Richard Hildreth
Property
Spring – 2011
I. The Right To use One’s Property
The Right to Exclude: Not Absolute
· 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
· No public or private property may be taken for public use w/out just compensation.
· NOTE: 14th Amendment applies 5th Amendment to the States.
Eminent Domain
· The government has the power of eminent domain – taking private property for public use. It can force unwilling landowners to sell their lands in exchange for just compensation, for the benefit of public welfare. (Kelo)
· Kelo v. New London
o Land taken by the gov’t. In this case, city of New London in bad shape. Pfizer wants to come in and city created NLDS to implement plan to help revitalize city. Plan to develop land where people have homes and they don’t want to leave. City wants to take land by condemnation and give it over to a PRIVATE GROUP. Πs claim this is a violation of 5th amendment because it doesn’t qualify as PUBLIC USE.
o HOLDING: Plan is OK. “Public Purpose” is defined broadly and there is one here. Talks about deference to judgment of city.
· ORS 280 Eminent Domain Issues
· NOTE: In OREGON, public use does NOT include economic revitalizing (SB1313)
o ORS Measure 39 – prohibits public taking of private property if intent is to transfer fee title to another private party (even if for urban renewal or the like)
Regulatory Takings
· Regulations restrict what a property right owner might do with their property. (e.g. zoning)
· If all economically viable use is taken:
o No matter how important the goal, if the impact of a regulation is to deny the owner ALL ECONOMICALLY VIABLE USE of their property, then they must be COMPENSATD unless the state can prove that this is a NUISANCE issue. If state can show regulation is similar to nuisance law, they will not have to pay compensation. Lucas v. South Carolina Coastal Council
o NOTE: If you can’t bring a Lucas type claim, could still try to get a 5th amendment claim. If there is still SOME economic use, see PENN CENTRAL FACTORS (end of course).
· If all economically viable use is NOT taken:
o If the state merely REGULATES property use in a manner consistent with the state’s “police power,” then NO COMPENSATION needs to be paid, even though the owner’s use of his property or even its value has been substantially diminished.
o Examples: zoning regulations, environmental protection rules, landmark preservation schemes.
· Factors:
o If the regulation goes too far, it will become a “taking” even though the state calls it a regulation.
§ ANALYSIS
· (i) Deprivation of All Use: If a regulation I found to deny the landowner of all economically viable use of his land, this will make the regulation a “taking”
o DEPRIVATION OF ALL USE = TAKING
· (ii) Physical Use: If the government makes or authorizes a permanent physical occupation of the property, this will automatically be found to constitute a taking.
o PHYSICAL USE = TAKING
· (iii) Diminution in Value: The more drastic the reduction in value of the owner’s property, the more likely a taking is to be found. This “diminution in value” standard is probably the single most important factor.
o DIMINUTION IN VALUE = MAYBE TAKING
· (iv) Prevention of Harm: A taking will probably not be found where the property use being prevented is one that is harmful or “noxious” to others.
o NUISANCE = NO TAKING
II. Transfers of Ownership
Adverse Possession (INVOLUNTARY)
· Involuntary transfer of ownership
· RULE: When statute of limitations under which an owner of property can sue to recover property from one who has wrongfully entered upon it runs up; he may acquire the property w/out giving the owner compensation.
o The cause of action is called EJECTMENT
o One reason for this law is to bar stale claims. Also has to do w/ idea that land should be used efficiently.
o Until the Statute of Limitations has expired, the adverse possessor is a trespasser.
o Usually cannot adversely posses government owned land.
o How do you protect your land from being adversely possessed?
§ 1) Mark your property
§ 2) Get a surveyor
§ 3) Check at least every 9 years to make sure no one is encroaching if you are in OR (SOL in OR = 10yrs)
§ 4) Walk the property yourself.
· ORS 105.620
o Statute of limitations is 10 years.
o Must be actual, open, notorious, exclusives, hostile and continuous.
· Elements of Adverse Possession
o 1) Actual Possession (have to actually use land)
§ Must be using reasonable percentage of the property
§ Don’t have to be at property all the time. Can also have a tenant.
§ Payment of taxes is evidence.
o 2) Open and Notorious
§ If possessor can show that the owner had actual notice that possessor was possessing and asserting claim to it, then the requirement is met.
§ Possessor’s use of the property must be similar to that which a typical owner of SIMILAR PROPERTY would make.
· Nature of land is taken into account
· Did he put up a fence or other enclosures? Effect of a fence or other enclosure.
· Acts toward the outside world. (having BBQs)
o 3) Exclusive Possession
§ Necessary for possessor to hold the land for himself.
· Does not have to be absolute. Another Adverse Possessor can be using the land too.
o Claim diggers on land. Peters
§ This is not needed for prescriptive easements (see factors later) because it’s implied in the law.
o 4) Continuous
§ The adverse possession must be “continuous” throughout the statutory period.
§ If possessor abandons the land, the SOL starts over.
§ If owner reenters the land in order to regain possession, this also interrupts SOL. Mendonca.
§ Tacking: one who has adversely possessed for less than the statutory period may not yet have title to it, but he nonetheless has a POSSESSORY INTEREST. This interest can be transferred to another.
· So will new adverse possessor get to count original adverse possessor’s time in determining whether SOL has run?
o Yes, when there is privity of contract.
o No, when the 2nd AP gets property through abandonment or ouster.
o There can be tacking by owner as well. Time of possession against first owner gets added to the time against second owner when the previous owner conveys it.
· Belotti à unbroken chain of privity.
o 5) Hostile
§ Possession must be WITHOUT THE OWNER’S CONSENT
§ Possessors State of Mind: 4 Approaches
· Objective test – state of mind is irrelevant.
· Claim of Right – must act toward property as owner would.
· Intentional Dispossession – the adverse possession must be intentional.
· Good Faith – the possessor must mistakenly believe they own the property.
· Fallback when you can’t prove Adverse Possession:
o EASEMENTS – right to use someone else’s property (i.e. path through private land to public beach). Non-possessory, non-exclusive right. Can be easier if you just want to use the property.
§ Prescriptive Easement – implied in law of easements
§ Contractual Easement
Conveyancing (VOLUNTARY)
· The right to transfer one’s property and the methods for doing so.
· Gifts – Donative transfers (Inter Vivos Conveyances and Wills Contrasted)
· May Convey Property in 2 ways:
o 1) DEED – an intervivos transfer of real property. It is an instrument under seal. It can be donative, but it needs to be between two living people. Conveys something to the grantee presently (during life time). ORS 93.010
§ Interest does not have to be present interest but must presently receive an interest
§ It can be donative (gift) but needs to be between two living people or corporation.
§ Type of Deed
· Quick Claim Deed – Grantor makes no covenant (promise) that his title is good. Buyer Beware. But if the title is good, everything is fine.
·
what.
· Words of Limitation = words in a transaction that explain what interest someone is getting (future, present)
3 Basic ways for Property Interest to Exchange Hands:
· 1) Conveyance between living people (inter vivos)
· 2) Will or testament
· 3) Devolution accoding to the rules of law (who it goes to by default)
Terms: Convey usually means an intervivos grant. Grant is used when talking about any freehold estate. Without a will, property Descends to heirs of deceased landowner. Personal property is appropriately Distributed. By will, realty is devised. Person property is bequeathed.
Freehold Estates
Fee Simple Absolute – “To A and his Heirs” – Most unrestricted and longest estate.
· Inheritable à passes on to heirs.
· Words creating à “and his heirs”
· MAJ à don’t need to say “and his heirs”
o O conveys “to A” = fee simple absolute. (words of purchase)
o “and his/her heirs” = words of limitation – not necessary.
· A has the right to possession of parcel of land. That possession has the longest duration known to common law.
· Land may be inherited by heirs or collaterals. It may be devised and is freely alienable.
· Only upon death of present owner intestate and with no heirs would the land go to the state.
· The duration of fee simple is potentially infinite. Largest estate.
· Heirs are only to get it for sure if A dies intestate and without having alienated the estate.
· From E&E:
o A fee simple absolute is an estate w/ an infinite or perpetual duration. A person owning a fee simple interest theoretically can possess the property forever. There is no inherent end to the ownership. The owner may sell or give the property away, devise it by will, or die w/out a will and have the property go by operation of law under the canons of descent to his “descendants.” Hence a fee simple absolute is alienable (transferable or assignable), devisable, and descendible.
Fee Tail – “To A and the heirs of his body” – Allows the owner of land to ensure that the property REMAINS W/IN HIS FAMILY indefinitely.
· If O conveys a fee tail to his son, A, and the fee tail is enforced, then upon A’s death the property will go to A’s heir – A and his descendants can never convey the property outside the family line.
· Words Creating à “to A and the heirs of his body.”
· MAJ: Fee tail at common law is simply converted by statute to a fee simple absolute.
· No states today fully enforce the fee tail as a method of ensuring that property will descend along bloodlines and will not be conveyed outside the family tree.
· The fee tail allows owner to ensure that property remains in the family. Property cannot be conveyed outside of family or to collaterals.
· If A has no direct descendants in this case, land reverts back to grantor.
Reversions – future interests retained by grantor.
Remainders – future interests granted to someone else.
Fee Simple Defeasible – Holder of this may hold or convey the property, but he and those who take from him must use the property subject to a restriction. This is freely alienable and deviseable, subject to limitations or conditions of 2 types (possible 3rd see below):
