Stability Afforded to the Law of Property Essay

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stability afforded to the law of property by imposing a limit on the number of permissible legal estates are seriously undermined by the existence of a seemingly endless number of equitable interests.

Laws and Decrees

Cases

Effects

Theories

It is clear that law has limits even when it comes to the law of property. It has what is recognized as being the practical or 'means-end' limits; what lawmakers are trying to do could possibly may misfire in numerous ways. More fascinatingly, however, does law have principled limits and are they being are undermined by the existence of a seemingly endless number of equitable interests? It is clear that the best recognized positive answer to this question is that provided by John Stuart Mill. Mill's 'harm principle' is inspected in this admission, together with the more current resistances of the belief by Joseph Raz and Joel Feinberg. Other influential proposals for principled law of property limits to the law are likewise observed: for instance, the suggestion that law must avoid certain types of otherwise lawful moral explanations and that the law must be in some sense unbiased. Finding principled limits to the law, and rather or not they are seriously being undermined by the existence of a seemingly endless number of equitable interests will be discussed in this paper.

Laws and Decrees

Research argues that laws and ordinances that are at all levels of government (federal, state, county and municipal) do put a restriction on what can be done with the real property that is being owned. Enforcement of these laws typically resides with government organizations, normally local government nonetheless occasionally on the state or federal level. The three most common restrictions forced by government are:

(1) Zoning - limiting the use of the property to industrial, residential, agricultural, or commercial dedications are very typical. The height and size of improvements attached to the property are equally subject to restriction.

(2) Environmental Hazards - ordinances and statutes outline what materials that are able to be stored on the known real property. Also, responsibility for remediation of environmental hazards (for example lead paint, asbestos, petro-chemicals, toxic wastes and radon) is also government-controlled.

(3) Public Easements and Right of Way - a helping of certain real property could more than likely need to be open for others to be able to utilize. Governments use right of way laws and easements in order to control some kind of an admission to other property, provide for sidewalks and roads to permit installation of electric / sewer lines / gas/telephone/.

Cases

Research shows that the extent to which governmental authorities are able to impose a limitation on property without condition land without seriously undermining the existence of a seemingly endless number of equitable interests. This was done and not an issue because of the use of permits on exactions and concessions from land use permit which applicants were getting extraordinary attention from the United States Supreme Court in current years.

Recently, the Court handed down another decision relating the U.S. Constitution's Fifth Amendment to pressure the power of the government to impose such conditions when it comes to imposing a limit on the number of permissible legal estates. For example, in Koontz v. St. Johns River Water Management District, (Docket No. 11-1447) 570 U.S. __ (June 25, 2013), the Court, in a 5-4 decision, held that the government's demand for property from a land-use permit applicant must have an "essential nexus" to and "rough proportionality" with the planned project's effects even when it rejects the authority and even when its appeal is for money.

Up until now, it was not obvious that these morals, recognized by the Court in the landmark cases such as the Nollan v. California Coastal Commission, 483 U.S. 825 (1987) and Dolan v. City of Tigard, 512 U.S. 374 (1994), used when a document application is denied, or when the condition of approval did not involve a devotion of or limit on the utilization of a real property right. Also, these rules are discovered on the "unconstitutional circumstances" policy, which holds that the government cannot condition profits on the recipient forfeiting a lawful right. This policy has unusual application in the area of land use rule, guarding the Fifth Amendment right to "having just recompense" for property taken by the government when the owner is applying for the land-use permits.

This kind of holding will some kind of wide-ranging influences on the situations the government may execute when exercising its power to be able to control property (Abramowitz, 2005).

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This is particularly true in California which has long made a difference among demands for land devotion vs. A request for impact dues or other similar financial exactions. Ensuing the California Supreme Court's choice in Ehrlich v. Culver City (1996) 12 Cal. 4th 854 and repeated in San Remo Hotel v. City and County of San Francisco (2002) 27 Cal. 4th 643, it has been the law in California that a lawful challenge to the obligation, on a progress project, of a legislatively ratified impact payment for overall application was subject to the very respectful "reasonable relationship" standard more willingly than the "heightened inspection" of "essential connection" and "uneven proportionality" founded by Dolan and Nollan.

Research shows that the decision in Koontz now puts in question the ongoing applicability of both San Remo and Ehrlich. Therefore, there appears to be much closer scrutiny that is provided to the application of government enforced impact charges and in lieu payments, and more challenges to such fee programs. Additionally, this ruling may have the possibility of putting into question the validity of California's AB 1600 expansion impact fee procedure, which utilizes a "reasonable relationship" norm. however, it may possibly bring into question the current California Appellate court judgment which took place in CBIA v. City of San Jose (June 6, 2013), Ct. Of App. 6th Dist. (H038563), putting together the "reasonable relationship" norm to an inclusionary housing decree, and could help as the foundation of an plea to the California Supreme Court.

Effects

Coy Koontz owned 14.9 acres of undeveloped Florida property, and sought permits to basically get some legal estates (Abramowitz, 2005). In order to be lessen the environmental effects of the future development and get a wanted permit, Koontz did something by offering a deed to the defendant District a conservation easement that would be toward the remaining 11 acres. However, the case against him was saying that there should be a limit on this and that he should not be able to get more property that what he already had. With that being said, it is clear that the District rejected the proposal as insufficient, and only gave out juts two alternatives: (1) lessen everything down to just 1 acre and the give out deed which would be a conservation easement to the District on the what was leftover; or (2) build some type of a 3.7 acre project, deed a conservation easement which would be placed on the remainder, and then try and hire contractors to make progress on District-owned property that would many miles away. However, believing the District's burdens to be too much, Koontz went ahead and filed some suit, quarrelling that he was permitted to have some kind of monetary damages.

Demanding landowners to lessen impacts that were being caused by proposed development has long been part of the approving procedure. But then again under the Court's choices in Dolan and Nollan, any mitigation a government could pick to enforce must have a "vital nexus" and be "unevenly proportional" to those type of impacts (Abramowitz, 2005). Now when it comes up under the Court's decision, it is clear that these requirements are not supposed to change depending on whether the permit is give the "okay" on the circumstance that the projected mitigation is assumed, or the permit is deprived of for the reason that the mitigation was not accepted. Although no property is strictly taken in the latter case, an overpriced demand, although disallowed, impermissibly burdens the privilege not to have any kind of property taken without compensation that is looked at as being just. And it does not even make a difference if the government could deny the permit application outright without attaching conditions; it cannot condition permit approval on the landowner's forfeiture of constitutional rights. The Court also noted that although the Fifth Amendment provides a remedy only for takings, whether money damages are available for denial of a permit depends on the particular claim, here brought under Florida state law, a question the Court refused to consider however they did not believe that imposing a limit on the number of permissible legal estates undermined the existence of a seemingly endless number of equitable interests. They believed that there should be some kind of a limit on legal property such as the Koontz case.

Not only did the court believe that imposing a limit on the number of permissible.....

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