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A - Property 2 > Week 8 - Eminent Domain > Flashcards

Week 8 - Eminent Domain Flashcards

1
Q

What is eminent domain?

A

Essentially, it is when the government takes your property away from you. The taking has to be for public use. Just compensation has to be paid by the government to the person whose property has been taken.

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1
Q

____________ __________ is when the ___________ takes your property away from you. The taking has to be for public use. Just compensation has to be paid by the government to the person whose property has been taken.

A

Eminent Domain

government

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2
Q

Eminent Domain is when the government takes your property away from you. The taking has to be for _______ _______. _______ _________ has to be paid by the government to the person whose property has been taken.

A

public use

just compensation

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3
Q

What can the government take through eminent domain?
1. Real Property
2. Personal Property
3. Real and Personal Property
4. Easements
5. All of the above
6. None of the above

A
  1. All of the above
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4
Q

The “Takings” subject covers 2 general areas:
1.
2.

A
  1. Eminent Domain
  2. Regulatory Takings
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5
Q

__________ _________: The power of the government to force transfers of property from private owners to itself (or to other entities commonly invested with the power of eminent domain and even sometimes other private parties).

A

Eminent Domain

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6
Q

Where the government intends to take the property.

A

Eminent Domain

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7
Q

___________ ________: Where the government is intending to regulate and property owner initiates a lawsuit claiming the government’s action amounts to a “taking.”

A

Regulatory Taking

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8
Q

The government is intending to regulate and that regulation which the government believes is the common good for the people ends up negatively impacting a particular property owner in such a way that they initiate a lawsuit claiming that the governments actions amount to a taking.

Regulatory takings typically, in most instances deal with the government passing a law and that law having such a negative impact on a particular individual that they feel as though their property has been taken and as such they want just compensation. !!

A

!!

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9
Q

What is public use?

A

Property can be taken for uses which are beneficial to the public.

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10
Q

Initially, the property had to be put into direct use and occupancy. For example, the government could take your property to widen the road, because everybody has access to the road. Or the government could take your property to create a public park, because everybody has access to a public park. Those things still qualify as a public use, but it is going to get a lot more interesting when someone wants to take your department store bulldoze it down and put shiny new apartments there, that doesn’t feel as much like a public use, but as we are going to see the government has some creative interpretations of how far the _______ ______ can extend.

A

public use

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11
Q

What are some examples of the public use?
* Schools
* Road Expansion
* Economic Development
* Beautification
* A & B
* A, B, C, & D
* None of the Above

A

A, B, C, D

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12
Q

Schools

A

Public Use

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13
Q

Road Expansion

A

Public Use

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14
Q

Economic Development

A

Public Use

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15
Q

Beautification

A

Public Use

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16
Q

Government’s use of ________ _________ is for: creation of or expansion to highways, bridges, railroads, ferries, canals, schools, parks, off-street parking, trade center development, Municipal civic centers, airport expansion, open space, historical restoration, urban renewal and others.

A

eminent domain

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17
Q

______ _______ felt like the objective of the sate was to protect life, liberty, and property. Locke was very pro property rights.

A

John Locke

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18
Q

_______ _______ wanted to protect life even at the expense of liberty and property rights. Idea was there are bad people out there we need someone to protect us, and we need a leader or a government who can do that, even if we have to give up some of our individual rights to facilitate that protection, it is better to be safe than to have individual rights.

A

Thomas Hobbs

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19
Q

Eminent domain is somewhere in the middle of John Locke and Thomas Hobbs.

If the government wants to take your property they are pretty much going to.

They are going to justify it as ______ ______ which is beneficial to the public but then they are going to have to pay you just compensation.

A

public use

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20
Q

No person shall be deprived of property, without any due process of law’s; nor shall private property be taken for public use, without just compensation.

What Amendment?

A

5th

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21
Q

There is no affirmative statement in the U.S. Constitution permitting the federal government to exercise the power of _______ _________ because it was so well established as an implied power that there was no reason to expressly authorize it. The bill of rights limits federal authority. Eminent domain is limited to instances where the taking is for the public use and just compensation is paid to the owner.

A

eminent domain

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22
Q

Eminent Domain is limited to instances where the taking is for the _____ ______ and _______ _______ is paid to the owner.

A

public use
just compensation

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23
Q

Recipe for Eminent Domain:
For an Eminent Domain to occur, the following must be present:
1. ?
2.
3.
4.
5.

A
  1. The activity in question has to be the ACTION OF THE GOVERNMENT
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24
Q

Recipe for Eminent Domain:
For an Eminent Domain to occur, the following must be present:
1.
2. ?
3.
4.
5.

A
  1. A PRIVATE PERSON’S PROPERTY must be taken.
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25
Q

Recipe for Eminent Domain:
For an Eminent Domain to occur, the following must be present:
1.
2.
3. ?
4.
5.

A
  1. The government must give NOTICE of what it intends to do first and the person whose property the government wishes to take must be given an opportunity to be heard.
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26
Q

Recipe for Eminent Domain:
For an Eminent Domain to occur, the following must be present:
1.
2.
3.
4. ?
5.

A
  1. The government must pay JUST COMPENSATION for the private property it takes.
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27
Q

Recipe for Eminent Domain:
For an Eminent Domain to occur, the following must be present:
1.
2.
3.
4.
5. ?

A
  1. The taking must be for the PUBLIC USE.
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28
Q

Recipe for Eminent Domain:
For an Eminent Domain to occur, the following must be present:
1.
2.
3.
4.
5.

A
  1. The activity in question has to be the action of the government
  2. A private person’s property must be taken
  3. The government must give notice of what it intends to do first and the person whose property the government wishes to take must be given an opportunity to be heard.
  4. The government must pay just compensation for the private property it takes.
  5. The taking must be for the public use
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29
Q

What kind of property can be taken?
1. ?
2.
3.
4.
5.
6.
7.

A
  1. Real property
30
Q

What kind of property can be taken?
1.
2. ?
3.
4.
5.
6.
7.

A
  1. Fixtures
31
Q

What kind of property can be taken?
1.
2.
3. ?
4.
5.
6.
7.

A
  1. Leases
32
Q

What kind of property can be taken?
1.
2.
3.
4. ?
5.
6.
7.

A
  1. Options
33
Q

What kind of property can be taken?
1.
2.
3.
4.
5. ?
6.
7.

A
  1. Stocks
34
Q

What kind of property can be taken?
1.
2.
3.
4.
5.
6. ?
7.

A
  1. Bonds
35
Q

What kind of property can be taken?
1.
2.
3.
4.
5.
6.
7. ?

A
  1. And even the rifle that killed President Kennedy
36
Q

A court has held that there is no kind of ______ ________ right that cannot be taken by _____ _______.

A

private property

eminent domain

37
Q

Mineral rights and leases are included too. Rights of adverse possessors can be taken; easements can be taken so long as it is for public use and just compensation is paid they can take just about anything. True or False.

A

True

38
Q

State and Federal Constitutions
* Requires “_____ ___________”
* Taking must be for “_______ _______.”

A

Just compensation

Public use

39
Q

More recently, the concept of _______ ________ has been expanded from only being “direct use and occupancy of the property by the public” to include taking of the property for projects that “benefit the public.”

A

public use

40
Q

The “_____ ________” Requirement
… This “Court long ago rejected any literal requirement that condemned property be put into use for the general public.

1980’s the US Supreme Court was saying that they had long ago rejected any literal requirement that had condemned property it be put into use for the general public.

A

Public Trust

41
Q

Property can be taken from LaKeisha through eminent domain for a public use and given by the government to Jamal as long as just compensation is paid.
A. True
B. False

A

A. True

How the law stands at the US Supreme Court level. You need to understand that certain states have limited it. Kilo Case understand how and why that became controversial. In response to Kilo many states made some changes to their state constitutions to limit the power of eminent domain.

42
Q

Property can be taken from Mei though eminent domain for a public use and given by the government to Dollar General Corporation as long as just compensation is paid.
A. True
B. False

A

A. True

43
Q

Pursuant to the Supreme Court, states have the ability to put some limitations on eminent domain. It seems like whomever decides what the public use is has a lot of power if the takings for a public use, the government can take your property so who gets to pick? ______ ___________.

A

The Legislature

44
Q

Who decides what the public use is?

A

The legislature picks. Provided that the legislative body has the authority to act with regard to the subject matter at issue, the court will not second guess the legislative body’s determination on the public use.

45
Q

Federal “_______ ______” Rule under the 5th amendment
The federal Cases:
* Bergman v. Parker (1954)
* Hawaii Housing Authority v. Midkiff (1984)
* Kelo v. City of New London (2005)

A

Public Use

46
Q

Federal “Public Use” Rule Under the 5th Amendment German v. Parker (1954): The Beauty Case

*Public use is what Congress says it is.

*If legislation implements a comprehensive plan then no piecemeal approach.

  • If the end that the Congress is pursuing is legitimate, then eminent domain is permissible.
    !!
A

!!

47
Q

Berman

It is within the legislature’s power to determine that the community should be beautiful as well as healthy, spacious as well as clean, well balanced as well as carefully patrolled.

The misery of housing may deposit a community as an open sewer may ruin a river. There was an overwhelming need to redesign the entire area. The greater good was served by allowing the government to enforce the taking of the department store.
!!

A

!!

48
Q

Under S v. K racially restrictive covenants are not enforceable but they were still being created after it was decided because it was still legal to create them until the Fair Housing Act in 1968. When we think about the impact of Berman. This isn’t a case about making DC pretty. How do we eradicate the entire black population of a portion of the city through government control.

Beautification qualifies as a public use, that is a loaded concept. Not just knocking down ugly and putting up pretty, removing an entire racial demographic.
!!

A

!!

49
Q

The _______ ________ requirement is coterminous with the scope of the sovereign’s police powers.

A

public use

50
Q

The public use ________ is _________ with the scope of the sovereign’s police powers.

A

requirement is coterminous

51
Q

The public use requirement is coterminous with the scope of the __________ _______ _______.

A

sovereign’s police powers

52
Q

________ ________ are essentially health, safety, and welfare.

A

police powers

53
Q

Police powers are essentially, _______, ________, and ________.

A

health, safety, and welfare

54
Q

___________ means having the same bounds or limits

A

Coterminous

55
Q

Coterminous means having the same ________ or _______.

A

bounds or limits

56
Q

Essentially anything that the government could regulate as an exercise of its police power is subject to ________ ________ so long as the taking is compensated. Any end that has a public benefit is all right, the ends justify the means.

A

eminent domain

57
Q

A _______ is condemnation of property through eminent domain.

A

taking

58
Q

*Whenever the State Legislature makes a finding that the legislation is enacted for the _________, _______, and _______ of its citizens, that constitutes a public use.

*As Justice O’ Connor put it in MidKiff, “the public use is coterminous with the police power.”

A

health, safety, and welfare

59
Q

______ ____________ will allow a government taking to transfer from one private owner to another if future use by the public is the purpose of the taking.

Court long ago abandoned the literal requirement that condemned property must be put into tule for the general public.

A

5th Amendment

60
Q

The public use is coterminous with the ________ ________.

A

police power

61
Q

The measure of “______ _________” is “fair market value” of the property, measured based upon the property’s highest and best use.

A

just compensation

62
Q

The measure of just compensation is _____ ______ ______ of the property, measured based upon the property’s highest and best use.

A

fair market value

63
Q

____ ______ ______ – what a willing buyer would pay in cash to a willing seller at the time of the taking.

A

Fair Market Value

64
Q

Fair Market Value - what a _____ ______ would pay in cash to a ______ ______ at the time of the taking.

A

willing buyer

willing seller

65
Q

__________ would be paid upon the award until the date of the payment.

A

Interest

66
Q

Why do we have a just compensation requirement?

A

If we didn’t have them people wouldn’t invest much in real estate. The idea that the government could step in and take your property from you wouldn’t make you want to do very much to improve the property.

67
Q

Let’s say that this property is zoned commercial, the city knows they want to take it, can they down zone it to residential so that it is cheaper when they have to pay out just compensation?

A

No, they are not supposed to do that

68
Q

Actual value of what we took but also what is the decrease in value, and they have to weigh that out so it is fair. !

A

!

69
Q

What happens if your great grandparents built this house and your parents got married there, you got married there, pet is buried under the willow tree, you have a sentimental attachment to the property Can they take that into consideration when they value it?

A

No, the sentimental value to the owner is not considered.

70
Q

under most state statutes _________ benefits are paid, this would involve moving expenses, packing and loading, insuring, transporting, disassembling, reassembling, locating a new spot, house hunting.

A

relocation

71
Q

Moving expenses do not have an effect on the valuation though in the absence of statue. If your property is taken through eminent domain then your hope is really that you are going to live in a state which gives you ________ benefits.

A

relocation

72
Q

As suggested by Prof. Fennell in her article, “Taking Eminent Domain Apart,” three shortfalls of just compensation are:
1.
2.
3.

A
  1. Personal value
  2. Chance of surplus in a voluntary state; and
  3. loss of autonomy

A - Property 2 (30 decks)

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