Heilman- REAL PROPERTY--Course Outline-2

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Southwestern Law School**We aren't endorsed by this school

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LAW 160

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Law

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Dec 30, 2024

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REAL PROPERTYBy Professor John HeilmanQuizlet: https://quizlet.com/_csomh3?x=1qqt&i=1fobwp1. LANDLORD AND TENANTA. Types of Leaseholds1. Tenancy for YearsA tenancy for a fixed period of time that automatically ends at the termination date. 2. Periodic TenancyTenancy for successive periods of the same duration that automatically renews.Created expressly or by operation of lawat the end of a tenancy for years if the tenant remains in possession. Tenants must give notice to terminate, modernly 30 days notice if under a year period. 3. Tenancy at WillAllows the tenancy to be terminated at the will of either the landlord or the tenant and there is no fixed term or defined period. 30-day notice requirement to terminate.4. Tenancy at SufferanceArises when a tenant wrongfully remains in possession after the expiration of a lawful tenancy.5. Hold-Over DoctrineIf a tenant continues in possession after his right to possession has ended, the landlord may:o1)evict the tenant;o2)bind him to a new periodic tenancy; ORIf the landlord has notified the tenant of an increase in rent prior to the termination of the prior tenancy, by holding over the tenant is agreeing to the new rent.o3)treat them as a trespasserB. Tenant Duties and Landlord Remedies1. Tenant’s duty to not commit waste of the premises. This is the same as with life tenants.AffirmativeoAffirmatively causing harmPermissiveoNeglectAmeliorative oMaking improvements without permission1

2. Duty to not use the premises for illegal purposes. If the tenant is using the premises to engage in illegal activities, the landlord may terminate the lease and evict the tenant. 3. Duty to pay rent.Contained in every lease. Traditionally, the duty to pay rent was an independent covenant in the lease. This meant that no matter what else happened, the tenant was obligated to pay rent. Modernly, a tenant has several defenses in cases where the tenant has not paid rent.4. Duty to comply with all provisions of the leaseAll covenants in the lease 5. Landlord remedies.A landlord modernly can evict a tenant who has breached his duties. Under a state’s unlawful detainer statute, a landlord can institute proceedings to evict the tenant and reclaim the premises. If the tenant has already moved out of the premises, the landlord can reclaim the premises. If the landlord accepts the surrenderof the lease, the tenant is not liable for any remaining rent. However, if the landlord has not accepted the surrender, the tenant remains liable for the rent for the remainder of the lease term, but the landlord is obligated to mitigate his damagesby seeking to relet the premises. oAccepting just the keys is not accepting a surrender.C. Landlord Duties and Tenant Remedies1. Duty to Deliver Possession of the PremisesEnglish: Majority: To give legal and physical possession 2. Quiet EnjoymentAll leases contain an implied covenant of quiet enjoyment. Traditionally this meant that neither the landlord nor anyone else claiming title to the property would interfere with the tenant’s use and enjoyment of the premises.The covenant can be breached in the following ways:a. Actual EvictionoOccurs when tenant is deprived of a material part of the leased premisesb. Partial EvictionOccurs when the tenant is deprived of the occupancy of some part of the premisesc. Constructive Eviction2

Occurs when the premises are no longer suitable for the leased purpose and the tenant moves out as a result.If the landlord fails to provide a service that renders the property uninhabitable or does something that renders the property uninhabitable, the tenant may terminate the lease and seek damages. The tenant must move out within a reasonable time if the tenant is claiming there is a constructive eviction- lease considered terminated 3. Implied Warranty of HabitabilityAn implied warranty of habitability is implied in all residential leases and cannot be waived or negotiated for lower rent. The landlord’s obligation is tied to local housing codes. In the event of a breach, the tenant can terminate the lease, make repairs and offset the cost against future rent, abate the rent, or sue for damages.Reasonably necessary for human habitation4. Repair and Deduct Remedy.This remedy allows tenants to make necessary repairs and deduct the costs of the repairs from their rent. The tenant must give notice and opportunity for the landlord to make the repair himself before making the repairs. Typically, they are only allowed to deduct up to one-month’s rent and only allowed once year. 5. Retaliatory EvictionA landlord may not terminate a lease or penalize a tenant in retaliation for the tenant’s exercise of the tenant’s legal rights (within 6 months). D. Assignments and SubleasesAbsent an express prohibition on assignment or sublease, the tenant is free to either assign or sublease the premises. Prohibitions on assignment or sublease are strictly construed against the landlord.An assignmentis a complete transfer of the tenant’s interest. A sublease is where the original tenant retains an interest at the end of the sublease. (Transfers less than all of their interests)1. AssigneeAn assignee is in privity of estate with the landlord. The assignee and the landlord are liable to each other like the original tenant and landlord were. The original tenant, however, remains in privity of contract with the landlord and is liable for rent if the assignee does not pay.2. Sublessee A sublessee is notin privity of estate with the landlord.3

The sublessee pays rent to the original tenant and is not personally liable to the landlord. A sublessee cannot enforce any covenants in the lease against the landlord except the implied warranty of habitability in a residential lease. Some jurisdictions allow tenants to enforce any rights that go to suitability of the premises for living purposes, including the covenant of quiet enjoyment and the repair and deduct remedy.2. FIXTURESA. Chattels incorporated into structure are fixtures. Plumbing, toilets, and light fixtures, for example, are all considered fixtures. Once incorporated into the structure they become part of the real property. The sale of real property includes all fixtures unless the parties agree otherwise. B. When chattels are incorporated into the structure by a tenant, they are also considered fixtures. However, a landlord and tenant can always agree that an item will not be considered a fixture, or they can agree that certain items installed by the tenant can be removed. In addition, in a commercial lease, certain items are deemedtrade fixtures whichcan be removed by the commercial tenant at the end of the leasehold. 3. ADVERSE POSSESSIONRequirements1. Open and NotoriousUse must be sufficiently apparent to a reasonably prudent owner. 2. Actual and Exclusive PossessionOne gains ownership via adverse possession only with respect to the portion of the property exclusively possessed. If the possessor is sharing the property with the true owner, no adverse possessioncan occur.3. ContinuousThe possessor must occupy the premises continuously throughout the statutory period in the way the actual owner would. Time Tacking4. HostileThe possessor’s occupancy of the premises must be hostile to the true owner’s interest. If the possessor is on the property with the permission of the true owner, adverse possession cannot be found. As a general rule, you cannot adversely possess against your co-tenant unless you clearly repudiate the co-tenancy or there is an ouster of the co-tenant.4

5. For the Statutory PeriodThe statutory period varies from jurisdiction to jurisdiction set forth in the SOL 6. Payment of Property TaxesSome jurisdictions require the adverse possessor to pay property taxes on the property in order to gain ownership through adverse possession.Tacking:Allows a possessor to “tack on” predecessors time to satisfy continuity for the statutory period Requires privity or voluntary transactional relationship with predecessor oTemporal = time oSpatial = purchaser acquires piece not included in title???Tolling: The statutory period is tolled when owner under a disability. The statutory period for adverse possession is tolled during the time period the true owner is under a disability.If the true owner is (1)underage, (2)imprisoned, or (3)insane, the statutory period does not run during the period the owner is under a disability. Many jurisdictions provide for tolling only when thetrue ownerwas under a disability when the adverse possession began.4. ESTATES IN LAND A. Present Possessory Estates1. Fee Simple AbsoluteGrants complete ownership in the landExample: “to A and his heirs”2. Defeasible Fees—a fee subject to a restriction or limitationa. Fee Simple DeterminableA fee subject to a restriction or limitationA fee simple determinable is followed by a possibility of reverter.Example: “to A and his heirs so long as the property is used for residential purposes”b. Fee Simple Subject to Condition SubsequentFollowed by a right of entry in the grantor to terminate. Example: “to A and his heirs provided that no alcohol is served on the premises. If alcohol is served on the premises O may reenter the premises and terminate”c. Fee Simple Subject to Executory Limitation5

Followed by an executory interest in a third party. Example: “to A and his heirs, but if A no longer works for O, to B and his heirs”3. Life Estatea. Life estate for life of grantee then back to the original ownerb.Life estate the life of another (pur autre vie)Duty of life tenant not to commit waste:1. Affirmative WasteDamaging the leased property2. Permissive WasteAllowing damage to occur through neglect3. Ameliorative WasteMaking improvements to the property without permission, and then it stays with the landLife estates are always followed by a future interest. The future interest is either a reversion in the grantor or a remainder in a third person.B. Future Interests1. Reversionary Interests in the transferora. possibility of reverter (in the grantor)follows the fee simple determinableb. right of entryfollows the fee simple subject to condition subsequentc. reversionWhen grantor transfers less than the whole estate, Future interest in the transferor or grantorVested at the time of the grant2. RemaindersFollows a life estateA remainder is an interest in a third party after the termination of a conveyance. For example, “to A for life, then to B and his heirs” Band his heirs have a remainder after the life estate to A.a. vested remainder-IF B is dead, then it goes to B’s heirs- automatically become possessory b. contingent remainder-IF B is alive and passes the bar exam-IF B does not satisfy, then it goes back to O3. Executory InterestsFuture interest is in a third partyFollowing a fee simple subject to executory limitation6

a. Shifting Executory InterestCuts short A’s prior interest and becomes possessory automaticallyb. Springing Executory InterestSprings forward after the end of the prior interest C. The Rule Against PerpetuitiesDefinition: An interest subject to the Rule Against Perpetuities is invalid unless it will vest or fail to vest within a life in being at the creation of the interest plus 21 years.1. What interests does it not apply to?It does NOT apply to vested remainders like reversions, possibilities of reverter or rights of entry. These all vest the moment they are created.RAP applies to:Contingent remainders Executory interestsOptions to purchaseClass giftsExample:“to A for life, remainder to the first child of A to reach 30 and complete college.” The remainder is not vested; it is contingent on a child of A reaching age 30 and completing college. We won’t necessarily know within 21 years of a life in being whether anyone will fulfill that requirement. The interest is therefore invalid.Example:“to A and his heirs, so long as no alcohol is served on the property. If alcohol is ever served on the property, then to B and his heirs.” The executory interest to B is invalid.2. Measuring livesAny person connected to the conveyance is capable of serving as the measuring life3. Presumption of lifetime fertilityFor purposes of the Rule Against Perpetuities, we assume that anyone is capable of having children, no matter how old.This is sometimes referred to as the fertile octogenariandoctrine. D. Concurrent Estates1. Joint TenancyA joint tenancy is a form of co-ownership whereby the surviving joint tenant takes the property through the right of survivorship.7

a. Four Unities Required for Creation(brad PITT) 1. unity of possession2. unity of interest3. unity of time4. unity of title(Note: modernly some jurisdictions allow the grantor to transfer property the grantor owns to himself and another as joint tenants. In the past, a strawman had to be used to do this.)b. Creation of Joint Tenancy Requires Use of Clear Language that a Joint Tenancy is Intended.“To A and B in joint tenancy with a right of survivorship” or “to Aand B as joint tenants” would create a joint tenancy. If property is merely conveyed to A and B jointly without specifying that a joint tenancy is created, a tenancy in common is presumed.c. Severance of Joint TenancyWhen one party to a joint tenancy conveys his portion of the joint tenancy, it destroys the joint tenancy. The new party takes his or her interest as a tenant in common. A judgment lien on the property, however, does not sever the joint tenancy. In the majority of jurisdictions, a mortgage obtained by one joint tenant on the property does not sever the joint tenancy either. A mortgage is merely a lien on the property. A few jurisdictions follow the “title theory” In these jurisdictions, a mortgage effectively transfers title to the lender and causes the joint tenancy to be severed. 2. Tenancy by the EntiretyTenancy by the entirety is a marital estate similar to joint tenancy it must have the four default unities and the additional unity of marriage. It has the same right of survivorship. Such an estate is not recognized in community property jurisdictions such as California. A tenancy by the entirety cannot be severed by the spouses during marriage except if there is a mutual agreement. An individual spouse cannot convey or encumber atenancy by the entirety.3. Tenancy in Common (Default if no other co-ownership is stipulated)A tenancy in common is a concurrent estate with no right of survivorship. Tenants can hold unequal interests in the property but each is entitled to possession of the whole. A tenant in common can transfer his or her 8

interest in the property. When property is taken jointly and no form of co-ownership is specified, a tenancy in common is presumed. 4. Incidents of Co-Ownershipa.each co-tenant has an equal right to possess the entire propertyb. a co-tenant in possession can retain profits from use of the property but must share net rents from third party and net profits gained from exploitations of the land.c. a co-tenant can encumber his interest in a concurrent estate but not the interest of other co-tenants. If the property is a joint tenancy, an encumbrance does not sever the joint tenancy unless there is a foreclosure.d.a co-tenant can seek a judicial remedy of partition if he no longer wishes to be a co-tenant.Partition:asking the court to divide up the propertyoPartition in kind:physical division of property (default)oPartition by sale:property is sold and proceeds split between the parties equal to their ownership share5. Contribution for Property Expensesa.co-tenants who make necessary repairs receive credit for doing so in any partition action or if another co-tenant seeks an accounting. It is unclear whether a separate action can be maintained for contribution when one tenant pays for repairs.b.co-tenants are not obligated to contribute for improvements made to theproperty. c.co-tenants are required to contribute fair share to taxes or mortgage payments made on the property, but if a co-tenant is in exclusive possession of theproperty the right of reimbursement is limited to the amount the taxes and mortgage exceed the rental value of the property. 5. TRANSFERS OF REAL ESTATE--CONVEYANCINGA. Land sale contracts1. Statute of Frauds applies.2. Marketable title—all land sale contracts contain an implied (covenant) warranty that the seller will provide marketable title. Title acquired by adverse possession is not considered marketable title. Encumbrances all render a title unmarketable. B. Deeds1. Formalities—a deed must be in writing, signed by the grantor, identify the parties and the land.2. Description of land—a description of land in a deed will be valid if it providesa good lead to the identity of the property. The description can be by common 9

name, by reference to a natural or artificial monument, by distances or metes and bounds or by a quantity of property.C. Delivery and AcceptanceA deed is not effective until it has been delivered and accepted.1. Delivery—delivery refers to the grantor’s intention to make the deed effective. If the grantor retains the deed this indicates a lack of intent to deliver. 2. Acceptance—acceptance is presumed in most states.D. Covenants for title and estoppel by deed1. General warranty deedSix covenants are contained in a general warranty deed: Present Covenants: a. covenant of seisinWhen general warranty is given, the grantor warrants that they own the property and have the right to convey it.b. covenant of right to conveyWhen the deed is handed over, Seller has the right to convey the propertyc. covenant against encumbrancesWhen deed is handed over, there is a promise that there are no encumbrances on the property unless they were disclosed and agreed upon by both partiesFuture Covenants:d. covenant of quiet enjoymentNeither I nor anyone with title derived from me will interfere in the use and enjoyment of the propertye. covenant of warrantyPromising that I will defend the title I have given you if somebody tries to come along and challenge itf. covenant for further assurancesPromising if there is some problem/defect, I will do whatever ittakes to correct that2. Quitclaim deeds– whatever interests I have I am transferring to you. Contains no promises.E. Recording1. Types of recording actsa. Notice Statutes—under a notice statute, a subsequent bona fide purchaser prevails over a prior grantee who failed to record. 10

Example: “A conveyance of an interest in land shall not be valid against any subsequent purchaser for value, without notice thereof, unless the conveyance is recorded.”b. Race-Notice Statutes—under a race-notice statute, a subsequent bona fide purchaser prevails over a prior grantee who failed to record provided that the subsequent purchaser records first.Example: “Any conveyance of an interest in land shall not be valid againstany subsequent purchaser for value, without notice thereof, whose conveyance is first recorded.”c. Race Statutes—under a race statute, whoever records first prevails.Example: “Any conveyance of an interest in land shall not be valid againstany interest that was recorded first.”2. Who is protected by recording acts?a. bona fide purchasers for valueb. mortgageesc. judgment creditors in most jurisdictionsd. donees, heirs and devisees are not protected[You always have to look at the specific statute to see who is protected by the statute.]3. Types of noticea. actual noticeb. record noticec. inquiry notice6. SECURITY INTERESTS IN REAL ESTATE A. Types of security interests1. Mortgage—debtor is the mortgagor; lender is the mortgagee2. Deed of Trust—debtor is the trustor; the trustee is someone affiliated with the lender who is the beneficiary. The trustee is empowered to sell the property if there is a default.3. Installment Land Contract—debtor is the purchaser who signs a contract and agrees to pay regular installments until the full contract price is paid. When the full contract price is paid the seller will give the purchaser a deed transferring legal title to the property. If the purchaser does not pay the regular installments, the contract provides that the purchaser forfeits all payments made to date and the seller can retake possession of the land. Modernly, installment land contracts are treated similar to a mortgage. 11

B. ForeclosureForeclosure is the process by which the mortgagor’s interest in the property is terminated. The property is sold to satisfy the debt.1. Redemption.Prior to the foreclosure sale, the mortgagor has an equitable right to redeem land by paying off the amount due with any accrued interest. This right of redemption cannot be waived in the mortgage. Many states also give the mortgagor a statutory right to redeem after the foreclosure sale has occurred.2. Priorities. Priority is ordinarily determined by the time the interest was placed on the property. Foreclosure destroys junior interests in the property being foreclosed provided that those junior interests were given notice of the foreclosureproceeding. Senior interests are not affected by a foreclosure.3. Modification of priority.The normal order of priority (first in time) is altered in several instances.a. failure to recordb. subordination agreementc. purchase money mortgaged. modification or refinance of first mortgage4. Proceeds of sale. The proceeds of any sale go first to pay expenses of the sale, attorneys’ fees and court costs, next the proceeds go to pay the principal and interest on the loan foreclosed, next the proceeds go to pay off junior liens in order of their priority, and any remaining funds go to the mortgagor.5. Deficiency judgments.When the proceeds of a foreclosure sale are not sufficient to pay off the loan, can the lender obtain the balance from the mortgagor personally? Many states have anti-deficiency laws which prohibit a lender from holding the mortgagor personally liable for any deficiency. D. Installment land contractsInstallment land purchase contracts usually provide for forfeiture in the event of a default. Since this is such a harsh remedy, courts generally do not enforce forfeiture clauses. Some states simply treat these contracts as if they were mortgages or apply the redemption rules to them.Some states allow the purchaser to get restitution of any amounts they have paid that exceed the lender’s damages.7. BASIC PROPERTY RIGHTS—THE RIGHT TO BE FREE FROM NUISANCES; THE RIGHT TO LATERAL AND SUBJACENT SUPPORT; WATER RIGHTS; THE RIGHT TO EXCLUDE ALL OTHERSA. Nuisance12

1. A private nuisance is a substantial and unreasonable interference with another person’s use and enjoyment of their property.2.A public nuisance is a substantial and unreasonable interference with the health, welfare or safety of the public or some subgroup of the public. Typically only a public official can challenge a public nuisance. A private person can sue over a public nuisance only when the private person suffers some unique harm as a result of the nuisance.3. A person complaining about a nuisance can sue for money damages. Typically, however, the person wants injunctive relief to stop the nuisance. The requirements for an injunction are: 1. inadequate legal remedy; 2. property right or some other protected interest; 3. feasibility; 4. balancing of the hardships; and, 5. no defenses to equitable relief. Some courts won’t balance the hardships in cases of nuisances which are intentional.RELIEF IS USUALLY INJUNCTION. B. Right to Lateral Support1.A landowner has a right to have his or her land undisturbed by excavation on an adjoining site. 2. If landowner’s land is in its natural state, the adjacent property owner is strictly liable if the excavation caused the landowner’s land to slip or subside.3.If landowner’s land is improved with buildings, the adjacent property owner is strictly liable only if the land would have collapsed in its natural state. Otherwise, the landowner must prove that the adjacent property owner excavated in a negligent manner in order to recover.C. Right to Subjacent Support1.A landowner who has authorized a party to excavate under his land is entitled to have the surface of the land supported.2. The party excavating is strictly liable for any damage caused to the land in its natural state and to any buildings that existed on the land at the time the excavation was authorized.3.A landowner must prove the excavation occurred negligently if the landowner wants to recover for damage to buildings constructed after the excavation was authorized.13

D. Right to exclude others1. One of the fundamental aspects of land ownership is the right to exclude others.This entitles the owner to sue for trespass to land and ejectment. It also entitles thelandowner to use reasonable force to exclude others from the property or to oust them from the property.8. RIGHTS IN THE LAND OF ANOTHER—EASEMENTS, LICENSES, PROFITS, COVENANTS AND EQUITABLE SERVITUDESA. EasementsAn easement is a nonpossessory interest in land allowing the easement holder to use the land in a way that would otherwise be a trespass. Easements are perpetual unless limited by the grant.1. Types of easementsa. Affirmative vs. Negative (characteristics of an easement) Affirmative: rights to do something on another’s land Negative: Preventing the other property from doing something that could harm their neighbor. Must be express. Negative easements are limited to:1. light, 2. air, 3. lateral and subjacent support; AND4. flow of an artificial stream.b. Appurtenant vs. GrossAppurtenant:easement that benefits holder in use of a particular piece of property. Requires dominant and servient estates. Runs with the landGross: Easement that benefits the holder personally, regardless of where they live. Only requires a servient estate.2. Creation of easementsa. Express Grantb. Express ReservationWhen you sell the property, you can withhold an easement for yourself.c. Implication– requires property to once be commonly owned1. implied from existing useSo long as it isreasonably necessary to continue enjoyment of the parcel of the land2. implied without existing use14

Only when strictly necessary for a piece of land that is landlocked and there is no other access to a public road for example.Lasts only as long as the necessity existsd. Prescription: use of property is... 1. open and notorious2. adverse3. continuous and uninterrupted4. for the statutory periode. EstoppelWhen there is detrimental relianceServient estate will be estopped from trying to deny the easement3. Scope of Easements4. Termination Abandonment ReleaseMergerExpirationNecessity endsEstoppelCondemnation from the Govt. PrescriptionB. LicensesA license is a privilege to go onto the land of another. It is not an interest in land and therefore in can be created orally. Licenses are revocable at the will of the licensor. If a landowner attempts to create an easement but fails to satisfy the writing requirement, a license is created.C. ProfitsA profit is a nonpossessory interest in land. The holder of the profit is entitled to take minerals, timber, crops, oil or game from real property.D. Covenants running with the landA covenant is a written promise by a landowner either to do something or not do something on the land. Real covenants may be binding on successors in interest.1. Requirements for the burden to runa. IntentThe original parties have to intend that the covenant be binding to its successors b. NoticeActual NoticeRecord NoticeInquiry Notice15

c. Horizontal privityOriginal parties had to share a relationship with respect to the property/ burdened land (i.e., landlord – tenant, neighbors)d. Vertical PrivityC must get everything that B hade. Touch and ConcernNeeds to affect the real property in some way (Modernly, horizontal and vertical privity may not be required.)2. Requirements for the benefit to runa. IntentNeed to agree on the plan and the successorsb. Vertical PrivityNew needs to get all of the interests that original had. c. Touch and Concern3. The remedy for a breach of a covenant is money damages.If the party wants to get an injunction, the party must satisfy the requirements for an equitableservitude. E. Equitable servitudesAn equitable servitude is a covenant that equity will enforce against the assignee of a burdened estate when the assignee has notice of the covenant. The crucial difference between a covenant and equitable servitude is the remedy being sought. If injunctive relief is sought, the requirements for equitable servitude must be met.1. CreationNormally equitable servitudes are created by covenants contained in a written document. However, equitable servitudes can also be implied from a common scheme for development of a residential subdivision. oFor example, if a developer develops a 50 lot site and includes a covenant in the first 49 lots but forgets to include it in the deed for lot 50, an equitable servitude can be enforced against the owner of lot 50.2. Requirements for the burden to runa. intent (when entering the covenant)b. noticec. touch and concern3. Requirements for the benefit to runa. intent (when entering the covenant)b. touch and concernThese are modernly the requirements for covenants to run 16

9. ZONINGA. Generally1.Local government can enact statutes controlling the use of land for the sake of promoting the health, safety and welfare of the community. Zoning enactments are based on state and local police power. B. Nonconforming Use1.A non-conforming use is one that existed at the time of the passage of a zoning ordinance and does not conform to the current zoning statute in effect. Typically non-conforming uses cannot be immediately eliminated. They are allowed to continue for a period of time. For example, a non-conforming industrial use in a residential zone might be given 15 years to be eliminated.C. Variance1.A variance allows a landowner to deviate from the provisions of the zoning ordinance because of some unique circumstances of the property. For example, a landowner might be granted a variance from a height restriction contained in the zoning ordinance when the landowner’s lot is on a hillside and the height restrictions in the zoning ordinance would not permit a normal structure to be built.D. Takings1.A zoning ordinance cannot result in an unconstitutional taking of the owner’s land. A zoning ordinance does not result in a taking unless it leaves land with no economic value. A zoning regulation that leaves the land with no economic value is equivalent to a physical invasion of the land and it is unconstitutional. 2.A zoning ordinance that deprives the owner of nearly all economic value may be a taking as well. Courts will balance: 1. the social goals being promoted; 2. the amount of diminution in the owner’s value; and, 3. the owner’s reasonable expectations regarding use of the property.3.An action by a local government exacting some public benefit from a landowner is permissible provided that it has some rational nexusto the landowner’s proposed project. For instance, if a new development will result in excessive traffic, the landowner may be required to give up a portion of the land so that a street may be widened. This would pass the rational nexus test. Even if the exaction bears some rational nexus to the impact of the landowner’s proposed project, the exaction cannot be excessive. The nature and amount of the exaction must be roughly proportional to the impact of the proposed project. Physical appropriationPhysical invasion17

Leaving the land with no economic value 18