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Welcome to the Deep dive. 
Today we're tackling a set of 

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really crucial concepts for any 
law student. 

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You know, the ones that can make
or break an exam. 

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We're talking non possessory 
property, interests, things like

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easements, profits, covenants, 
the whole 9 yards, and also the 

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government's power of eminent 
domain. 

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Yeah, these aren't just, you 
know, dusty legal ideas. 

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They genuinely shape how land 
gets used, how it's bought and 

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sold and sometimes how it's 
taken by the government. 

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Exactly. 
So think of this this deep dive 

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as well, maybe a bit of a 
lifeline for understanding these

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often confusing parts of 
property law, right? 

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We're going to try and clear up 
the differences between these 

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interests, explain the 
government's taking power, but 

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also get into the real world 
consequences, the policy debates

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behind them and those 
constitutional limits, all stuff

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that's frankly vital for exam 
success. 

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Couldn't agree more, and we've 
got some solid sources to lean 

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on. 
Material from the Lincoln 

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Institute on servitudes, basics 
on eminent domain, some good 

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stuff on fee simple ownership, 
bits from legal encyclopedias, 

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even a practical look at zoning 
reports. 

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A good mix. 
So our mission today is pretty 

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straightforward, give you a 
clear, concise and hopefully, 

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you know, actually interesting 
overview of these topics, really

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focused on what you need to nail
those exams. 

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OK. 
Let's jump in. 

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Where do we start untangling all
this? 

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Non possessory interests seem 
like the logical place. 

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Agreed. 
Let's kick things off there all.

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Right. 
So the first thing to grasp is 

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that having rights in land 
doesn't always mean you possess 

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it, right? 
Right. 

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Traditionally, the law broke 
these non possessory rights down

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into a few main buckets. 
You've got easements, profits 

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and covenants, OK. 
Let's take easements first. 

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What's the core idea there? 
An easement really simply is 

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just the right to use someone 
else's land for a particular 

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reason. 
Think of like a path across your

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neighbor's property to get to 
the lake. 

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You don't own the path, but you 
have the right to use it. 

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Got you. 
And how does a profit differ? 

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A profit or profit up Pondra, if
you want the fancy term, let's 

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you go on to someone else's land
and take something valuable from

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it. 
So not just using the land, but 

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removing resources like mining 
rights, timber rights, that sort

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of thing. 
OK. 

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Easement is used, profit is 
used, plus removal makes sense. 

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Then we get to Tevenance, which 
honestly, from an exam 

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perspective often feel like the 
trickiest part. 

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Oh, they can be. 
We're generally talking about 

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two types here, real covenants 
and equitable servitudes. 

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Historically, the big split was 
about the remedy if someone 

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broke the promise, right? 
For a real covenant, it was 

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usually money damages you'd sue 
for. 

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Exactly, but if it was an 
equitable servitude you could 

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potentially go to court and ask 
for specific performance. 

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Basically an order forcing the 
other party to actually comply 

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with the agreement. 
Like not building that 

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commercial structure they 
promised they wouldn't. 

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So ones about money, the others 
about making them do or not do 

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the thing. 
That was the traditional 

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distinction, yeah. 
But what makes it complex, and 

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what The Lincoln Institute 
points out, is how blurry these 

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lines can get. 
That same agreement not to build

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a store. 
You could argue it's a negative 

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easement, or an equitable 
servitude, or a real covenant. 

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And which label you put on it 
could actually change the 

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outcome, like who can enforce it
later on? 

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Potentially, yes, especially 
when the land changes hands. 

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This led to, well, a bit of a 
mess, legally speaking. 

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Which brings us to the 
restatement third of property 

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right, the attempt to clean this
up. 

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Exactly. 
Back in 2000, the Restatement 

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proposed this broader category 
called servitudes. 

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The idea was to unify easements,
profits and covenants under 1 

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conceptual roof. 
Kind of saying, look, these are 

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all fundamentally about one 
person having a right or 

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restriction over someone else's 
land. 

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Let's just call them servitudes.
That's the gist. 

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It aimed to ditch some of the 
old, sometimes illogical common 

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law rules that had built up over
centuries. 

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But, and this is a big but for 
law students, RE statements 

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aren't the law itself, are they?
Crucially, no. 

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They're highly influential. 
Courts look to them a lot, 

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especially for modernizing the 
law, but they don't 

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automatically override existing 
state case law or statutes. 

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So you still need to know the 
traditional categories, 

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easement, profit, real covenant,
equitable servitude. 

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Because they're definitely still
relevant in court and therefore 

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on your exams. 
OK, so understand the old and 

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the new approach. 
Got it. 

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Now why do we even enforce these
things, especially the covenants

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that restrict land use? 
What are the policy reasons? 

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Well, a big one is just the 
basic moral obligation to keep 

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promises, especially when these 
agreements are written down, 

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recorded, and meant to affect 
future owners. 

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If someone buys land knowing 
about a restriction and likely 

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paid less because of it, letting
them ignore it seems unfair, 

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like they're getting a windfall.
Right, like the example you 

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used, buying a lot with a height
restriction, paying a discounted

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price, then trying to build 
higher anyway feels like 

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cheating the system. 
Exactly. 

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Then there's the economic 
efficiency argument. 

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These non possessed free 
interests allow for more 

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flexible land use. 
Imagine needing access across a 

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neighbor's parcel. 
An easement lets you buy just 

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that right of way. 
Instead of having to buy their 

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whole property, which might be 
impossible or just way too 

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expensive. 
Precisely, it facilitates 

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development and efficient 
resource allocation. 

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This also ties into freedom of 
contract, letting land owners 

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customize arrangements for their
properties, which is 

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particularly valued in 
residential contexts. 

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People want control over their 
living environment. 

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And there's a potential 
advantage and certainty too, 

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right, compared to something 
like zoning? 

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That's a good point. 
Zoning laws can change local 

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government, shift priorities. 
A recorded covenant in theory 

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provides a more stable long term
expectation for owners and 

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investors. 
You know what you and your 

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neighbors can and can't do. 
OK, those are strong arguments 

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for enforcement, but there must 
be counter arguments, reasons 

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the law might be hesitant. 
Oh, absolutely. 

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There's a long history in common
law of distrusting restrictions 

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that tie up land forever. 
This is often called the dead 

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hand control problem or 
Consenting about Mort, Maine. 

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The idea that people who died 
generations ago shouldn't 

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dictate how land is used today. 
Basically, yes. 

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The fear is that old 
restrictions will prevent land 

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from being put to its best use 
as society changes, hindering 

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progress economic development. 
And what about making the land 

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harder to sell? 
The restraint on alienation 

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concern. 
That's another big one. 

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If land is burdened by too many 
restrictions, it might become 

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less attractive to buyers or 
harder to finance, effectively 

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taking it off the market. 
But doesn't the market adapt? 

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Like, can't people buy their way
out of restrictions sometimes? 

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Sometimes, yes. 
As the Lincoln Institute source 

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notes, a market can develop for 
these partial interests. 

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A buyer might purchase the 
restricted land at a lower price

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and then separately pay the 
holder of the restriction, the 

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neighbor, the HOA to release it.
It becomes a 2 step deal. 

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So it's maybe not an absolute 
block on selling, but it 

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complicates things. 
You can, definitely. 

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And this complexity leads courts
to look beyond just the old 

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categories. 
They're increasingly considering

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the subject matter of the 
restriction itself. 

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Meaning, are some kinds of 
restrictions more problematic 

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than others? 
Exactly. 

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For instance, how much power 
should an HOA have to regulate 

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things like political signs or 
flags? 

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This bumps up against ideas of 
free expression. 

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Though as you mentioned, the 1st
Amendment usually limits 

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government action, not private 
HOA rules. 

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Generally, yes. 
That's a critical distinction. 

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Private agreements face 
different scrutiny than 

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government ordinances, but 
courts might still look at 

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public policy implications. 
So are there newer ways courts 

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are thinking about this, Maybe 
distinguishing between different

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types of rules? 
There's some movement towards 

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differentiating between rules 
that regulate external impacts, 

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things that affect neighbors 
like noise, architectural 

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styles, maybe garbage disposal, 
versus rules that try to control

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purely internal conduct or 
status within a home. 

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Like who lives there or what 
someone does inside their own 4 

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walls? 
Right. 

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The idea being that restrictions
on things with spillover effects

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onto the neighborhood are more 
justifiable than attempts to 

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regulate personal life choices 
within a private residence. 

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Public policy might favor 
intervention more in the latter 

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case, even if it's a private 
agreement. 

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OK, that makes sense. 
Now let's zone in on a specific 

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type of non possessory interest 
that's become really important 

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conservation easements. 
Ah yes, very significant. 

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In modern land use, a 
conservation easement is 

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essentially an agreement where a
landowner gives up certain 

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development rights on their 
property to protect its natural,

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scenic or historic features. 
And they give these rights to 

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whom? 
Usually to a qualified 

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conservation group like a Land 
Trust or sometimes a government 

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agency, the landowner still owns
the property, but the easement 

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holder has the right to enforce 
the restrictions preventing, 

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say, subdivision or extensive 
building. 

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And there are often tax benefits
for the landowner doing this. 

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Often significant ones, Yes. 
It's a way to protect land while

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keeping it in private hands, 
avoiding the management burden 

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for the government or nonprofit,
and keeping the property on the 

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tax rolls, albeit potentially at
a lower assessment. 

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Sounds mostly positive. 
Are there downsides or policy 

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worries? 
Well, some of the same concerns 

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we just discussed pop up again. 
Many conservation easements are 

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intended to last forever in 
perpetuity, especially a federal

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tax deductions are involved. 
The dead hand issue again. 

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Locking up land use based on 
today's priorities. 

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Exactly what seems like critical
conservation now might conflict 

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with unforeseen societal needs 
centuries down the line. 

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Also, these easements are 
typically in gross. 

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Meaning the holder of the right 
isn't necessarily a neighbor, it

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could be an organization based 
far away. 

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Right. 
Historically, the law was more 

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skeptical of rights held by non 
neighbors, fearing interference 

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from distant parties without a 
direct stake in the local area. 

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There are also debates about 
whether these permanent private 

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restrictions lack sufficient 
public oversight. 

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Are they democratic? 
New courts ever step in if a 

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conservation easement seems 
outdated or problematic. 

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It's rare, but the common law 
generally allows for 

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modification or termination if 
the easements original purpose 

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becomes impossible or it no 
longer serves the public 

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interest. 
Similar perhaps to nuisance law 

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principles. 
There's also growing discussion 

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about more active oversight by 
state attorneys general to 

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ensure these agreements continue
to fulfill their public benefit 

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mission. 
OK, so before we leave non 

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possessory rights, let's quickly
define the baseline fee simple 

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ownership. 
This is what most people think 

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of as owning property, right? 
Pretty much fee simple is the 

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highest form of ownership the 
law recognizes. 

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As sources like Rocket Mortgage 
explain, it means you own the 

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property completely. 
The land, the buildings, 

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everything. 
You have the right to possess 

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it, use it, sell it, give it 
away, leave it in your will. 

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Subject, of course, to things 
like zoning and any easements or

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covenants that might be 
attached. 

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Exactly Now even within fee 
simple, there's a key 

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distinction for exams fee simple
absolute versus fee simple de 

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feasible. 
Absolute means just that, 

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absolute, no strings attached. 
Right, complete ownership 

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forever, no conditions, fee 
simple de feasible. 

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On the other hand, does have 
conditions attached. 

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If a specified condition occurs 
or ceases to occur, the 

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ownership can be lost. 
Like the classic example to 

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school district, as long as the 
property is used for school 

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00:11:24,280 --> 00:11:26,240
purposes. 
If they stop using it for a 

236
00:11:26,240 --> 00:11:28,320
school. 
Their ownership could end and 

237
00:11:28,320 --> 00:11:30,760
there's a further split here. 
You need to know fee simple 

238
00:11:30,760 --> 00:11:33,160
determinable versus fee simple 
subject to conditions 

239
00:11:33,160 --> 00:11:35,800
subsequent. 
Ah yes, the automatic versus non

240
00:11:35,800 --> 00:11:39,320
automatic distinction. 
Precisely with fee simple 

241
00:11:39,320 --> 00:11:44,240
determinable using words like so
long as until during the 

242
00:11:44,240 --> 00:11:47,600
ownership automatically reverts 
back to the original grantor or 

243
00:11:47,600 --> 00:11:49,600
their heirs if the condition is 
broken. 

244
00:11:49,920 --> 00:11:53,320
With fee simple subject to 
conditions subsequent using 

245
00:11:53,320 --> 00:11:57,280
words like but if provided that 
on condition that breaking the 

246
00:11:57,280 --> 00:12:00,480
condition doesn't automatically 
end ownership, the original 

247
00:12:00,480 --> 00:12:03,880
grantor has the option the right
of entry or power of termination

248
00:12:04,280 --> 00:12:06,040
to take action and reclaim the 
property. 

249
00:12:06,160 --> 00:12:09,120
So 1 happens by itself, the 
other requires the original 

250
00:12:09,120 --> 00:12:12,280
owner to step back in. 
Crucial difference for analyzing

251
00:12:12,280 --> 00:12:14,720
property disputes. 
Absolutely critical for spotting

252
00:12:14,720 --> 00:12:15,920
exam issues. 
OK. 

253
00:12:15,920 --> 00:12:18,720
I think that gives us a really 
solid handle on non possessory 

254
00:12:18,720 --> 00:12:21,320
interests and how they contrast 
with full ownership. 

255
00:12:21,520 --> 00:12:24,560
Let's shift gears now to the 
other major topic, the 

256
00:12:24,560 --> 00:12:27,280
government's power to actually 
take private property. 

257
00:12:27,400 --> 00:12:30,360
Eminent domain, right? 
This is where individual rights 

258
00:12:30,360 --> 00:12:33,040
can directly clash with 
perceived public necessity. 

259
00:12:33,280 --> 00:12:35,600
Eminent domain is and inherent 
power of the government, 

260
00:12:35,600 --> 00:12:37,920
federal, state, local. 
Baked into the system. 

261
00:12:38,040 --> 00:12:40,840
Baked in, but it's limited by 
the Constitution. 

262
00:12:41,160 --> 00:12:44,120
The 5th Amendment, applying to 
states via the 14th, says 

263
00:12:44,120 --> 00:12:47,400
private property shall not be 
taken for public use without 

264
00:12:47,400 --> 00:12:50,840
just compensation. 
OK, three key parts there a 

265
00:12:50,920 --> 00:12:53,920
taking public use and just 
compensation. 

266
00:12:54,200 --> 00:12:57,440
Plus due process, right? 
Fair procedures. 

267
00:12:57,440 --> 00:12:59,640
Absolutely. 
Due process is essential too. 

268
00:12:59,920 --> 00:13:03,080
So the government can take your 
property without your consent, 

269
00:13:03,160 --> 00:13:05,680
but only if it's for a 
legitimate public purpose, they 

270
00:13:05,680 --> 00:13:08,840
pay you fairly, and they follow 
proper legal procedures. 

271
00:13:09,080 --> 00:13:12,040
What counts as a taking? 
Is it just when they physically 

272
00:13:12,040 --> 00:13:14,800
occupy your land? 
That's the most obvious kind of 

273
00:13:14,800 --> 00:13:16,840
physical taking. 
When the government literally 

274
00:13:16,840 --> 00:13:20,400
occupies or maybe permanently 
floods your land even a tiny 

275
00:13:20,400 --> 00:13:23,080
bit, that's a taking requiring 
compensation. 

276
00:13:23,080 --> 00:13:24,560
But. 
It can be less direct. 

277
00:13:25,040 --> 00:13:28,440
Yes, that's a regulatory taking.
This happens when government 

278
00:13:28,440 --> 00:13:30,920
rules or regulations don't 
physically invade your property,

279
00:13:30,920 --> 00:13:33,840
but restrict its use so much 
that they effectively destroy 

280
00:13:33,840 --> 00:13:37,320
its economic value or utility. 
The classic phrase is the 

281
00:13:37,320 --> 00:13:40,640
regulation goes too far. 
But just lowering the property 

282
00:13:40,640 --> 00:13:43,320
value isn't enough usually. 
Generally, no. 

283
00:13:43,400 --> 00:13:46,120
Mere diminution in value isn't 
typically a taking. 

284
00:13:46,560 --> 00:13:49,720
The regulation has to be 
extremely severe, leaving 

285
00:13:49,880 --> 00:13:52,000
essentially no viable economic 
use. 

286
00:13:52,440 --> 00:13:54,680
And this ties into inverse 
condemnation. 

287
00:13:54,800 --> 00:13:57,080
Exactly. 
Eminent domain is the government

288
00:13:57,080 --> 00:13:59,880
saying we're taking this 
property, here's the process. 

289
00:14:00,360 --> 00:14:03,000
Inverse condemnation is the 
property owner suing the 

290
00:14:03,000 --> 00:14:06,680
government saying hey, your 
actions may be a regulation, may

291
00:14:06,680 --> 00:14:09,160
be repeated flooding from a 
government project have 

292
00:14:09,200 --> 00:14:12,160
effectively taken my property 
even though you didn't follow 

293
00:14:12,160 --> 00:14:14,480
the formal process, you owe me 
compensation. 

294
00:14:15,200 --> 00:14:18,040
OK, let's unpack public use. 
This seems like it could be 

295
00:14:18,040 --> 00:14:20,200
controversial. 
Does the public actually have to

296
00:14:20,200 --> 00:14:23,000
use the property? 
That's been a huge area of legal

297
00:14:23,000 --> 00:14:25,200
debate. 
The modern interpretation is 

298
00:14:25,200 --> 00:14:27,920
very broad. 
Public use generally means for a

299
00:14:27,920 --> 00:14:29,840
public purpose or public 
benefit. 

300
00:14:30,200 --> 00:14:32,880
It doesn't necessarily require 
the public physically accessing 

301
00:14:32,880 --> 00:14:35,000
the property. 
So things like economic 

302
00:14:35,000 --> 00:14:37,680
development projects, getting 
rid of blighted areas, building 

303
00:14:37,680 --> 00:14:42,280
roads or schools, those count. 
Yes, the legislature gets a lot 

304
00:14:42,280 --> 00:14:45,120
of deference in deciding what 
counts as a public use. 

305
00:14:45,680 --> 00:14:48,520
Courts will usually uphold that 
decision unless it's like 

306
00:14:48,880 --> 00:14:52,640
totally irrational or clearly 
just a pretext to benefit a 

307
00:14:52,640 --> 00:14:55,000
private party. 
But what about when they take 

308
00:14:55,120 --> 00:14:58,520
property from 1:00 private owner
and give it to another private 

309
00:14:58,520 --> 00:15:00,560
developer? 
Like for a shopping mall that 

310
00:15:00,560 --> 00:15:03,920
seems less clearly public. 
That's where the scrutiny gets 

311
00:15:03,920 --> 00:15:06,200
higher. 
Courts look more closely at 

312
00:15:06,200 --> 00:15:10,320
those situations to make sure 
the claimed public benefit, like

313
00:15:10,360 --> 00:15:14,640
jobs or increased tax revenue, 
is real and the primary motive 

314
00:15:14,640 --> 00:15:16,760
not just incidental to 
benefiting the private 

315
00:15:16,760 --> 00:15:19,240
developer. 
But even many of those takings 

316
00:15:19,240 --> 00:15:21,720
have been upheld under the broad
definition of public purpose. 

317
00:15:22,240 --> 00:15:23,960
It's a really expansive concept 
now. 

318
00:15:24,120 --> 00:15:26,520
All right. 
And just compensation, What does

319
00:15:26,520 --> 00:15:28,520
that mean in practice? 
Is it what the government thinks

320
00:15:28,520 --> 00:15:30,280
is fair? 
Not necessarily. 

321
00:15:30,280 --> 00:15:33,040
Just compensation means putting 
the owner in the same financial 

322
00:15:33,040 --> 00:15:34,920
position as if the taking never 
happened. 

323
00:15:35,120 --> 00:15:38,160
The standard measure is fair 
market value of the property at 

324
00:15:38,160 --> 00:15:40,600
the time of the taking. 
How is fair market value 

325
00:15:40,600 --> 00:15:42,840
determined? 
It's based on the property's 

326
00:15:42,840 --> 00:15:46,520
highest and best use, what it 
could most profitably be used 

327
00:15:46,520 --> 00:15:50,040
for legally. 
Courts look at comparable sales,

328
00:15:50,440 --> 00:15:53,680
market trends, potential 
development, zoning, all sorts 

329
00:15:53,680 --> 00:15:55,520
of factors. 
It's often a battle of 

330
00:15:55,520 --> 00:15:57,080
appraisers. 
And the owner gets paid 

331
00:15:57,080 --> 00:15:59,720
eventually, but they also get 
interest for any delay. 

332
00:16:00,040 --> 00:16:03,000
Yes, that's important. 
Interest runs from the date the 

333
00:16:03,000 --> 00:16:06,160
government takes possession or 
title until the date payment is 

334
00:16:06,160 --> 00:16:08,560
actually made. 
What kind of property can be 

335
00:16:08,560 --> 00:16:09,680
taken? 
Just land. 

336
00:16:09,680 --> 00:16:12,080
No, it's broader than that. 
It covers real property 

337
00:16:12,080 --> 00:16:15,840
obviously, but also personal 
property, movable things, and 

338
00:16:15,840 --> 00:16:18,800
crucially those non possessory 
interests we talked about like 

339
00:16:18,800 --> 00:16:22,400
easements, are property rights. 
If the government takes land 

340
00:16:22,400 --> 00:16:25,080
burdened by an easement or takes
the easement itself, 

341
00:16:25,360 --> 00:16:28,480
compensation is due. 
Even intangible rights like 

342
00:16:28,480 --> 00:16:30,840
patents can be subject to 
eminent domain. 

343
00:16:30,960 --> 00:16:34,040
What about business losses, like
lost profits because your store 

344
00:16:34,040 --> 00:16:36,360
was taken? 
That's generally not considered 

345
00:16:36,360 --> 00:16:38,840
part of the property taken, 
unfortunately for the owner. 

346
00:16:39,440 --> 00:16:42,120
Compensation is typically for 
the fair market value of the 

347
00:16:42,120 --> 00:16:45,040
property itself, not 
consequential business damages, 

348
00:16:45,680 --> 00:16:48,920
though some states have specific
statutes that might allow for 

349
00:16:48,920 --> 00:16:52,240
some relocation assistance or 
limited business damages. 

350
00:16:52,880 --> 00:16:54,720
And courts can review these 
takings. 

351
00:16:55,000 --> 00:16:57,000
Yes, but the review is somewhat 
limited. 

352
00:16:57,400 --> 00:17:00,120
They can check if the government
entity actually has the legal 

353
00:17:00,120 --> 00:17:04,599
authority to condemn if proper 
procedures were followed and, as

354
00:17:04,599 --> 00:17:08,560
we discussed, if the public use 
requirement is met, especially 

355
00:17:08,560 --> 00:17:11,079
with heightened scrutiny for 
private to private transfers. 

356
00:17:11,839 --> 00:17:14,680
But they generally won't second 
guess the wisdom or necessity of

357
00:17:14,680 --> 00:17:17,800
the project itself unless 
there's clear evidence of fraud,

358
00:17:18,000 --> 00:17:19,920
bad faith or abuse of 
discretion. 

359
00:17:20,200 --> 00:17:22,480
How does payment work? 
Do you get the money before you 

360
00:17:22,480 --> 00:17:24,560
have to move out? 
The Constitution doesn't 

361
00:17:24,560 --> 00:17:28,400
strictly require payment before 
the taking, but it requires a 

362
00:17:28,400 --> 00:17:31,920
reliable mechanism for payment 
to be available around the time 

363
00:17:31,920 --> 00:17:34,800
of the taking. 
Under federal law, the 

364
00:17:34,800 --> 00:17:37,440
government usually has to 
deposit an estimated amount of 

365
00:17:37,440 --> 00:17:40,520
just compensation with the court
when they file the condemnation 

366
00:17:40,520 --> 00:17:42,880
lawsuit. 
The owner can often withdraw 

367
00:17:42,880 --> 00:17:45,640
this deposit. 
But taking the deposit doesn't 

368
00:17:45,640 --> 00:17:47,760
mean you agree with the amount. 
Correct. 

369
00:17:47,760 --> 00:17:50,040
You can still fight for more 
compensation in court. 

370
00:17:50,280 --> 00:17:53,520
The deposit is just an estimate.
There's also something called 

371
00:17:53,520 --> 00:17:56,000
substituted condemnation. 
What's that? 

372
00:17:56,000 --> 00:17:59,520
That's where the government 
condemns property A to exchange 

373
00:17:59,520 --> 00:18:02,800
for property B, where property B
is needed for the actual public 

374
00:18:02,800 --> 00:18:05,280
project. 
Perhaps because property B is 

375
00:18:05,280 --> 00:18:08,760
already in public use, like 
owned by utility, and can't 

376
00:18:08,760 --> 00:18:11,960
easily be condemned directly. 
It's a way to facilitate complex

377
00:18:11,960 --> 00:18:13,400
projects. 
Interesting. 

378
00:18:13,400 --> 00:18:17,320
So just to recap, compensation, 
fair market value at the time of

379
00:18:17,320 --> 00:18:20,760
taking highest and best use if 
they only take part of your 

380
00:18:20,760 --> 00:18:22,920
land. 
Then it's the fair market value 

381
00:18:22,920 --> 00:18:26,040
of the part taken plus any 
decrease in value to the part 

382
00:18:26,040 --> 00:18:28,400
you have leftover, what are 
called severance damages. 

383
00:18:28,640 --> 00:18:31,200
And if it's just a temporary 
taking. 

384
00:18:31,240 --> 00:18:34,640
Then the compensation is usually
the fair rental value for the 

385
00:18:34,640 --> 00:18:36,200
period the government use the 
property. 

386
00:18:36,280 --> 00:18:39,040
We talked about inverse 
condemnation, the owner suing 

387
00:18:39,040 --> 00:18:41,600
the government. 
When does that typically happen?

388
00:18:41,760 --> 00:18:44,240
It can be a physical invasion 
the government didn't 

389
00:18:44,240 --> 00:18:48,840
acknowledge, like recurring 
flooding, Or more commonly now 

390
00:18:48,840 --> 00:18:53,200
it's a regulatory taking where a
new zoning law or environmental 

391
00:18:53,200 --> 00:18:56,200
regulation makes your property 
essentially worthless. 

392
00:18:56,800 --> 00:18:59,160
Or sometimes it's when the 
government demands you give up 

393
00:18:59,160 --> 00:19:01,800
part of your land as a condition
for getting a building permit, 

394
00:19:02,120 --> 00:19:05,120
and that demand is excessive or 
unrelated to the impact of your 

395
00:19:05,120 --> 00:19:07,160
project. 
If someone feels their property 

396
00:19:07,160 --> 00:19:09,360
was taken improperly, what can 
they actually do? 

397
00:19:09,360 --> 00:19:12,840
What are the remedies? 
Well, the main one is the action

398
00:19:12,840 --> 00:19:15,800
for inverse condemnation. 
We just discussed suing for 

399
00:19:15,800 --> 00:19:17,960
compensation. 
They could also try to get an 

400
00:19:17,960 --> 00:19:21,920
injunction beforehand to stop an
illegal taking if the government

401
00:19:21,920 --> 00:19:24,200
just took the land without any 
process. 

402
00:19:24,440 --> 00:19:27,400
Maybe an action for ejectment to
get the land back, though that's

403
00:19:27,400 --> 00:19:30,600
less common Sometimes. 
Mandamus to force the government

404
00:19:30,600 --> 00:19:33,920
to start the condemnation 
process and against the feds. 

405
00:19:34,040 --> 00:19:37,360
There's the Tucker Act for 
claims over illegal takings or 

406
00:19:37,360 --> 00:19:38,760
insufficient payment. 
OK. 

407
00:19:38,760 --> 00:19:41,200
Lots of potential avenues 
depending on the situation. 

408
00:19:41,600 --> 00:19:43,760
Lastly, let's just briefly 
circle back to zoning. 

409
00:19:43,760 --> 00:19:45,120
We've mentioned it as a 
constraint. 

410
00:19:45,440 --> 00:19:48,280
How does it fit in? 
Zoning is the main tool local 

411
00:19:48,280 --> 00:19:50,320
governments use to regulate land
use. 

412
00:19:50,720 --> 00:19:53,640
They divide the town or city 
into zones, residential, 

413
00:19:53,640 --> 00:19:56,720
commercial, industrial, 
agricultural, etcetera and set 

414
00:19:56,720 --> 00:19:59,600
rules for each zone. 
Rules like how big buildings can

415
00:19:59,600 --> 00:20:02,560
be, how far they have to be from
the property line, what kinds of

416
00:20:02,560 --> 00:20:04,040
businesses are allowed. 
Exactly. 

417
00:20:04,080 --> 00:20:07,400
Setbacks, building height and 
size limits permitted. 

418
00:20:07,400 --> 00:20:10,600
Uses rules about accessory 
structures like garages or 

419
00:20:10,600 --> 00:20:13,480
sheds, Sometimes even rules 
about preserving sunlight for 

420
00:20:13,480 --> 00:20:15,720
neighbors. 
It shapes the physical character

421
00:20:15,720 --> 00:20:18,440
of a community. 
And while zoning definitely 

422
00:20:18,440 --> 00:20:21,680
effects property value, it's 
usually not considered a taking 

423
00:20:21,680 --> 00:20:23,560
unless it goes way too far, 
right? 

424
00:20:23,560 --> 00:20:25,400
Correct. 
That's the key distinction. 

425
00:20:25,720 --> 00:20:29,040
Normal zoning, even if it 
reduces your property's maximum 

426
00:20:29,040 --> 00:20:32,720
potential value, is generally 
seen as a legitimate exercise of

427
00:20:32,720 --> 00:20:36,560
the government's police power to
protect public health, safety 

428
00:20:36,560 --> 00:20:39,280
and welfare. 
It only becomes a potential 

429
00:20:39,280 --> 00:20:43,080
regulatory taking if it denies 
the owner all or substantially 

430
00:20:43,080 --> 00:20:45,360
all reasonable economic use of 
their land. 

431
00:20:45,480 --> 00:20:48,440
Which is why, as one of our 
sources mentioned, getting a 

432
00:20:48,440 --> 00:20:51,440
zoning report is so important 
when buying property. 

433
00:20:51,760 --> 00:20:53,440
You need to know what rules 
apply. 

434
00:20:53,520 --> 00:20:55,160
Absolutely critical due 
diligence. 

435
00:20:55,640 --> 00:20:58,320
You need to know if the current 
use conforms, if there are any 

436
00:20:58,320 --> 00:21:01,440
violations, what you can build 
or do there in the future. 

437
00:21:01,720 --> 00:21:04,280
It impacts value and usability 
massively. 

438
00:21:04,320 --> 00:21:05,160
Wow. 
OK. 

439
00:21:05,240 --> 00:21:07,640
We have covered a lot of ground 
today from easements and 

440
00:21:07,640 --> 00:21:10,840
covenants, those non possessory 
rights and the policies behind 

441
00:21:10,840 --> 00:21:13,720
them, all the way to eminent 
domain, the government's taking 

442
00:21:13,720 --> 00:21:16,840
power and the basics of zoning. 
Yeah, it's a big slaves of 

443
00:21:16,840 --> 00:21:19,720
property law, but understanding 
these concepts, the 

444
00:21:19,720 --> 00:21:22,880
distinctions, the rationales, 
the constitutional limits is 

445
00:21:22,880 --> 00:21:26,480
really fundamental for any law 
student preparing for exams or 

446
00:21:26,480 --> 00:21:28,880
practice. 
Definitely grasping how we 

447
00:21:28,880 --> 00:21:31,840
balance private property rights 
with public needs through things

448
00:21:31,840 --> 00:21:36,000
like servitudes and eminent 
domain is well, it's central to 

449
00:21:36,000 --> 00:21:37,920
how our legal system deals with 
land. 

450
00:21:38,160 --> 00:21:40,200
It really is. 
It's about the framework 

451
00:21:40,200 --> 00:21:43,440
governing how we use and control
perhaps our most essential 

452
00:21:43,440 --> 00:21:45,520
resource. 
So here's something to chew on 

453
00:21:45,520 --> 00:21:48,520
as you review this material. 
Think about this constant 

454
00:21:48,520 --> 00:21:51,160
balancing act. 
Individual rights versus 

455
00:21:51,160 --> 00:21:53,960
community needs, reflected in 
both private agreements like 

456
00:21:53,960 --> 00:21:56,640
covenants, and public power like
eminent domain. 

457
00:21:57,320 --> 00:22:00,920
How might future pressures think
climate change adaptation, 

458
00:22:00,920 --> 00:22:03,320
demands for more housing, new 
technologies? 

459
00:22:03,520 --> 00:22:06,080
How might those pressures shift 
this balance? 

460
00:22:06,320 --> 00:22:08,600
How might these legal doctrines 
need to evolve? 

461
00:22:08,880 --> 00:22:11,640
That's a great question. 
It highlights the property law 

462
00:22:11,640 --> 00:22:14,280
isn't static. 
Definitely worth looking into 

463
00:22:14,280 --> 00:22:17,680
recent state court decisions or 
specific state statutes in these

464
00:22:17,680 --> 00:22:19,800
areas to see how things are 
playing out right now. 

465
00:22:20,040 --> 00:22:22,520
Excellent point. 
Well, thanks for joining us for 

466
00:22:22,520 --> 00:22:26,160
this deep dive into non 
possessory interests and eminent

467
00:22:26,160 --> 00:22:27,880
domain. 
We hope it was helpful for your 

468
00:22:27,880 --> 00:22:28,440
studies.