Squatters "Rights"

 A real estate professional recently explained on X how squatters take advantage of permissive laws designed to protect actual tenants.

The would-be squatter checks on Zillow looking for houses for which sales are "pending." These are house that may be vacant for awhile after the former owner moves out and before the new owner moves in.

The squatter then sends a package from Amazon to himself at the address of the vacant home. He then breaks in and, when the police are called, shows the package with his name and address as proof that he is a "tenant." The police walk away, and it is up to the homeowner to take legal action to evict his fraudulent "tenant." This can take months under laws designed to protect real tenants.

The real estate professional said that rather than litigate for months, homeowners often settle with the squatter by paying "cash for keys." Extortion pure and simple.

In a recent paper, Ilya Somin "explain[s] why squatters' rights laws violate the Takings Clause of the 5th Amendment. [He] urges aggrieved property owners and public interest groups to consider filing takings suits to get compensation for losses caused by such laws."

Here is the link.

 

Assignments Week of March 25 through March 28

-- Finish Casebook p. 1144-1158

--Casebook p. 1158-1165
--Casebook p. 1174-1188

If we get this far:

Adverse Possession

--Casebook p.168-191

Assignments Week of March 18 through March 21

 --Finish RLUIPA Discussion

--Landlord and Tenant: A Brief Introduction (with emphasis on Nebraska Law)

Nebraska Residential Landlord and Tenant Act (see link to Nebraska Property Laws)(sections 76-1401 to 76-1449: read through the Act generally, but pay particular attention to sections 76-1416, -1418,-1419,-1421,-1426,-1427,-1437 and -1439). We will spend 1.5 class periods on this assignment.

 The Recording System

--Casebook p. 1129-1144
--Casebook p. 1144-1158

Supreme Court Members: Justices or Judges?

 See Art. III, Section 1: "The Judges, both of the supreme and inferior Courts, shall hold Offices during good behavior." On the other hand, Art. I, section 3, provides that "When the President of the United States is tried [upon impeachment], the Chief Justice shall preside."

But when addressing them, call them Justice Alito or Justice Kagan, etc. 

Have a great Spring Break! You are almost through the 1L year!!

Britton v. Town of Chester

Chester's zoning ordinance made it difficult for multi -family housing developments to be approved.

Builder sued claiming the zoning ordinance "is an invalid exercise of the power delegated to the town." (p. 907)

What does that mean? Was this case decided under the U.S. Constitution? State Constitution? State law? What?

What is the source of the power of towns and cities to enact zoning and other municipal laws?

What happens when local government acts beyond the powers that have been delegated to it?

What does the Court hold here? What is the issue about the "general welfare of the community" that seems so critical to the Court's reasoning? See page 906-907.

Let's think about (and discuss) the questions raised in note 4 on page 911.

What is the solution to exclusionary regulations? Should courts intervene as here? Or is this an issue for the state legislature to consider?

New Article: The Constitutional Case Against Exclusionary Zoning by Braver and Somin

Not assigning this, but it sounds interesting:  Braver and Somin article. Here is a link

Here is their abstract:

 

 

Abstract

We argue that exclusionary zoning—the imposition of restrictions on the amount and types of housing that property owners are allowed to build— is unconstitutional because it violates the Takings Clause of the Fifth Amendment. Exclusionary zoning has emerged as a major political and legal issue. A broad cross-ideological array of economists and land-use scholars have concluded that it is responsible for massive housing shortages in many parts of the United States, thereby cutting off millions of people – particularly the poor and minorities - from economic and social opportunities. In the process, it also stymies economic growth and innovation, making the nation as a whole poorer.

Exclusionary zoning is permitted under Euclid v. Ambler Realty, the 1926 Supreme Court decision holding that exclusionary zoning is largely exempt from constitutional challenge under the Due Process Clause of the Fourteenth Amendment, and by extension also the Takings Clause. Despite the wave of academic and public concern about the issue, so far, no modern in-depth scholarly analysis has advocated overturning or severely limiting Euclid. Nor has any scholar argued that exclusionary zoning should be invalidated under the Takings Clause, more generally.

We contend Euclid should be reversed or strictly limited, and that exclusionary zoning restrictions should generally be considered takings requiring compensation. This conclusion follows from both originalism and a variety of leading living constitution theories. Under originalism, the key insight is that property rights protected by the Takings Clause include not only the right to exclude, but also the right to use property. Exclusionary zoning violates this right because it severely limits what owners can build on their land. Exclusionary zoning is also unconstitutional from the standpoint of a variety of progressive living constitution theories of interpretation, including Ronald Dworkin’s “moral reading,” representation-reinforcement theory, and the emerging “anti-oligarchy” constitutional theory. The article also considers different strategies for overruling or limiting Euclid, and potential synergies between constitutional litigation and political reform of zoning.

Keywords: Property rights, zoning, land use, Euclid, eminent domain, public use, constitutional theory, racial discrimination, racism, John Hart Ely, originalism, Takings, representation-reinforcement, Dworkin, moral reading, oligarchy, anti-oligarchy

 

Assignments Week of March 4 through March 7

 Let's have a great week. Work hard and then get a week off for Spring Break.

--Tahoe-Sierra (link): Murr v. Wisconsin (Link); (casebook p. 879-881); Tyler v. Hennepin County, Minnesota (link) (read opinion at link 2)

-- Washington v. Davis (link); Casebook p. 883-896; Con Law Video on Equal Laws vs Equal Results:

https://unl.yuja.com/V/Video?v=6828169&node=29033592&a=134658278&autoplay=1

-- Casebook p. 897-914

If we get this far:

  RLUIPA (the Religious Land Use and Institutional Persons Act) is a recent Federal Civil Rights law that protects religious land use--i.e., it is a property law that protects the right of landowners to use their real property for the purpose of religious exercise.

--RLUIPA Materials (I will email them to you in PDF format)

Murr: Hypo From Roberts Dissent

 Consider this from p. 1955:

Suppose, for example, that a person buys two distinct plots of land — known as Lots A and B — from two different owners. Lot A is landlocked, but the neighboring Lot B shares a border with a local beach. It soon comes to light, however, that the beach is a nesting habitat for a species of turtle. To protect this species, the state government passes a regulation preventing any development or recreation in areas abutting the beach — including Lot B. If that lot became the subject of a regulatory takings claim, the purchaser would have a strong case for a per se taking: Even accounting for the owner's possession of the other property, Lot B had no remaining economic value or productive use. But under the majority's approach, the government can argue that — based on all the circumstances and the nature of the regulation — Lots A and B should be considered one "parcel." If that argument succeeds, the owner's per se takings claim is gone, and he is left to roll the dice under the Penn Central balancing framework, where the court will, for a second time, throw the reasonableness of the government's regulatory action into the balance.

The problem with multifactor tests is they are vague and unpredictable. This should be an easy case of a total taking of Lot B. If the case arose today, I have no doubt would write the majority opinion mandating Just Compensation for the total Taking of Lot B. But....the future is always uncertain.

I view Murr as a very unique case involving an unwise transfer of separately owned lots into sole ownership after the merger law had been enacted. No lawyer would ever advise this transfer. The parents should have sold Lot E to a third person, and then used the proceeds from that sale to pay for the needed improvements on Lot F. 

Murr v. Wisconsin--Excerpts from Opinions

P. 1993-1994

This case presents a question that is linked to the ultimate determination whether a regulatory taking has occurred: What is the proper unit of property against which to assess the effect of the challenged governmental action? Put another way, “[b]ecause our test for regulatory taking requires us to compare the value that has been taken from the property with the value that remains in the property, one of the critical questions is determining how to define the unit of property ‘whose value is to furnish the denominator of the fraction....’"

As commentators have noted, the answer to this question may be outcome determinative.

 Why is the answer often "outcome determinative?" Is it a bad thing to have clear constitutional  rules that serve as guideposts?

Page 1994:

Defining the property at the outset, however, should not necessarily preordain the outcome in every case. In some, though not all, cases the effect of the challenged regulation must be assessed and understood by the effect on the entire property held by the owner, rather than just some part of the property that, considered just on its own, has been diminished in value. This demonstrates the contrast between regulatory takings, where the goal is usually to determine how the challenged regulation affects the property’s value to the owner, and physical takings, where the impact of physical appropriation or occupation of the property will be evident.

Why isn't the impact of this regulation "evident" in this case, where one of two lots purchased separately by the Murr family can no longer be developed or sold as a separate lot? 

So the Court goes on----

Page 1945:

As the foregoing discussion makes clear, no single consideration can supply the exclusive test for determining the denominator. Instead, courts must consider a number of factors. These include the treatment of the land under state and local law; the physical characteristics of the land; and the prospective value of the regulated land. The endeavor should determine whether reasonable expectations about property ownership would lead a landowner to anticipate that his holdings would be treated as one parcel, or, instead, as separate tracts. The inquiry is objective, and the reasonable expectations at issue derive from background customs and the whole of our legal tradition.

What does this multi-factor "reasonable expectations" test mean?

See page 1945-1946 for the Court's explanation of three crucial factors.


Practice tips:

1. Be extra careful how you structure purchases of sensitive undeveloped land.
2. Think about purchasing multiple lots separately, under different ownership (e.g Dad owns one lot, Mom owns the other lot or Corp A owns one lot Corp B owns the other)
3. Do not purchase adjacent lots in sensitive areas unless you plan to develop them as one.

For example, going forward in a case like Lucas, the developer might want to purchase beach front lots a few blocks apart and consider separate ownership for each lot. Then, if regulation requires one of several lots to be left in undeveloped state, it is a total taking of that particular lot owned by Company A rather than a partial taking of Lots 1, 2 & 3.

Lots owned by separate Corps and situated several blocks apart are less likely to be treated as one big lot for Takings purposes.

Make it hard for the Grasping Hand of the Regulatory State to deprive your clients of their constitutional right to Just Compensation.

Finally, the Court's decision in Murr (page 1948-1949):

Under the appropriate multifactor standard, it follows that for purposes of determining whether a regulatory taking has occurred here, petitioners’ property should be evaluated as a single parcel consisting of Lots E and F together. First, the treatment of the property under state and local law indicates petitioners’ property should be treated as one when considering the effects of the restrictions. As the Wisconsin courts held, the state and local regulations merged Lots E and F.

Petitioners’ land was subject to this regulatory burden, moreover, only because of voluntary conduct in bringing the lots under common ownership after the regulations were enacted. As a result, the valid merger of the lots under state law informs the reasonable expectation they will be treated as a single property. [This was the landowners big mistake--did they consult a lawyer before doing this!!!!]

Second, the physical characteristics of the property support its treatment as a unified parcel. The lots are contiguous along their longest edge. Their rough terrain and narrow shape make it reasonable to expect their range of potential uses might be limited. The land’s location along the river is also significant. Petitioners could have anticipated public regulation might affect their enjoyment of their property, as the Lower St. Croix was a regulated area under federal, state, and local law long before petitioners possessed the land.

Third, the prospective value that Lot E brings to Lot F supports considering the two as one parcel for purposes of determining if there is a regulatory taking. Petitioners are prohibited from selling Lots E and F separately or from building separate residential structures on each. Yet this restriction is mitigated by the benefits of using the property as an integrated whole, allowing increased privacy and recreational space, plus the optimal location of any improvements.

....

Considering petitioners’ property as a whole, the state court was correct to conclude that petitioners cannot establish a compensable taking in these circumstances. Petitioners have not suffered a taking under Lucas, as they have not been deprived of all economically beneficial use of their property. They can use the property for residential purposes, including an enhanced, larger residential improvement. The property has not lost all economic value, as its value has decreased by less than 10 percent. See Lucas, supra, at 1019, n. 8 (suggesting that even a landowner with 95 percent loss may not recover).

Petitioners furthermore have not suffered a taking under the more general test of Penn Central. The expert appraisal relied upon by the state courts refutes any claim that the economic impact of the regulation is severe. Petitioners cannot claim that they reasonably expected to sell or develop their lots separately given the regulations which predated their acquisition of both lots. Finally, the governmental action was a reasonable land-use regulation, enacted as part of a coordinated federal, state, and local effort to preserve the river and surrounding land.

Justice Thomas Dissent in Murr

Justice Thomas believes it is time for the Court to take a "fresh look" at its regulatory takings jurisprudence:

In my view, it would be desirable for us to take a fresh look at our regulatory takings jurisprudence, to see whether it can be grounded in the original public meaning of the Takings Clause of the Fifth Amendment or the Privileges or Immunities Clause of the Fourteenth Amendment.

Professor Nicolle Stelle Garnett agrees:

Thomas did not elucidate what a rigorous historical analysis of the original public meaning of the Fifth and Fourteenth Amendments might reveal about the regulatory takings problem. Many scholars have suggested that the Takings Clause as originally understood provided no protection against regulatory takings at all. I am a skeptic of this claim. Even if I am wrong-and I am admittedly in the minority-Thomas suggests that the Fourteenth Amendment's Privileges or Immunities Clause may provide an alternative source of protection against regulatory excesses. Scholars have demonstrated
that, by the antebellum period, courts had begun to develop a fairly robust jurisprudence delineating the line between valid and expropriative regulations. These jurisprudential concepts might have found a home in the Privileges or Immunities Clause....

The 14th Amendment provides:

 All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Murr v. Wisconsin--Some Notes and Questions

                                                              St. Croix River

This is the Court’s most recent take on the denominator issue.

Mom & Dad Murr owned two adjacent lots along the Lower St. Croix River in Wisconsin.

They bought lot F in 1960, built a small cabin on the property, and transferred lot F to the family plumbing company.

They bought Lot E in 1963 and the title to Lot E was in the parents’ individual names (Mr. & Mrs. Murr).

So was this a good way to structure these transactions if you are worried about confiscatory regulations because the land is near a scenic river?

Why? Or why not?

In 1976, the State of Wisconsin regulated the area where petitioners’ property is located.

The Wisconsin rules prevent the use of lots as separate building sites unless they have at least one acre of land suitable for development. A grandfather clause relaxes this restriction for substandard lots which were “in separate ownership from abutting lands” on January 1, 1976, the effective date of the regulation.

The clause permits the use of grandfathered lots as separate building sites.

The rules also include a merger provision, which provides that adjacent lots under common ownership may not be “sold or developed as separate lots” if they do not meet the lot size requirement.

 

What is the common good served by the 1-acre requirement? What harm would have occurred if Lot E was developed as a single-family home?

So the lots are still owned separately—Lot F is owned by the Murr’s plumbing company and Lot E is owned by Mom & Dad Murr in their individual names.

So would it be okay for the Murrs to build a cabin or home on Lot E under the regulations?

Yes. The lots were not merged under the grandfather clause in the regulations because they were under separate ownership on January 1, 1976.

So what happened next?

The lots remained under separate ownership, with Lot F owned by the plumbing company and Lot E owned by petitioners’ parents, until transferred to petitioners (two daughters and two sons of Mr. & Mrs. Murr). Lot F was conveyed to the children in 1994, and Lot E was conveyed to them in 1995.

Okay, suppose Mr. & Mrs. Murr had come to us in early 1994, before they conveyed the two lots to their children. What should we have advised them?

Ten years pass and the 4 children would now like to make some improvements on Lot F, so they wish to sell Lot E to finance the improvements.

And what is their problem?

The Government informs them they when the parents sold the two adjoining lots to the children in 1994 and 1995 the two lots were merged into one lot because of the common ownership of adjoining lots. Thus, Lot E could not be sold separately or developed separately. 

The children brought an inverse condemnation action claiming that the regulations were a total taking of Lot E, because Lot E could not be developed as a separate lot due to the merger. [Lot F and Lot E were merged into one larger Lot EF]

So here we go again, with the denominator issue—is this a total Taking of Lot E (which cannot be developed or even sold as a separate lot), or a partial taking of the single merged lot, Lot EF.

Murr Takeaway--Multiple Factors Instead of a Clear Rule

This is from Meriam Seifter's short executive summary of Murr:

In today’s 5-3 decision, the court ruled against the Murrs, adopting aspects of the tests pressed by the county and the United States. Writing for the majority, Justice Anthony Kennedy stated that the denominator question, like the overall takings inquiry, turns on a multi-part analysis. “Like the ultimate question whether a regulation has gone too far,” he wrote, “the question of the proper parcel in regulatory takings cases cannot be solved by any simple test.” The court rejected the “formalistic” rules proposed by both the Murrs and Wisconsin. The Murrs’ proposed test, the court explained, would unjustifiably elevate lot lines over other aspects of state law. And although state law is relevant to the inquiry, the majority could not accept Wisconsin’s proposal to define the denominator based on state law as a whole: Courts must also “weigh[] whether the state enactments at issue accord with other indicia of reasonable expectations about property.”

The court emphasized that any denominator test must ascertain, through an “objective” analysis, “whether reasonable expectations about property ownership would lead a landowner to anticipate that his holdings would be treated as one parcel, or, instead, as separate tracts.” The court’s prescribed test includes three factors: “[1] the treatment of the land under state and local law; [2] the physical characteristics of the land; and [3] the prospective value of the regulated land.” With regard to the third factor, the analysis should give “special attention to the effect of burdened land on the value of other holdings.”

 The court then applied these guidelines and concluded that the Murrs’ two lots should be treated as one for takings analysis. First, Wisconsin property law — specifically, the merger provision — treats the two parcels as one. Second, the lots are contiguous, and their “rough terrain,” “narrow shape,” and riverfront location all make land-use regulations predictable. Third, the lots are more valuable when combined. Going one step further (and arguably a bit beyond the question presented), the court then held that, on the facts of this case, no taking had occurred.