Chapter 13

1. Two potential problems are:

(a)  There is a possibility that the use of TDRs will be considered a "taking" in that some owners will be prevented from
developing their property.

(b)  What if population projections are inaccurate? If the population is higher than projected, the holders of the TDRs will
have a windfall profit. If the population is lower, they willsuffer an unexpected loss.

2. The purpose of these provisions is to give private citizens standing to bring suit. Without such statutory provisions, the "case" or      “controversy" requirement of Article III, Sec. 2, of the Constitution would prohibit a private citizen from bringing suit unless he individually suffered an injury.

3. Leroy might raise the following theories: (a) nuisance, (b) trespass, (c) negligence, (d) strict liability and (e) riparian rights.

The major problems with regard to citizen suits are (a) they are slow andexpensive; (b) courts are reluctant to grant injunctive relief; and (c)
there is a lack of uniformity, as courts must decide each specific case rather than considering the environmental needs of the entire area. See 23 Miami Law Review 135 (1973).

4. The environmental group is correct. Even though the alternatives involve complex factors, such as national security, "it is the essence an thrust of NEPA that the pertinent statement serve to gather in one place a discussion of the relative environmental impact of alternatives." See
Natural Resources Defense Council, Inc. v. Morton,. 458 F.2d 827 (1972).

5. The ICC raised two main arguments: (1) the plaintiff lacked standing and (2) the court did not have jurisdiction over the dispute. The
Supreme Court decided that the plaintiffs had standing; they "alleged a specific and perceptible harm that distinguished them from other citizens who had not used the natural resources that were claimed to be affected." However, the ICC was successful in its second argument. The court lacked jurisdiction because Congress vested the ICC with exclusive power over the matter in question. See United States v. SCRAP, 412 U.S. 669 (1973). The Supreme Court later indicated that this case "went to the outer limit of the
law" of standing. Whitmore v. Arkansas, 495 U.S. 149 (1990).

6. Yes. The court in Scenic Hudson Preservation Conference v. Federal Power Commission, 354 F.2d 608 (1965), concluded that "the
Constitution does not require that an 'aggrieved' or 'adversely affected'  have a personal economic interest ... where the plaintiffs have
shown a direct personal interest."
 
7. In Nor-Am Agricultural Products, Inc. v. Hardin, 435 F.2d 1151 (1970), the court decided that the complaint should be dismissed because the company did not exhaust its administrative remedies. The court noted that a prescribed administrative procedure may be bypassed if there is a strong showing of both inadequacy of the procedure and impending harm. However, judicial review was not warranted in this case.

8. The procedure violates the National Environmental Policy Act. In Calvert Cliffs' Coordinating Committee, Inc. v. AEC, 449 F. 2d 1109 (1971), the court observed that: "We believe that the Commission's crabbed interpretation of NEPA makes a mockery of the Act . . . . NEPA was meant to do more than regulate the flow of papers in the federal bureaucracy.... It [indicates] a congressional intent that environmental factors, as compiled in the 'detailed statement,' be considered through agency review processes.... NEPA establishes environmental protection as an integral part of the ... Commission's basic mandate. The primary responsibility for fulfilling that mandate lies with the Commission. Its responsibility is not simply to sit back, like an umpire, and resolve adversary contentions at the hearing stage. Rather, it must itself take the initiative of considering environmental values at every distinctive and comprehensive stage of the process beyond the staff s evaluation and recommendation . .. The . . . Commission, abdicating entirely to other agencies'certifications, neglects the mandated balancing analysis. Concerned members of the public are thereby precluded from raising a wide range of environmental issues in order to affect particular Commission decisions."

9. The permit should be issued. In State v. Johnson, 265 A.2d 711 (1970), the court concluded: "To leave appellants with commercially
valueless land in upholding the restriction presently imposed, is to charge them with more than their just share of the cost of this state-wide
conservation program, granting fully its commendable purpose.... The application of the Wetlands restriction in the terms of the denial of appellants' proposal to fill, and enjoining them from so doing, deprives them of the reasonable use of their property and is both an unreasonable exercise of police power and equivalent to  being within constitutional considerations."

10.    This question deals with the ethical question of whether certain threatened animal species, in this case the desert tortoise, can be destroyed to enrich humans. Debates over the moral correctness of environmental policies have been debated for years and are typically contentious.

It is sometimes difficult to argue that some environmental laws, like the Endangered Species Act (ESA), are morally sound under an utilitarian analysis. One of the main reasons is that it is not easy to measure burdens and benefits when plants and animals are stakeholders. However, environmental laws do elevate them to a place of importance. Still, the loss of plants and animals may have severe consequences to an ecosystem. The delicate balance of nature can be seriously impaired when a species is threatened and destroyed. This, in turn, can have potentially severe consequences to humans and their environment although it may take a long time to see and assess it. On the benefit side, we see new jobs, homes and businesses and the positive economic impact these have on the regional and national economy. The “no surprises” exception is a policy designed to create more burdens on the endangered species in order to enhance the benefits to the economy.

In regards to rights and duties: do humans have a moral duty to protect the environment? Environmentalists generally argue that we are all stewards of the earth and therefore must adhere to an environmental ethic. This includes a duty to preserve plants and animals from destruction. Environmentalist would argue that such a duty should also not contain a “no surprises” exception since this duty is absolute. Some groups like the People for the Ethical Treatment of Animals (PETA), might even argue that animals possess many of the same rights as people. However, mainstream ethicists generally reject this notion. Animals like the desert tortoise, however, do have some legal and moral rights to be protected from destruction under environmental laws and some may argue, rights under the natural law. Also, doing the legal thing is usually the morally desirable end as well especially if breaking the law incurs problems for the developers whose investors and others will then incur. Developers, like Bradford, have legal and moral duties to not destroy an endangered species, but Bradford’s legal duty is not absolute; he may incidentally destroy some tortoises. Some may argue this limited duty is legal but not moral.

1.     The court in People v. Sears, 287 N.E.2d 677 (1972), held that the Sears Building did not constitute a nuisance. "[I]t is universally heldthat where a structure serves a useful and beneficial purpose, it does not give rise to a cause of action . . . even though it causes injury to another by cutting off the light and air interfering with the view that otherwisewould be available . . . . " The court noted that the responsibility in this case for inadequate television reception in certain areas rests more with the broadcaster's choice of location than with the height of defendant's building. Therefore disruption of television signals initiated by totallyindependent third parties over which defendant has no control cannot be the basis for enjoining the full legal use and enjoyment of defendant's property.

2.     Yes, the company must move the feedlot. The harm is substantial and the fact that the plaintiff developed property near an existing
nuisance does not prevent him from prevailing. However, in Spur Industries, Inc. v. Del E. Webb Development Co., the court decided that the plaintiff must at least indemnify the feedlot owner for moving costs: "It does not seem harsh to require a developer, who has taken advantage of the lesser land values in a rural area as well as the availability of large tracts of land on which to build and develop a new town or city in the area, to indemnify those who are forced to leave as a result."

3.     The court held that Wilbur was guilty of malicious mischief. The court noted that a "person injured by a private nuisance may abate it by
removing, or if necessary, destroying the thing which constitutes the nuisance, without committing a breach of the peace or doing unnecessary
injury." However, when a private nuisance cannot be abated without entering the land of the wrongdoer, reasonable notice must be given to the party before entering to abate it. The court ruled that Wilbur did not give notice to Adda and therefore acted improperly in entering her property and destroying her sign. See Holleman v. City of Tulsa, 155 P.2d 254 (1945).


4.     The court held that the operation of the air conditioning unit at certain times of the day constituted a nuisance. "[I]t is the duty of every
person to make a reasonable use of his own property so as to occasion no unnecessary damage or annoyance to his neighbor. If the use is unreasonable the law will hold him responsible." The court found that although Thaw had reduced the amount of noise coming from the air-conditioning unit, it was still too noisy to run between 10 p.m. and 3 a.m. The court noted that the determination of "unreasonableness is, essentially a weighing process involving a comparative evaluation of conflicting interests in various situations according to objective legal standards." The court also found the operation of the air-conditioning unit to be annoying and irritating to persons of average sensibilities. See Nair v. Thaw, 242 A.2d 757 (1968).

5.     The court held that Friendship should be restricted from holding band practices at certain times of the day. "[T]he essence of a private nuisance is the fact that one party is using his property to the detriment of the use and enjoyment of others .... [I]t is settled that noise, in and of itself, may constitute a nuisance if such noise is unreasonable in its degree." The court concluded that the sound of bands playing late in the
evenings was unreasonable and that the plaintiffs were entitled to damages. The camp was also enjoined from using the property for band practice at certain times of the day. See Friendship Farms Camps, Inc. v. Parson, 359 N.E.2d 280 (1977).

6.     Yes, the Cubs are liable. "[W]hile a ball park owner-occupier does not absolutely ensure the safety of invitees on its premises, the
owner-occupier does owe a duty of reasonable care to such invitees." Yates v. Chicago National League Ball Club, Inc., 595 N.E.2d 570 (1992). In this case it was determined that the Cubs did not provide adequate screening in the area behind home plate. The court also decided that the boy did not contractually agree to assume the risk of injury by accepting a ticket with
an assumption of risk clause on the back in very fine print. In response to his case, Illinois enacted "foul ball" legislation in late 1992. Under this legislation a fan can recover only when injury results from defective screens or from reckless actions by players.

In contrast to Yates, in the Benejam v. Detroit Tigers, Inc. case on page 465, a Michigan appellate court ruled that spectators at sporting events are only owed a “limited duty” by the stadium owners. This case also involved allegedly defective netting behind home plate, but in Benejam the spectator was hit by a bat fragment that curved around the net, not a foul ball. The court’s decision appears to echo the Illinois “foul ball” legislation and is based on a policy of protecting those who hold sporting events from lawsuits that might result in more barriers and obstructions to viewing the game.

7.     Yes, the hospital should be held liable. The elements necessary to prove attractive nuisance (text pp. 445-450)  are present in this case.
See Doren v. Northwestern Baptist Hospital Association, 60 N.W.2d 361 (1953).    

8.     The court in Cities Service Company v. State of Florida, 312 So.2d 799 (1975), held that Cities Service was liable. The court noted that "theimpounding of billions of gallons of phosphatic slimes behind earthen walls which are subject to breaking even with the exercise of the best care strikes us as being both 'ultrahazardous' and 'abnormally dangerous' as the case may be.... If a break occurred, it was to be expected that extensive damage would be visited upon property many miles away." The court concluded that the "Cities Service reservoir constituted a non-natural use of the land such as to invoke the doctrine of strict liability."

9.     The court in Lanier v. North Carolina State Highway Commission,229 S.E.2d 321 (1976), ruled in favor of the Commission. The court noted "the attractive nuisance doctrine is designed to protect 'small children' or 'children of tender age' . . .  Every body of water is potentially
subject to sharp drops and deep holes such as existed in this case. This possible danger should have been known to claimant's intestate . . . Here the testimony indicated that claimants' intestate was 13 or 14 years old and that she possessed at least average intelligence. Accordingly, the doctrine of attractive nuisance is inappropriate in this case

10.    This question focuses on whether squatters should be entitled to legal  and/or moral rights to live in abandoned buildings in inner-city slums. Squatters have few realistic chances of gaining legal rights. Gaining rights by adverse possession is possible but takes many years and requires that the squatters’ possession be open, adverse, continuous, and hostile. Landlords of potentially profitable property typically make sure this doesn’t happen. The squatters also do not have either a license or leasehold rights since there was no permission or agreement made between the parties.
 
 Since it is unlikely that the squatters have legal rights, do they have a moral right to continue occupying these buildings?  Under utilitarian principles it could be argued that by occupying these dilapidated buildings the squatters confer some benefit to themselves and other stakeholders. They no longer are homeless and are not walking the streets or sleeping in the open or in their cars—which can be very dangerous for them and others, as well as creating problems for law enforcement and other city services. Moreover, once they feel they that these buildings are home, they may try to improve them. This in turn will also improve the neighborhoods, which are typically breeding grounds for drug pushers, addicts and prostitution.

Still, if the squatters are allowed to stay, other stakeholders may incur burdens, particularly the owners and perhaps the city. The owners have legal rights to hold the property, as long as it is maintained according to building codes and other laws, until it is profitable to sell. Infringing on their legal rights in order to allow otherwise homeless people to occupy their property will create a burden on the owner’s incentive to own certain kinds of property for investment. Such a policy would undermine the value of real estate in marginally profitable areas of a city. In the long run it would be almost impossible for inner cities to improve through private capital investment, thus causing the government to become more involved in maintaining the buildings. This would be costlier for taxpayers in two ways: increased taxes for maintenance and a stagnant property tax base. Although gentrification displaces poor people, it does improve neighborhoods, sometimes dramatically. It also creates significant increases in property values and therefore tax receipts. Thus, on balance, it appears that allowing squatters to gain rights to remain in inner city buildings will not provide the greatest good to the greatest number and so probably is not moral under utilitarianism.

Under a rights and duties analysis, the squatters have no legal or moral rights as citizens, by contract or by position, to live in the abandoned buildings. Still, an argument could be made that they do, as human beings, have rights under the natural law. Under the natural law, some ethicists contend that humans have a right to live in dignity. Although living in abandoned buildings is still a rather undignified way to live, it is an improvement over living on the streets. Should natural law rights override established legal rights? This question has been debated since Aristotle’s time. There are also many historical examples in the U.S. of natural law rights eventually becoming written, positive law, such as Martin Luther King’s refusal to obey Jim Crow laws in the South, resulting in the passage of civil rights laws. You may ask your students their opinions about whether this should be the case here.

Under principles of fairness and justice, similarly-situated people should be treated in a similar manner with regard  to process and outcome. In terms of process, all residents in a city can be legally ousted from residences if they do not have a right to live there. Thus, a tenant who does not pay rent can be evicted because she has breached the lease, thereby losing leasehold rights. Here the squatters had no rights to begin with, so their eviction subjects them  to the same processes as everyone else. In terms of fair outcomes, squatters are  similarly situated to others  who have no legal rights to property. Therefore, they are suffering the same outcome as others in their position.

You may wish to also discuss the esteemed ethicist John Rawls’ views of fairness and justice. Rawls argued that to determine what is fair, we should all put ourselves behind a “Veil of Ignorance.” While behind this “Veil” we are aware of the fact that we will soon be born into the world but we have no idea  whether we will be rich, poor, homeless, etc. Rawls contended that we should not only look at just processes and outcomes, but that we should also favor those who are in need. Thus, a policy of fairness and justice might require that the homeless should be provided with a decent place to live.

However, taking away one property owner’s rights to provide another person a home would be an unjust outcome as well. Similarly-situated property owners who do not own buildings in inner cities would not be burdened while the so-called “slumlords” would be. A slumlord who doesn’t adhere to city and state laws regarding the condition of his property, however, might forfeit his right to be  similarly-situated to those who obey the law. In this case, taking away his rights may be just.

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1. The East Cleveland ordinance is unconstitutional. A city ordinance will be upheld if it bears a rational relationship to permissible
state objectives. The objectives of the East Cleveland ordinance were to prevent overcrowding, minimize traffic and parking congestion, and avoid undue financial burden on the city's school system. Although the aforementioned objectives were permissible, the ordinance infringed upon the freedom of personal choice in matters of marriage and family life, liberties protected by the Due Process Clause of the Fourteenth Amendment. The East Cleveland ordinance was an attempt to standardize by forcing all to live in narrowly defined family patterns.

The Belle Terre case (page  512 ) is not controlling authority in this case. It is distinguishable in that it dealt with cohabitation of unrelated
individuals. In comparison, the East Cleveland ordinance chose to regulate  the occupancy of housing by restructuring the family unit. See Moore v. City of East Cleveland, Ohio, 97 S.Ct. 1932 (1977).

2. The restrictive covenant is enforceable. The determination of whether there has been such a fundamental change in an area subject to a
restrictive covenant to warrant its cancellation depends upon the facts in each case. In general, the change must be of such a character as to make it impossible "to secure in a substantial degree the benefits sought to be' realized through the performance of a promise respecting the use of the land." Although the highway abutting the properties has made them "less desirable for residential purposes and more valuable for business purposes, the increase in traffic had not effected such a complete change in the character of the area as to defeat the objects and purposes of the restrictive covenants so that they were no longer beneficial." See Cochran v. Long, 294 S.W.2d 503 (1956).

3. Saale is not correct. Just compensation for the taking by condemnation of land is the fair market value of the land actually taken.
"In determining what constitutes fair market value, the uses of the land for which it is reasonably adapted or suited and for which it is available, having regard to the existing business wants of the community or such as may be reasonably expected in the future, may be considered.... When the land is not available for a certain use by reason of a zoning restriction, its suitability or adaptability for such use may be shown as affecting its value as of the time of the taking ... only if, the evidence indicates a reasonable probability of a change in the zoning restriction in the reasonably near future." Thus, Saale may not have his property evaluated as though the rezoning has taken place. It must be evaluated under the restrictions of the existing zoning, with consideration given to the impact upon market value of the likelihood of a change in zoning. In the instant case, there was a low probability of rezoning. See Union Electric Company v. Saale, 377 S.W.2d 427 (1964).

4. She is not correct; the taking of land is for a public use. The power of eminent domain cannot be utilized for the purpose of taking private property from one person for the private use of another. Public use depends on the character of the use rather than the extent. Thus, it is not essential that the entire community or even any considerable portion of it enjoy or participate in an improvement in order to make it a public one. In the case of condemnation for the purpose of providing low-income housing, it has been held that land taken through the power of eminent domain is for public use. But the purpose for taking the land must be to alleviate an existing housing shortage, or to increase housing facilities. So long as Mount Ayr wants to increase the amount of low-income housing available, it can obtain the land through eminent domain. See Simpson v. Low-Rent Housing Agency of Mount Ayr, 224 N.W.2d 624 (1974).

5. Joe is not correct. In People v. Pommerening, 250 Mich. 391 (1930), the University of Michigan was allowed to acquire land for a golf
course through eminent domain proceedings. The court decided that the needs of an educational institution are beyond the scope of judicial review unless "the desire of those having the management thereof outruns reason and it is sought to take private property for a purpose foreign to educational purposes." Thus the question of whether a golf course was necessary for educational purposes was considered to be a question of fact for the Jury, rather than a question of law and the jury decided in favor of the University.

6. No, the condemnation should not be allowed because of the public use requirement. In this case, unlike Poletown Neighborhood Council v. City of Detroit, 304, N.W.2d 455 (1981), the public purpose "is marginal at  best and is clearly outweighed by Continental Cablevision's interest in expanding its customer base and generating additional revenue." City of Lansing v. Edward Rose Realty, Inc., 481 N.W.2d 791 (1992). However, see the 2004 case of County of Wayne v. Hathcock on page 499. This case  overruled Poletown stating that “alleviating unemployment and revitalizing  the economic base of the community” did not constitute a public use under  the Michigan state constitution. It is important to note that what is a public use continues to evolve.

7. Decision for Burger King. The Village of Larchmont is guilty of “spot zoning” in that it is trying to zone out a permitted use which the
legislative board thought undesirable, probably as the result of local pressure. "In doing so, it deprives the owner of the economic return of his land to which he is lawfully entitled. The amendment enacted by the village was arbitrary.... Reasonable restrictions may be imposed through zoning ordinances only when public safety, health and welfare is promoted." There was nothing in Burger King's intended use of the property which  would change or threaten to change the character of the neighborhood or otherwise adversely affect public health, safety and welfare within the neighborhood. Burger King Corp. v. Village of Larchmont, 395 N.Y.S.2d 922 (1975).

8. Decision for Pashkow. A "court will not uphold a restrictive covenant where the property and the neighborhood have, since the inception of the covenants, so changed in character or environment that objects of the covenants are defeated or cannot be accomplished, and their enforcement would be harsh, inequitable or oppressive." However, the changes around Castlewood Terrace must be shown to have affected the residential character of the subdivision itself. Here there was no such proof. See Paschen v. Pashkow, 211 N.E.2d 576 (1965).

9. The variance is not legal. Although a variance may be granted upon grounds of unnecessary hardship, there first must be proof that 1) the land in question cannot yield a reasonable return if used only for a purpose allowed in that zone; (2) that the plight of the owner is due to unique circumstances and not to the general conditions in the neighborhood which may reflect the unreasonableness of the zoning ordinance itself; and (3) that the use to be authorized by the variance will not alter the essential character of the locality." Here the zoning ordinance did not leave the portion of the land zoned for residential use without benefit or value. See Otto v. Steinhilber, 24 N.E.2d 851 (1939).

10. This question deals with the controversial policy of inclusionary zoning most commonly associated with the Mount Laurel I and II cases discussed on pages 513-515. The policy of creating laws to create neighborhood diversity raises a number of profound ethical issues.

In regards to utilitarianism there are a number of stakeholders who would benefit from an inclusionary zoning scheme like the one advocated by the mayor of Las Vegas. First, those who would not otherwise be able to live in these neighborhoods, policemen, firemen, nurses, teachers etc., for example, would be subsidized so that they could afford a home in a very desirable part of the city. A diverse neighborhood, as the mayor and others argue, can be a particularly good place for creating understanding and more cohesion in a community. Insular neighborhoods segregated by race and socio-economic status historically breed destructive urban problems. Occasionally these problems, such as crime, poverty, drug use and despair have festered and exploded into violence, such as occurred in Watts suburb of Los Angeles and Detroit in the 1960s, and South Central Los Angeles in the wake of the 1990s riots caused by the verdict in the policemen accused of beating Rodney King. Moreover, various urban experts in recent years, such as Joel Kotkin in his 2001 book “The New Geography” contend that cities, because of their diversity, are pivotal places for the creation of innovation and change. Kotkin states “[C]ities by their nature, have always thrived by the passing on of cultural and technical knowledge and in the blending of that tradition with stimuli from the outside. This blending helped create the innovative culture that led to new styles, art forms, and fashions that, over time would spread to more peripheral areas.” Thus, an argument for creating healthy, diverse cities, rather than policies which perpetuate homogeneous, suburban neighborhoods, may be seen as very beneficial to many, and not just those who live there.

The losing stakeholders would be the developers and those who are paying more to buy and live in these new neighborhoods. In fact, the wealthier buyers and developers are subsidizing those who do qualify for the subsidy. Once we have factored in the burdens and benefits, diversity in cities creates the greatest good for the greatest number.

Do those who qualify to live in these new, desirable neighborhoods, have a moral right to the discounted price? This is a difficult question, because for everyone who has a right, there is a commensurate duty to provide and respect the right. Thus, the mayor of Las Vegas, in exchange for allowing developers to build on this valuable piece of land, is imposing a legal duty on the developers and others to subsidize certain, middle class people, so they too can live there. Legal rights conferred on citizens by a government generally creates a moral right as well. But do legal rights and duties always create moral rights and duties?  This would be a good place to debate the issue of legal and moral rights and duties and how they may or may not overlap.

Principles of fairness and justice require that similarly situated people must be treated the same in regards to process and outcome. Here we have similarly situated people, all middle class homeowners, not being treated in a similar manner. The mayor calls for certain kinds of people, public servants, who are paid relatively low salaries, to live in the desired area at a discounted price. Thus, a retail salesperson or a bookkeeper, for example, might not be allowed the same considerations. This is not fair to them. (As an aside note, some also see this as a political pay back by the mayor to public employee groups that have given him support in the past). Also if we include all homeowners, regardless of their wealth, as being similarly situated, it is unfair. Wealthier homeowners must pay a premium so that less wealthy homeowners can live in the same neighborhood.

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1.    Know the voluntary and involuntary ways to transfer title to property.
2.    Know what a deed is and the legal purposes a deed carries out.
3.    Know the type of deeds that exist and what protection they provide, particularly from the grantee’s perspective.
4.    Know the equivalent name for deeds in Nevada to the generic names mentioned in class.
5.    Know the three warranties or protections a general warranty deed provides.
6.    Know why, despite the warranties, closings normally requires title examination and insurance.
7.    Know exactly what a quit claim deed provides for the grantee.
8.    Know all the elements and clauses contained in a deed and what they accomplish.
9.    Know the legal requirements for being both a grantor and a grantee.
10.    Know about the role of consideration in a deed.
11.    Know the three elements required for a legal transfer of a deed.
12.    Know in general how the closing process works.
13.    Know about the role of appraisers, appraiser liability for negligence and the implications of overstating value in an appraisal
14.    Know what taxes both sellers and buyers must pay in real estate transactions and ownership, as well as the tax advantages available in          owning investment property.
15.    Know the main kinds of wills that are used in the states with special attention to form requirements.
16.    Know what intestacy means and how these statutes commonly function in distributing property.
17.    Know in general about dower, curtesy, elective share and homestead.
18.    Know the policy reasons underlying adverse possession.
19.    Know the elements of adverse possession.
20.    Know the difference of color of title versus claim of right and how these can make a big difference in what the claimant gains in a successful suit.
21.    Know how Nevada law works in regard to adverse possession, including the number of years necessary to prevail.
22.    Know what an action to quiet title accomplishes.

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1.    Review the concepts of freehold versus non-freehold estates.
2.    Know what non-freehold estates provide the possessor from most valuable to least valuable.
3.    Know the legal implications that can arise for having both an estate in land and a lease/contract governing the landlord/tenant
       relationship.
4.    Know how #3 relates to the concept of independent covenants.
5.    Know the legalities involved with discriminatory selection of tenants under both federal and state laws.
6.    Know the role of the Fair Housing Act and the accessibility of the disabled.
7.    Know what commercial property owners must do to allow better accessibility into those rental property.
8.    Know the legal implications to landlords who have tenants engaged in drug activity on their rented premises.
9.    Know the statutory and common law provisions which forbid landlords from evicting tenants for their activities.
10.    Know the essential requirements for a legally valid lease.
11.    Know the basic differences between a residential and a commercial lease.
12.    Know how rent is determined for both a residential and a commercial lease.
13.    Know how the common law and modern statutes treat the issue of a residential premises’ physical condition when a lease is made.
14.    Know how the common law and modern statutes treat the issue of a residential and commercial premises’ physical condition after the          tenants take possession.
15.    Know the concept of the implied warranty of habitability and the implied warranty of suitability.
16.    Know in general what uses both residential and commercial tenants can make of the property they lease.
17.    Know the legalities surrounding a landlord’s interference of the tenant’s possession.
18.    Know about the legalities surrounding outsiders’ interference of the tenant’s possession.
19.    Know how the “Subordination, Nondisturbance and Attornment “ clause in a commercial lease works.
20.    Know the difference between a sublease and an assignment.
21.    Know the legal implications of when a landlord unreasonably withholds its assent to sublease.
22.    Know both a residential and commercial tenant’s remedies when there has been interference and other problems associated with the
         possession of the premises.
23.    Know what the landlord’s remedies are when a tenant terminates a lease, in particular the law governing the mitigation of damages.
24.    Know what a landlord’s tort are in the scenarios presented in the book.
25.    Know how the law treats exculpatory clauses.
 

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1.    Know the difference between rights/duties imposed by contract and rights/duties imposed by law or public policy in regards to real property.
2.    Know basic tort law including what are negligence and the defenses to negligence.
3.    In assumption of the risk, recognize how the risk must be one associated with the activity.
4.    Understand what an intentional tort is and how trespass fits into its general framework.
5.    Understand that intentional acts, including trespass, are not insurable.
6.    Know about how consent works as a defense or privilege to trespass, as well as the other kinds of privileged trespass.
7.    Understand that free speech rights generally are not protected for a private party, but know that certain states have created important             exceptions, such as the Schmid Test applied in New Jersey.
8.    Know the difference between public and private nuisance.
9.    Know the four elements of a private nuisance.
10.  In the fourth element of private nuisance - Unreasonable Harm - understand how an “activities value to society and “coming to the                 nuisance” works in particular.
11.    Understand invasion of privacy in general and how it applies to real property.
12.    For material on “Lost, Misplaced, and Abandoned Property” understand the relationship between the owner of the property in which         the property is found (locus in quo) and the finder.
13.    Know the difference between lost and misplaced property and how the law treats them differently.
14.    Know how the courts treat property that is buried in respect to the owner of the locus in quo and the finder.
15.    In respect to abandoned property, know at what point the former owner no longer has a reasonable expectation of having property             rights.
16.    Know what duties a landowner owes a trespasser, both foreseeable and not foreseeable, who is not on the land.
17.    Know the limits and in what situations landowners can use to thwart trespassers, such as the use of killing force, for trespassers                      entering the land.
18.    Know the five elements to attractive nuisance.
19.    Know the rights and duties a landowner owes a licensee entering his property.
20.    Know the “Firefighter’s Rule.
21.    Know the rights and duties a landowner owes an invitee entering his property.
22.    Know about some of the new legal rights and duties now developing in regards to invitees including the “mode of operation” doctrine            and duties owed to invitees in areas with a foreseeable risk of crime.
23.    Know how some states have now abandoned the common law distinctions and apply a general duty to maintain reasonably safe                 premises.

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1.    Understand that land use can be determined by both private means as well as public means designed to promote a public policy.                    However, both can coexist, but have limitations that differ. For example, restrictive covenants can go further than zoning laws in                    regulating land use.
2.    Understand that a voluntary restrictive covenant is contractual, but can also “run with the land” and impact future landowners.
3.    Know the three requirements that enable a restrictive covenant to “run with the land.”
4.    Understand that restrictive covenants are not favored by public policy and so are interpreted very strictly particularly if another                      important public policy goal is impacted by it, such as protecting the disabled.
5.    Know the three ways: change in neighborhood, expiration of time and zoning ordinances, which can also result in changes in restrictive           covenants.
6.    Know about the legal history of race-based restrictive covenants.
7.    Understand how restrictive covenants, also called CC&R’s, are used as a private means of planning and the controversies surrounding        them.
8.    Understand how commercial CC& R’s work.
9.    Know what public domain is and how it has evolved historically.
10.  Under how escheat works and its historical roots.
11.  Know what is necessary to prove condemnation.
12.  Know the broad parameters of what constitutes public use and public purpose in the context of the Kelo case.

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1.    Know that inverse condemnation is called that because it is the landowner who initiates the lawsuit, not he government. It is also called a regulatory taking.
2.    Know the Penn. Coal v. Mahon case for its historical holding that created the idea that regulating too far may create a taking.
3.    Know the “forest from the trees”; in other words understand that there are four main scenarios (see Table 13.1 on page 554) that can trigger a regulatory taking.
4.    Know the chronology order in which these scenarios occurred and what cases created the important precedents.
5.    In the Penn Central ad hoc test, understand the three factors that the courts apply to determine if a compensatory taking occurred.
6.    Know how the Penn Central ad hoc test is applied to temporary takings like it occurred in the Tahoe-Sierra Preservation Council case.
7.    Know what “ripeness” means and how this concept is important in regulatory takings.
8.    Know what the remedies are for a regulatory taking.
9.    Know the “per se” test for regulatory takings as first announced in the Lucas case involving a regulatory that takes essentially all the value of a property.
10.    Understand the important role that common law nuisance plays in determining whether there is a taking or not when the Lucas scenario arises.
11.    Understand what a common law dedication is.
12.    Understand how a dedication imposed by statute or ordinance can greatly affect a landowner’s property value and therefore constitute a taking.
13.    Know the Nollan case which established the “rational nexus” precedent for determining whether a dedication, as well as exactions or impact fees, is a regulatory taking.
14.    Understand the Dolan case in which the rational nexus test was further refined to require that governments must demonstrate the nature and extent of the impact of the proposed development to the government’s dedication of land to the public, sometimes called “rough proportionality”.
15.    Understand the public trust doctrine.
16.    For purposes of understanding zoning, know how urban land uses and patterns emerge and from what forces (economic, geographic etc.).
17.    Understand the cycles neighborhoods go through.
18.    Understand the history of zoning and the legal test (police powers etc.) for zoning is.
19.    Understand cumulative and non-cumulative zoning schemes work.
20.    Know the exceptions that can be made to zoning such as variances and non-conforming uses.
21.    For non-conforming uses understand the role of “amortization provisions” and if grandfathered in, what uses the landowner can continue to make of his property.
22.    Understand how spot zoning, cluster zoning and floating zones work.
23.    Understand what exclusionary zoning is and what social and economic goals it tries to accomplish.
24.    Know the three areas in which cumulative zoning may be challenged in the courts and which one is the most likely to be unenforceable as discussed in the Belle Terre case.
25.    Understand how inclusionary zoning works and what social and economic goals it tries to accomplish.
26.    Know the facts and law enunciated in the Mt. Laurel case and how it to what degree it has been adopted and influenced other jurisidictions.
27.    Understand how transferable development rights (TDR’s) work for state and local governments and relate them back to the Penn Central ad hoc test.
28.    Understand the role that the Religious Land Use and Institutionalized Person Act of 2000 (RLUIPA) and the Telecommunications Act of 1996 may impose on the land use planning of local governments.
29.    Under Condominiums, the role of the Master Deed.
30.    Understand how cooperatives work.

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1.    Know what the National Environmental Policy Act (NEPA) of 1970 is and what it does. In particular understand that NEPA requires an Environmental Impact Statement (EIS) before the government can do anything that may impact the natural environment.
2.    Understand that NEPA is a procedural law, not a substantive law and what this distinction means in environmental policy.
3.    Know what the EPA does, that it is a unique independent regulatory agency (head can be removed) and that it is politically controversial.
4.    Know about the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) of 1980 and why it was created.
5.    Know that four main functions of CERCLA.
6.    Know who potentially responsible parties (PRP’s) are, that they are strictly liable even retroactively, as well as jointly and severally liable.
7.    Understand the concept of contribution as it relates to CERCLA.
8.    Understand the difference between contribution for a party sued under CERCLA and a voluntary cleanup in which the party can seek “cost recovery.”
9.    Know what the CERCLIS database is and note how many sites have been remediated since 1980.
10.    Understand the general thrust of the Small Business Liability Relief and Brownfields Revitalization Act (SBLRBRA) of 2002 and what defenses it provides.
11.    Know the Superfund Amendments and Reauthorization Act (SARA) and the innocent landowners defense it provides in particular.
12.    Know how the Phase 1-3 procedure works as a means of establishing appropriate inquiry or due diligence environmental review.
13.    Understand how the “hold harmless” or “as is” provisions in private contracts works, how it may result in a seller bearing the costs of cleanup and how it may still cause a buyer to be liable for cleanup costs if the seller is insolvent.
14.    Know the “de minimus” and “de micromis” defenses to CERCLA.
15.    Know the evolution of the “security interest exemption” under CERCLA.
16.    Know what a “brownfield is, how the SBLRBRA was passed to make brownfields more attractive to developers and that brownfields are now becoming developed.
17.    Know the SBLRBRA defenses for promoting brownfields-the contiguous property owner defense and the bona fide prospective purchaser defense.
18.    Know the Resource Conservation and Recovery Act (RCRA) of 1976 regulating the shipping and disposal of hazardous waste.
19.    Know the function of the “manifest” in RCRA.
20.    Know the Clean Air Act, the bubble concept and the idea of pollution credits as a means of cleaning the air.
21.    Know the Massachusetts v. U.S. case and its importance to carbon dioxide emissions and climate change politics.
22.    Know the Clean Water Act (CWA), the difference between point and non-point sources of pollution.
23.    Know the evolving case law regarding wetlands from the SWANCC case to the more recent Rapanos case and their implications to wetland protection and development.
24.    Know the Endangered Species Act (ESA) and what a “taking” is under the ESA.
25.    Know the concept of environmental justice and in what situations it has arisen.
26.    Know in general the concept of standing as well as how it specifically relates to environmental litigation, including the right of animals to sue.
27. Know the four prerequisites to judicial review.

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