Have a Great Winter Break and See you in the 2025!

 

                                                   Christmas 2024 at Casa Duncan

I hope you have a great winter break. Relax, spend time with family and friends, and read a good book (Charles Dickens is my choice for a great story to dig into; perhaps Bleak House if you like a ripping good legal story?).

As for me, I got in the Christmas spirit last night by attending Chris Tomlin's Christmas concert at Berean Church (my church home). It was so incredible!

We will have a great Christmas holiday with our children and grandchildren. And you can find me riding the waves at South Beach Miami on New Years Day.

This is my 46th year teaching Property. It never gets old and it is always challenging and fun. See you in class on January 6!

I think 2025 will be a great year! I can't wait to live it!

Cheers,

Rick Duncan

Grant Gilmore on Law and the Moral Worth of Society

 “Law reflects but in no sense determines the moral worth of a society. The values of a reasonably just society will reflect themselves in a reasonably just law. The better the society, the less law there will be. In heaven there will be no law, and the lion shall lie down with the lamb. The values of an unjust society will reflect themselves in an unjust law. The worse the society, the more law there will be. In hell there will be nothing but law, and due process will be meticulously observed.” -- Grant Gilmore, The Ages of American Law

Sen. Mike Lee: How the National Government is like an HOA

 "The U.S. government is like an out-of-control HOA--it has a narrow, limited purpose, but has far exceeded the scope of its authority." 

A great Property Metaphor

Q & A Session and a Pro Tip

 I will show up to take your questions on April 29 at 4:30 PM. Room 113.

When studying for the exam, don't forget to review the blog posts, especially when there is something you don't understand. I use the blog to help you understand the issues and the doctrine we have covered in this course. Many of the answers to your questions can be found in the relevant blog post.

Interesting Recent Property/Homeschool Case

Home School Legal Defense Association (HSLDA) reports the following case:

Home Owners Association Threatens Homeschool

The Covent family was astonished one day when they were told that their homeschool was a violation of their Home Owner's Association Covenant and that they were required to cease homeschooling immediately or face a lawsuit.

The family had just started homeschooling for the 2005-6 school year and organized different group activities with fellow homeschooling families to supplement their program. A few homeschoolers met at the Covent home for chess, gymnastics, arts, and music. The activities were supervised by the various parents in the group.

The family was accused by the Home Owner's Association (HOA) of running a business or day care from the home, and engaging in noxious or offensive activities which constitute a nuisance.

Home School Legal Defense Association Senior Counsel Chris Klicka wrote to the HOA and challenged the HOA's threat to file suit against the family for simply homeschooling their son and hosting social/educational activities for the furtherance of their son's education. It is difficult to imagine how a chess club could violate the rules. Also, children participating in gymnastics or music is not a noxious or offensive activity.

After talking with the HOA's lawyer, HSLDA has convinced them to leave the family alone. The family did supply a notarized statement describing their educational activities and explained that they are not commercial. The Covent homeschool has not been disrupted and the family is continuing to homeschool and host the group activities.

Does this covenant run  with the land? If so, is it constitutional for the courts to enforce it?

What about a covenant prohibiting political signs being displayed by homeowners?

If the Constitution Doesn't Govern Private Actors, Who (or What) Does?

 Several students asked about private discrimination in housing, employment and public accommodations. They basically said "if the Constitution doesn't forbid private discrimination, what does?"

Of course, the answer is civil rights statutes and ordinances enacted by Congress, state legislatures, or local government. 

Most constitutional law cases arise because some law enacted by Congress or the states restricts some constitutional right. Nebraska passes a law forbidding certain kinds of speech. The law is clearly state action (the speech restriction is written into the statute), this triggers the Free Speech issue, and the law may or may not violate the Free Speech Clause. Congress passes the Health Care law with an individual mandate.  Clearly this is state action and the law may or may not violate the Constitution (the Court upheld it as a tax, as you may remember).

If a private landlord discriminates on the basis of race, there is no state action so no constitutional claim. But the discrimination certainly violates any number of fair housing laws passed by Congress, the states, and many cities.

I hope this helps clarify any confusion.

A Little Parting Wisdom

 I have really enjoyed Property with the class of 2026! 

So, let me send you off to exams with this bit of wisdom from a man who tilts at windmills:

From Don Quixote de la Mancha (in the musical, Man of La Mancha):

Call nothing thine, except thy soul.
Love not what thou art, only what thou may become.
Do not pursue pleasure, for thou mayest have the misfortune to overtake it.
Look always forward, in last year's nests there are no birds this year.


And this, from Grant Gilmore, The Ages of American Law:

 “Law reflects but in no sense determines the moral worth of a society. The values of a reasonably just society will reflect themselves in a reasonably just law. The better the society, the less law there will be. In heaven there will be no law, and the lion shall lie down with the lamb. The values of an unjust society will reflect themselves in an unjust law. The worse the society, the more law there will be. In hell there will be nothing but law, and due process will be meticulously observed.”  

So, where are we in 2024? And where do you want us to be in 2034?

Assignments For April 8 & April 9

 --Casebook p. 624-640

-- Casebook p. 91-98; Re-read Moore case (casebook p. 894-896)

Alphabetical Order--the Last Few Classes

 We are approaching the end of our Property class. I want to make sure that everyone has had an opportunity to be called on. So, in each of  the last few classes, I will call on several of you whose last names are near the end of the alphabet. Thus, from Schall to Zheng get ready! Today will be a great day to get some help from several of you, because we are talking about lots of policy issues concerning covenants.

Remaining Schedule

 

 

We are nearing the end of our magical mystery tour through Property.

We still have 5 or 6 classes we need to cancel because of our longer weekly schedule.

Next week is Spring Break! Have some good, clean fun and get ready for the home stretch.

The last week of classes (April 15 to  18) has been canceled. 

I will also cancel class on April 10--we have a great speaker and friend of mine (Clark Forsythe) that day--and I need to be a great host for his visit to Nebraska Law.

We still have 1 more class we can cancel, but I want to hold on to that one in case we need it to cover material. Update: We will use that last cancel card to cancel class on April 11 as well. I will schedule an optional q & A session sometime shortly before the date of our exam (May 1).

Finally, evaluation day is Thursday March 28. First 15 minutes of class.

Assignments Week of April 1 through April 4: Updated to Add O'Keefe Case

A Little More (maybe 15 minutes) on Chain of Title (casebook p. 1181-1182) 

Adverse Possession

--O'Keefe v Snyder, p. 156-168

--Casebook p.168-191

 Real Covenants and Equitable Servitudes

32. Casebook p. 617-628
33.Casebook p. 628-640

Additional Reading for Monday April 1

On Adverse Possession, please also read:

--O'Keefe v Snyder, p. 156-168 

 

This is an interesting case about adverse possession of personal property (a fine art painting) as opposed to adverse possession of real property. Personal property is movable; real property is fixed in place. Does this make a difference for purposes of the doctrine of adverse possession? Should it make a difference in what the rules are?

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.

Assignments Week of February 27 to February 29

 No class Monday February 26--Please attend Pound Lecture

-- Lucas (casebook p. 836-849)

--Nollan and Dolan (casebook p. 849-868)

--Palazzolo (casebook p. 868-879); Tahoe-Sierra (link): Murr v. Wisconsin (Link); (casebook p. 879-881); Tyler v. Hennepin County, Minnesota (link) (read opinion at link 2)

--Preview of this Term's Takings Case: Sheetz v. County of El Dorado (link) (link 2)

 

Next Monday February 26 No Class: Please Attend the Pound Lecture at Noon in Room 111

 We have already made up this class. But I would also strongly encourage you to attend the Pound Lecture, which is the Law College's most prestigious lecture. Here are the details:

On Feb. 26, Keith Whittington, William Nelson Cromwell Professor of Politics in the Department of Politics at Princeton University, will deliver the 2024 Pound Lecture at the College of Law. Within his talk, he’ll discuss how diversity statements have become a common component of applications for faculty positions and student admission at universities across the country. They have also become politically controversial, with several states banning the use of such requirements at public universities. The use of diversity statements also raises difficult constitutional questions under the First Amendment at public universities and academic freedom questions at both public and private universities. Although there are versions of such statements that might pass constitutional muster, as commonly designed and implemented the use of diversity statements likely violates both First Amendment and academic freedom principles.

This program will take place in room 111 and begin at noon.

This year, the Pound Lecture is part of Nebraska Law’s Law and Democracy Series and is provided by generous support from Barb and Ron Schaefer.

This program has been approved for 1.0 professionalism & ethics continuing education credit in Nebraska.

Penn Central and TDRs

Consider Prof. Richard Epstein's analysis of the transferable development rights that were part of the Penn Central Takings litigation:

One peculiarity of Penn Central is that the air rights to be granted Penn Central were over eight properties, including the Biltmore Hotel, the Waldorf-Astoria, and the Yale Club, that Penn Central already owned. How, it must be asked, is the city in a position to grant these rights to Penn Central as compensation for its landmark preservation statute? To do this, the city must first own the rights, which it acquired not by purchase from Penn Central, but by zoning. The city’s compensation for the loss of air rights thus came from its prior uncompensated takings. It is as though A uses money stolen from B to pay B for property purchased from him thereafter.

This difficulty could be avoided by granting Penn Central air rights over structures it did not own, but only by substituting one embarrassment for another. The city would still have to acquire air rights over these properties, which it would do not by payment of compensation to their present owners, but by zoning. Note the irony. If zoning is mere regulation, then how can the state then convey air rights as compensation to Penn Central? To make TDRs work, we need a theory by which the air rights taken by the state through zoning become property only when they are conveyed by the state. The original confiscation is transparent if the air rights zoned away are then resold for cash, and the matter is not any better when these same air rights are used to acquire other property.

Prof. Epstein is one of the most prominent scholars on the law of Takings. His book, called simply Takings, is a classic.

Do you agree with his analysis? Why or why not?

Assignments Week of February 19 to February 22

 --Finish discussion of Kelo ; U.S. v. Causby (casebook p. 730-738); Casebook p. 807-810 (Physical Takings and Loretto); Cedar Point decision

-- Regulatory Takings: Mahon (casebook p. 811-816); Penn Central (casebook p. 820-836)

 -- Euclid (casebook p.753-763); First English (casebook p. 816-820); Keystone, 480 US 470 (1987) (read it on Hein or WestLaw).

-- Lucas (casebook p. 836-849)

Kelo Oral Argument

I am asking you to listen to this oral argument in lieu of having class on February 26 (the Pound Lecture): here is a link to the oral argument in Kelo. 

It is a great argument. The issue is interpretation of the "public use" requirement that allows government to take private property only if the taking is for a "public use." 

Constitutional Interpretation and Interpreting 18th Century Recipes

 "Interpreting the Constitution is no more difficult, and no different in principle, than interpreting a late-eighteenth-century recipe for fried chicken." --Gary Lawson

Suppose you have an old recipe for, say, Great Grandma's egg nog, and it says something like this:

 "Add nutmeg to taste."

Some would argue that such an ancient text defies original meaning interpretation and requires the modern reader to interpret the phrase as a living, evolving concept. But does it really? Are we able to reasonably understand the meaning of ancient texts, such as Hamlet, The Iliad, The Odyssey, Great Expectations, or the Bible?

Back to Great Grandma's recipe. When someone asked me about this once, I replied as follows:

But nutmeg means nutmeg (as nutmeg was understood at the time the recipe was published). Maybe a little more for you, a little less for me. Maybe a pinch. Maybe two pinches. But certainly not a handful. But if you substitute cinnamon for nutmeg, you are amending the recipe, not following it. Which under Art. V [of the Constitution] is fine so long as 3/4 of the states ratify the amended recipe.

What are your thoughts about being faithful to Great Grandma's recipe? 

Is it futile to try to read Hamlet today? Should we allow judges to re-write Hamlet so it says what the judges want it to say rather than what it actually says?

Does a taking for "public use" mean "use by the public" or does it permit any taking for any "public purpose?" Is nutmeg [public use] cinnamon [public purpose]?

Assignments Week of February 12 to February 15

 We will finish up our discussion of RAP during first 30 minutes of class on Monday

   Concurrent Ownership

-- Casebook p. 371-379; 385-405

--Casebook P. 412-420

 Constitutional Protection of Private Property: The Takings Clause

--Casebook p. 791-807 (Public Use Requirement) 

if necessary:

 U.S. v. Causby (casebook p. 730-738); Casebook p. 807-810 (Physical Takings and Loretto)

"Naboth's Vineyard - Site Of The First Reported Case Of Eminent Domain Abuse"

 Here is an amusing post from the Inverse Condemnation blog about a Biblical example of eminent domain abuse. Here is an excerpt:

"We've all heard the story of what may be the very first recorded eminent domain action -- or at least the first case of eminent domain abuse -- the Old Testament's telling of the story of Naboth's Vineyard.

You remember: Naboth the Jezreelite owned a vineyard that had been in his family for a while, but King Ahab wanted to make better use of the land to plant his own stuff. So he offered to buy it, but Naboth said no. So Ahab's wife Jezebel (yeah, that Jezebel) told him "King up, man, you are the King. And it's good to be the king. We'll get that land." So she plotted, and cooked up some false charges against Naboth. And after he was stoned to death, the King grabbed the land."

Read the entire post for the rest of the story. It just goes to show that Government's appetite for private property has always been voracious. 

By the way, it did not work out well for King Ahab. As R.C. Sproul puts it:

"King Ahab exercised eminent domain when he confiscated Naboth's vineyard. Naboth had labored strenuously to cultivate his vineyard, and when the king saw that it was a productive operation, he took it as his own possession. God's wrath was poured out against Ahab (1 Kings 21:1-19)."

FYI: 7 Neighbors That Can Hurt Your Home

From Yahoo Finance News:

7 Neighbors That Can Hurt Your Home

by Brian O'Connell
Saturday, May 7, 2011

Woody Allen once said, "We're all our brother's keepers, but in my case I share that honor with the Prospect Park Zoo."
Bad neighbors are nothing to laugh about, according to the Appraisal Institute. An unkempt yard, close proximity to a sex offender, or having an unfortunate commercial facility nearby (like a power plant or funeral home), can reduce the value of surrounding homes by as much as 15%.
"The impact can vary tremendously depending on a few factors: how 'bad' the bad neighbor is, the kind of neighborhood you're located in, and the type of market that exists," says Carlos Gobel, director of residential services at Integra Realty Resources in Miami.
But what exactly is a "bad" neighbor? Definitions vary, but real estate professionals say it boils down to any home or business enterprise that turns people off.
"A bad neighbor is one that has no consideration for the rest of the community," says Mindy Pordes, co-founder of Pordes Residential Sales & Marketing in Aventura, Fla. "For example, someone who doesn't take care of the outside appearance of the home, such as the gardening, painting of the outside of the home, roof, garbage and general upkeep. In addition, a bad neighbor may have constant visitors taking up parking spaces, perhaps on the street, loud house parties, dogs that bark all night or stray cats lingering around."
A "bad" neighbor can also be a business or government enterprise whose very existence drives the value of your property down. Here, the seven suprising neighbors that can reduce your home's value:
Power Plants. The data is fairly clear on the impact of power plants on nearby home values — it usually hurts them. A study from the University of California at Berkeley shows that home values within two miles of a power plant can decrease between 4% and 7%.
Landfills. A study from the Pima County (Arizona) Assessor's office shows that a subdivision located near a landfill (and all other residential factors being equal, like house size, school quality and residential incomes) loses 6% to 10% in value compared to a subdivision that isn't located near a dump.
Robert A. Simons, an urban planning professor at Cleveland State University, says that if you live within two miles of a Superfund site (a landfill that the government designates as a hazardous waste site), your home's value could decline by up to 15%.
Sex Offenders. Living in close proximity to a registered sex offender is one of the biggest downward drivers of home values. Researchers at Longwood University's College of Business & Economics conclude that the closer you live to a sex offender, the more your home will depreciate. In the paper, Estimating the Effect of Crime Risk on Property Values and Time on Market: Evidence from Megan's Law in Virginia, Longwood researchers say, "the presence of a registered sex offender living within one-tenth of a mile reduces home values by about 9%, and these same homes take as much as 10% longer to sell than homes not located near registered sex offenders."
Delinquent Bill Payers. One surprising way that neighbors can bring down the value of surrounding homes, especially in town home or condo communities, is by not paying their maintenance fees or their mortgages. "Bad neighbors bring values down by not paying their maintenance fees, in some cases their mortgage payments, and not maintaining the home's appearance," says Pordes. "These homeowners usually do not care about real estate values."
Foreclosed Homes. Perhaps the biggest single factor that drives nearby home values down is a foreclosure. A recent study by the Massachusetts Institute of Technology concludes that a neighbor's foreclosed home can slash the value of homes within 250 feet of the foreclosed properties by an average of 27%. Says Federal Reserve Governor Joseph Tracy recently in his economic outlook for 2011: "The growing inventory of defaulted mortgages continues to weigh down any recovery in the housing market... Problems in housing markets can impact economic growth."
Lackluster Landscaping. Studies show that lawn care has a big impact on surrounding home values. Virginia Tech University released a report stating that pristine landscaping can jack up the value of a home by 5% to 10%. But if the lawn looks like it just hosted the world rugby tournament, it can be a green thumb to the eye of local home prices.
Closed Schools. Sometimes, neighborhood problems can stem from local government action. For example, if a cash-strapped city or town closes a neighborhood school, that can easily steer home values south. The National Association of Realtors says that 75% of home shoppers, the quality and availability of schools in the neighborhood is either "somewhat important" or "very important."
So can you fight back against problem neighbors? In the case of a landfill, power plant or sex offender, your options are severely limited. As long as your neighbors are following the letter of the law, you'll just have to grin and bear it — or move. If not, you have every right to petition your local government authorities for a grievance and at least get the matter reviewed.
If it's a residential property causing the problem, however, you might have better options.
For starters, you can leave a polite letter left in the offending homeowner's mailbox to get his or her attention. In addition, Pordes says that if the home is located within a homeowners association or condo association, the association can send letters to the homeowner and deny the homeowner community privileges to try to ensure the homeowner complies with the community rules and maintains home values.
Most cities and towns do have ordinances against messy yards and junk-laden driveways, so check your community's rules and regulations to see what applies.
Unfortunately, many cities and towns also have landfills, power plants and other less-than desirable commercial-sized neighbors.
Most likely, you're just going to have to live with them.

Joint tenancy vs Tenancy in Common

Joint Tenancy

Grutz conveys Blackacre "to A and B and their heirs as joint tenants with right of survivorship and not as tenants in common"

Tenancy In Common

Grutz conveys Blackacre "to A and B and their heirs" or "to A and B and their heirs as tenants in common."