PROPERTY E SLIDES

Lunches: Food TOMORROW (2/20) Mueller * Noel * Ortega Plasencia * Proenza Rosenthal * Shonkwiler

Chapter 2: The Eminent Domain Power & the Public Use Requirement Federal Constitutional Background – Deference, Rational Basis, Heightened Scrutiny – The Fifth Amdt., Eminent Domain & Public Use Federal Public Use Standards – Midkiff – Kelo State Public Use Standards – Poletown – Hatchcock

OLYMPIC: DQ44-45 Hatchcock/Merrill Tests SUNSET IN THE PARK

OLYMPIC: DQ Hatchcock “Situations” Hatchcock: 3 “situations” where property acquired by EmDom legitimately ends up in private hands: 1.Public Necessity: Only way to do project is through Eminent Domain 2.Accountability: Private entity remains responsible to public for its use 3.Selection: Particular parcel(s) chosen based on public concern.

OLYMPIC: DQ Hatchcock “Situations” (1)Public Necessity: Only way to do project is through Eminent Domain Examples: RRs, highways, etc. Justification: Overcome high transaction costs DQ45: Merrill would apply in ALL EmDom cases (not just private recipients) OCR Dissent P189: Hard to determine if really necessary.

OLYMPIC: DQ Hatchcock “Situations” (1)Public Necessity: Only way to do project is through Eminent Domain Examples: RRs, highways, etc. Justification: Overcome high transaction costs DQ44-45: Apply to facts of Kelo

OLYMPIC: DQ Hatchcock “Situations” (1)Public Necessity: Only way to do project is through Eminent Domain Examples: RRs, highways, etc. Justification: Overcome high transaction costs DQ45: Apply to facts of Poletown

OLYMPIC: DQ Hatchcock “Situations” (2) Accountability: Private entity remains responsible to public for its use Could make private ownership contingent on particulars Gov’t could retain say in management Justification?

OLYMPIC: DQ Hatchcock “Situations” (2) Accountability: Private entity remains responsible to public for its use – Could make pvt. ownership contingent on particulars – Gov’t could retain say in management Justification: Not entirely private use if some public control

OLYMPIC: DQ Hatchcock “Situations” (2) Accountability: Private entity remains responsible to public for its use – Could make pvt. ownership contingent on particulars – Gov’t could retain say in management – Justification: Not “private use” if public control We have little info re Kelo & Poletown. Could do in cases like that w limits in deeds, contractual provisions, using leases (as in Rev. Prob. 3C), etc.

OLYMPIC: DQ Hatchcock “Situations” (3) Selection: Particular parcel(s) chosen based on public concern. Arguably true in Berman and Midkiff; not true in Kelo & Poletown (parcels not blighted or causing harm) Justification: “Public” part is the taking of the land itself, not who ends up with it. O’Connor position in Kelo

OLYMPIC: DQ Hatchcock “Situations” 1.Public Necessity: 2.Accountability: 3.Selection: NOTE: Hatchcock overruled Poletown & struck down use of EmDom to create 1300-acre business & technology park, so Mich. S.Ct. must have believed that both projects would fail all three tests.

OLYMPIC: DQ Hatchcock “Situations” 1.Public Necessity: 2.Accountability: 3.Selection: Qs on Hatchcock “Situations”?

OLYMPIC: DQ Hatchcock “Situations” 1.Public Necessity: 2.Accountability: 3.Selection: For additional practice, apply these tests (& test from Thomas dissent in Kelo) to Review Problems

Ch. 2: EmDom & Public Use What I Expect From You (1) Know & Can Apply Tests Federal – Rational Basis – Kelo MAJ/CCR Factors re Possible Higher Scrutiny Possible State Tests – Poletown Tests (still used by other states) – Hatchcock (incl. O’Connor Dissent in Kelo) – Thomas Dissent in Kelo (apparently used in Wash. )

Ch. 2: EmDom & Public Use What I Expect From You (2) Understand Relation betw State & Federal Tests Federal Tests Always Apply; Usually Easy to Meet – If Lawyering Q: Might Check relevant Federal Circuit for Interpretations of Kelo State Law Also Governs State & Local Govts – Many States Have Stricter Tests – If Lawyering Q, Check for Applicable Law (3) Arguments re Which Test is Best (Opinion/Dissent) Could ask you to revisit federal test Could ask you to choose a rule for a State (Rev Prob 2F)

Unit II: Past, Present & Future: Property Rights & Time

Time Three Ways Chapter 3: Transfer of Property at Death – Intestacy & Wills  – Inevitable Part of Passing of Time Chapter 4: Estates & Future Interests – Division of Interests in Land by Time  – Some Leftover Ideas from Early Renaissance England Chapter 5: Adverse Possession – Operation of Statute of Limitations to Trespass Claims  – Property Rights Lost & Gained Through Passage of Time

Chapter 3: Where There’s a Will … and Where There Isn’t: Property Transfer at Death Intestate Succession – Generally – Working with Specific State Statutes Wills – Generally – Will Formalities – Substantial Compliance – State of Mind Requirements

Intestate Succession: Generally Transition from Unit One: – Important form of Involuntary Transfer – What state does if you die without leaving valid instructions (proper will) as to disposition of some or all of your property

Intestate Succession: Generally Every State has detailed statute governing – Gen’l Info: Overview in Supp & My Intro Today – Then we’ll go through three examples in detail Thursday DQ46-51 Allocated Alphabetically – We’ll do at beginning of class regardless of where we leave off (then back to Yosemite & Zion) – Be ready with answers & cites to relevant provisions – Find definitions in materials & elsewhere as needed

Intestate Succession: Generally Generally on Disposition of Property – Statutes All Provide Sequence of Ifs – Unsurprisingly, strong bias to immediate family Most people would prefer State interest in resources going to care for dependents – Takers are generally spouses and blood relatives EXCEPT: Some states as last resort, to step-children or other relatives of deceased spouse EXCEPT: A few states treat Domestic Partnerships/Civil Unions as creating spouse-equivalents (See Vermont(S35)) – Escheat: If no Qualified Taker, Goes to State I gave you Florida Version (S30); Every State Has

Intestate Succession: Generally Property & Spouses – Spousal Share Seems Small in Some States BUT – Spouse often co-owner of key assets, so gets all – Often separate provisions re household goods & car – Community Property (E.g. TX Probate §45)

Intestate Succession: Generally Other Typical Provisions – Who Counts as Relative (Adoption/Illegitimacy) E.g., Fl.Stat. § (S30-31) – Simultaneous Death E.g., Fl.Stat. § (S31); TX Probate §47 (S33); 14 V.S. §337 (S34) General Qs on Intestacy?

Chapter 3: Where There’s a Will … and Where There Isn’t: Property Transfer at Death Intestate Succession – Generally – Working with Specific State Statutes Wills – Generally – Will Formalities – Substantial Compliance – State of Mind Requirements

Wills: Generally A.Mechanism for Transfer of Ppty at Death B.Competing Concerns – Follow wishes of deceased: Intent crucial – Protect Family – Provide Sufficient Indication of Transfer to Govt C.Limits on Following Testator’s Intent – Some Substantive Limits (Next Slide) – Must Meet Formalities – State of Mind Requirements

Wills: Substantive Limits A. Homestead & Related Rules: Home & household stuff to spouse/minor children Examples in FL Constitution & Statutes B. Spousal Elective Share (as described in outline) C. Post-Will Marriage/Divorce FL: new spouse: spousal share unless – intent expressed in will OR – prenuptial agreement FL & other states: divorce revokes will as to ex

Wills: Substantive Limits D. Pretermitted (UNMENTIONED) Children: GET intestate share in some states Usually limited to afterborn E.General Points Very Protective of Immediate Family If typical married middle class person, probably no choice re much of estate goes to spouse/homestead – Substantive Limits – Spousal property issues noted with Intestacy

Chapter 3: Where There’s a Will … and Where There Isn’t: Property Transfer at Death Intestate Succession – Generally – Working with Specific State Statutes Wills – Generally – Will Formalities – Substantial Compliance – State of Mind Requirements

Wills: Formalities Technical Rules Must Meet to Make Will Valid Vary Greatly From State to State – General Overview in Supplement – Florida Info as Specific Example Not Complex, Just Varied – We’ll Do Penn. Cases as Example – Then Go Through Review Problems as Best Way to Become Familiar With

YOSEMITE: Will Formalities Weiss, Stasis, DQ52-53, Rev. Prob. 3A HALF DOME