjoyment – Grantor warrants that the grantee will not be disturbed in his possession or enjoyment of the property by someone’s successful assertion f a superior title to the property.

Ø Further Assurances – Grantor promises to do whatever else is reasonably necessary to perfect the conveyed title, if it turns out to be imperfect.

iv. Testimonium –

Two types of deeds:

i. Quitclaim Deed – contains no warranties of title, but operates to convey to the grantee whatever interest in the property the grantor may own. (Buyer beware)

ii. Warranty Deed – contains covenants that warrant the state of the title.