Property II Outline
Barachkov
EMINENT DOMAIN (INTENTIONAL “TAKINGS”)
LANDLORD TENANT LAW
· PRIVATE CONTROLS OF LAND USE (EASEMENTS & COVENANTS)
· LAW OF NUISANCE
· LAW OF ZONING
· LAW OF REGULATORY “TAKINGS”
Property I involved acquisition and transfer of property by private individuals.
Property II involves:
· Acquisition of private property by Gov.
· Leasing private property
· Control of private property (by individuals and government)
Exam:
1 long essay (1 pg) – 90 pts.
Will cover 2 topics w/in the essay
30 multiple choice Q’s (3pts each)
10 Multiple choice from Prof (#21-30) Will closely mirror the slides
20 Multiple choice from Dept. Chair (#1-20)
She has mock essay Q’s & answers on TWEN and crap loads of prop 1 essays to figure out how she drafts her essays
Point Distribution: (180 points) 50/50 for Multiple choice and Essay,
Will be tested on Regulatory Takings: last term they were lots of Multiple choice Q’s.
6 Main Prop. 2 topics to choose from, maybe combining 2 of them in a essay
Eminent Domain & Regulatory Takings
Political Philosophy views
· John Locke:Objective of the State is Protecting life, liberty and Property
· Thomas Hobbes: Enter into a K, give power to someone who focuses on protecting life, even at the expense of liberty and property rights.
Introduction
a. “Takings” – (Physical Taking) 2 general areas:
1. Eminent Domain: “Gov. Intentionally taking Private Property For public use in return for payment of Just Compensation”
i. Power of the Gov to force transfers property from owners to itself
a. Or other entities w/ the power of eminent domain
b. Ex: public utilities, schools and sometimes other private parties). (Eco Redevelop case)
ii. Gov. Expressly intends to take the property.
2. Regulatory Takings: Gov intends to regulate (confiscate) & property owner brings lawsuit claiming the Gov. Action is a “taking.”
b. Constraint – 5th Amendment:
i. “No person shall…be deprived of…property, w/o due process of law’; ‘nor shall private property be taken for Public Use, w/o Just Compensation.’
c. 3 Concerns
a) Taking for public use. What’s public use?
b) Just Compensation. What’s just compensation?
i. Federal Level – Fair Market Value
ii. State Level – Fair Market Value might not be enough! What about sentimental value, moving value, and transactional cost?
iii. Is it pre-condemnation value?
c) What Counts as Taking
Eminent Domain Reqs./Elements.:
1. Activity must be the Action of the Gov.
2. Private person’s property must be taken.
3. First Gov. must give Notice of its intentions and prop. owner must be given opportunity to be heard.
4. The Gov. must pay Just compensationfor the private property
i. (courts decide ‘Just Compensation’)
5. The taking must be for Public Use.
(Condemnation of private property for a public use or purpose.)
i. Federal Jurisdictions
a. Berman v. Parker, (1954) “Beautification/Blight removal”
b. Hawaii Housing Authority v. Midkiff, (1984) “Oligopoly”
c. Kelo v. City of New London, (2005) (Eco. Re-development)
ii. State Jurisdiction
a. Poletown Neighborhood Council v. City of Detroit, (1981)
b. County of Wayne v. Hathcock, (2004)
(Hathcock case overrules Poletown)
Public Use
The Gov. can take only for “public use”; for “private” purpose, it cannot take at a
ublic to make it valid for public use”
a. “Ends that have a public benefit are justified by the means”
b. à provides benefits to the community
iii. ENDS TEST: Give Legislature broad power
iv. Ex:(Kelo) (Pfizer invests $300 in facility near town)
If the purpose of the taking & redeveloping the adjacent 90 acres by giving it to other private owners for future use by the publicà doesn’t violate 5th amendmentà its taking was reasonable necessary to achieve city’s intended public use
1. Dissent: Eco. Development, Is too broad a range/term & all private property is vulnerable to be transferred to another private owner, so long as it might be upgraded in the process” –There must be a bright line rule
2. Rebuttal: Above Arg. Confuses the PURPOSE of a taking with its MECHANICS. Only the purpose matters in determining the public use” – (the ultimate goal must be a good one, not how u get there)
3. Counter: Unlike common carrier R.R’s, this CONDEMMED land is not ALL for use by Gen public
a. & those benefited in this case are those w/ political power and influence, no necessarily the public.
4. Rebuttal:Use for all not necessary, The Eco development plan will serve a public purposeà(it’s the takings purpose and not the mechanics that matter in determining Pub. Use)
a. “The public end can be as well or better served through an agency of private enterprise than through a Gov Dept..”