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Course F13 Glendon - Property 7
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Answer-to-Question-_1_
1) Although the right to exclude is one of the most essential sticks in the bundle, and can
be enforced even without actual damages (see Jacque), MMM's right to exclude will still
be diminished. If Ames follows California's lead with PruneYard, it will protect a state's
ability to reorient free speech and property rights, despite a Constitutional interpretation
in MMM's favor (see Hudgens). Ralph's Grocery limited PruneYard to its facts, but I
would expect Ames to allow, as the Supreme Court in PruneYard did, the right of free
expression in shopping malls to the extent that it does not constitute a taking, violate due
process, or infringe on First Amendment rights.
MMM may argue that it has an apolitical and nondiscriminatory policy against "issueoriented speech and leafletting," but this argument will not suffice (Pruneyard). Shopping
malls today are public gathering places, and since the owner is inviting shoppers, he
weakens his right to exclude. As the New Jersey Supreme Court noted in Shack,
"property rights serve human values." Thus, as long as the free speech does not
"markedly dilute" MMM's property rights, and MMM can issue "reasonable time, place,
and manner restrictions" (Pruneyard Powell, J. concurrence), issue-oriented speech will
likely be allowed. I would encourage MMM to seek us out if the speech becomes
associated with the owners or compels them to speak -- then MMM may have a First
Amendment case. If the free speech has a significant adverse economic impact or
becomes otherwise substantially unfair, we may also initiate Takings and/or Due Process
lawsuits. However, in the meantime, the Ames Supreme Court may diminish MMM's
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right to exclude.
2) H's action of ejectment against B will probably fail, but it is not clear. The first issue is
whether the court will enforce O's restraint on use. Although these restraints diminish the
marketabaility of the property, and especially one like this, court's typically enforce
restraints on use. Here, considerations of the grantor's wishes come into tension with
economic policy, but the court will likely side with grantor. There is a chance, however,
that the court will interpret a seeming indefinite restraint on use to be too burdensome to
be enforced.
Assuming that the restraint is enforced, the next question is what type of fee simple
defeasible estate we have: determinable or subject to condition subsequent? (There is no
evidence that this is a life estate, and there is a presumption for fee estates). If A's estate
was a fee simple determinable, when A stopped using the land for agricultural purposes
in 2002, the possibility of reverter would come to fruition and O's heir, H, would own the
land.
In this scenario, however, B would likely have attained title through adverse possession.
He (1) actually possessed the land in a (2) open, notorious (openly living there), and (3)
exclusive way. He lived there 4) continuously ("ever since") under a claim of right (either
by the objective or subjective tests). Although he only lived there for eight years, privity
of contract between A and B will allow tacking the two terms together, satisfying the
statutorily-required ten-year period.
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If A's estate was a fee simple subject to condition subsequent, things get more
complicated. This will probably be how the court interprets the language, as the
presumption if for condition subsequent estates rather than determinable ones. Here, H
would have had the right of reacquisition, but he need not exercise it, and especially not
immediately. The statute of limitations, then, would probably not begin running until H
exercised his right, eliminating the possibility of adverse possession.
B has at least three responses. First, he may argue that the statute of limitations should
begin running at the time the right accrued, rather than the time the interested
partyexercised that right. Similarly, B could also make a laches argument. Although the
statute of limitations has not passed, he would argue, it would be inequitable to now,
eight years after purchasing the property, strip him of it. These arguments, and
particurally the first, may succeed.
If the first two options don't work, B's final response is to sue A. The special warranty
deed protects B against title defects which arose while A owned the property. A may
argue that the defect was the defeasible estate itself, but, B would respond, the condition
was met under A's watch. A also sold a property with an arguably unmarketable title that
B seemingly was not aware of: a reasonable purchaser, well informed of the relevant
facts, would be unwilling to accept such a title. (See Messer-Johnson) As a last note, we
should consider Helmholtz's studies showing that court's favor honest parties. The
position of B is sympathetic against both H and A, which will weigh in his favor.
3) L would likely lose a lawsuit against T or X. First, we should consider the effect of the
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restrictive covenant. Although arbitrary landlord assignment denials are typically

prohibited (Kendall), the denial here is not arbitrary. Instead, the denial was part of the
deal. In the realm of commercial real-estate, with bargained-for terms and lawyer-made
law, courts are likely to enforce such a restriction. The term likely saved the landlord
money, which he may have passed on to his tenant.
However, T's transfer to X was a sublease, not an assignment. Although T used the word
"assignment," a majority of courts will look to the outcome of the transfer, not the
particular words used. Since the transfer was not for the full term, based on the objective,
majority test, we have a sublease not in violation of the restrictive convenant. The
minority view, which looks to the intentions of the parties, would likely find as
assignment because these were the words used and T may have wanted to create privity
between X and L.
Assuming Ames employs the majority test, the sublease will not create privity of contract
or estate between L and X. As a result, L would not be able to sue X, but could still sue
T. If Ames follows the minority view and considers the transfer from T to X an
assignment, then there would be privity of estate, but not contract, between the landlord
and assignee.
At the very least, my analysis would be different if this were a residential lease.
Residential property law is generally within the bounds of consumer law, not the
contract, lawyer-made law of commercial leases. The restrictive covenant would likely be
more highly scrutinized and we would need to look to statutory restictions on the
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landlord's actions.
4) First, H, let me tell you what is working against you. Property is many states is
presumptively co-used and co-owned, even if it was acquired before the marriage. If you
divorce, even with an antenuptial agreement, you will face "equitable distribution," where
a judge will have great discretion over what to do with your property. If you die, there
will be a forced share, between 1/3 and 1/2 of your estate, which will go to your wife, and
even solely-controlled will substitutes may be included in the forced share (see Sullivan).
Still, there are some things you can do. I assume you did not reach an antenuptial
agreement with W, but if you did, I hope a court would find it fair and reasonable,
reached without coercion or distress, and I hope you disclosed your net worth or had her
sign a waiver to fulfill this requirement. (see DeMatteo)
First let me discuss how you should act, in general terms, moving forward. Keep her off
the property during the marriage. There is a presumption of co-ownership, but this
presumption can be rebutted with facts. On this note, you should divorce her in the near
future, and not wait to die. In court, a judge will make a fact-sensitive determination
based on the intentions of the various parties; it will help if you're alive to tell your side
of the story. Finally, don't have kids with W. They will only complicate the process and
further divide your estate.
Legally, what to do? I wouldn't rely on a will to devise the property to your sons. You
should have one as a backup, but a will requires your family to enter probate court, which
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is slow, public, and expensive.
One way to avoid probate is to create a joint tenancy in the properties with your sons. The
joint tenancy will create a common, undivided interest between you and your sons, and
will automatically pass to them upon your death because of the rights of survivorship.
Although courts have upheld joint tenancies as revocable will substitutes (Blanchette),
you do run the risk of entering into a long term agreement with your sons that may
constrain your flexibility (although less so than outright gift, another option). You must
also ensure that you create a valid joint tenancy, but you are fortunate that modern courts
will not require a strawman to create unity in time. (see Riddle). Overall, these particulars
are important, as the presumption is for a tenancy in common, which does contain the
right of survivorship.
Probably the best option is to create a recovable trust with your sons as beneficiaries.
Courts have long recognized these will substitutes (Totten), which will allow you to use
the property as you see fit and pass it on to your sons outside of probate. There are few
disadvantages to irrevocable trusts, but like joint tenancies, you must ensure that you
create a valid one. (see failed MLK attempt) You will need (1) sufficient words to create
it, (2) a definite subject, (3) certain or ascertained object, and (4) sufficiently declared
terms. None of this is difficult -- you just need to do it.
5) a)
1) Synopsis: Cobbs, heir of deceased owner with defective title, was presumed to have
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been peacefully possessing the land when, Tapscott, who has no title, took possession of
the land. Cobbs brought an action of ejectment.
2) Procedural Posture: Cobbs won at the trial level; Tapscot appealed.
3) Relevant Facts:
1) Lewis, to which Cobbs is an heir, never received a deed to the land and did not
pay full price.
2) Another individual also purchased the land at a later date, but Lewis entered it.
3) Lewis died in 1835.
4) It is not clear that Cobbs entered the property after 1835.
5) Tapscott entered "without any pretense of title"
4) Issues: Can a prior possessor with defective title eject a subsequent possessor who is
not the rightful owner?
5) Holding: Yes.
6) Rationale:
1) Case of first impression, so judge has some discretion between different states'
opinions on same issue
2) Relativity of title: prior possessor over subsequent possessor. Thus, showing
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defects in prior possessor's title not sufficient.

3) Avoids "disorderly scrambles for the possession" and "attains the ends of
justice"
4) Presumption, not rebutted here, that Cobbs possessed property
b) Cobbs had a strong case, given the presumption that she possessed the property. This
policy of prior possessor prevailing over subsequent possessors promotes the productive
use of property and settling of disputes through negotiation rather than fights. (see
Delamirie, M'Intosh) In Anderson, the court found that even a thief had better title than a
later possessor who was not the true owner, because an alternative ruling would promote
a never-ending cycle of theft. The most problematic part of the Cobbs case is that Cobbs
may not have been in possession of the property. Still, with no evidence either way,
presumption should prevail.
c) Defects in Cobbs's title would not overcome the fact that a prior possessor prevails
over a subsequent possessor who is not the true owner. Hearing evidence on title defects
would thus be irrelevant.
d) Cobbs would have a stronger case, because Lewis's title, and thus Cobbs' title, would
be less defective. Although the title would still probably not be marketable, Lewis would
have adversely possessed the property because her possession would have been actual,
open and notorious, exclusive, continuous, and under a claim of right for over 10 years.
Cases like these show the rationale for adverse possession: long-term possession creates
expectations that are met through this type of title perfection. Since Tapscott was only on
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the property for a maximum of four years (original action in 1846), he did not adversely
possess the property. Thus, although the case did not turn on adverse possession, it would
have strengthened Cobbs's case because the presumption of possession would be less
crucial, as Cobbs would have had better title to property even without the presumption.
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Answer-to-Question-2
To: Justices of the Ames Supreme Court

From: Clerk
In his prescient Lochner dissent, Justice Holmes wrote that "a constitution is not intended
to embody a particular economic theory." Like many great statements, it was mostly, and
certainly in that context, true. As officials from Pennsylvania, South Carolina, and
Michigan will tell you, however, the Constitution does check particular regulatory
actions, whether through overruling them or requring "just compensation". In the three
cases before you, you will have the option to take similar actions.
Before delving into the details of the cases, you should bear in mind, in broad terms, the
pragmatic sense of the current judicial standards. For due process and eminent domain
cases, a court must either strike down a government action or uphold it; there is no
middle ground. As a result, partially in recognition of its own institutional competencies
and of Holmes's logic in Lochner, courts are highly deferential in these cases. Under this
broad logic, then, you should show deference to the legislature in cases (2) and (3). As
for case (1), involving the question of whether a 'taking' has occurred, however, courts
are less deferential because compensating the plaintiffs provides a sort-of compromise. In
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some ways, these cases are the most difficult to resolve because judicial deference cannot
provide the answer to these tough questions.
Unfortunately, these broad brush strokes will not resolve the particular cases before you,
however they do inform my analysis. After considering each case, I conclude that you
should find for the government in each one.
Rakoff Oil
The question in this case is whether a five-year moratorium on fracking constitutes a

taking under the Fourteenth Amendment. I will first consider the role of nuisanceamelioration to the case. Next, I will assess the central question of conceptual severance
in time and analyze the taking based on the Penn Central test. Finally, I will consider the
proposed exaction. I conclude that under the Penn Central test, this is not a taking.
First, to dispel with the nuisance issue. Although under Hadacheck, a restriction to
protect the public health and safety was per se not a taking, Justice Scalia in Lucas
demoted the Hadacheck per se rule to only a factor in the Penn Central test. He was right
to do this. Hadacheck was decided at a time when local governments required greater
leeway in regulating "harmful or noxious" actions. Today, this per se rule would give
state's far too much leeway in taking property, especially since, as Scalia notes, there is
no practical difference between "harm-preventing" and "benefit-conferring" actions.
Hadacheck, then, is not dispositive. Whether Ames allows conceptual severance in time,
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however, might be. If Ames does, following First English dicta and recently Arkansas v.
Game and Fish, the moratorium may constitute a complete taking, which would trigger
the Lucas per se rule. The logic here is that for this five-year period, the moratorium
stripped Rakoff of all of its economic value. Following this course of action, however,
would be unwise. First, you should consider Tahoe, where the Supreme Court deemed a
similar three-year moratorium not a complete taking. The Court affirmed an appellate
court decision which reversed a district court deciding based on the First English logic
above.
The Tahoe decision was correct. Local governments must be allowed to set moratoriums
on development to plan future actions. We want to encourage careful planning. The risk
here, of course, is that a five-year moratorium may turn into an indefinite one. Still, this is
a risk for which we should look out, but it is not present here. Fracking is complicated,
and government's should have time to make educated determinations. If you are
concerned about this moratorium becoming indefinite, you can set a standard based on
reasonableness which could balance the competing issues.
If you follow the Tahoe analysis, you must then do the Penn Central ad hoc multifactor
balancing test. The first consideration is the economic impact of the regulation. Here
again, there are conceptual severance issues which, as Kennedy notes in Palazzolo,
present "difficult and persisting question[s]". Rakoff would argue for a narrow
"demoninator," claiming that its economic impact in the rural Ames county is severe.
However, this logic has the same problems with conceptual severance in time. If we are
to allow municipalities to take their time with these sorts of regulations, we cannot have a
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narrow denominator which has no chance of satisfying the Penn Central test. Rakoff oil
surely has other investments, so the economic impact is unlikely to be too great
considering the company as a whole.
The second factor is the extent to which the regulation interferes with distinct investmentbacked expectations. Although there is no reciprocity of advantage as in Penn Central
(and possibly Hodel, despite O'Connor's opinion), Rakoff should have been able to see in
advance that these regulations were possible. Fracking has produced widespread backlash
throughout the country, and any intelligent investor would have considered this
possibility.
The final factor, the character of the government action, does not weigh in favor of
Rakoff. The action was not retroactive (see Eastern) and was not otherwise offensive to
judicial sensibilities. The County Council set a moratorium to study a real harm; Ames
should allow it to do so.
As for the exactions, we need not rule on their permissability, as Rakoff refused them. If
you would still like to comment on them, note the Nolan and Dolan requirements:
exactions must share an "essential nexus" (Nollan) and be "roughly proportional"
(Dolan) to the purpose of the conditions. The county's EPA requirement probably
satisfies this. There is certainly a nexus between fracking and the environment, although
we would need more quantifiable, individualized statistics to make a decision on the
proportionality requirement. There is no nexus with the sports stadium, so this would not
satisfy the test. In general, it makes sense that we apply stricter scrutiny to exactions, as
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in this area the government may use its influence inappropriately.
Brokers
This is the easiest case of the three. Although the plaintiff's will make claims based on the
Due Process and Takings Clauses, the Due Process Clause is the correct way to analyze
the case. Save for Apfel, where four justices viewed an economic regulation as a taking,
other takings cases have involved regulations of real property, not commerce. This makes
sense, as if purely economic regulations are analyzed on Penn Central grounds,
governments could even be haled into court to defend taxes as takings.
As a due process issue, this case is similar to Ferguson, where the Supreme Court upheld
a Kansas law banning "debt adjusting." The rationale was that the Supreme Court is not a
"super-legislator" that should decide on the merits of particular regulations. This was a
far cry from the Lochner era where regulations were struck down after strict scrutiny of
ends and means, based on the "liberty to contract" in the Due Process Clause.
Ferguson was rightly decided, and the logic of the case should extend to the Broker case
before you. Reasonable people may disagree on the wisdom of the Ames law, but, as
Holmes notes in Lochner, "the Fourteenth Amendment is perverted when it is held to
prevent the natural outcome of a dominant opinion," barring a legislative infringement on
"fundamental principles...of our people and our law." If Ames believes lawyers should be
present at the contract stage of real estate purchases, it should be allowed to make such a
law. (Cf. Buyer's Service)
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One final due process matter to consider for future cases is how to read the Constitution.
In Lochner, Holmes read it expansively to protect "fundamental principles," whereas
Justice Black in Ferguson read Holmes to require a violation of an "express prohibition"
in the Constitution. In a purely pragmatic sense, this latter reading may be less appealing
to you because it constrains your power to strike down laws.
Hauserville
The central question is whether the City Council's actions are "for public use". These
three words have been interpreted broadly to protect the condemnation of a hardware
("department") store as part of the redevelopment of a blighted area (Berman); to protect
the transfer of centuries-owned land in Hawaii to the lessees of that land (Midkiff); to
protect the condemnation and transfer of houses in a diverse community to a single
private corporation (Poletown); and to protect general "economic redevelopment" in a
town that arguably could have used it (Kelo). Eminent domain has been resticted,
however, in individual states (Wayne and post-Kelo laws), and with strong enough public
opposition. (Mississippi Land Push) Theoretically, transfers from A to B are
unconstitutional, but given the cases above, it is unclear precisely what this means.
So where do these cases leave Ames? You would be justified in interpreting the Ames
constitution to prohibit this taking, but I would not recommend it. Certainly, it is
problematic that the Mayor's brother-in-law will likely greatly profit from the
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arrangement, as it confirms people's fears with eminent domain that those with the least
political influence (i.e. the least money) bear the greatest burden. Compensation, too, is
not "just" in the eyes of the plaintiffs.
I would make a few points in response. First, when actions do benefit the public and are
not "naked transfers," courts should show deference to the legislatures. Here, part of the
funds will be for a school, which is certainly a public use. The business development, too,
brings real public benefits. While it is true that "for public use" functionally has no
meaning if an expansion of the tax base suffices, we must also keep in mind that a
democratically-elected legislature should have the right to institute policies which it
believes will improve the community.
Relatedly, if individuals want to constrain their state's power, they can. Although one
could argue that it is the politically-weak groups that bear the brunt of the harm in these
takings cases, the post-Kelo legislative actions show that these individuals do have the
power to pass laws. On difficult policy questions like these, the courts should allow
democracy to work.
In Justice Thomas's Kelo dissent, he makes the good point that it is the Supreme Court's
job to interpret the Constitution, and that they should not show deference to the
legislature's interpretation. While there is something to this position, it is ultimately
unpersuasive. In our system, the legislature makes de facto interpretations of our
Constitution by passing laws, and the judicial branch sets outer boundaries for these laws.
Thus, the question is not which branch interprets the Constitution, but rather to what
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degree the judiciary defers to the legislature. For the reasons outlined above, I believe
substantial deference is warranted.
It is also worth considering Kennedy's concurrence in Kelo, as he notes that insufficient

process, a concentrated private beneficiary, and severely disproportiate harms and
benefits could sway him to strike down an eminent domain action. Here, we could inquire
as to the Council's process, but that the benefits will flow to a public school and a variety
of businesses suggest that Kennedy would be satisfied. The concentrated benefits to the
Mayor's brother-in-law are again problematic, but someone, it seems, needs to coordinate
the policy.
Conclusion
For the above reasons, I would find for the government in each of the three cases. My
analysis favors judicial deference to legislatures based on a pragmatic sense of the correct
judicial role. Still, because the law is not totally settled in these areas, you have some
freedom to mold Ames's laws as you see fit.

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Institution Harvard Law School

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restrictive covenant. Although arbitrary landlord assignment denials are typically

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is slow, public, and expensive.

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2) Procedural Posture: Cobbs won at the trial level; Tapscot appealed.

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defects in prior possessor's title not sufficient.

Institution Harvard Law School

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Institution Harvard Law School

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To: Justices of the Ames Supreme Court

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The question in this case is whether a five-year moratorium on fracking constitutes a

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Institution Harvard Law School

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in this area the government may use its influence inappropriately.

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Institution Harvard Law School

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It is also worth considering Kennedy's concurrence in Kelo, as he notes that insufficient

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