PROPERTY OUTLINE

PROF. BAUMAN									FALL 1998

I.  Rights of Possessors:

Who should get the found object?  What is the instrumental ends?
-expectations of parties
-promoting honesty
-facilitating return to true owner
-underlying public policy
	-Finders reponsibility to try and find original owner
	
Why protect posession?
-effective way to protect ownership since ownership may be difficult to prove
-prevents a stronger person from outsting a possessor, thus disrupting the public peace and order
-facilitates trade in the possessed object because  
-protects sense of investment
-promotes productive and positive use of resources
Labor theory- right to things created by own labor
	Occupation theory-simple act of occupation justifies claim to private property
	Contract theory- contract between individuals and community for ownership
	Natural Right Theory- dictates right to private property
                 	Economic Theory of Property- (Posner) legal protection of private property is economic function, forces uses of private property for productivity, right to benefit from use resources efficiently

A.	FINDERS KEEPERS, LOSERS WEEPERS: POSSESSION AND OWNERSHIP

*Possession refers to either facts indicating physical control and intent to exclude others from control or to a conclusion by a court that a person is “in possession” and ought to be protected as a possessor.(easier to prove than ownership)
*Possession is not the same as ownership.  Ownership is “title” and is usually proved by showing documents signed by the previous owner or first in possessor transferring title to the present title owner.

*Constructive possession is a legal fiction used by the courts to recognize possession even though there is no actual possession or awareness of actual possession, courts look at the intent of parties.

1.) Finder of lost articles: finder of lost property holds it in trust for the benefit of the true owner, as a bailee.  First finder has rights superior to those of everyone except the true owner.  However, all states have statutes of limitations at the end of which the true owner can no longer recover good from possessor.  Statute of limitations usually do not start to run until the true owner knows or with reasonable diligence should know the possessor’s identity.

2.) Lost property- property unintentionally left in a place by the true owner
Rule: finders keepers except against true owner, FIRST IN TIME

Armory v. Delamirie- chimney sweep boy finds jewel, brings it to D apprentice who offered him money but P refused, D gave P back casing  without jewel and refused to give back jewel.  Ct. held that first finder of jewel has superior rights to jewel other than true owner.   Apprentice paid damages to boy worth highest value of stone.
courts prefered good returned (replevin) than money
		Public Policy:
		--returning to finder facilitates return to true owner
		--promotes honesty-societal good for finders to try to return to true owner
		--meets expectations of all involved
		--gives a clear rule for future finders and protects order
		     *Doctrine of subrogation-when T/O comes back, wrongdoer cannot gain from wrong		
3.) Mislaid Porperty- property intentionally left in a place by the true owner, but then forgotten.
	 Rule:  if left in a public place, true owner prevails over owner of premises who prevails over finder, but true owner prevails over both.

4.) Treasure Trove- valuable property, generally money, buried underneath the land or sea
	Rule:  finders keeper, except against the government on public land or the true owner.

5.) Finder vs. Owner of Locus:
	Generally the finder is entitled to possession as against all but the true owner unless the property was found in a highly private place or the finder is a trespasser. 

	 if finder is trespasser, the owner of the premises  where object is found always prevails over the finder.  Purpose-discourage trespass and unauthorized entries on property

	 if the finder is on property for limited purposes, where owner has given permission for person to be there to perform a specific task, then the owner of the premises is entitle to any found property
	(111)	South Staffordshire Water Co. v. Sharman- while cleaining out a pool, D found two rings embedded in the mud at the bottom of pool.  He declined to give the rings to the pool owner or tried to find true owner.  Ct. held that person who found it was an employee acting in the course of his duties, therefore rule of first finder does not apply.

	 objects found under soil- possession belongs to owner of locus not the finder (unclear in regards to treasure trove)

	objects found in private home- objects found in someone’s home are usually awarded to home owner.  However, if owner has not moved in the house and made his/her “personal space,” it has been held that owner is not in constructive possession of articles therein which he is unaware.
(107)	Hannah v. Peel-(very confusing case b/c it cites contradictory case)  Hannah found a brooch while a soldier in a house requisitioned from the owner Peel.  Hannah informed his commanding officer of the find and was advised to turn the brooch over to the police.  After not being able to find the true owner, the police turned the brooch over to Peel, the home owner.  Hannah demanded the brooch from Peel as he was the true owner.   Peel argued he was owner of home where brooch was found and thus it belonged to him.  Court held since Peel had never actually moved into the house an made it his personal space, then the brooch was lost in the ordirnary sense of the word and found for Hannah (ct. may have  rewarded his honesty). 
Bridges v. Hawkesworth- small parcel is found lying on the floor in a shop by a commercial traveler.  Finder picks up parcel, shows it to the shop owner, and opens parcel (full of money) in from of shop owners.  Finder gives it to shop owner to advertise to find true owner, true owner never found.  Ct. held that place of finding does not matter as long as true owner was not found, finder is in possession.

Mc Avoy v. Medina- P is in shop, finds a pocket book on a table, asks owner to kep it and find true owner, T/O not found, P asked for money, D refused.  Ct. held that this property was mislaid, instead of lost, because it was placed on a table in D’s shop, and accidently left there, judgement for D.

	 objects found in public places/business- possession of objects found in public places is determined whether the property was lost (accidently left by owner) or mislaid (intentionally placed somewhere and forgotten).  Lost property goes to finder, mislaid goes to owner of locus.  How one can accurrately determine which is which is a mystery.
		Rationale- purpose of differentiating is that if object is mislaid, the true owner will remember where s/he placed it and go back to that business to claim it.  It is assumed that the true owner will retrace his/her steps and better chance of retrieving it from the store owner than from a finder who is now left store and lost in crowd.

6.)	Abandoned property- intentially abandoned by the true owner,  who no longer claims any right to it, awarded to the finder.(ex: items left in a garbage can)

B.	BAILMENTS:

Bailment-  the rightful possession of goods by one who is not true owner.  The true owner is a bailor, the person in possession is the bailee.  The bailee has the duty to care for the goods and deliver them to the owner as agreed.
	bailee must have intent to exercise physical control and bailor must intend to give up possession
	regardless of standard of care required of a bailee while the goods are in his/her custody, a bailee is held to strict liability when it comes to redelivery.  If the bailee misdelivers the goods to the wrong person, liable eventhough s/he may have used reasonable care

	Creation- to create abailment, the alleged must assume actual physical control with the intent to possess.  Since a bailee has duties and liabilities, court define “physical control” and “intent” to carry out the expectations of the parties and to be fair.  If a court thinks that liability would be unexpected or unfair, it can usually find that D did not have “physical control” or “intent”

	Parking lot cases:  frequently litigated cases where owner of a car becomes bailor leaving the parking garage as bailee.
*Park and lock:  if A parks his own car in a lot, retains keys, and does not deliver the car to attendant (i.e. at airport), some older cases say there is no bailment.  80’s on hold bailment created at Park and lock.

*Attended lots:  if A leaves the car keys with attendant who gives A ticket identifying the car for redelivery, bailment is created.  If A does not leave keys, but B has attendants present parking other cars, exercising surveillance, creating an expectation of duty of care by B, then bailment could be created.

C.	ACQUISITION BY DISCOVERY:  First in timeFirst in possession of a thing own it
Property rights exist because they are recognized by the government under whose dominion the rights are asserted.  In US, dominion is often based on concept of discovery

(3)	Johnson v. McIntosh- Supreme Court 1823- D owned land in Ill. that he acquired under a grant from US.  P purchased it from the Piakenshaw Indians.  P brought ejectment action, judgement for D, P appeals. (ignores first in time)
  Holding:  US courts cannot recognize title to property obtained through grant made by an Indian tribe.
  Rationale:  When American continent was “discovered” by Europeans, each nation made claim to the land discovered and agreed that this discovery would give title to land and the exclusive rights to regulate their relationship with the Native Americans
Normally, those conquered are given choice of assimilating to new society of conquering nation, but since Native Americans were considered savages, they could not become part of society
Native Americans seen as  merely occupants, their possession can be protected in peace, but absolute title cannot be transferred to others. 
 New settlers consinder to be able to make more productive use of land

D.   ACQUISITION BY CAPTURE:

1.)  Wild animals- Once a person has gained possession of a wild animal, s/he has right to that animal superior to anyone else in the world.
(20)	Pierson v. Post- introduces Rule of Capture,”if ferae naturae are captured, they belong to captor” actual possession creates presumption of ownership, the mere mortal wounding does not give possession, who catches does. 	
Dissent: death of foxes is in the public interest, considered nuisances, concerned that no one would invest in sophisticated hunting techniques if any old fool could come right in and shoot the fox he was hunting.

Public Policy Rationale:  At common law,  a time where many people had to hunt to survive (either needing the animals for food or protecting themselves and their crops from the animals)

1.)	Promoting competition- historically society’s object is to capture and destroy foxes( and capture ducks and put them on the dinner table).  In fostering competition, society reward the person who actually catches the wild animal, presuming that this brings in more people into pursuit, thus resulting in more capture.
today’s rule of capture leads to over capture of fish and the threatening of endangered animals
2.)	Ease of administration- rewarding capture is easier than protecting pursuit (hard to define and can take many different forms), rule of capture promotes certainty and efficiency in administration where the takes are not high (some fish, a fox, some ducks) and are not worth a lot of judicial time.

(27) Ghen v. Rich-  P killed whale as a matter of custom and practice, left to float to surface, D bought whale from finder and profitted, Ct. held in favor of P due to custom of the industry

       	 although general rule of capture is that the captor must have physical control over the animal, in some hunting trades and customs dictate a different result.  Custom promotes efficiency in killing whales, while waiting for whale to float up, fishermen can be out trying to capture the next one.

INTERCEPTION IN TRADE:

(31) Keeble v. Hickeringill- (Acceptable v. Unacceptable competition) P owned a duck pond, used to attract other wildfowl – his livelihood.  D intending to damnify P, shot gun off twice and scared away the ducks.  Landowner may use pond for attracting, catching and using the wildfowl.  One who hinders another in his trade in a violent and malicious manner is liable for damages. (D could have created his own pond to attrack ducks)

	Ct. discussed similar case of schoolmaster in new school trying to lure the children to his school.  If new school was using a gun to intimidate the children to come to his school, then the old schoolmaster would have a claim.

Public policy favors protection of those who use their skill and industry to promote trade.

Rule of increase- offspring of mother animal belong to owner

Ratione Soli- owner of land has constructive possession of wild animals on property, even when trespasser captures it.

Animus Revertendi- when animals develop the habit of return, they continue to belong to the owner over hunter    Problem-  how does owner know if animal has been domisticated?

(36)  FUGITIVE RESOURCES:  ct. analyzed natural resources as wild animals

If you are the first to invest time to set up the mechanism to drill up resource, then you have ownership.
Cannot drill diagonally across someone else’s property to get to their resources

Relation back:  protects a large investment of a person who started project as long as they proceed with due diligence

D.	ACQUISITION BY CREATION- Apart from statutes that specifically protect the creator’s rights such as copyright, trademark, and patent statutes, creator’s rights are often uncertain.  Expenditure of own labor not always enough to justify ownership, property must be distributed to encourage productivity

Chenney Bros. v. Doris Silk Corp.-   Doris Silk (p) manufactures and designs silk patterns for the fashion industry, the designs weren’t original enough to need a patent, and not possible to copyright.  D copied one of P’s popular designs and sold it a lesser price.   D denied that the design was P’s.  
extension of protection could lead to monopoly of market
 Ct. held that since it was such a marketable thing, public policy encourages competition and lower prices. 

International News Service v. Associated Press-  Unfair competition, need to protect…limits application of Chenney Bros.  specific to news
 
If you can copy facts, then what incentive is there to go out and do the work?
Court held that “if such practices were stopped, no news service could manage to stay in business”

E.	ACQUISITION BY GIFT

A gift is a present transfer of property by one person to another without any consideration or compensation.

Gift inter vivos:  a gift made during the grantor’s life when death is not imminent, gift is irrevocable

Three requirements for a gift:
1.	Delivery- control of the subject matter of the gift must pass from donor to donee.  A mere verbal statement will not suffice.
i.e. Grace tells Matti, I am giving you ownership of my stereo but never actually hands it over nor gives her a written document referring to it. Grace still owns stereo.

A.	Symbolic and constructive delivery:  if property cannot physically be delivered,  “symbolic” or “constructive” delivery is acceptable.  Delivery of something which gives the donee a means for obtaining gift is acceptable when actual delivery is impractical. 

*However, handing over the sole key to a safe deposit box has usually been sufficient constructive delivery of contents.  But where the donor hands over one of two keys, and keeps the other, cases are divided as to whether this is constructive delivery.  Courts  have held that since the donor can still enter the box, then has not surrendered dominion and control.

In re Cohn – husband gives wife gift of stocks (through written note)as her b-day present in the presence of two daughters, husband dies 6 days later.  Prior to death, husband had entered into partnership with another to share the stocks of the company.  Written instrument of intent but no delivery.  Ct found that stocks constituted actual delivery of gift.
	Rationale:  husband intended to give stocks in the future, cannot do so in present, gift was symbolic and in front of others.
Dissent:  not true intentplan to use stocks in partnership (no delivery, no possession)
Policy:  juries take into account whether party deserves gift, competency of the giver
	
B.	Written instrument:  most courts hold that a written instrument (even if not under seal) is a valid substitute for physical delivery

C.	Gift causa mortis- gift made in contemplation of imminent death, if the grantor survives, the gift is automatically revoked.  Death bed conveyances outside of a will.
courts are generally hostile to gift causa mortis and impose stricter requirements for delivery, less likely to accept symbolic and constructive delivery over physical delivery over physical transfer

	Newman v. Bost- Houston, lying on his death bed, calls his housekeeper Julia, hands her the keys to all the furniture in the house, and say she is to have everything in the house.  In the bedroom bureau which one of the keys unlocks is an insurance policy. The court rejects concept of symbolic delivery (N.C. has no symbolic delivery, only constructive)
	unclear what decesed intended to give, just bureu, insurance policy in bureu, everything, some of the furniture

	Donor must die of contemplated peril:  if donor does not die of the peril contemplated when s/he hands over chattel, but dies some short time later of a different cause then gift of causa mortis is revoked. 
	
2.	Intent:  intent must be to make present transfer, not a future transfer.  In the absence of a deed of gift, intent will be shown by extrinsic evidence

 Present gift for future enjoyment:  however, the courts will enforce a present gift to the subject matter, even though the enjoyment of the subject may be postponed to a later date.

	Gruen v. Gruen-   when P was a college student, he received a letter from his father telling him he was giving him a painting for his b-day, but that the father would retain possession of it for his lifetime.  For tax purposes, father wrote son a second letter that described gift referring to life estate and asked son to destroy first letter.  When father died, painting was in possession of P’s stepmother who refused request for possession.  The ct. held that donor can make an inter vivos gift of a chattel and retain possession for life without surrendering possession prior to death.

3.	Acceptance: (little practical importance) acceptance requirement usually met, but if donee repudiates the gift, then there is no gift.

Recording statutes- in general, recording is not required but protects subsequent grantees against prior unrecorded deeds.   First to record wins over prior unrecorded grantee, subsequent purchaser without notice of prior unrecorded deed wins over prior unrecorded statutes, and subsequent purchaser without notice of prior unrecorded deed wins over prior unrecorded grantee if records first.

BANK ACCOUNTS:   one common gift arises out of the creation of joint bank accounts.  For instance, A may deposit in an account called “A and B jointly, with right of survivorship,” or “A in trust for B”
Survivorship rights:  if B survives A, B is generally entitled to take the balance of the account unless there is clear evidence that A did not intend this result.  The modern rule that A reserved right to withdraw funds during lifetime does not change the facts that B gets funds upon A’s death. (Totten trust- “A in trust for B” or account in A’s name with clause “payable on death to B”)
Rights of parties inter vivos- while both parties to bank account are alive, ownership of funds depends on type of account. 

ESTATES- one does not really own a particular piece of property, one owns the estate in that property.  Two types of estates:  freehold and non-freehold
Freehold:  
(1)	Fee simple- 
Fee simple absolute- most unrestricted and longest estate
inheritable under intestacy statutes, if the owner of a fee simple dies, the property passes to the people deemed to be “heirs”  under the intestacy statute of  the state where the land is located.
 it is created 
Fee simple defeasible- 
	(2) fee tail
	(3) life estate

II.  ADVERSE POSSESSION:  real property owners are expected to pay attention to their property or risk losing it.  The doctrine of adverse possession rewards productive use of land and punishes land owners who sleep on their rights. 

Purpose of doctrine: 
protection of possession of land in fact protects ownership because title may be difficult to prove
bar stale claims, if  A and B are both claiming land and B goes into possession, as time passes witnesses die, evidence is less reliable and memories fade.  Statute of limitations serve purpose of requiring lawsuit to be brought to oust possessor while memories are still fresh.
encourages productivity of property
expectations- persons in possession of property for a long time naturally acquire attachment to land and expectations that they can continue to use property as they have long done, however they came by it.  Giving effect to expectations is a policy running all through the law of property.

To adversely possess, the following requirements must be met:

1.)	use of property  must be continuous, seasonal property meets the continuity requirement,
if owner re-enters property in order to regain possession, this will be an interruption of the adverse possession and must start from scratch.

2.)	use of property must be hostile and under claim of right (without owner’s consent)
minority of courts impose additional requirement that the posession must have a bona fide belief that s/he has title to the property (a squatter would not have title)

3.)	use must be open, notorious and visible (sufficient to put the world, and hence the true owner on notice of the adverse possessor’s occupation.

4.)	Possession must be “actual,” so that the true owner has a cause of action (trespass) against the possessor.  Adverse possessor  

Color of title-possessor has deed that for some reason is invalid, person in possession believes the deed is legit.  (courts are more generous is establishing ownership by adverse possession through color of title because buyer paid for property, believed they owned the property but paid a person who didn’t truly own it and given false title)

5.)	Possession must satisfy all of the other elements for a sufficient amount of time(statutory period).  Common law was 20 years, but 2/3’s of state require fifteen years or longer.  Statute of limitations is frequently shorter for an adverse possessor who claims under color of title that for one who claims without it.

 *once limitations period has passed, wrongful posessor effectively gets title to land.

Tacking is permitted, allowing one possessor to transfer to another without interrupting continuity or the running of the statute of limitations. Parties must be in privity with each other (continuity of interest, must have a direct relationship with transferor either familial or economic).

most adverse possession cases arise out of a mistake as to location of boundries
	If  X landowner has adversly possessed a strip of the neighbor’s property and then sells his property to Y.  If deed from X to Y recites boundaries that include the adversly possessed land then Y would be allowed to tack on the adverse possession  of the strip to his own possession.  If ther deed merely recites the true boundaries of X, then Y must show that X intended to turn over adversly possessed property.  
	If land turned over is completely different from the land described in the deed, there is still a possibility of tacking.  In Howard  v. Kunto, the courts held that there was sufficient connection between estates of two summer property owners (error in records) and allowed the tacking of the property even though it was not correct piece of land.

there is no tacking if fomer owner has been ousted or abandoned land

6.)	Possession must be exclusive- adverse possessor must assert the right to exclude all others, and must not share the property with others, especially the true owners.

7.)	Disability- if at time that the true owner’s cause of action accrues the true owner is under a legal disability, the statute of limitations does not begin to run.  Legal disabilities include being under the age of majority (21), serving in the military, being legally incompetent and being imprisoned.

 Rights one may have over property of another:

EASEMENTS:  a privilege to use the land of another

1.	Affirmative easement: one which entitles its holder to do a physical act on the land of another.  ( majority of easements are this way)
Ex:  A owns Ocumare, she gives B a right of way over Ocumare so that B can pass from his own property to a highway which adjoins Ocumare.  B holds an affirmative easement since he is permitted to make physical use of A’s property.

2.	Negative easement:  one which enables its holder to prevent the owner of land from making certain uses of that land.  Such easements are rare and do not permit the holder of easement to actually go on property.

Ex:  A owns a piece of land with a view on to a lake, B owns land which is separated from the ocean by A.  A gives B an easement of “light and air” which ensures that A won’t build something to block B’s view of the ocean.  This is a negative easement, since it does not authorize B to go on A’s property, but allows B to restrain A from certain uses of A’s property.
 negative easement would probably be enforced by an injuction, but might also be enforced by a suit for damages.

CREATION OF EASEMENT:

1.)	by an express grant
2.)  by implication as part of a land transfer
3.)  by strict necessity (to prevent landlocked)
4.)	by prescription (similar to the obtaining of a possesory estate by adverse posession)

Express creationmost straightforward  way of creating an easement by deed or will.  
  Ex:  

   Statute of Frauds-an express grant of an easement must meet the following requirement 

COVENANTS:
	Historically, landowners who wished to protect the character and value of their land by ensuring the conduct of their neighbors had to rely on the pure property interests of easements and profits.  Affirmative easements were easier to enforce, but negative easements are difficult to enforce, and thus the idea of contracts or convenants came about.

(873)	Neponsit Property Owners’s Association v. Emigrant Industrial Savings Bank (1938)
  In 1911, Neposit filed a residential subdevelopment plan, a 1917 deed of a parcel of the development to Deyer contained covenants which the grantee made for himself, his heirs, successors and assigns with the intention to run with the land.  The covenants bound the grantee to pay fixed annual charge for the maintenance of public areas.   D  acquired this charge as it foreclosed on a property which had this covenant.  Bank refused to pay charges.
Holding:  Subsequent purchasers are bound by an affirmative covenant to pay money in connection with the land (not necessarily to the land specifically) as a burdern of covenant

Rationale:  a covenant will run with the land if :
	-parties intended the covenant to run with the land
-covenant “tounches” the and which it concerns (because the payment of the maintenance fee is essestial for the enjoyment of the land, then it touches the land and is binding on subsequent purchasers)
-there is privity of estate between party claiming the benefit and party and party burdened with the covenant (since P is seen as representative of all property owners, then there is privity)

(885) Caulett v. Stanley Stilwell & Sons, Inc. (1961) P purchased a one acre lot from D, a builder.  Deed stated that 

(891)	Hill v. Community of Damien of Molokai  Supreme Court of New Mexico (1996)
Community of Damien, non profit, lease a house to four people with AIDS, neighbors object to it because it violates the covenant that states that no house can be use for anything but single family residential use of the property.  

Why doesn’t it violate the single family residential covenant?
Supreme court felt language was ambigious, looked at meaning of single family

        		 Is this residential?
			Looks like a residence, not really commercial			

	Does it violate single family use?
		Looks at Albuquerque zoning ordinance definitions which defines it as a family
		Public policy- operate as a family, house runs like a single family, communal meals, supportive environment, state policy in favor of deinstitutionalization and moving to more residential environments…most court uphold these settings as residential home.
	(court did not focus on staff living there, hired help…which makes it look less residential)

	Traffic issue-covenant did not pertain to the traffic, but to the homes… a neighboring family could have 5 kids with 5 cars…irrelevant issue to covenant

FAIR HOUSING ACT- Court divided it into three parts:
discriminatory intent- neighbors complained after article in newspaper, not enough evidence of intent to discriminate (disabled people in neighborhood), difficult to prove anyway
disparate impact- need to show discriminatory effect, court found that if covenant is enforced, it will have discriminatory impact of disable people wanting to live in this neighborhood
reasonable accomodation- affirmative obligation for neighbors to make reasonable obligation for disabled person to enjoy the property, NOT ENFORCING covenant is a reasonable accomodation that the neighborhood can make

Holding:  Court required neigbors to make reasonable accomodation and waive the covenant to allow for disabled people to live there.

(902)	Shelley v. Kraemer  Supreme Court of the United States (1948)
Shelley (D) a black, purchased residential property that unknown to D was encumbered bya restrictive covenant that prevented ownership and occupation by non-caucasians.  Kraemer (P), a neighbor and owner of the other property subject to the restriction, brought suit to restrain D from posessing the property and to divest title out of D.  Trial court denied relief, Supreme Ct. of Missouri reversed, D appeals.

government encouraged the use of convenants, considered exceptable part of property law, team of lawyers working on showing the discriminatory practice
--covenant does not touch and concern the land (a person’s race does not have anything
to do with the occupation or enjoyment of the the property)
--unreasonable restraint in alienability(eliminates a large portion of the population to buy or sell the property)
		--against public policy (bad policy to discriminate)
terminate because conditions have changed and no longer the same circumstances as to when it was created

Holding:
14th Amendment only protected the government from violating civil rights.  However, the court held that the 14th Amendment Equal Protection Clause prohibits judicial enforcement by state courts of restrictive covenants based on race or color.

EQUITABLE SERVITUDES- analogized to easements by the British, British did not recognized easements in gross 

ZONING: state may enact statutes to reasonably control the use of land for the protection of the health, safety, morals, and welfare of its citizens.  Zoning power is based on the state’s police power and is limited by the Due Process and Equal Protection Clauses of the 14th Amendment, and the “the no tacking without just compensation”clause of te 5th Amendment.  Cities and countied can exercise zoning power only if so so authorized by a state enabling act.  (state courts differ on how much planning is required for zoning,  no specifics on how)

Zoning divides town into geographical pieces with dimensional requirements and how to apply, appeal, etc. ,specified uses for each
	Need map and narrative
notion that if segregated uses then it would create more efficient use of land, the use of land would continue through time, actually huge demand for not living with theses restrictions, demand for changes and time went by (political pressures to make changes)
non-conforming uses- i..e. shop in residential property, not asked to leave, thought that eventually the non-confoming would eventually close and go away, instead grocery in residential became very profitable and land highly valuable

5th Amendment –govt. cannot take land without just compensation

14th Amendment- includes states 
prohibition of deprivation of property without due process of law

1.)	non-conforming use- a use that exists at the time of passage of a zoning act that does not conform to the statute cannot be eliminated at once
2.)	Special use permit- one that must be obtained, even though the zoning is proper for the intended use. (usually required for hospitals, funeral homes, drive-in businesses,etc.)
3.)	Variance- a departure from the literal restrictions of a zoning ordinance granted by administrative action.
4.)	Unconstitutional takings and exactions- may reduce value of real property
If the ordinance constitutes a taking, local government must pay damages to the landowner equal to the value of reduction.  If the ordinance regulates activity that would be considered a nuisance under common law principles, it will not be a taking even if it leaves the land with no economic value.
a.	Denial of All economic value-Taking- regulation that deprives the owner of all economic use of this land constitutes a taking(unless the use was prohibited by nuisance or property law when the owner acquired property)
b.	Denial of Nearly All Economic Value- Balancing Test- If a regulation leaves property with very little economic value, to determine if there was a taking the court will balance:  
	1.social goals of regulation,
	2.diminution in value of the property, and 
3.	owner’s reasonable expectations for use of the property.
c.	Unconstitutional exactions- local governments often demand, in exchange for zoning approval for a new project, that the landowner give up some land for public purpose, such as widening a street.  However such demands are unconstitutional under the 5th and 14th Amendment unless the government proves:

1.	government demands are rationally connected to an additional burden the project will place on public facilities or rights, and 
2.	the dedication is reasonably related in nature and extent to the impact of the proposed development
d.	Remedy- if a regualtion constitutes a taking, the government will be required either to compensate the owner for the property or to terminate the regulation and pay the owner damage for the temporary taking.

 (916)  Pocono Springs Civic Association v. MacKenzie  1995

Facts:  do not want to pay dues on property, want to get rid of it, cannot build on the property because it does not pass the test of disposing sewage 
stopped paying taxes on the property, twice the city tried to sell it at a tax auction but no one wanted to buy it, attempted to donate the piece of property to the association but the association refused the gift.

could have formed a corporation, look at how lot is defined in this organization, who pays fees (maybe if two people own the property, maybe not subject to the fees. 

(950)	Village of Euclid v. Ambler Realty- Supreme Court of the U.S. 1926- set up as test case to challenge constitutionality of complex zoning ordinance
  kept out immigrants
Facts:    Euclid (D)zoned properyt of Amber realty (P) in a manner which materially reduced its potential value, city divided into used districts, also area districts and height districts (overlay zones)
The ordinance restricted the building of apartment houses, hotels, churches, schools or any other public or semi-public building for the first 620feet from Euclid Ave., then no industry, theatres, banks, shops for the next 130 feet.   Property value of Amber realty dropped from $10,000 to $2,500.

Deprivation of property is in violation of due process violation of the 14th Amendment, not challeging ordinance as applied to his property, but the mere existence of zoning ordinance has a negative impact on his property and on its face its unconstitutional

Zoning is like the control of nuisance, apartment houses are like nuisances

Rule:  A zoning ordinance, as a valid exercise of the police power, will only be declared unconstitutional where its provisions are clearly arbritary and unreasonable, having no substantial  relation to the public health, safety, morals or general welfare.  *LANDMARK CASE*

Rationale:  As long as there are   , not going to second guess the zoning laws (defer to local bodies)

(1198) Lucas v. South Carolina Coastal Council-   Supreme Ct. of US  1992

Supreme Court reviews taking law

Facts:  1977 law required oners of coastal land in “critical areas” (including beaches and immediately adjacent sand dunes) to obtain a permit from the South Carolina Coastal Council prior to committing the land to ause other than the use the critical area was devoted to in Sept. 28, 77.
	In 1986, petitioner Lucas paid $975,000 for two residential lots on an island off the coast of South Carolina with the intent to build single-family lots since no parts of the parcels were critical areas under the 1977 legislation thus not required to have permit.
	Lucas filed in state court claiming taking, trial court agreed, South Carolina Supreme Ct. reversed reasoning that “when land use regulation is designed to prevent serious public harm,  no compensation is due regardless of the regulations’s effect on the property’s values”…US Supreme Ct. granted centiorari