Emanuel Law Outlines for Property 9th Edition by Calvin R. Massey, ISBN-13: 978-1454891673

Emanuel Law Outlines for Property Keyed to Dukeminier, Krier, Alexander, Schill, Strahilevitz 9th Edition by Calvin R. Massey, ISBN-13: 978-1454891673

[PDF eBook eTextbook] – Available Instantly

• Publisher: ‎ Aspen Publishing; 9th edition (October 24, 2018)
• Language: ‎ English
• 528 pages
• ISBN-10: ‎ 145489167X
• ISBN-13: ‎ 978-1454891673

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An ELO ensures that you understand the concepts as you learn them in class and helps you study for exams throughout the semester. Here’s why you need an ELO from your first day of class right through your final exam:

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• They are easy to understand: Each ELO contains comprehensive coverage of the topics, cases, and black letter law found in your specific casebook but is explained in a way that is understandable.
• The Quiz Yourself and Essay Q&A features help you test your knowledge throughout the semester.
• Exam Tips alert you to the issues and fact patterns that commonly pop up on exams.
• The Capsule Summary provides a quick review of the key concepts covered in the full Outline—perfect for exam review!

Table of Contents:

Cover Page
Front Matter
Title Page
Copyright Page
About Aspen Publishing
Dedication
NOTE
Summary of Contents
Contents
Acknowledgments
Preface
Casebook Correlation Chart
Capsule Summary
1. Conceptual Basics — Property Theory, The Meaning of Possession, and First In Time (Including Acquisition by Discovery and Capture)
I. What Is Property?
A. Introduction
B. Theory
1. Locke’s Labor Theory
2. Other Natural Law Theories
3. Utilitarian Theories
4. Externalities
5. Utility and Efficiency
6. Custom
7. The Tragedy of the Commons
8. Technology and Innovation
9. The Tragedy of the Anticommons
C. Doctrine
II. Possession
A. Introduction
B. Two Meanings of Possession
C. Possession of “Unowned,” and Not Previously Owned, Things: Acquisition by Discovery, and Capture
1. Discovery
2. Capture
Exam Tips on CONCEPTUAL BASICS — PROPERTY THEORY, THE MEANING OF POSSESSION, AND FIRST IN TIME (INCLUDING ACQUISITION BY DISCOVERY AND CAPTURE)
2. Acquisition of Property by Subsequent Possession: Find, Adverse Possession, Gift, and Bailment
I. Acquisition by Find: Finders Keepers?
A. Abandoned Property — General Rule
B. Lost and Mislaid Property — General Rule
1. Prior Finders
2. Finder vs. Landowner
3. Equitable Division
4. Statutory Modification
II. Acquisition by Adverse Possession
A. Rationales for Adverse Possession
1. Sleeping Theory
2. Earning Theory
3. Stability Theory
B. Elements of Adverse Possession
1. Actual and Exclusive Possession
2. Open and Notorious Possession
3. “Hostility” or Adverse Claim of Right
4. Continuous Possession
5. Payment of Taxes
C. Extent of the Property Acquired by Adverse Possession
1. Entry Without Color of Title
2. Entry Under Color of Title
D. Statutory Issues
1. Length of the Limitations Period
2. When the Cause of Action Accrues
E. Adverse Possession by Tenants and Co-Owners
1. Tenants
2. Co-Owners
F. Adverse Possession of Personal Property
G. Title Acquired by Adverse Possessor
H. Alternatives to Adverse Possession in Boundary Disputes
1. Agreed Boundaries
2. Acquiescence
3. Equitable Estoppel
III. Accession
A. General rules
B. Mistaken improver of real property
IV. Acquisition of Personal Property
A. Introduction
B. Bailments
1. Bailors, Bailees, and Third Parties
2. Duty of Care and Obligation to Return Upon Demand
C. Gifts
1. Intent
2. Delivery
3. Acceptance
4. Gruen v. Gruen: An Illustration
Exam Tips on ACQUISITION OF PROPERTY BY SUSEQUENT POSSESSION: FIND, ADVERSE POSSESSION, GIFT, AND BAILMENT
3. The Limits and Possibilities of Real Property, Personal Property, and Intellectual Property
I. Acquisition by Creation
A. Property in One’s Expression and Ideas: General Principles of Copyright and Patent Law
1. Exclusivity: The Problem of Imitation
2. The U.S. Constitution and Congress
3. Intellectual Property and Labor Theory
4. Copyright Law
5. Patent Law
B. Trademark Law
1. Basic Requirements for Receiving Trademark Protection
2. Policies Underlying Trademark Law
C. Property in One’s Person — Your Body, Your Property?
II. The Public Domain
A. The Public Trust Doctrine
B. Copyright’s Public Domain
C. Trademark Law’s Public Domain
III. What Ownership Entails: The Right to Exclude, Alienate, Abandon, and Destroy
A. The Right to Exclude and its Limits
B. The Right to Transfer, and Restraints on Alienation
C. The Right to Retain
D. The Right to Abandon
E. The Right to Destroy
Exam Tips on THE LIMITS AND POSSIBILITIES OF REAL PROPERTY, PERSONAL PROPERTY, AND INTELLECTUAL PROPERTY
4. The System of Estates: Possessory Estates
I. Origins and Taxonomy of Freehold Estates
A. Estates Generally
B. Feudal Tenures
1. Feudal Incidents
2. Feudal Death Tax Avoidance and Statute Quia Emptores
C.A Taxonomy of Freehold Estates
II. Fee Simple
A. Introduction
B. Fee Simple Absolute
1. Creation of the Fee Simple Absolute
C. Alienability and Inheritance of the Fee Simple Absolute
1. Alienation
2. Devise
3. Inheritance
III. Fee Tail
A. Introduction
B. Origin and Operation of the Fee Tail
C. Elimination of the Fee Tail
1. Fee Tail and Disentailing Conveyance
2. Statutory Conversion to Fee Simple Absolute
3. Statutory Conversion to Fee Simple Subject to Executory Limitation
4. Life Estate and Remainder in Life Tenant’s Issue
5. Fee Simple Conditional Created
6.A Modern Equivalent of the Fee Tail
IV. Life Estates
A. The Nature of a Life Estate
1. Life Estate Pur Autre Vie
2. Defeasible Life Estates
3. Life Estates in a Group or Class of People
4. Ambiguous Grants
5. Transferability and Valuation.
B. The Modern Life Estate
1. Judicial Responses to Inflexibility of the Legal Life Estate
2. Legal Life Estates in Personal Property
C. Waste
1. Affirmative Waste
2. Permissive Waste
3. Ameliorative Waste
V. Defeasible Fees
A. Introduction
B. Fee Simple Determinable
1. Words Evidencing Intent to Create Fee Simple Determinable
2. Transferability
3. Abolished in Some States
C. Fee Simple Subject to Condition Subsequent
1. Words Evidencing Intent to Create Fee Simple Subject to Condition Subsequent
2. Action Necessary to Assert Right of Entry
3. Transferability
4. Preference for Fee Simple Subject to Condition Subsequent
D. Some Consequences of Classification of Defeasible Fees
1. Transferability of the Interest Retained by the Grantor
2. Accrual of a Cause of Action for Recovery of Possession
3. Effect Under the Rule Against Perpetuities
4. Mahrenholz: An Illustration
E. Some Problems with Defeasible Fees
1. Invalid Restraint on Alienation?
2. Defeasible Fee or Servitude?
3. Valuation of the Defeasible Fee and the Associated Future Interest
F. Fee Simple Subject to Executory Limitation
VI. Restraints on Alienation of Freehold Estates
A. Types of Restraints
1. Forfeiture
2. Disabling
3. Promissory
B. Total Restraints on a Fee Interest
C. Partial Restraints on a Fee Interest
D. Restraints on Life Estates
1. Legal Life Estates
2. Equitable Life Estates
Exam Tips on THE SYSTEM OF ESTATES: POSSESSORY ESTATES
5. Future Interests
I. Introduction
II. Future Interests Retained by the Grantor
A. Reversion
1. Reversions Are Always Vested
2. Distinguished from Remainder, Possibility of Reverter, and Power of Termination
B. Possibility of Reverter
1. Transferability
2. Termination
3. Statutory Abolition
C. Power of Termination or Right of Entry
1. Transferability
2. Termination
3. Effect of Abolition of Determinable Estates
III. Future Interests Created in Grantees
A. Remainders
1. Definition
2. Nature of the Estate Held in Remainder
3. Classification of Remainders
B. Executory Interests
1.A Note on History
2. Springing Executory Interests
3. Shifting Executory Interests
IV. The Restatement (Third) of Property
A. Introduction
B. Types of Future Interests
C. Classification of Future Interests
D. Class Gifts
V. The Trust
A. Introduction
B. The Basics of the Trust
C. Advantages of the Trust
D. The Spendthrift Trust
VI. The Marketability Rules
A. Introduction
B. Destructibility of Contingent Remainders
1. Effect of Merger.
2. Limited Effectiveness of the Rule
3. Modern Replacement of the Rule
C. The Rule in Shelley’s Case
1. The Rule
D. The Doctrine of Worthier Title
1. Statement of the Doctrine
2. Operation of Worthier Title
3. Distinguished from Shelley’s Case
4. Criticisms of Worthier Title
E. The Rule Against Perpetuities
1. Brief Summary of the Rule
2. Vesting
3. Measuring or Validating Lives
4. The Curious Problem of Defeasible Fees
5. Classic Traps for the Unwary
6. Applicability of the Rule Against Perpetuities to Commercial Transactions
7. Reform Doctrines
8. Perpetual Trusts: The End of the Rule?
Exam Tips on FUTURE INTERESTS
6. Co-Ownership and Marital Interests
I. Forms of Concurrent Ownership
A. Introduction
B. Tenancy in Common
1. Nature of Tenancy in Common
2. Presumption of Tenancy in Common
3. Rights to Possession
4. Uneven Shares and Different Estates
C. Joint Tenancy
1. Nature of Joint Tenancy
2. The Four Unities of Joint Tenancy
3. Creation of Joint Tenancy
4. Severance of Joint Tenancy
5. Joint Tenancy Bank Accounts
D. Tenancy by the Entirety
1. Nature of Tenancy by the Entirety
2. Creation
3. Operation of the Tenancy by the Entirety
4. Termination
5. Personal Property
E. Partnerships and Coparceny
1. Nature of Partnership Tenancy
2. Nature of Coparceny
II. Rights and Obligations of Concurrent Owners
A. Introduction
B. Partition
1. Partition in Kind
2. Partition by Sale.
3. Agreement Not to Partition
C. Rents, Profits, and Possession
1. Exclusive Possession by One Co-Owner
2. Rents from Third Parties
3. Profits from the Land
D. Accounting for the Costs of Ownership
1. Mortgage Payments
2. Taxes
3. Repairs
4. Improvements
E. Adverse Possession
F. Implied Fiduciaries
G. Swartzbaugh v. Sampson: A Case Study
III. Marital Interests
A. Introduction
B. The Common Law System
1. Femes Sole and Femes Covert
2. Husband Über Alles
3. Wife’s Rights
4. Curtesy
C. The Modern (Mostly Statutory) “Common Law” System
1. Rights on Divorce
2. Rights on Death
3. Prenuptial Agreements and Spousal Contracts
D. Community Property
1. Origins and Concept
2. Definition of Community Property
3. Management of Community Property
4. Rights Upon Divorce
5. Rights Upon Death
6. Creditors’ Rights
E. Rights of Domestic Partners and the “Right to Marry”
1. Common Law Marriage.
2. Contracts
3. Obergefell and the Constitutional Right to Marry
IV. Condominiums and Cooperatives
A. Introduction
B. Condominiums
1. Creatures of Statutes
2. Creation
3. Owners’ Association
4. Conveyance and Financing of Units
5. Responsibility for Common Areas
6. No Right to Partition
7. Restrictions on Condominium Conversion
C. Cooperatives
1. Financial Operation
2. Transfer Restrictions
3. Limited Liability
Exam Tips on CO-OWNERSHIP AND MARITAL INTERESTS
7. Leasehold Estates: The Law of Landlord and Tenant
I. The Nature of Leases
A. Origins and Development
B. Dual Nature: Estate and Contract
1. The Traditional View: Estate
2. The Contemporary View: Contract
C. The General Requirement of a Written Lease
D. What Makes It a Lease?
II. The Types of Leaseholds
A. Introduction
B. Term of Years
1. Indeterminate Term
2. Length of the Term
3. Notice
C. Periodic Tenancy
1. Notice Necessary to Terminate a Periodic Tenancy
2. Fixing the Period of Periodic Tenancies Created by Operation of Law
D. Tenancy at Will
1. Distinguished from Leaseholds Unilaterally Terminable
2. Termination
E. Holdovers — Tenancy at Sufferance
1. What Constitutes Holding Over?
2. Eviction and Damages
3. Election of a New Term
4. Statutory Alterations
III. Delivery of Possession
A. Introduction
B. Implied Obligation to Deliver Legal Right of Possession
1. Continuing Obligation
2. Waiver by Tenant
C. Obligation to Deliver Actual Possession?
1. The English Rule
2. The American Rule
D. Tenant Obligation to Take Possession
IV. Subleases and Assignments
A. Introduction
B. Assignment
1. Privity of Estate
2. Privity of Contract
3. Assignor Tenant Liability
4. Multiple Assignments
C. Subleases
1. Tenant Default Under the Principal Lease
D. Distinguishing an Assignment from a Sublease
1. Parties’ Intentions — Labels.
2. Parties’ Intentions — Substance of the Transfer
3. Pitfalls of Error in Parties’ Expectations
E. Lease Provisions Restricting Assignment or Sublease
1. Strict Construction
2. Limits on Landlord Power to Deny Consent
3. Landlord Waiver
V. Tenant’s Obligations
A. Introduction
B. Pay the Rent
1. Amount of Rent
2. Accrual
C. Waste Avoidance
1. The Duty to Repair
2. The Duty to Avoid Damage
D. Refrain from Illegal Uses
1. Landlord Knowledge of Intended Illegal Use
2. Landlord Ignorance of Illegal Use
3. What Constitutes the Meaning of “Illegal”?
E. Honesty as to Intended Purpose
F. Duty Not to Commit Nuisance
G. Duties from Express Lease Provisions
H. Circumstances Excusing Tenant of Obligations
1. Sole Use Becomes Illegal
2. Primary Use Illegal but Other Uses Permitted
3. Conditional Legality of Use
4. Destruction of the Leasehold Property
5. Loss by Eminent Domain
6. Frustration of Intended Purpose
VI. Landlord’s Remedies
A. Introduction
B. Remedies Typically Derived from Lease Provisions
1. Rent Acceleration
2. Security Deposits
3. Liquidated Damages
4. Confession of Judgment
C. Remedies Derived from Statute and Common Law
1. Eviction
2. Tenant Abandonment
3. Seizure of the Tenant’s Personal Property
VII. Landlord’s Obligations and Tenant’s Remedies
A. Introduction
B. Quiet Enjoyment
1. Actual Total Eviction
2. Actual Partial Eviction
3. Constructive Eviction
C. Warranty of Habitability
1. Implied Warranty of Habitability: General
2. Implied Warranty of Habitability: Rationale
3. Implied Warranty of Habitability: Criticism
4. Scope of the Implied Warranty of Habitability
5. Tenant’s Remedies for Landlord Breach of the Implied Warranty of Habitability
6. Waiver by Tenant
7. Statutory Codification
8. The Retaliatory Eviction Doctrine
D. Tort Liability of Landlords
1. An Aside on Tort Theory
2. Pre-existing Dangerous Conditions
3. Conditions Occurring During the Lease Term
4. Common Areas
5. Landlord Covenant to Repair
6. Statutory or Judicially Created Duty of Landlord to Repair
7. Strict Liability
8. No Special Rules for Landlords
9. Exculpatory Clauses
VIII. Fixtures
A. Introduction
B. Fixtures
1. Trade Fixtures
C. Attached Chattels, but Not Fixtures
IX. Social Regulations of Leaseholds
A. Introduction
B. Rent Control
1. Criticisms
2. Defenses
C. Anti-Discrimination Statutes
1.42 U.S.C. §1982: The 1866 Civil Rights Act
2. Fair Housing Act
3. Comparison of 42 U.S.C. §1982 and Fair Housing Act
4. Proof of Forbidden Discrimination
5. State and Local Laws
Exam Tips on LEASEHOLD ESTATES: THE LAW OF LANDLORD AND TENANT
8. The Land Transaction: Transfers of Real Property
I. Contracts of Sale
A. Introduction
1. Brokers.
2. Lawyers
3. Mortgage Lenders
4. Closing
B. Statute of Frauds
1. Formal Contract Not Necessary
2. Single Instrument Not Necessary
3. Conditions and Contingencies
4. Electronic Transactions
5. Exceptions to the Statute of Frauds
6. Revocation of Contracts
C. Implied Obligations
1. Good Faith
2. Time of Closing
3. Marketable Title
D. Default and Remedies
1. Specific Performance.
2. Rescission
3. Damages
E. Duties of Disclosure and Implied Warranties
1. Duties of Disclosure.
2. Implied Warranty of Quality
F. Risk of Loss and Equitable Title
1. Equitable Title
2. Risk of Loss Goes with Possession
II. Deeds
A. Formal Requirements and Component Parts
1. Writing Required
2. Notarial Acknowledgment
3. The Grant
B. Warranties of Title
1. General Warranty Deed
2. Special Warranty Deed
3. Quitclaim Deed
4. Merger Doctrine
5. Breach of Covenants of Title
6. After-Acquired Title (Estoppel by Deed)
C. Delivery
1. Presumed Delivery
2. Attempted Delivery at Death
3. Delivery Subject to Oral Condition
4. Commercial Escrows
5. Delivery by Estoppel
III. Financing Devices: Mortgages, Deeds of Trust, and Installment Contracts
A. Mortgages
1. The Mortgage Transaction
2. Title or Lien?
3. Sale or Transfer by the Mortgagor
4. Default by Mortgagor
B. Deeds of Trust
1. How It Works
2. Difference from the Mortgage
C. Installment Sale Contracts
1. Treated as Contract of Sale
2. Treatment as a Security Device
D. Unfair or Deceptive Lending Practices
E. Increasing Complexity of Real Estate Finance
Exam Tips on THE LAND TRANSACTION: TRANSFERS OF REAL PROPERTY
9. Title Assurance
I. Introduction
A. The Problem
1. The Common Law Answer
2. Modern Answers
II. Recording Acts and Chain-of-Title Problems
A. The Recording System
1. What the Recorder Does
2. What the Title Searcher Does
B. Race Acts
C. Notice Acts
D. Race-Notice Acts
E. The Consequences of Recording
1. The Consequences of Not Recording.
F. When Is an Instrument Recorded?
1. Instrument Not Indexed
2. “Omnibus” or “Mother Hubbard” Clauses
3. Misspelled Names
4. Ineligible Instrument
G. Scope of Protection Afforded by Recording Acts
1. Invalid Conveyance
2. Interests in Land Created by Operation of Law
3. Bona Fide Purchasers
4. Mortgagees
5. Creditors
H. Notice
1. Actual Notice
2. Constructive Notice
3. Tract Index: A Solution to Chain-of-Title Problems?
I. Marketable-Title Acts
1. Validity of Pre-Root Interests
2. Statutory Exceptions
III. Title Registration — The Torrens System
A. Introduction
B. Adjudication of Title
1. Scope of the Certificate of Title
C. Public Records and Title Transfers in the Torrens System
1. Public Records
2. Title Transfers
3. Errors by the Recorder
D. The Practical Realities of Torrens Registration
1. Cost
2. Lack of Comprehensiveness.
3. Risk of Uncompensated Error
E. Economic Theory and Torrens Registration
F. Possessory Title Registration
IV. Title Insurance
A. Introduction
B. Coverage
1. Duty to Disclose Defects in Title
2. Marketable Title and Encumbrances
3. Exclusions
4. Measure of Damages
Exam Tips on TITLE ASSURANCE
10. Judicial Land Use Controls: Nuisance and Support
I. The Substance of Nuisance
A. The General Principle
B. Private Nuisances
1. Intentional Conduct
2. Unintentional Conduct
3. Substantial Interference
C. Public Nuisances
1. Enforcement
D. Relationship to Trespass
II. Remedies: Four Views of Nuisance
A. Introduction: The Economic Theory of Modern Nuisance Law
1. Transaction Costs — The Gap Between Theory and Reality
2. Who Gets the Initial Entitlement?
3. Economic and Legal Theory and Remedies
B. No Nuisance: Continue the Activity
C. Nuisance: Enjoin and Abate the Activity
D. Nuisance: Pay Damages and Continue the Activity
E. Nuisance or Not: Enjoin the Activity but Award Damages to the Enjoined Actor
III. Support Rights
A. Introduction
B. Lateral Support
1. Land Itself
2. Structures
C. Subjacent Support
Exam Tips on JUDICIAL LAND USE CONTROLS: NUISANCE AND SUPPORT
11. Private Land Use Controls: The Law of Servitudes
I. Introduction
A. The Concept
B. Easements
C. Covenants Running with the Land
1. Real Covenants — Enforceable at Law
2. Equitable Servitudes — Enforceable in Equity
II. Easements
A. Introduction
1. Defined and Distinguished from Fee Simple
2. Types of Easements
3. Profits à Prendre
4. Licenses
B. Creation of Easements
1. Easements by Grant
2. Easements by Estoppel
3. Easements by Implication
4. Easements by Prescription
C. Transfer of Easements
1. Easements Appurtenant
2. Easements in Gross
3. Profits
D. Scope of Easements
1. Parties’ Intentions Control
2. How the Easement was Created
3. Change in Location of Easement
4. Enlargement of What Constitutes the Dominant Estate
5. Division of an Easement’s Benefit
6. Use or Interference by Servient Estate Owner
E. Termination of Easements
1. Expiration
2. Merger
3. Actions of the Easement Holder
4. Cessation of Purpose
5. Actions of the Servient Estate Holder
6. Actions by Third Parties
7. Changed Circumstances in the Surrounding Area
III. Real Covenants
A. Introduction
1. Real Covenants Defined
2. Benefit and Burden
3.“Runs with the Land”
4. Remedy Available — Damages
5. Development of the Real Covenant
6. Covenant, Not Condition — Real Covenants versus Defeasible Fees
7. Compared to Easements
8. Compared to Equitable Servitudes
B. Creation of Real Covenants
C. Enforceability by or Against Successors
1. Intent to Run
2. Horizontal Privity of Estate
3. Vertical Privity of Estate
4. Touch and Concern
D.“Running Elements” — Intent
E.“Running Elements” — Privity of Estate
1. Horizontal Privity
2. Vertical Privity
3. The Third Restatement’s Alternative to Vertical Privity
F.“Running Elements” — Touch and Concern the Land
1. Essential Meaning of Touch and Concern
2. Negative Covenants
3. Affirmative Covenants
4. Benefit in Gross
5. Burden in Gross
IV. Equitable Servitudes
A. Introduction
1. Differences Between Real Covenants and Equitable Servitudes
2. Origins of the Equitable Servitude
B. Creation
1. By Implication from a Common Development Scheme
2. No Implied Covenants
C. Enforceability by or Against Successors
1. Intent
2. Privity Not Required
3. Notice
4. Touch and Concern
D. Identifying the Benefited Land
1. Land Retained by the Promisee
2. Enforceability by Third Parties
V. Interpretation of Covenants
A. General Rule
B. Building Restriction or Use Restriction
C. Residential Purposes
1. Combined Business and Residential Use
2. Group Homes
3. What Constitutes Family?
D. Racial Restrictions
E. Architectural Approval
VI. Termination of Real Covenants and Equitable Servitudes
A. Duration
B. Merger
C. Eminent Domain
D. Express Waiver or Release
E. Expiration of the Covenant by Its Terms
F. Doctrines Terminating Equitable Servitudes
1. Changed Conditions Within the Affected Area
2. Changed Conditions in the Surrounding Area
3. Abandonment
4. Equitable Estoppel
5. Laches
6. Unclean Hands
7. Balance of Hardships
G. Affirmative Covenants to Pay Money — Perpetual Burden?
VII. Common Interest Communities
A. Introduction
B. Covenants Recorded in the Master Deed
C. Covenants Imposed by Homeowners’ Associations
D. Standard of Review of Actions Taken by Homeowners’ Associations
E. Cooperative Apartments
Exam Tips on PRIVATE LAND USE CONTROLS: THE LAW OF SERVITUDES
12. Public (or, Legislative) Land Use Controls: The Law of Zoning
I. Zoning Basics
A. Introduction
B. General Constitutional Validity
C. Statutory Schemes
1. Cumulative Zoning
2. Mutually Exclusive Zoning
3. Density Zoning
II. Authorization for Zoning
A. Enabling Legislation
1. Defective Enabling Act
2. Ultra Vires Local Action
B. Comprehensive Plan
1. Legal Status of the Comprehensive Plan
III. Statutory Discretion and Restraint
A. Introduction
B. Nonconforming Uses
1. Forced Phase-Out
2. No Expansion
3. Destruction or Abandonment
C. Administrative Discretion: Variances, Exceptions, Amendments, Spot Zoning, and More
1. Variances
2. Exceptional Uses
3. Zoning Amendments and Spot Zoning
4. Floating Zones
5. Conditional Zoning
6. Cluster Zoning
IV. Limits on the Zoning Power
A. Introduction
B. Zoning for Aesthetic Objectives
1. Architectural Review
2. Aesthetic Regulation and Free Speech
3. Zoning that Burdens Religious Exercise
C. Zoning Controls of Household Composition
1. The Fundamental Liberty of Family Association
2. Statutory Limits on Zoning Controls of Household Composition
D. Exclusionary Zoning
E. Growth Controls
Exam Tips on PUBLIC (OR, LEGISLATIVE) LAND USE CONTROLS: THE LAW OF ZONING
13. Takings: The Power of Eminent Domain and Regulatory Takings
I. Introduction
A. The Eminent Domain Power
B. All Property Protected
C. Applies to All Governments
D. The Purposes of the Takings Clause
1. Prevent Forcible Redistribution of Property
2. Takings Permitted Only for Public Benefit
E. The Principal Issues Under the Takings Clause
1. Public Use
2. Is There a Taking?
3. Just Compensation
F. Constitutionally Noncontroversial Takings
II. The Public Use Requirement
A. Constitutional Text
1. No Takings Except for “Public Use”
2. The Meaning of “Public Use”.
3. The Relationship of Public Use and Just Compensation
III. Implicit and Regulatory Takings: How Much Regulation of Property Is Too Much?
A. Introduction
B. The Per Se Rules
1. Permanent Dispossession
2. Nuisance Abatement
3. Loss of All Economically Viable Use
C. Balancing Public Benefits and Private Costs
1. Origins
2. Contemporary Statement
D. Exactions — Conditional Burdens
1.“Essential Nexus”
2.“Rough Proportionality”
3. Summary
E. Remedies
1. Injunctive and Declaratory Relief
2. Damages
F. Academic Theories About Regulatory Takings
1. Joseph Sax
2. Frank Michelman
3. Bruce Ackerman
4. Richard Epstein
5. Jed Rubenfeld
6. William Fischel
Exam Tips on TAKINGS: THE POWER OF EMINENT DOMAIN AND REGULATORY TAKINGS
Essay Exam Questions
Essay Exam Answers
Multiple-Choice Questions
Answers to Multiple-Choice Questions
Discussion Questions
Table of Cases
Subject Matter Index

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