PROPERTY E SLIDES 2-19-13. Lunches: Meet @ Food Court @12:30 TOMORROW (2/20) Mueller * Noel * Ortega Plasencia * Proenza Rosenthal * Shonkwiler

PROPERTY E SLIDES

2-19-13

Lunches: Meet @ Food Court @12:30

TOMORROW (2/20) Mueller * Noel * Ortega

Plasencia * ProenzaRosenthal * 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: DQ44-45Hatchcock/Merrill Tests

SUNSET IN THE PARK

OLYMPIC: DQ44-453 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 Domain2.Accountability: Private entity remains responsible to public for its use3.Selection: Particular parcel(s) chosen based on public concern.


(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.



• Examples: RRs, highways, etc. • Justification: Overcome high transaction costs

DQ44-45: Apply to facts of Kelo



• Examples: RRs, highways, etc. • Justification: Overcome high transaction costs

DQ45: Apply to facts of Poletown


(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?


(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


(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.


(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


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.



Qs on Hatchcock “Situations”?



For additional practice, apply these tests (& test from Thomas

dissent in Kelo) to Review Problems

Ch. 2: EmDom & Public UseWhat 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 UseWhat 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:Unit II: Past, Present & Future:Property Rights & TimeProperty Rights & Time

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


• 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


• 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


• 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)


• Other Typical Provisions–Who Counts as Relative

(Adoption/Illegitimacy)• E.g., Fl.Stat. § 732.108 (S30-31)

– Simultaneous Death • E.g., Fl.Stat. § 732.601 (S31); TX Probate §47

(S33); 14 V.S. §337 (S34)

General Qs on Intestacy?


at Death

• Intestate Succession– Generally–Working with Specific State Statutes

• Wills–Generally–Will Formalities– Substantial Compliance– State of Mind Requirements

Wills: GenerallyA. Mechanism for Transfer of Ppty at DeathB. 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 LimitsA. Homestead & Related Rules: •Home & household stuff to spouse/minor children•Examples in FL Constitution & StatutesB. 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 LimitsD. Pretermitted (UNMENTIONED) Children: •GET intestate share in some states•Usually limited to afterbornE.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


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 FormalitiesWeiss, Stasis, DQ52-53, Rev. Prob. 3A

HALF DOME

Documents

PROPERTY E SLIDES 2-19-13. Lunches: Meet @ Food Court @12:30 TOMORROW (2/20) Mueller * Noel * Ortega Plasencia * Proenza Rosenthal * Shonkwiler