Private Regulation of Land Use

Question 1

Modern property law replaces traditional property law.(T/F)

Answer 1

False

Question 2

What are some distinctions between traditional and modern property law?

Answer 2

Traditional Property Law
- All traditional property law has roots in England.
- Right to exclude very important in Blackstone era
- More likely to consist of common law (precedent)

Modern Property Law
- Born out of 20th Century.
- Right to dispose very important given the development of advanced capitalism.
- More commonly statutory rather than common law. Statutes are products of policy choices and political preferences (think of evolution of landlord tenant law in WI and the landlord friendly statutes).
- More likely to be understood in a social context related to race and socioeconomic class.

Question 3

Covenant

Answer 3

A promise between two or more parties to do something.

Question 4

Running Covenant

Answer 4

Covenants that remain operational even after the land is sold or transferred to another.

Question 5

How are covenants commonly viewed in society?

Answer 5

Covenants are typically viewed favorably. While people may feel restricted by covenants, studies show that the presence of covenants increases property values.

Question 6

What does the acronym C.C.R. stand for and what are some examples of these?

Answer 6

Conditions, Covenants, and Restrictions. Some examples include: how to park in a driveway, when and where to put garbage, if and where to place satellite dishes.

NB: To reiterate, these are common and are generally seen as favorable because they increase property values.

Question 7

What are the types of public policy challenges to covenants did we discuss in class?

Answer 7

(1) No restraint on alienation.
(2) Change in the “neighborhood.”
(3) Deinstitutionalization (NIMBY)
(4) Common-interest communities

Question 8

No restraint on alienation

Answer 8

Property exists in a market economy, and therefore, to retain their value, we want to encourage movement of property in the stream of commerce.

NB: Restraints on alienation are also detrimental to creditors looking to collect.

Question 9

Change in the neighborhood

Answer 9

It would be a violation of public policy to enforce a covenant when things have changed so much that the covenant no longer makes sense.

Question 10

Deinstitutionalization (NIMBY)

Answer 10

Favoring the establishment of group homes for the disabled located in communities as compared to putting mentally disabled individuals into state hospitals and institutions.

Question 11

Common interest communities

Answer 11

Restrictions must be reasonable to the whole group of persons in the community.

Note: In California, covenants in common interest communities are presumed valid.

Question 12

To be enforced, a restraint on alienation must be reasonable in . . .

Answer 12

purpose, duration, and effect.

Question 13

What does NIMBY stand for? What is the general concept? Can you provide some examples?

Answer 13

Stands for “Not in My Backyard.” The general concept is that people don’t like having certain things nearby their homes.

Examples – Homes for convicted sex offenders, homes for parolees, Walmarts in a suburb…

Question 14

Covenants in common interest communities are always presumed valid.(T/F)

Answer 14

False. They are presumed valid in California, but that does not mean they are presumed valid everywhere. You will have to look to the statute.

Question 15

What are the constitutional challenges to covenants that we discussed in class? Briefly describe the arguments behind each of these challenges.

Answer 15

Amend I and/or Amend XIV.

Question 16

First Amendment challenges covenant on the basis that:

Answer 16

The covenant unconstitutionally restricts First Amendment protections of religious freedom or First Amendment protections of freedom of speech.

Question 17

Fourteenth Amendment challenges covenant on the basis that:

Answer 17

Racially restrictive covenants (i.e., covenants restricting which race could purchase which property) were in violation of the Fourteenth Amendment and Equal Protection Clause.

Question 18

When looking at First Amendment arguments against covenants, courts are looking for

Answer 18

State action

Question 19

Shelly v. Kraemer

Answer 19

finding the court’s enforcement of the racially restrictive covenant unconstitutional because the court qualifies as state action.

Question 20

Racially restrictive covenants are no longer on the books. (T/F)

Answer 20

False. While some states have a formal procedure for removing racially restrictive covenants from one’s property, such as California, not all states have such procedures.

Wisconsin has a statute that allows people to petition to remove racially restrictive covenants. Ensures a racially restrictive covenant does not appear on documents or in the registrar of deeds.