PROPERTY II OUTLINE
Professor Fisher
Trinity 2013
I. INTRODUCTION TO PROPERTY II
A. Comparing Property I and Property II:
1. Property I: Involved acquisition and transfer of property by private individuals.
2. Property II: Property II involves:
· Acquisition of private property by the government
· Leasing private property
· Control of private property
o By individuals, by using easements and covenants, and by bringing a nuisance action in court.
o By the government, by war of regulation, e.g. zoning, and the taking issue that arises out of regulation.
B. Overview of Property II – Summary of Outline:
1. Eminent Domain
· Deals with the government acquiring private property from individuals, against their will, for a public use.
2. Landlord-Tenant Law
· Deals with leases of private property from one private entity to another.
3. Private Controls of Land Use
· Deals with a situation in which one property owner creates a restriction or an obligation as it relates to the use of property.
o Examples:
§ Easements
§ Covenants (real covenants or equitable servitudes)
§ Licenses
§ Profits
4. Law of Nuisance
·
5. Zoning
·
6. Law of “Takings” (Regulatory Takings)
· Deals with instances in which the government is proceeding on a course of regulation under the police power, but the impact of the regulation is so great, or is unauthorized, resulting in the legal conclusion that the property has effectively been “taken.”
II. POLITICAL PHILOSOPHY
A. Two Fundamental Camps (Political Opposites): This whole class weaves in and out of these two camps.
1. Locke’s View – Preservation of Property:
· The chief end of the state is the preservation of property; i.e. of the life, liberty, and estates of men.
· At times, property is important enough to risk your life for it.
· The government should butt out on how I use my property – minor regulation may be okay, but for the most part, the government should have nothing to do with private property.
2. Hobbes’ View – Self Preservation:
· The natural state of mankind consists in the endeavor of each person to preserve himself.
· But such a condition constitutes a war of all against all, in which all men are equal in the sense that they could destroy each other. This is man’s “self interest.”
· Property is not high on the list of man’s values because their highest priority is preserving life (alone).
· So, men must come together and, by a contract with one another, give over all their power to a sovereign outside the contract. In other words, allow the government to regulate our properties so men can concentrate on preserving themselves.
III. EMINENT DOMAIN
A. General Information:
1. Eminent Domain Defined: Eminent domain is the power of the government to force transfers of property from owners to itself (or the government can give its power to other entities).
2. Taking is the method of eminent domain.
3. Eminent Domain is an Inherent Power.
· Common Law: There is no express authorization for the exercise of the power of eminent domain in the Fifth Amendment or anywhere else in the Constitution.
· The Fifth Amendment merely provides, “a tacit recognition of a pre-existing power.”
· Why should eminent domain be an inherent power? The power is necessary to the very existence of government. Think about the things the government does. For instance, they build roads and nearly all roads are for emergency (police, ambulance, garbage service, sewage lines, and water lines). If the government actually had to go out on the market to buy property like the average person, they’d be asked for a lot of money (more than the owner is entitled to) and we may not have roads because of this.
B. There are two components to Eminent Domain.
1. “Public Use” Requirement: The government can take private property but ONLY for PUBLIC USE.
2. Just Compensation Requirement: Just compensation must be paid to the property owner when the power of eminent domain is being exercised.
C. The Federal Government has the power of Eminent Domain through the 5th Amendment.
1. The Restrictions from the 5th Amendment: Although the government has the power of eminent domain, the 5th Amendment places constraints on the po
overnment had no business doing this.
· Hobbes would say the government needs to do something for safety.
· Note on Police Power: Police power is really a state authority and not a federal authority; however, in this case, it is the Federal Government enforcing the police power – to protect health, safety, and welfare of citizens. The reasoning that this is allowed is because D.C. is not a state, so Congress steps in for their exercise of power; here, they exercised the police power to do away with unhealthy, unsafe living conditions.
· Holding: There was a public use for the redevelopment plan. The rights of the department store owners are not violated once just compensation is given to them for the taking.
· Reasoning: Community redevelopment plans need not be on a piecemeal basis. The area must be planned as a whole in order to be successful. Public safety and health were a huge concern and the legislature made determinations to fix the situation; if they think the area should be beautiful and sanitary, there is nothing in the Fifth Amendment that stands in the way.
3. Hawaii Housing Authority v. Midkiff (1984):
· So, the State is going to exercise eminent domain and take the properties from these owners and sell it to the tenants. This sounds like taking property from private owner A and giving it to private person B.
· Holding/Reasoning: This was a disturbing thought to a lot of people – the families challenged it and it went to the United States Supreme Court, who applied Berman v. Parker. The rule in Berman is that it is up to the legislature to determine what a “public use” is. In this case, the legislature has determined that this is something that is needed in order to reach police power objectives. So, the Court allows it.
