PROPERTY: A SEAMLESS WEB Basic Action/Remedy for Built in/Inherent Interest if severed and Public limits/Interference Taking? Property Private Limits conveyed/Additional limits by government Rights Interference based on consent/rela. Ejectment < adverse Lease: sets up new property Full Appropriation--> Eminent Right to Possess (injunction) possession?> rights and limitations on title domain/Taking (LL/T law) Permanent Physical Per se test Occupation --> (unless…) (Lorretto) Trespass: Public trust, Affirmative Easement Physical invasion: Right to Exclude Continuous/repeated custom? Easement like access Balance test ←Prescription→ or Injunction (K--A?) can go back up with thumb on ←Prescription → License? to per se test --> scale for O One-time/Occasional Common Law Occasional access Privilege (Shack?) (Pruneyard) ? Nuisance Negative Easement; Regulation of Uses: Right to Use and restrictive Elimination of viable Per se Test covenant/equitable servitude use (Mahon, Lucas) (unless inherent Enjoy: → Active (conditional fees) limit) Viable use remains (Keystone, Penn Balance Test Central) (with thumb on → scale for gov't) Use and Nuisance Neighbor's right to Affirmative easement (to Gov't "nuisance"? ??? enjoy: (injunction/damages) use and enjoy (up to commit nuisance) Passive nuisance) Right to System of estates Restrictive New legal limits on right to (Can be Taking) and Future Interests, covenant/Restraints on convey Convey alienation (Conditional RAP, etc… Fees) Numerus clausus
Basic Property Rights Action/Remedy for Private Interference Built in/Inherent Limits Interest if severed and conveyed/Additional limits based on consent/rela. Public limits/Interference by government Taking? Right to Possess Ejectment (injunction) < adverse possession?> Lease: sets up new property rights and limitations on title (LL/T law) Full Appropriation--> Permanent Physical Occupation --> Eminent domain/Taking Per se test (unless…) (Lorretto) Right to Exclude Trespass: Continuous/repeated or Injunction One-time/Occasional Public trust, custom? ←Prescription → Common Law Privilege (Shack?) Affirmative Easement ←Prescription→ License? Physical invasion: Easement like access (K--A?) can go back up to per se test --> Occasional access (Pruneyard) Balance test with thumb on scale for O Right to Use and Enjoy: Active ? Nuisance Negative Easement; restrictive covenant/equitable servitude (conditional fees) Regulation of Uses: Elimination of viable use (Mahon, Lucas) → Viable use remains (Keystone, Penn Central) → Per se Test (unless inherent limit) Balance Test (with thumb on scale for gov't) Use and enjoy: Passive Nuisance (injunction/damages) Neighbor's right to use and enjoy (up to nuisance) Affirmative easement (to commit nuisance) Gov't "nuisance"? ??? Right to Convey System of estates and Future Interests, RAP, etc… Numerus clausus Restrictive covenant/Restraints on alienation (Conditional Fees) New legal limits on right to convey (Can be Taking) PROPERTY: A SEAMLESS WEB
Property_Attack_Outline_Eslund_Spring_2011.docx