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Property I
University of Oregon School of Law
Hildreth, Richard G.

Oregon Law Spring 2013
Property Law – Hildreth
I.      Property Generally
A.    Bundle of Rights:
A.     Right to possess
B.     Right to use
5th Amendment
C.     Right to exclude others from possession or usage
this is the “core of property rights, but there are exceptions such as police, fire, etc.
D.     Right to transfer
right to sell property, right to make a gift.
B.     Transfer of Property:
1.       Voluntary:
1.       gifts/sales → gifts can occur at life or death
2.       will → revocable until death of testator (Abbot)
3.       statute of descent
2.       Involuntary:
1.       Adverse possession
2.       takings (Eminent Domain, 5th Amendment stuff)
C.     Different classifications of ownership:
3.       Private
1.       Individual
2.       Corporation
3.       Communal
a)       Several people own jointly, i.e. co-op.
4.       Public
1.       Owned by government
5.       Open access (unowned = res nullius)
D.    Bona Fide Purchasers:
6.       One who is in wrongful possession (theft, fraud, etc.) sells them to one who buys for value without knowledge that the seller has no title (the buyer is a bona fide purchaser.
7.       General Rule
1.       A seller cannot convey better title than that which he holds.
2.       Exception
a)       Voidable Title
i)         A b.f.p. who takes possession from someone who has voidable title will be protected.
ii)       Example: B obtains goods from A by fraud, B gets a voidable title, and he immediately resells the goods to C (a b.f.p.).  A cannot recover the goods from C.
b)       Estoppel
i)         If A expressly or impliedly represents that B is the owner of the goods or has the authority to sell the,
ii)       A cannot recover if C buys the foods in food faith.
II.   Transferring Ownership
A.    Involuntary Transfer of Ownership:  Takings, Adverse Possession, and Prescriptive Easement
Takings Clause generally:
A.      5th (Federal) & 14th (State) Amendments = power of “eminent domain”
1.       5th Amendment: “private property [shall not] be taken for public use, without just compensation
B.      Land use control: normally does not constitute a taking for which the government must be forced to pay. However if the regulation so drastically interferes with the private owner’s use of property, or with the value of the property, the court will conclude there is an implicit taking.
1.       Regulatory taking: a government restriction on what a property owner can do with his land.
a)      Lucas v. South Carolina Coastal Council
2.       Nuisances or illegal uses of property do NOT need to be compensated
C.      Eminent Domain: an actual piece of land or a core right is taken by the government
D.      Damages v. injunction: if court finds implicit taking, it will 1) strike down the regulation, and enjoin the government from taking the property, 2) award money damages, or 3) both enjoin the government and award damages (for the temporary taking)
1.       Inverse Condemnation – a suit by a landowner seeking money damages for a land use regulation
a)      “Inverse” because the property owner sues the government
E.       Three levels of government that may “take” land: Federal, State, Local (zoning)
Taking v. Regulation:
A.      Taking: If a state merely regulates property in a manner consistent with the state’s police power, then there is no compensation, even though the owner’s use of his property or value has been substantially diminished.
1.       Zoning regulations, environmental protection, landmark preservation, etc. do not constitute a taking.
2.       But if regulations go too far, it will become a taking. 
B.      Substantial advancement of legitimate state interests: a land regulation will be considered a taking unless it substantially advances legitimate state interests. So it must be a fairly tight fit with state interests.
1.       This is more than just a mere rational relationship
C.      Deprivation of all use: if a regulation denies the landowner all economic viable use of the property, the regulation will be considered a taking. The simple fact that a particular use by the P has been completely destroyed is not enough to find a taking.  But a total ban on building any structure on a property is likely to be enough to deny an owner all economic viable use.
1.       Lucas v. South Carolina Coastal Council – bought coastal property then they past statute limiting development based on an erosion land.  Lucas claimed land was completely useless.  Trial court found for Lucas, State Supreme Court reversed and the U.S. Supreme reversed again finding for Lucas because the complete elimination of beneficial use so was a “taking” under the 5th and 14th Amendment.
a)      Dissent argued that Lucas’ property was not totally devoid of viable use – he could still use the property as a beach front camping ground and recreational area.
2.       Palazolla – has to lose all diminution in value, otherwise Lucas doesn’t apply, but still may apply Penn Central if there is some diminution in value. 
D.      Physical Use: if a government makes or authorizes a permanent physical occupation of the property, there is an automatic taking.
E.       Diminution in value: the more drastic the reduction in value, more likely be a taking. (this is the single most important factor in most courts for determining whether there is a taking)
1.       Pennsylvania Coal: while a property may be regulated to a certain extent, if the regulation goes too far, it will be considered a taking. (This may no longer be valid under Keystone, but there is still the basic principle that the more drastic the reduction in value of an owner’s property, there is more likely to be a taking)
F.       Prevention of harm: taking is NOT found where the property use being prevented is one that is harmful/noxious to others.
1.       Anything that the Common Law would recognize as public/private nuisance may be barred by regulation, without need for compensation.
Oregon Measure 7: 
A.      Provides compensation for reduction in value on land from regulation (does not need to be complete). 
1.       Exceptions to what is protected under Measure 7 are pornography and selling alcohol. 
2.       Must own the land before the measure was past (unlike the Fifth Amendment) – but easier to win (reduction in value vs. Fifth Amendment complete loss in value).
Individual and Public Benefits and Burdens: (where public and private rights intersect)
A.      Three types of takings:
1.       Physical invasion: forced occupation of government, generally permanent displacement
a)      e.g. flood controls, highway condemnation
b)      There is compensation no matter how minute the intrusion is, and no matter how weighty the public purpose is.
i)        Loretto – installing cable boxes was a “taking”
c)      There is a distinction between cases where the state merely prescribes how an owner may use the property (this is when courts use balancing test), and cases of permanent physical occupation.
d)     An easement is physical occupation.
i)        Nollan v. California Costal Commission – the means chosen by the government must “substantially advance” the government objective being pursued
                                                                                                                                     a.      A state’s refusal to grant a building permit conditioned on a public easement being built, is a physical occupation of property.
2.       Regulatory taking: no physical occupation, but diminution of value. Must be compensated unless they substantially advance legitimate state interests.
a)      This kind of taking occurs when 100% of the economic value of land is destroyed. Not a taking if just regulating something that is covered under a common law nuisance. When owner of real property has lost all economic beneficial use and the land is left idle, there has been a taking.
b)      Factors in determining a taking:
i)        Degree of harm to public land/resources
ii)      Harm to adjacent private property
iii)    Social value of claimant’s activities and suitability to locality in question
iv)    Relative ease harm can be avoided
c)      Zoning ordinance is not stricken as violative of Due Process unless it is “clearly arbitrary and unreasonable, having no substantial relation to public health, safety, morals or general welfare.” Likewise will landmark preservation regulations.
d)     Penn Central Test – this is the default claim if there is a claim of regulation taking, but not all value is taken. (Balancing test)
i)        Examine the character of the Govt’s actions
                                                                                                                                     a.      If it is arbitrary, it goes against the Govt.
ii)      How does the regulation interfere?
                                                                                                                                     a.      Property owners who purchase property after regulation cannot have a claim because they knew going into the investment that it was restricted. Palazollo
iii)    What is the diminution of value?
e)      Under Measure 7 in Oregon, ANY diminution of value results in compensation
3.       Hybrid (Invasion and Regulation): components of regulation and physical occupation. Forced occupation and regulation.
a)      Dolan v. City of Tigard – taking occurred when Dolan (store owner) asked to enlarge the plumbing and was only allowed to expand if she agreed to allow a 15-foot wide bike path on her property
i)        City must show “rough proportionality” between the trade off demanded by the city and the P’s proposed development
B.      Typically, there is no compensation unless the property completely loses value.
Physical takings:
A.      Property owner typically introduces own evidence of the value of property
B.      Easements can also be condemned
C.      Land use regulations are not takings if they substantially a

    The conduct must constitute reasonable notice to the owner that adverse possessor is claiming dominion.
2.       Acts that an owner would do. [e.g. fencing, cultivating, paying taxes, selling resources – acts appropriate to the environment].
3.       Possessor’s use of the land must be similar to that which a typical land owner of similar property would make.
4.       Taxes: Adverse possessor need not pay taxes on the property though paying taxes is admissible as evidence of requisite dominion and notice to the outside world
C.      Hostile possession (or under a claim of right): Possession of the property must be without the owners consent
1.       If the adverse possessor has the owner’s consent, then the possession is not subordinate to the owner, and there is no necessary adversity.
2.       No presumption of knowledge arises from someone other than the owner committing minor encroachments on the property.
3.       Objective test: the adverse possessor’s actions (as opposed to state of mind) must be consistent with claims of ownership.  Doesn’t require good faith. Peters. MAJORITY RULE.
a)      MAJORITY also does not require good faith intent
4.       Subjective test: adverse possessor must have a bona fide or good faith belief that she has title. MINORITY RULE. A mere “squatter” never gets title.
a)      ORE: ORS 105.615 requires good faith at the outset and throughout. Must be reasonable under the particular circumstances.  There is no presumption of hostility simply by satisfying the other elements.
D.      Continuous possession: Possession must continuous and uninterrupted.
1.       Seasonal use can qualify as continuous possession. 
2.       Requires the same degree of occupancy and use that the average owner would make of the particular type of property.
3.       Tacking: adverse possessor may tack onto her own period of adverse possession any other period by predecessors in interest (where privity of estate exists by successive possessors—can include other adverse possessors). The clock doesn’t start over.
a)      Test: initial adverse possessor voluntarily transferred the property. (There is no privity if it was involuntary).  The parties must have continuity of interest, a direct relationship, familial or economic.
b)      Tacking is not allowed when one adverse possessor ousts another adverse possessor
4.       The period of adverse possession can be extended if the disputed property owner suffers from a disability
a)      E.g. – minority, lack of mental capacity, imprisonment
5.       Interruption by true owner: entry by the true owner, even if brief, for the purpose of regaining title stops the statute of limitations sufficient to break the adverse possessor’s claim. Some courts say that interruption can occur w/o an actual intent to oust the possessor—there is the presumption that use of land by owner asserts ownership. Mendonca.
a)      ORE: ORS 91.115 – Tenants cannot take title from landlord, because this is permissive possession, not adverse.  Tenant may be able to bring a claim of AP later but not likely
E.       Cases
1.       Belloti v. Bickhardt:  A building was built partially on plaintiffs land.  Building was occupied continuously by defendant and his predecessors for 35 years
a)      Tacking Principle – time of occupation can be passed on.
2.       Peters v. Juneau Douglas Girls Scout Council:  Peter’s (and previously his Uncle) lived on the land but the Girl Scout’s paid the taxes.  Peters tried to get a deed and found out Girl Scouts owned property.  Won his adverse possession claim even though others had occasionally used the land.
a)      A landowner might reasonably allow people to clam or partake in other activities on the land.
3.       Mendonca v. Cities Service Oil Co.:  Plaintiffs were in possession of the contested strip of land for over 20 years but during that time there was a 2 week period when a contractor working for the defendant stored materials on the strip and so the possession was not continuous.  Found for the defendant.