Property II Fisher Winter 2016
Eminent Domain (Intentional Takings)
Eminent Domain: All govt’s in the US have the power to take private property for public purposes, but that power is limited. Government initiates. The 5th Amendment provides that “private property shall not be taken for public use, without just compensation.”
Regulatory takings: Govt intended to regulate and property owner initiates law suit claiming that the govt actions are a taking.
Applies to all govt’s: The takings clause applies to the states as well as the federal gov’t. The substance of the takings clause is “incorporated” into the 14th Amendment’s due process clause, which is applicable to the states. The takings clause applies to governmental action taken by the legislative or executive branches. There is more uncertainty about the degree to which judicial action might constitute a taking.
5th Amendment: (1) Public Use (2) Just Compensation. Note: we have different rules at the state level and at the federal level.
Public Use
Just Compensation
(1) Public Use Requirement
Public Use: A regulation that has the purpose of extracting a public benefit at the expense of the landowner. Does not necessarily mean the public can freely use the property. It could just be for the benefit of the public. Everyone does not have a right to use the property. (i.e. Prison- the public cannot freely use this property, but it is still for the public use.)
Note: Govt can’t take from private owner A and gives to private owner B, even if they pay just compensation, unless it is for a public use.
Examples of Public Use: Highways, bridges, railroads, ferries, canals, telegraphs, schools, parks, off-street parking, trade center development, municipal civic centers, airport expansion, open space, historical restoration, urban renewal, and others.
Public Use at Federal Level
Federal public use rule: Provided the legislative body has the authority to act with regard to the subject matter at issue, the court will not second guess the legislative body’s determination on public use.
Note: Public use is whatever the legislature thinks is conducive to the “public welfare.”
Can Congress decide whatever it wants?Whether or not the legislative body is authorized to act to achieve that objective?If the ends are legitimate, it can use any means necessary to achieve their objective.
The ends (ie. protecting the general welfare by cleaning up the blights areas) justifies the means (the way that they go about to achieve their objectives) and we are not going to question Congress.
Ex. Hawaii Housing Authority v. Midkiff: Hawaii enacted a legislative scheme saying that they are going to take the property away from these property owners and making it available for other tenants. (so there is more than one owner of housing) Answer: This is clearly taking property form A and giving it to B. The issue here is was the legislature authorized to achieve the objective it is seeking? The Court ruled it was a legitimate end for the legislature and if they needed to achieve that by eminent domain it was permitted.
Public Use at State Level- a state court can interpret its own constitution differently than a federal court.
State public use rule: Here we are not dealing with the 5th Amendment. We need to look at state law. When you have a state entity acting, that state must conform with its own constitution. (state law)
Poletown Case: Allowed taking of property from ‘A’ and giving it to ‘B’ for economic development purposes.
Case: Reversed the ruling in Poletown, and held that taking of property from ‘A’ and giving it to ‘B’ could only occur in the limited instances permitted under the State Constitution (did not include economic development)
How does this become a public use issue? Land was being taken from A (property owners) and being given to B (a private entity)
It is only a public use if it meets one of the 3 rules.This is heading more towards Thomas Locke’s concept and he preferred more restrictions.You can get public interest involved, but the state cannot take the property of its citizens.
Public necessity of the extreme sort: railroad, canal, the activity isn’t practicable without Eminent Domain.
Continuing accountability to the public, such as a public utility.
Selection of the land was made without reference to the private interests, where the selection of the land is based upon public concern or based upon facts of independent legal significance.
(2) Just Compensation à Valuation of the property for its highest and best use.
A private property owner is entitled to the fair market value (FMV) of the taken property – the price that a willing buyer and a willing seller would agree upon.Must be fair to the property owner and the public.FMV includes any reasonable expectations that a buyer may have about possible future uses (i.e. a change from cattle grazing to vineyard).An owner is not entitled to any additional value that is subjective and peculiar to the owner (i.e. sentimental value).If there is no practical market for the
ation: fixed by agreement
d. How terminated: T does not have to give notice that T will vacate at the end of the term.
1. Death does not terminate lease. Executor’s of the estates would take on the responsibility of the lease.
2. Periodic Tenancy
a. Definition: A lease for a recurring term that continues until either the L or T gives notice of termination (must give proper termination). (ex. month-to-month lease, year-to-year)
b. How to create: either by express agreement by the parties or by implication
c. Duration: it has a period that is the basis for recurring terms.
– If duration is not stipulated in the lease, it will be determined based on:
1. Majority Rule: The period is determined based upon the manner in which rent is reserved.
2. Minority Rule: The period is determined based upon the manner in which rent is PAID.
– Thus is rent is payable monthly à month-to-month periodic tenancy.
d. How terminated: either party gives express notive at least equal to the lengt h of the tenancy.
1. Death of landlord of tenant does not terminate the lease.
2 rules apply: (1) you given notice equal to the length of the period and (2) the effective date of the termination of the notice must correspond with the last day of the period.
1. Month-to-month: Requires one month advanced notice, with the effective date of the notice being the last day of the term.
2. 6 month or longer: Advanced notice max of 6 months.
3. Modernly: Most states have statutes that expressly specify termination requirements, most providing for a 30 day advanced notice requirement for a month-to-month tenancy (if the lease is silent).
2 things can change these rules: (1) the parties can agree to them in the lease agreement. (unless the time period is unreasonable the court may not enforce it); (2) Where there is a statutory provision that takes the place of the CL rule. (in most states there is one and the common requirement for termination is 30 days)
