Escolar Documentos
Profissional Documentos
Cultura Documentos
Law of Capture
Law of Capture: Labor and pursuit not enough to give right over property.
Pierson v. Post (1805):
Post is hunting a fox. Pierson comes along and kills it/carries it away. Court finds that
Posts pursuit alone did not create a property right. Pierson did not do anything wrong in the eyes
of the law.
Court says you need to:
1) intend to appropriate the animal
2) deprive it of its natural liberty and
3) bring it under your dominion and control. Court says that anything less is a
slippery slope that will lead to endless, confusing, and uncertain litigation.
TEST:
1) Intent to appropriate (use);
2) Deprive animal of actual liberty;
3) Brining under control (mortal wounding good enough).
Post doesnt satisfy this part of the new test, so Pierson wins.
Trespass is rooted in the right to exclude, which is one of the fundamental sticks in the
bundle. However, this right is NOT Absolute; it can be modified in different contexts.
o For example, in general the more the owner opens up his land to the public, the
less he has the right to exclude.
A trespass is generally the intentional, unprivileged intrusion upon the property of
another. Necessity can supersede this and make you not liable for trespass. PUBLIC
POLCIY may also allow you to trespass, i.e. access to a cemetery.
o Intent: you dont have to have intent to trespass, you only have to have intent
to achieve action that causes trespass. Met if defendant engaged in a voluntary
act. Not necessary to show trespasser intended to violate owners legal rights
Civil remedies include damages, an injunction or ejectment, or a declaratory
judgment where the court says it is your property and the other person has no right to be
there.
Criminal trespass treated like other criminal cases.
Elements:
1. Actual possessionPhysical occupation of the property.
-Ordinary use to which the land is capable, and such as the owner would make of it.
Proof that possessor treated land as average owner would.
2. ExclusiveAdverse Possessors use of the property must be exclusive of the true owner of
the property, not the whole world.
-defeated by sharing property with true ownerimplies permission.
3. Open and notorious-how it seems to others in the community-want to put true owner on
notice.
-Dont need to prove that owner had Actual Notice; only show that a reasonable
inspection would have revealed that someone else was establishing possessory rights.
-Sufficient fence, wall, building a structure, clearing land, laying down driveway,
mowing grass, parking, storage, garbage removal, picnicking, planting and harvesting crops.
-Insufficient clearing a few trees, grazing cattle or goats without enclosing land, etc.
4. Adverse/hostile under claim of right or color of title. Did Adverse Possessor act adversely to
true owners interest?
-Absent Statute do not care about intent, just about actions. Assume objective standard
of irrelevant intent.
-When Statute exists (keep in mind the jurisdiction when looking at color of title and
claim of right [i.e. objective approach/good faith approach/ intentional trespasser approach])
-Claim of Right: When you claim a right to a disputed piece of land through your
actions.
-Color of Title: When you actually have a deed, and the deed says you own a specific
piece of land, but the deed is erroneous (the deed may be flawed). So, under this claim, youre
arguing that you own the land through adverse possession because your (flawed) deed says that
you do.
5. Continuousyou have to possess continuously. Used as customarily would be used (i.e.
seasonal)
-EXCEPTION: Tackingperiods of possession may be added up if in privity with each
other (title transferred from one adverse possessor to another).
6. Statutory periodTime period prescribed by statute. Statutes in jurisdiction that will tell you
how long property needs to be possessed to give title.
-EXCEPTION: Can be tolled for infancy, incarceration, insanity, incompetence for any
other reasons, absence from state.
*Mindstate of Adverse Possessor: even a knowing wrongdoer (one who knowingly trespasses
and attempts to obtain land via adverse possession) may do so. Mind state is irrelevant.
-Under Color of title, you almost always have Good Faith of the Adverse Possessor
Brown v. Gobble (1996)
Defendants purchased land in 1985 and thought it included a 2-foot wide tract of land.
Plaintiffs purchased their land in 1989 and when they did a survey of the land determined that
they owned the 2-foot tract dividing the properties. Court insists on using a higher standard of
proof (clear and convincing evidence) because it wants to minimize the risk of erroneous
decisions-does not want to allow the land of one to be taken by another upon a slight
presumption of probability.
The defendants argue that even on a clear and convincing evidence standard they would
win because the previous owners attained the 2-foot tract of land via adverse possession (theyd
held the land for 30+ years, statute only requires 10). Defendants win.
Tacking: To meet the statutory period, you can add the previous owners years of adverse
possession to your own. However, in this case that was unnecessary because the previous owners
had achieved adverse possession over the land and intentionally transferred their land, including
the two foot tract theyd obtained through adverse possession, to the defendants in this case.
Romero v. Garcia (1976)
Romero sued to quiet title against her former in-laws based on adverse possession. She
thought she bought the land and owned it by valid deed but did not (lack of conveyance). She
wins at trial and on appeal. Defendants argued (unsuccessfully) that the parcel of land was not
adequately described for adverse possession and that the void deed was inadequate for color of
title. The court rejects both of these arguments, saying a deed is sufficient for the purpose of
color of title even though it is void for conveyance because it lacks the signature of a member of
the community. Also, the land was described adequately enough for Romeros adverse
possession.
Color of title claim for adverse possession-an individual acquires color of title when a written
conveyance appears to pass title but does not do so. When one has color of title, some states
lower the number of years required to obtain adverse possession.
1/15/09
Other Informal Title Transfers
Somerville v. Jacobs (1969)
Plaintiffs, mistakenly believing lot 47 was theirs, erected a building on the land.
Defendants claim the building as their own by theory of annexation. Plaintiffs sue, seeking
equitable relief asking that either the defendants pay them for the building or sell them the land
it sits on at its original value (value not including the building).
Problem is that both parties acted innocently-plaintiffs relied on an incorrect
determination by a surveyor, defendants did not know of the infringement on its property until
after the structure was built. Court does not want to see unjust enrichment-rules that defendants
must either compensate plaintiffs for the land or sell the property.
Rule set forth by court: To prevent unjust enrichment, an improver of land owned by
another, who through a reasonable mistake of fact and in good faith erects a building entirely
upon the land of the owner, with reasonable belief that such land was owned by the improver, is
entitled to recover the value of the improvements from the landowner and to a lien upon such
property which may be sold to enforce the payment of such lien, or in the alternative, to
purchase the land so improved upon payment to the landowner of the value of the land less the
improvements (p. 220)
*This doctrine is known as the Relative Hardship Doctrine-this does not provide a
lot of certainty in these situations, but looks on a case by case basis at the relative harms to
either side. Questions asked under doctrine:
1) Was encroachment innocent?
2) Was Harm minimal?
3) Was Interest of True Owner in property small?
4) Is Cost of Removal substantial?
*If the encroachment is innocent, the harm minimal, the interference in the true owners
property interests small, and the costs of removal substantial, the courts will often either order
the encroaching party to pay damages to landowner to compensate for decreased value of
owners land or order a forced sale of the property with damages equal to the value of the land
taken and possibly a premium to compensate for the involuntary nature of the transfer of
ownership.
Annexation-improvements pass to landowner as part of the land: could have applied heresome courts may have said this building belongs to the landowners on whose land it sits.
However, courts are less willing to do that because of the massive investment that goes into
constructing a building.
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1/20/08
Nuisance
Nuisance = A substantial and unreasonable interference with the use or enjoyment of land.
-Temporary Nuisancecan be alleviated by changes in the Ds conduct and the claim
accrues anew up on each injury, or occurs intermittently.
-Permanent Nuisanceirreparably damages Ps property or is of such a character that it
is likely to continue indefinitely
Ones property should not be unreasonably interfered with or disturbed. This is a flexible
standard for judging nuisance. Need to look at the different factors the court lays out:
1. Substantial harm
2. Unreasonable interference
3. Priority of location (who was there first)
4. Hypersensitivity (normal persons in a particular locality standard)
5. Character of the neighborhood
6. Nature of the alleged harm
7. Statutory environment
8. Rights and fairness (to both parties)
9. Utility and meritoriousness of the defendants conduct (look at society as a whole)
*Note nuisance claims are a cross between property and tort claims-tort and property are not
completely distinct fields of law-they do overlap.
Page v. Honeywell (1984):
Pages display television started malfunctioning. Page traced the interference to
Honeywells computer. Honeywell fixed the problem to an extent but not fully and Page sued on
the basis of nuisance (it is thus important that Pages store was on the location first). Case is
reversed and remanded.
-In Nuisance cases, a Normalcy Standard is applied to measure the existence of a
nuisance, looking to the standard of normal persons in a particular locality.
-Plaintiff is not allowed to claim Nuisance if their use of their own property is
Unusually Sensitive.
-Reasonableness of Interference
1) Courts first must determine what Interests are encompassed by the right to the
use and enjoyment of land.
2) Second, must determine how serious the interference must be for a Nuisance to
be present. (Substantial has been traditionally used).
3) Third, court must determine whether the harm is Unreasonable.
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Remedies: Three basic remedies in property law: *Look at p. 279 in book for expanded
explanations
1. Property rule
2. Liability rule
3. Inalienability rule
1. Property rules:
Law has fixed an entitlement and all the sticks in the bundle that go with it. Then steps
back and allows parties to negotiate.
Plaintiff can get an injunction ordering the defendant to stop the harmful conduct. If
defendant wants to commit the harm, it must offer the plaintiff enough money to induce
the plaintiff to agree to give up its right to be free from harm. (Plaintiff can get an
injunction otherwise).
2. Liability rules:
Prevent parties from interfering with the property of others without paying damages.
Plaintiff can pay damages to the defendant (Purchased Injunction) for committing the
harm, but no injunction; defendant is free to commit the harm if defendant is willing to
pay a damage judgment.
Defendant can get damages, but no injunction.
3. Inalienability rules:
Law assigns entitlements. These cannot be sold. (Sometimes can be gifted, just not
sold.) Plaintiff has no rights. Defendant has right to engage in activity.
How do you know what kind of remedy you are going to get when applying nuisance law?
Scenario #1: Plaintiff wants an injunction prohibiting defendants harmful contact. This is
permissible when the defendants conduct is unreasonably interfering with plaintiffs property
and causes the plaintiff substantial harm.
Scenario #2: Plaintiff gets money damages but no injunction. Defendants conduct is
reasonable but causes substantial harm to the plaintiff. The conduct is socially desirable but
plaintiff is bearing an unfair burden, thus is awarded money to compensate him.
Scenario #3: Plaintiff is not entitled to any remedy at all. This may occur if
1) the harm to the plaintiff is not substantial,
2) the defendants conduct causes more social good than harm, and it is not unfair to
impose the costs of the defendants activity on the plaintiff, or
3) the imposition of damages would put would put the defendant out of business and
avoiding this result (because of social desirability) is more important than preventing
harm to the plaintiff.
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Scenario #4: Plaintiff is entitled to a purchased injunction if the defendants conduct causes
more harm than good; but it is fair to impose the cost of shutting down the plaintiffs activity
on the plaintiff.
*Plaintiff could get both an injunction and damages.
1/21/08
Nuisance (Light and Air)
Fountainbleau Hotel v. Forty Five Twenty Five (1959)
Fountainbleau appeals from a temporary injunction restricting it from continuing
construction on a new tower for its hotel. The trial judge granted the injunction to the Eden Roc
hotel, which complained that Fountainbleaus construction blocked sunlight to its sun deck and
beach space. Trial court interprets nuisance law to mean that nobody has the right to use his
property to the injury of another.
The court reverses the injunction, arguing that Eden Roc had no legal right to sunlight
and that the Fountainbleaus structure was a useful one, thus no cause of action existed even
though Eden Roc sustained harm. The fact that it may have been malicious was irrelevant.
The court followed the universal rule that adjacent landowners have an equal right to build
as high as they please so long as they are not barred from doing so by statute, especially
where a structure serves a useful and beneficial purpose.
Can think of this case in terms of easements. Eden Roc thinks that because they had
sunlight for twenty years, they had a right to it (an easement) against their neighbors-that their
neighbors would not be allowed to deprive them of it. American law rejects negative
prescriptive easements like these though (thus Eden Roc loses). American law says you do not
have an absolute right to light and air.
Prah v. Maretti (1982)
No absolute or unlimited right to use land in a way that injures the rights of others.
Rights of neighboring land owners are relative. Use by one must not unreasonably impair the
use or enjoyment of the other.
Prah builds a house with solar panels attached to it so as to provide himself with energy.
Maretti comes and builds next door and is going to block out the sunlight. Prah sues but loses on
Marettis summary judgment motion. He appeals. Court grants the appeal, asserting that
Ancient Lights has some use these days-says it was revoked in American law because sunlight
was aesthetic, landowners had rights to do what they pleased, and the country was a developing
one whose needs required building. This court says those arguments are outdated.
Dissent says that this is unfair to the defendant. When he bought the property, his
understanding was that he was within his legal right to build as high as he wanted. Moreover, the
majoritys arguments for ancient lights are not convincing, and lastly they are playing the role of
the legislature in advocating these various policy arguments and implementing policies
accordingly.
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1/22/08
2) Covenants
1) Affirmative Covenants
2) Negative Covenants
a) Restrictive Covenants
b) Equitable Servitudes (this is often its own category in many of the
supplements, because this is basically the modern solution to dealing with servitudes. However,
Riley categorized it this way.)
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1) Easements
More on easements:
A license is much less formal, i.e. being invited to dinner at ones house gives you a
license to be there (not meant to be permanent, revocable at will).
You should record an easement
Affirmative easement is the right to do something on someone elses land.
Negative easement is the obligation not to do something with your land (very few of
these still available in the world). *thus we are not covering negative easements
An affirmative covenant is an obligation to do something on your own land (i.e. pay
condominium association fees).
Negative covenants, split into restrictive and equitable, restrict your use of land.
Dominant estate is the land that benefits from the easement.
Servient estate is the land that is obligated by the easement.
A) Affirmative Easements
The right to do something on someone elses land.
Break down into:
i) express and
ii) implied easements:
-Implied affirmative easements break down into:
o Prior use
o Necessity
o Estoppels
o Prescriptive
i) Express Easements
A contract right that attaches to the land so that when the land goes from owner to owner,
the contract right or obligations runs with the land. It is about the property, not the
people.
ELEMENTS:
o 1) Writing: when there is an easement expressed in writing;
o 2) Scope: when the original grantor that created the easement had the intent to
run according to deed, but intent can be implied if terms are ambiguous.
3 Issues regarding Scope of an Easement:
1) Whether the use is of a KIND contemplated by the grantor
2) Whether the use is so heavy that it constitutes an
UNREASONABLE BURDEN on the grantor
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1/26/09
Appurtenant Easements; Easements in Gross; Terminating Easements
Cox v. Glenbrook Company (1962)
An easement had been granted to Quill, whose property bordered a golf course. The new
owners of the Quill property want to subdivide the property, thus they need to widen the Quill
easement. The golf course wants to prohibit ingress and egress, arguing that the Quill easement
did not run with the land. They are wrong-the easement is appurtenant, thus the entire
dominant estate can use it.
However, the subsequent owners cannot widen the road. They may improve it, but cannot
expand the easement. BECAUSE the language of the easement implies that the grantor didnt
want the road to be widened with full right of use over the roads of the grantor AS NOW
LOCATED.
-The easement is Appurtenant, and because of this, it can be Subdivided.
- Owners of easement may maintain, repair and improve the way in a manner reasonably
calculated to promote the purposes for which the easement was created.
Appurtenant easements intended to benefit the entire dominant estate but are not without
limitations. 3 issues regarding the SCOPE of an Easement:
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1/27/08:
Can an easement be extended? Say you have two property owners and one is allowed to use a
road on his neighbors property. Wants to use more of it now to reach a new piece of land he has
acquired.
-The general rule is that you cannot extend the easement.
Can you change the location of an easement? The general rule says yes, as long as the
dominant party bears the cost.
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Terminating easements:
Frustration of purpose: idea is you can demonstrate that the easement no longer serves
its intended use.
Merger or unity of title: the owner of the dominant estate and the owner of the servient
estate become the same person.
Express release: A and B sit down together and enter into a contract that terminates the
easement. NOTE: its important to REPORT this.
By its own terms: Some easements may be created for a set period of time, or only under
certain circumstances, etc.
Abandonment: The owner of the easement by her conduct intended to abandon the
easement. Has to be some clear indication that the easement holder has intended to
abandon the easement. Mere non-use is insufficient.
Marketable title acts-In Jurisdictions that use this, you have to go down to the
courthouse every X number of years and re-record the easement.
a) Prescriptive Easements
Very similar to adverse possession, except here you get a legally enforceable right to
use something, whereas with adverse possession you get the right to own something. The
requirements are similar though slightly less stringent for prescriptive easements.
Have to use someones property in a manner that is actual, open and notorious,
continuous, and non-permissive (or adverse/hostile) for the statutory period (typically
identical to the statute for adverse possession-if ten years for AP, then probably 10possibly lower-for PE).
As a defense to a prescriptive easement, the true owner may claim that they allowed the
use of the land in order to defeat the adverse element.
We assume, however, that the use is non-permissive. Note there is a strong minority
opinion that assumes things are permissive because it is the neighborly thing to do.
The open and notorious requirement is identical to that for adverse possession-must
put the true owner on notice so they have the full opportunity to stop the statute of
limitations from running.
Exclusivity is generally not required (for adverse possession it is). Two people may
acquire prescriptive rights over the same property.
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1/28/09
b) Easement by Estoppel:
A legal theory under which a person is barred from asserting or denying a fact
because of the person's previous acts or words.
An owner gives a person permission to use his property in a certain manner (like a
license). The grantee begins to rely on that license. If the reliance is reasonable, the
grantor cannot then revoke it.
o Easements by estoppel are also known as the irrevocable license.
Policy: protect the reliance interest of the licensee.
Holbrook v. Taylor (1976):
Holbrook wants to establish an easement by estoppel. Defendant says Holbrook had
permission to use the roadway so there is no prescriptive easement (no hostile use). However,
plaintiffs have relied upon the road to get to their home for a number of years so the court rules
that Taylor cannot suddenly revoke the license (they have an easement by estoppel).
One of the factors the court considers is the fact that the defendant saw the plaintiff
invest in both the road and the property the road leads to.
*Interesting to think about how these easements work: if you allow a neighbor to use the
roadway, you defeat a prescriptive easement but may initiate an easement by estoppel.
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* In determining what kind of easement: ask was common grantor at one point using roadway?
If no, no prior use. Use necessity and ask do you have enough necessity? Then argue: yes or
no.
Granite Properties Limited Partnership v. Manns (1987):
Guy owns a shopping center and also used to own the adjacent property. On that property is a
roadway thats always been used by the plaintiffs delivery trucks. The new owner of that
adjacent property wants to prevent the delivery trucks from using his roadway. The court lays out
the rule for an easement by prior use, finding this to be one (p. 336).
An easement implied from prior use is established by proof of three elements:
1. Prior unity of title AND a conveyance transferring ownership of one parcel.
2. Before conveyance, the common owner used part of the united parcel for the benefit of
another part, AND this use was obvious, continuous, and permanent. (an easement by
implication by its nature is not written, thus there needs to be some Notice).
3. The claimed easement is necessary and beneficial to the enjoyment of the parcel
conveyed or retained by the grantor or transferor.
d) Easement by Necessity:
For Required Elements, see those listed under Easements by Prior Use above.
Elements for an easement by necessity:
1. Prior unity of title (clarification: the person asking for use does not need to be the
one who owned the parcels-it just matters that the parcels were owned together as
one).
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2. Absolute necessity
*Easement by necessity can be implied by manner in which land was severed.
Finn v. Williams (1941):
Where an owner of land conveys a parcel thereof which has no outlet to a highway
except over the remaining lands of the grantor or over the land of strangers, a way by
necessity exists over the remaining lands of the grantor. Right of way by necessity may pass
with each transfer.
There is initial unity of title but part is sold. Now plaintiffs land is landlocked-completely
surrounded by other peoples land. The defendant wants to prevent the plaintiff from using a road
on his land to reach the highway.
Court says that an easement by necessity arises in such a caseplaintiff has to trespass in
order to get off his land. Therefore, when he sold the land there was an implied easement by
necessity.
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2/2/09
Express Covenants; Covenants Running with the Land
Covenants: a doctrine created by English Courts to make contracts between parties that
dealt with use or nonuse of land binding on successive owners.
-A promise concerning the use of land that (1) benefits and burdens the original parties to
the promise and also their successors and (2) is enforceable in an action for damages. A
real covenant may be either Affirmative (a promise to perform an act) or Negative (a
promise not to perform an act).
Factors for Real Covenants / Requrements for the Burden to Run
In order for the successor to the original promissory to be obligated to perform the promise (that
is, for the burden to run), the law traditionally requires that 6 elements must be met:
1. Writingpromise must be in a writing that satisfies the Statute of Frauds.
2. Touch and concern-- the covenant must relate to the direct use or
enjoyment of the land.
a. Example: if covenant requires you to dance a jig in the village
square, then it wouldnt touch and concern.
3. Intentthe parties must intend to bind their successors
4. NoticeThe successor must have notice of the covenant.
5. Horizontal Privity (DOUBLE CHECK THIS!!!)
6. Vertical Privity (DOUBLE CHECK THIS!!!)
Requirements for the Benefit to Run
The law requires only 4 elements for the benefit of a real covenant to run to successors:
1) Writingthe covenant must be in a writing that satisfies the Statute of Frauds
2) IntentThe original parties must intend to benefit their successors
3) Touch and Concernthe benefit of the covenant must touch and concern land
4) Vertical Privityvertical privity must exist.
*Note the difference between horizontal and vertical privity.
A) Horizontal is the initial relationship between A and B.
-Horizontal privity must be created instantaneously upon the conveyance of land.
Does not apply to a group of neighbors who get together and make an agreement
to do/not do something.
B) Vertical refers to the relationship between A and his successive owner and B and his
successive owner.
-Vertical privity excludes a case where the grantor grants less than he has (i.e. a
lease agreement).
Termination of Real Covenants:
A) Abandonmentoccurs when the conduct of the person entitled to the benefit of the
covenant demonstrates the intent to relinquish her rights.
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2/3/09
Owners who derive their title from the grantor who imposed the restriction, but acquired their
land before imposition of the covenant are also excluded from binding covenants.*? check this
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2/4/09
Who can sue to get another property owner in the development not to do something?
-The Owner The covenants are mutually enforceable amongst owners (so if I am in
lot 86, and the guy in lot 87 tries to violate the restriction, I can sue him. Alternatively, he
could sue me if I tried to violate the restriction).
-Can the Developer sue for enforcement? Depends. Dont want the developer to
maintain excessive control over the development, however if he still owns a stake
(perhaps a parcel(s)) then maybe?
-You want to look at the Declaration, which should contain a provision that allows
the Developer to sue to enforce the covenants. Whether or not a court will allow
this depends on the jurisdiction that youre in.
Can a homeowners association sue? Yes (exception to a rule against benefits in
gross) because homeowners association doesnt actually own any land. However, is made
up of people who do, therefore it can stand in as agent for owners.
-You want to make sure that the homeowners associations right to sue is
STATED IN THE DECLARATION.
- Declaration/grantee covenant: Describes common plan and lists covenants on
lot so that buyers will be on constructive notice of the restrictions if recorded prior
to purchase.
2/5/09
Interpretation of Ambiguous Covenants; Changed Conditions; Undue
Hardship; Statutory Regulations
Ways to get rid of a covenant (these are listed on p. 418):
Changed conditions: conditions have changed so much as to deprive the benefit to the
dominant estate.
o Analyze the benefit to the dominant estate-is the purpose of the benefit still
possible? (this is a very high bar-courts dont impose changed conditions unless it
is pretty clear that theres no more benefit).
Relative hardship: wont enforce a covenant if the suffering to the servient estate is huge
in comparison to the benefit conferred upon the dominant estate. If all things are equal,
we keep it.
Acquiescence: if the covenant has not been enforced over time, or has only been
enforced haphazardly, we may say it is over.
Abandonment is very similar to this
Unclean hands-a party tries to enforce a covenant which it itself has violated.
Estoppel-an owner of a dominant estate who orally represents to the owner of a servient
estate that he will not enforce the covenant may be stopped from asserting her interests in
enforcing the covenant if the owner of the servient estate changes his mind.
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Laches-doctrine that bars someone from asserting a right after they have sat on the right
for too long (like a statute of limitations but there is no statutory time frame-this is a fact
specific issue).
Marketable title acts statutes that require re-recording of covenant for them to be
enforceable, and to ensure that parties bound by covenants are committed to them
Language in the instrument: is there a time limit in the language of the covenant?
2/9/09
Racially Discriminatory Covenants
**Shelley v. Kraemer (1948)
A black family purchases a house with a racially restrictive covenant attached to it. The
neighbors sue to enforce the covenant; case goes to the Supreme Court. Supreme Court says that
the deed itself does not violate the 14th Amendment because conducted entirely by a private
party, but a courts enforcement of the covenant would violate the 14th Amendment because it
would constitute government enforcement of racial discrimination.
Thus, the court refuses to enforce the deed. Note the Shelleys had an extra strong case
because they were living in the house already, thus enforcement of the covenant would require
state action not only in the form of a decree from the courts but also police action in removing
the family from their home.
*Problem with this decision: If any judicial enforcement of a contract becomes state
action as this case suggests, then constitutional implications arise with every private contract.
Thus, Shelley blurs (or even does away with) the line between the public and private sector.
Thus, Shelley is limited to its facts and not its fullest extent.
**Evans v. Abney (1970)
A Senator tried to leave in his will a public park that was only to allow whites. The court
rejects this, but returns to park to his heirs rather than keep it as a public park, arguing that if the
will cant be fulfilled, it reverts to the heirs. Controversial, because you have the closing of a
public park because it cant be racially segregated; however, the majority argued that this burden
fell on blacks and whites alike and thus there was no problem, and that there was a difference in
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the role of the state here: in Shelley, court would have been divesting a black family of their
property, whereas here the government is enforcing a will and creating a burden that falls on both
blacks and whites (however, note that there may not actually be much of a difference, but in this
case the government upholds a private legal document whereas in Shelley it refused to do so).
2/10/09
Land Use Regulation and Exclusionary Zoning
Although we allow discrimination on the basis of class all the time in our Capitalistic society,
there are times when the disparity between the haves and have-nots is so extreme that the law
intervenes
NAACP v. Township of Mount Laurel (1975):
No housing available in this township for lower class people. People in the town are
trying to keep taxes down. Court says this is not ok; Mount Laurel must change its zoning to
make it more feasible to create low income housing.
*Policy reasons behind this decision-dont want certain townships homogenizing
themselves and keeping out groups of people. Is this a slippery slope? And did the judiciary
overstep its bounds here, i.e. shouldnt this be an issue left to the legislature?
*NOTE: this case is a good example of Judicial Activism.
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2/11/09
Our goals
1. Identify the present possessory interest; includes:
a. Freehold Estates
b. Defeasible Fees
2. Identify the future interest:
a. Might be in Grantors
b. Might be in 3rd party Grantee
3. Understand the rules that apply to those conveyances
There can only be 1 Present Possessory Estate means there is a property owner in the
present, but there can be multiple future interests in the property.
1) First thing you have to do is Identify who owns the Present Possessory Estate.
2) Second thing is Identify the Future Interest Holder(s) know how they will get the
future interest.
1. Fee Simple Absolute (FSA)
2. Life Estate
3. Fee Tail
Defeasible Fees:
4. Fee Simple Determinable (FSD)
o this is a defeasible fee
5. Fee Simple Subject to Condition Subsequent (FSSCS)
o this is a defeasible fee
6. Fee Simple Subject to Executory Limitation (FSSEL)
o this is a defeasible fee
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Fee Simple Absolute: you own the parcel and have all of the present interests.
There are no future interests. Largest, most complete estate you can have. Freely
alienable/divisible. If you lived forever, it would last forever.
-Conveyance looks like: O to A +heirs
NOTE: that the +heirs are words of limitation (dont know why they are
named words of limitation when in this case they convey the fact that the
ownership of the parcel is in fact unlimited but alright). It is not a grant to As
heirs. +theirs is just a way of saying A is getting a fee simple absolute: the
fullest most absolute estate possible. Note also this does not mean A has to leave
the property to his heirs). Lastly, note that today +heirs is not required to
convey a fee simple absolute. Normally, we dont require + heirs to convey
GSA because we have a presumption that unless were told otherwise, we assume
the grantor is transferring everything they have.
NOTE: O to A is called Words of Purchase
So, when O has conveyed the property to A, then O has nothing, the Heirs
have nothing, and A has everything.
Defeasible Fees: things that could happen that make one lose the property. These are
Present Interests that terminate upon a specified event. There are things that can happen that
could make one lose their interest in the property
1) Want to ask first is the fee simple in O or in a third party?, and
2) Second, what has to happen for the future interest holder to get it? Does it have to
happen automatically, or does the Future Interest holder have to do something to get it?
(I) If the fee simple is in the grantor, it will be either (and note that in both the
fee simple is in O):
A) Fee Simple Determinable-look for words of
duration such as: so long as, while, during, or until.
-This might look like O to A so long as the property is used as a
school. O has given the property to A but if A ceases to use the
property for a school, he loses the property.
Thus, upon the happening of a certain event, A
could lose their interest in the property; then the
property would go back to O.
So, at the time of the dash, A has a FSD; O has a
possibility of reverter.
There can only be one present interest holderand
at the time of the dash, thats A. O has the Future
Interest (a possibility of reverter).
o The Future interest is called a possibility of reverter-means
property automatically reverts to O. (note that O can do
what she wants with this interest)
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Fee Tail: the grantor wants the conveyance to require that the property be kept in a family
dynasty (lineal descendants)
- Different from FSA because the bloodline could run out (not eternal)
- At common law, it couldnt be willed because it had to pass to linear descendants
- Example: O A and the (male) heirs of his body
o A has a fee tail, which means that the property eventually might not be in A or As
lineal descendants because their blood line might run out.
o O keeps a reversion, meaning that if/when the blood line runs out, the property
reverts back to O or Os estate.
- What if A sells the fee tail to X? The common law allowed alienation of the fee tail, but
this is called disentailing the fee thus it becomes a fee simple absolute to X,
destroying Os reversion.
- At common law, you couldnt will away a fee tail.
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Almost all jurisdictions have gotten rid of fee tails. Rather, there have been 2 modern
responses:
o 1) Delete the and the heirs of his body and turn it into a fee simple absolute:
Just O A.
o 2) Some Jurisdictions compromise They will give A the life estate and As heir
will get a fee simple absolute
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2/12/09
Future Interests
First thing you want to look at: Has the grantor reserved a future interest for himself?
o When Future Interests that are vested in a Grantor:
1. Possibility of Reverter
2. Right of Entry
3. Reversion
o When Future Interests that are vested in a 3rd Party Grantee:
1. Remainder
2. Executory Interests
HYPO: O-A as long as property is used as a school
We have language of duration this indicates a Fee Simple Determinable. This
entails a Possibility of Reverter.
o NOTE: keep in mind, that the moment that A violates the condition, then the
statute of limitation regarding Adverse Possession starts to run
HYPO: O-A on the condition that the property is used as a school, otherwise O can
retake the property
A has a Fee Simple Subject to Condition Subsequent (we have conditional
language, as well as stipulation of what will happen if condition is violatedO has
to assert the right)
Doctrine of Laches
O-A on the condition that no alcohol is ever sold on the property, otherwise O has
a right of entry
o So, when A gets the property, the community changes, and A decides to build
a microbrewery, and O waits till A sells the first beer, then O serves ejectment
notice
o This can be Estopped in Court through the doctrine of Laches, somehow
because O should have given some notice or something to A.
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2/18/09
Life Estates:
34
Has more obligations than someone holding an FSA; they dont hold the future interest.
At some point in the future someone with a vested interest in the property is going to get
it, so what are the duties of the life estate holder? See Moore v. Phillips
Life estate holder has a duty to pay certain costs.
o 1) Interest on the mortgage. The future grantee pays the principle because they
are the ones who will eventually obtain a fee simple absolute. We dont want to
impose on the Life Estate Holder the burden of paying for the actual value of the
property, since they dont have any future interest.
o 2) Life Estate Holder has to pay the Taxes and Insurance on the property.
o 3) Life estate holder also has a duty to maintain the status quo they dont
have to make the property better, but they cant make it worse.
o Duty not to commit waste.
A) Voluntary Acts of commission by the Life Estate Holder that may
waste the property (detract from the value of the property)
Must look at the nature of the property and how it is used.
B) Cant commit acts of Omission either-do nothing to maintain property
and allow it to rot away.
C) Question of ameliorative waste-you increase the monetary value of the
property but in a way that is inconsistent with what the grantor meant to
convey and what the remainder-men thought they were going to obtain.
This is less clear-cut and is case specific.
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36
2/19/08
1. Remainder
o A) Vested
o B) Contingent
2. Executory Interest
o A) Shifting
o B) Springing
Tenancy for yearso O to A for a certain number of years (reversion to O is implicit)
1) Remainder-follows naturally and on the conclusion of the prior estate
-Never in favor of the grantor-always in favor of the third party grantee.
-Follows life estates and tenancy for years.
-The remaindermen waits until the prior estate concludes, though the interest is vested at
the time of the initial conveyance.
-O-A for life, then to B B doesnt possess the land until the conclusion of the
prior estate.
A) Vested Remainders
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subject to open, because if B has another child Y, X and Y then each have
a 50% share. Note that this is only for the period of As life. Once A dies,
the land passes to Bs children equally. If B then has another child, that
child has no interest (rule of convenience).
o What if you have O-A for life, then to Bs children who reach 18?
When does this class close?
General rule, is the rule of convenience. This is intended to maintain
some security in the property. The rule says the class will stay open until
the prior estate terminates. Therefore, all of the kids of B who reach 18
during As life can take. However, once A dies, if a child of B did not turn
18, they lose all interests in the property.
If A dies before any of the children turn 18, you have a contingent
remainder (see below).
Vested Remainder Subject to Total Divestment-this remainder is a vested remainder;
however, there is something that could happen that could completely divest the future
owner of the property.
o O to A for life, then to B, but if B does not graduate law school, to C
o At the time of dash, the Present Interest is in A, and Future Interest is in B, but B
could lose it.
2/23/09
Grantees future interest Continued:
1) Remainder Continued
A) Vested remainders
B) Contingent remainders-There has to be a condition fulfilled PRIOR TO VESTING.
-Were looking for situations where the remainder is only going to take place
upon the occurrence of some event that hasnt yet happened, or if the 3rd party is
unknown.
Different condition precedents listed below:
Where a child has to be born
O-A for life, then to first child of B (but B doesnt have any children at
the time of dash)
Age requirement
O-A for life, then to Bs children who reach 18) (at time of the transfer, B
has no children who are 18 yet)
Terms of art like widow or heir can only have a widow or heir when
you die. Prior to your death we do not know who your heirs or your widow are
going to be (perhaps when you die, you are married to someone different).
Sometimes the Grantee must do something to get the property (i.e. B must get
married or B must go to law school).
o Contingent remainder examples:
38
2) Executory interest: future interest that cuts short the prior estate or follows a
gap in season. There is a vested interest subject to partial divestment. Never vest until
possession (not vested at the time of the dash/conveyance).
o These are future interests
o A) Shifting Executory Interest-interest is going to shift from X to the
unborn children
O-A so long as the property is being used as a school during As lifetime,
otherwise to B.
B has a shifting executory interest. No springing because it doesnt go
to O.
A has a life estate subject to executory limitation, and
o B) Springing Executory Interest-these are Executory Interests in
favor of the 3rd party. They follow gaps in season. Springing out of O, the
Grantor.
o Example: O-A for life, then one year following As death, to B.
A has the life estate.
O has a Reversion gets the property back for one year when A dies, then
the property springs to B. O has an executory interest for one year (a gap
in seisen.)(subject to Executory Limitaion)
B has a Springing Executory Interest.
O-A upon As marriage. Springing interest in A. (this is a weird one)
*Note that future Interests are either (1) Remainders or (2) Executory Interests. Remainders
follow life estates.
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2/24/09
Rule affecting the transfer of property
Doctrine of Merger:
o O-A for life, then to B B has a vested remainder absolute. Say A goes to B
and buys the future interest. A now has a fee simple absolute. The doctrine of
merger says that this is ok with one small caveat: you cant apply merger if you
have an intervening future interest:
o Say you have O-A for life then to B for life then to C.
B has a vested remainder life estate.
C has a vested remainder absolute.
If A tries to buy the property from C, he cannot use the doctrine of merger
because of Bs intervening vested interest. Note you could squish together
the present and future interest if the intervening interest is not vested.
o Say you have O-A for life then to B for life if B is married, then to C.
A has a life estate,
B has a contingent remainder life estate, and
C has a vested remainder absolute. As contrasted with the last example, A
and C could get together and merge their interests thus cutting out B.
Doctrine of Destructibility of Contingent Remainders: Common law rule was the
contingent remainder is destroyed at the time the prior estate ends if the condition not
fulfilled. Example:
o O-A for life then to B when she reaches 21. Old rule destroyed the remainder if
B wasnt 21 at the time of As death. The new rule gives B a chance to turn 21. In
the meantime, O has a reversion. B therefore has a springing executory interest.
Rule in Shelleys Case: In the same conveyance you see a grant of an estate to a
grantee and the remainder to the grantees heirs:
o O to A for life then to As heirs
The law says you cant do this, you cant give a remainder to the heirs
of a life estate so you just strike through that part that is offending and it
becomes a fee simple absolute to A. The reason for this rule was that
landowners were trying to get around tax payments. A can still pass the
property to his heirs, but will have to do so in a separate conveyance so
that the parties dont get around tax burdens.
A has a life estate and
As heirs have a contingent remainder.
*B: Must be a term of artif actual people are listed instead of the term
As heirs then the Shelley rule is not applicable.
Doctrine of Worthier Title: Applies to cases where O is trying to give the present to one
person and the future to its own heirs.
o O-A for life then to Os heirs needs to be changed so that O cannot avoid
taxation
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2/26/09
Restraints on Alienation
Horse Pond Fish & Game Club, Inc. v. Cormier (1990)
Restriction on the clubs property against future sale of the land without approval of
100% of the members. At common law, any restriction on a fee simple absolute would be
repugnant to the fee (against the nature of the fee simple absolute).
The more modern trend (which the court applies) is to look at Reasonableness. One of
the things the court looks at is how the restriction gets lifted. In this case, 100% vote was a
pretty high bar, thus the court ruled that if the club was not a charity, the restrictions were too
stringent (note that if the club was a charity, a different standard would be applied).
Northwest Real Estate Co. v. Serio (1929)
Real estate company put a restriction on a deed saying that it must approve any future
sales of the property. Court found this repugnant to the fee simple title and said it was not
allowable. (Note that this court applied the old ruledid not consider reasonableness of the
restraint.)
Riste v. Eastern Washington Bible Camp, Inc. (1980)
Bible camp tried to put a restriction on sales of property in the deeds it conveyed. Court
said that the camps conveyance of a fee simple absolute negated any restriction they could
try to place on it. Court notes that if the church had its own property it might be justified in
restricting conveyances to people of its own faith, however it cannot sell to someone and then
restrict whom they sell it to.
Aquarian Foundation, Inc. v. Sholom House, Inc. (1984)
Buyers have an agreement with the homeowners association whereby the only way you
get fair market value for your property is by selling against the home associations wishes. Court
invalidates the agreement saying it was illusory. Therefore, she can sell it.
Wolinksy v. Kadison (1983)
Association tried to exercise its right of refusal against a tenant who tried to sell her unit and
buy another. Court lays out a two part test for when the right of first refusal is alright: (1) is
the association acting in best interest of the property owners, and (2) is it doing so in a nondiscriminatory manner?
42
Agreements where you have a right to buy ones property are held unreasonable if there
is no fixed time frame/if there is a fixed price. This makes the right unfair/ contrary to
public policy.
3/2/09
Modern presumption is that a conveyance to more than one person (and the people
arent married) is that it is a tenancy in common.
With tenancies in common and joint tenancies, every owner has an undivided interestno matter what their share, they get to enjoy full use of the property. (can modify this by
contract)
Percentage of ownership will matter when the property is sold25% ownership will
result in 25% of the profits.
Tenancies in common are like a fee simple upon deathif you have a 25% interest in
the property and you die, your 25% interest will pass to your heirs/whoever you will it to.
If you convey property to people as tenants in common without specifiying percentages
of ownership, we assume they have even shares.
Say you have O-A and B as tenants in common with A taking 75% and B 25%...both
get to use the full property.
If you have a tenancy in common, A can enter into a lease with a third party for his
share of the tenancy in common. Does not have to get consent from the other owners (B),
unless they are going to be subject to the lease (i.e. if the property hasnt been divided,
the third party now gets to use the whole property so B must be consulted-check on
this***).
Partitioned in kind-court may partition the property if there is a problem amongst cotenants and they file a lawsuit. If it is not appropriate to do that, (i.e. a one room
condominium unit) the court may order a partition by sale (court orders the property to
be sold and each party gets their corresponding interest in the profit).
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Joint tenancy
Undivided interest like tenants in commoneach tenant has right to possess entire
property. However, in joint tenancy they all have equal shares.
Cant will your interest away in a joint tenancythere is a:
o Right of Survivorship-when one co tenant dies, his share passes
equally to the other tenants.
Easy way to remember the Four Requirements of Joint Tenancy TTIP:
o 1. Time-if going to be joint tenancy, property has to be conveyed to tenants at
the same time
o 2. Title-joint tenants must acquire title by the same instrument (by the same
conveyance)
o 3. Interest-all tenants must have the same interest in the property (same
percentage ownership)
o 4. Possession-all tenants have the right to possess the entire property
Some jurisdictions either dont require all these formalities or dont recognize joint
tenancy in general.
One of the problems with joint tenancy is that they would be largely inalienable but for
the fact that you can destroy them easily. Just as with a life estate, you do not get to
leave the property to whom you want to when you die. However, you can sever a joint
tenancy thus making them more alienable. Then you end up with a tenancy in common:
o Say you have A and B as joint tenants. B wants to convey his interest to C.
Unities are destroyed: joint tenancy is severed. A and C are therefore left as
tenants in common. Therefore, the right of survivorship can be destroyed
fairly easily.
NOTE: if you had three owners, the two who did not convey their interests
are still joint tenants, but the third party who bought Bs share is a tenant
in common with a 1/3 interest. Then if one of the two joint tenants dies,
the other one takes his share through right of survivorship and becomes
tenants in common with C who was the original buyer of a 1/3 share.
o Say A and B are joint tenants but B wants it to be a tenancy in common without
losing his interest in the property. He can convey his interest to C, his lawyer or
friend, and then buy it back, thus the joint tenancy has been destroyed and B is
now a tenant in common with A.
Partition is available with a joint tenancy just as with tenancy in common. Tenants can
still go to a court to get partition in kind or partition by sale.
General rule: there are legal obligations of co-owners to share in the benefits and
burdens of property. Parties can contract to modify this.
BENEFITS: The number one benefit is possession (which we talked about previously).
Legal fiction here that each co-owner has an equal right to possess the whole. However,
logically this doesnt make any sense (how could they all possess the property at the same
time?)
o Generally, if you are a co-owner and you choose to live on the property, you dont
have to pay rent to the other co-owners who do not live there.
However, there are exceptions to this.
Ouster is one such exception. This is where one co-owner has
physically kept another co-owner off of the property. If A changes
the locks and forces B out, then B does have a cause of action
against A (is exercising a right to share in the property). Note
that percentage interest does not matter here.
o Constructive Ouster-the property by its very nature is incapable of housing
both people at the same time (think a studio apartment with co-owners). B might
make an argument that he has been constructively ousted.
o Rents from 3rd Parties If one co-owner is renting out the property, the other
co-owner can claim his share of the rent. Note that B does not have a veto right,
but rather the choice of sharing in the profits or suing for partition of property.
B could also lease his interest in the property to another (a 4th) party.
BURDENS:
o Basic Expenses mortgage, insurance, and taxes on the property.
Generally co-owners have a duty to share mortgage/upkeep proportional
to their shares of the property.
No duty to share major improvements however.
Maintenance and repairs are typically not shared, although this rule
gets modified in some jurisdictions, especially when one owner is in
possession.
o Even though A need not contribute if B decide to put in a swimming pool, if the
two parties then decide to partition, the courts can take things like that into
account. This is not an exact science.
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3/4/09
Similar to the joint tenancy-requires all the same four formalities (T.T.I.P.).
o Only legally-married couples can have a tenancy by entirety. Lots of states got
rid of tenancy by the entirety after the married womens property act.
Married Womens Property Act were intended to give women more property rights.
Some states took the act to mean destruction of tenancy by the entirety and some did not.
With tenancy by entirety, you need consent by each spouse for any serious conveyance
of the property.
Partition can only occur upon a divorce.
One cannot will away their interest in a Tenancy by the Entirety, even with the other
spouses consent. This would defeat the Right of Survivorship, which is the essence of
the tenancy.
Courts are split on whether a contribution action can be brought as between co-owners,
but even those jurisdictions that dont allow contribution actions during co-ownership
may take into account the respective monetary interests of co-owners upon partition.
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3/5/09
Leasehold Estate: The landlord relinquishes the right to possession to a tenant, but
NOT the right the alienate disaggregating the interests.
*POLICY NOTE: remember that the law is much more likely to develop doctrines for
Residential Property compared to commercial property.
Duty to mitigate
Sommer v. Kridel (NJ, 1977, p. 663):
- There are two cases here, both involving a tenant backing out of his lease and the
landlord waiting, failing to mitigate, and suing for damages constituting all of the
unpaid back rent
- In the first case, the landlord actually had a ready, willing and able replacement tenant
and turned him down; in the second case, its unclear whether the landlord could have
mitigated
- Issue: Does the landlord have a duty to mitigate damages?
- The court rejected the traditional rule that a landlord has no duty to mitigate.
- Rather, a landlord does have a duty to mitigate damages for a residential lease this is
consistent with basic fairness.
- Mitigation requires that the landlord make reasonable efforts to re-let the apartment,
treating it as if it were any of his other vacant units.
- The burden is on the landlord to prove that he used reasonable diligence in attempting to
re-let the unit.
- Note that the landlord is not actually required to mitigate, but his damages will be
reduced as if he had, so its in his interest to mitigate.
3/9/09
TENANCIES:
-
3/10/09
Landlords and Tenants: Subletting and
Assignments
Majority rule: landlord must deliver possession of the premises at start of lease.
o Minority rule (very rare): landlord must only deliver the right for the tenant to
possessif someone is living there, it is for the tenant to initiate eviction
proceedings.
What can landlord do with their interest in the property (Reversion) once they have
leased it?
o Landlords interest is vested at the time the lease ends.
o Landlords can transfer their reversions.
Typically the landlord is selling the property and the new property owner
is taking the property subject to all the limitations on it.
Difference between a sublet and an assignment:
o A Sublet pretends that your tenancy is a piece of a pie, and you cut out a piece of
it to the subtenantthe tenant always retains an interest and thus is acting as a
landlord over the subtenantwill get property back before it goes back to original
landlord.
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49
1. lessor conveyed property to lessee, and has no obligation to receive rent from anyone
else.
2. an approval clause is an unambiguous reservation of absolute discretion in the lessor
over assignments of the lease. Lessee could have but didnt bargain for a reasonableness
clause.
3. doctrine of Stare Decisis: courts should not depart from the traditional rule because it
would wreak havoc with the myriad existing leases and promote needless litigation.
4. Lessor has a right to realize the increased value of his propertythe increased value
of property during a lease should benefit the lessor, not the lessee.
Court rejects all of these arguments. Dissent argues for following the weight of authority
(the majority rule), which would have given Pestana the right to refuse the sublease. To rule
otherwise would be rewriting the contract for the parties, something courts should not do in this
case.
Slavin v. Rent Control Board of Brookline (1990)
Slavin is a landlord. His tenant tries to sublet his apartment. Slavin has to go to the rent
control board when he refuses to allow this. The court sides with Slavin, arguing that although
with commercial leases the trend is to enforce a reasonableness requirement, landlords in
residential situations do not have to succumb to a reasonableness requirement
POLICY: one of the key reasons behind this is that to rule otherwise would result in a
plethora of litigation about whether a landlords withholding of consent was reasonable.
3/11/09
o NOTE: remember that you need to give landlord notice, give him time to fix
situation, and in some jurisdictions, you need to move out.
If you do have a case of constructive eviction, what do you do?
o 1) What constitutes wrongful conduct by the landlord?
A) First thing you do is look to the lease, but often times the lease wont
tell you.
Does the lease say that one party or the other is responsible for
covering certain specific costs?
Implied Terms need not be written down or even explicitly
discussed to be legally binding.
Express Terms explicit language in the lease that defines the
duties of each party
o 2) Second question to ask is what constitutes a substantial interference? Is the
interference so substantial that it rises to the level where you can invoke the
Doctrine of Constructive Eviction?
Not a Clear Test. At what point can you walk away and break the lease,
invoking the Doctrine of Constructive Eviction? Must give the landlord a
chance to fix the problem for one.
Theres a covenant of Good Faith and Fair dealing implicit in all
contracts.
*When talking about the landlord, were looking for things that the Landlord is actually doing
(Commission), as well as circumstances where the landlord isnt doing anything (Ommission).
-To what extent can we hold the landlord liable for the wrongful acts of other tenants?
If you successfully bring a claim of Constructive Eviction, then you can bail on the
lease and not be financially responsible
You have to show that youve given the landlord notice
Must give landlord time to fix the problem
You have to vacate the premises within a reasonable amount of time.
Minjak Co. v. Randolph (1988)
Randolph rented a loft. Landlord Minjak decided to renovate the building making most of the
loft uninhabitable-leaks, sand blasting, construction, etc. Randolph stops paying the full rent
and Minjak sues. Randolph alleges constructive eviction from 2/3 of the loft. Randolph winsCourt says they dont have to pay 80% of the rent (rent abatement). Court says that a tenant
may assert a defense of constructive eviction even if the tenant has only abandoned a portion of
the premises. Considerations of SOCIAL POLICY and fairness dictate such a result. (Note
that plaintiffs couldnt apply the implied doctrine of habitability because their premises were
used for both residential and commercial purposes, not just residential. Therefore, plaintiffs
were in something of a bind unless they could explain that part of their property was used for
residential and part for commercial purposes (helped that they could show they used most of
their property for living space)).
Court also awards them punitive damages, which are rare in breach of contract claims but
the court says are appropriate when awarding them will deter morally culpable conduct.
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**Second restatement makes it easier for a tenant to bring a constructive eviction claim:
If the landlord OR someone attributable to him interferes with the use of the property by
the tenant, constructive eviction may be appropriate. This makes the standard for
constructive eviction lower than the traditional rule laid out (as mentioned above).
This newer interpretation of the rule takes away the requirement that the tenant move out
(very importantmuch easier to raise constructive eviction claim).
3/12/09
The other thing you have to figure out is what are your options:
o Rescission of the lease: tenant rescinds the lease and sues the landlordtenant
moves out.
o Tenant can remain in possession and withhold rent: tenant sticks around but
stops paying rent. Typically, landlord tries to sue tenant and tenant uses the
violation as a defense.
Need to be mindful of the statutes governing this process-statutes often
require things of a tenant before the tenant is allowed to stop paying rent
(i.e. tenant needs to go to housing office and get an inspector to look at the
property before just arbitrarily deciding to stop paying rentanother
situation is where tenant must pay the rent to an escrow account. If the
government finds that the standards of the property dont deserve rent,
tenant will get his money back).
o Tenant remains in possession and uses Rent Abatement. Rather than
withholding entire rent, tenant withholds a portion of the rent. When landlord
sues tenant, tenant again use implied warranty of habitability as a defense.
o Repair and deduct remedy: Tenant stays in possession and fixes the problem
himself, then deducts the cost from the rent.
o Tenant can remain in possession and sue for damages: tenant has had some
actual harm above and beyond the rent that he needs to be compensated for. Some
jurisdictions even allow you to sue for an injunction to force the landlord to bring
the property up to code.
o Administrative remedies: In places with robust rental markets and lots of
conflicts, the jurisdiction may have set up an administrative remedy. Thus, there
may be rules about mediation processes or housing inspectors or other procedures
the city has set up.
o Criminal proceedings: cases where the appropriate action is a criminal
proceeding against landlord.
Cant waive the warranty of habitability for the most part. If its inherent, cant waive
it.
Uniform Residential Landlord and Tenant Act
o Essentially a statutorily codified warranty of habitability
o About 30 jurisdictions have adopted it
o Does allow limited waives of warranty of habitability
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3/18/09
Retaliatory Eviction
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*Dissent said that such decisions will dissuade landlords from investing in housing for
rental purposes.
3/30-31/09
PART SEVEN- FAMILY PROPERTY
Martial Property
Separate property (majority view): spouses own their property separately, but have a
legal obligation to support each other. Note that if they choose to share or mingle their
property with their spouse, that spouse may attain some sort of ownership right.
o Property earned after the marriage, like wages, remains separate.
o Upon divorce, statutes enforce equitable distribution of property.
Factors to consider in equitable distribution of property include:
age of parties,
length of marriage,
what one person gave up to help the others gain,
need of the parties (including child support),
status (maintaining the lifestyle lived during the marriage),
rehabilitation, and
sometimes, fault About a quarter of states allow fault to be
considered, and about a quarter reject a consideration of fault when
dividing the property.
Statutory forced share: in separate property states, if a spouse tries to will away all his
property, many states have statutes allowing the state to come in and take part of the
property in order to give it to the surviving spouse, so as not to leave people destitute.
o Usually 1/2-1/3, and based on length of the marriage.
o Elective share rule-some jurisdictions allow the surviving spouse to take under
the forced share statute or under the will (whichever is greater).
Homestead laws: Creditors cant take the home of a deceased spousethe home is
protected so as to shelter his wife and kids.
Premarital agreements: can contract away from rulessay if the marriage doesnt last,
this is what we walk away with.
Community Property: what you own prior to marriage remains yours throughout
marriage. After the point of marriage however, whatever you get by gift or inheritance is
still your own property.
o Everything you earn however, is community property.
o Note: you can transmute inherited or gifted things, by contract, making them
community property even if they otherwise would have been separate property.
o Courts sometimes have to deal with Comingling parties will inherit or obtain
separate property but both use it and make it seem as if it is community property.
Courts then need to figure out whether it actually is community or not.
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4/1/09
Unmarried Couples
Watts v. Watts (1987)
Watts wasnt married to her mate and when they break up he tries to take all the property
and leave. She pronounces several theories upon which she is entitled to relief, including the idea
that they had a contract to share the property accumulated during their relationship.
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Court affirmed declaring that plaintiff had voiced several claims upon which relief could
be granted.
Constructive Trust- an equitable device (a remedy) created by law to prevent unjust
enrichment.
4/6/09
Part 8: Regulatory Takings Law
Takings
What is a Taking?
o Example: you live near 405, and govt wants to expand freeway, so they ask you
to sell your house to them. You dont want to, so govt files action in federal court
under Eminent Domain, so that govt can take your property from you and pay
you a fair market price for the property.
In an Eminent Domain scenario, theres very little fighting over the
TAKING itself. The fight in these cases regards whether the taking is for
1) public use and whether there is 2) just compensation
o Another example (non-Eminent Domain): Regulatory Taking you buy
property in Florida wetlands, zoned for commercial use. Subsequent to your
purchase, state govt decides to rezone the area for a preservation district, and
theyre going to preclude commercial development. Now you cant develop the
property the way you had originally intended.
The governments imposition of regulation limiting your use of the land is
considered a taking if it goes too far
o If the govt passes a regulation that limits your use, is it a taking?
Depends.
Police Power of the states encompasses the original power of the state
governments to pass legislation regulating private conduct to protect the
public health, welfare and safety.
The injuries we suffer from the govt exercising of this power does
not constitute a taking.
o Nuisance exception- you are following all zoning rules etc but you are doing
something that is so bothersome to those around you that it is within the police
power of the state to prevent you from dong it even if it greatly reduces the value
of your property or even takes some of it from you
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**Miller v. Schoene
Def (state etymologist) ordered P to cut down infected red cedar trees which could
spread disease to nearby apple orchards.
Court said that state had to choose between allowing the cedar trees to remain (and
risk the apples trees), or to cut them down and ensure the safety of the apples
POLICY:Its in the public interest to preserve the safety of the apple orchards, since
in Virginia apples make up a huge industry. Meanwhile, the cedar trees are not of
much value to the public.
o Because of the public interest, the court finds that the state was justified in
ordering the trees to be cut down.
This is an example of the state acting to prevent a nuisance/noxious use, and thus it
does NOT fall into the category of taking, but rather is an exercise of the states
police power.
**Penn Central v NYC
New York passed law that designates landmarks, which are regulated with regards to
future architectural development once they are officially recognized as landmarks.
Penn Central railway station was designated a landmark, and thus they werent able to
get approval for a 50-story office tower they wanted to erect on top of the station.
Penn Central sues state.
The court decides that the state has the right to regulate/limit future development of
the station.
Ad Hoc analysis review of the circumstances on a case-by-case basis; this is the
approach to deciding whether a taking has occurred when an owners use has been
limited by the state.
o The vast majority of takings are evaluated on an Ad Hoc basis.
Factors that the court considers in an Ad Hoc analysis:
o 1) The character of the government action
o 2) The protection of reasonable investment-backed expectations
Do we have a case where someone has done all the appropriate work
ahead of time, expecting to develop land reasonably, and then after
they buy it, the govt regulates development and bars their ability to
execute their plans?
o 3) The economic impact of the regulation on a particular owner
POLICY: We dont want to impose the cost of the public good on
individuals.
We ask is this unfairly singling the plaintiff out?
1) Penn Stations first argument: the regulation is depriving their use of the air
rights that come with their property
o There can be a significant reduction in property value without it constituting a
taking
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o What serves as the denominator of the value of the property in this case? Did
they lose lots of value by losing their rights to leasing the airspace above the
station?
o Court says that the plaintiff can still make lots of money by operating the
station; they look at the airspace and the station as one whole piece of
property, which inhibits the plaintiffs ability to prove a serious diminution in
value.
So if youre the plaintiff, you want to try to break up the property into
separate parts in order to highlight the negative effects of a regulation.
2) Penn Stations second argument: this singles out specific property owners, which
is unfair. They are bearing too much of the cost of the public good.
o Court says that this doesnt prove shit. There are hundreds of designated
landmarks, not just themthis is a comprehensive scheme. This also serves
the public good. Since Penn Station can continue to use the property the way
its been used for a very long time, they arent being harmed too badly.
Court concludes that this is NOT a taking, and thus there is no need for just
compensation.
4/7/09
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Categorical Takings-There are some regulations where courts say you dont even
need to do the ad hoc balancing test-the court says there is a per se taking.
4/8/09
Eminent Domain Takings
If government literally takes your property for a public use, you have no right to stop
the taking so long as the government pays you just compensation.
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4/9/09
Takings: Just Compensation
**Tee Hit Ton v US
Indians claim that they are owed Just Compensation by the US government who has
taken timber from the land that theyve been living on for hundreds of years.
US bought the territory from Russia; the Indians had been living on it the whole time
Issue:
Recognition court says that theres no indication that Congress granted the Indians
permanent rights to the land
o US govt could either recognize the land by Treaty or by Statute
o If there was a statute/act of Congress that dealt with relations between a
particular Indian group and Congress, then you would have Recognized
Title which would be compensable.
Court says that the statutes dont recognize title.
o So, whats the scope of a property right when its Original Indian Title?
Right of Occupancythis does not entail Just Compensation. This
means they can occupy the land and use it, but they cant ALIENATE
the land, as they dont have title to the land, so they dont have all the
sticks in the bundle (they dont outright own the land).
This type of property interest is always subject to being snatched away
by the government.
In order to justify its decision, the Court speaks a lot about the character of the
property, and these Indians.
o He says that theyre Nomadic, which doesnt qualify under the Ownership
views that the U.S. system recognizes.
Membership in this tribe is through a Matrilineal Structure therefore, ownership in
the common property passed only through the female line
o Court says this doesnt convince them that theres something Individual about
the property ownership in their tribe.
o Because their land ownership was tribal this was the antithesis of owning.
Ultimately Court decides that Indian occupancy can be extinguished without Just
Compensation.
**Sioux v US
o
Entered into fort Laramie treaty with Sioux giving them land near the black hills
and allowing hunting rights in a larger area and subsistence rations if necessary
Gold was found in the mountains and the government wanted to buy it from the
Sioux but they wouldnt sell b/c the government didnt offer enough money
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The government stopped letting them hunt on the lands they were allowed to and
then put them back on the reservations with no horses or weapons so they
couldnt hunt and the government gave them money
Government basically forces them into new treaty saying they will give them the
black hills and some other land in order to get rations in order to survive
Court holds that it was a taking b/c congress never intended the subsistence payments to
compensate them and the rations were given under coercive circumstances, nothing to do with
the value of the land they took
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April 13
Legal Origins:
Constitution: Must balance duration with the monopoly (tension - want to incentivize creation
but not stifle others from creation/expression)
Duration allowance (increasing order): Patent Law> Copyright> Trademark
Copyright and Patent Law: Governed almost entirely by federal statutory law
(very little common law)
Trademark and Publicity Rights: Governed almost entirely by State
Common Law with some Federal Law now (Lanham Act): tends to be more local than
national issue
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Trademark grants exclusive rights in symbols that indicate the source of goods or
services (meaning becomes attached so protect against consumer confusion)
-Duration is infinite as long as used in commerce and have not shown intent to abandon
-Includes: Name, symbol, type of packaging that identifies the producer of a good or
service
-Grew out of state common law of unfair competition and misappropriation
-Federal Trademark Act: Lanham Act owners of famous marks are protected against
dilution of the distinctive quality of the mark by having right to obtain injunctive relief
against competing uses even in the absence of consumer confusion
-Dilution:
A) Tarnishment - another company sells inferior quality products
-Example: I start selling a nasty beverage called Coca-Cola and, thus I
am undermining the goodwill of customers for the original product.
B) Blurring another company sells something similar that causes consumer
confusion as mark loses association with particular company.
-Example: I start selling goldfish crackers, which takes away from the
uniqueness of Pepperidge Farms goldfish.
-Courts split on whether need to show actual economic harm
-Trademarks created by state law may be registered with the federal Patent and
Trademark Office (places the whole world on constructive notice)
-After registry must use with a business must commence within one year
- Failure to use a mark for a long time may constitute abandonment of it
-Only garner protection if the mark is used in commerce to sell goods or services/in
connection with a business
Functionality Doctrine Forbids use of a products feature as a trademark where doing so will
put a competitor at a significant disadvantage because the feature is essential to the use or
purpose of the article or affects the cost or quality of the article (moves from trademark to
patent)
**Qualitex Co. v. Jacobson Products Co.
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Qualitex makes some product for Dry Cleaning, and they use a special hue of Green
on their product.
Jacobson used the same color on their competing product.
Q wants to get a trademark on the color
Rationale:
Anything that can be used to carry meaning can be potentially trademarked.
Most important aspect of determining whether you can trademark something or not:
o Requirement that a person use or intend to use the mark to identify and
distinguish his or her goods, including a unique product, from those
manufactured or sold by others and to indicate the source of the goods, even if
that source is unknown.
NOTE: Copyright and Patent are entirely covered by Federal Law; this is NOT the
case with Trademark. Trademark goes from the bottom up, as per common law.
o Therefore, even though we have the Lanham Act, the common law continues
to have an influence on what happens with Trademark. Lots of State and
Common Law dictating Trademark, with small amount of Federal Law, and
the inverse is true for Copyright and Patent.
Why cant you trademark Functionality?
o Because you would be creating a serious monopoly
o Functionality Doctrine prevents trademark law from inhibiting legitimate
competition by allowing a producer to control a useful product feature
So, if you wanted legal protection over a product feature that is
functional, you would likely turn to Patent Law, which gives you a
broad interest, but its more limited in temporal terms.
Trademarks are infinite. Narrower scope of legal rights than with a patent, but the
rights that you do get last forever.
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4/14/09
Indian Mascots
Controversial Topic
o On one side, you have people that feel deeply committed to certain teams, and
they connect their fanhood with their personal identities; thus, proposing team
name changes is a big deal to them.
o Even within Indian communities, there is controversy regarding how they feel
about Indian Mascots.
Were going to talk about the Lanham Act; then also talk about NCAA and High school
rules/issues; well compare the implications of this issue in the professional versus academic
context.
Difference between a racial mascot and a tribal mascot
o Indians is a racial mascot, where as Navajos would be a tribal mascot.
Context: often, the defense to this issue regards
o Who is using the mascot
o How theyre using the mascot
o Context can change dramatically from one use to another
Rationale:
Court says that Lanham Act allows a person to file a petition at any time; the
issue here is what that phrase actually means.
Trademark Registration gives you Federal Protection; this can be challenged. Most
challenges made within 30 day period, then theres a 5 year period where you can
continue to bring challenges. However, if the trademark is alleged to be
scandalous/disparaging, then challenges can be brought at any time.
o So if someone comes after the 5 year period to challenge the trademark, there
are still Equitable Defenses available (Estoppel, Laches, Acquiescence)
o Disparaging youre focusing on the PARTICULAR GROUP at issue.
Regarding Laches court of appeals says that Plaintiffs waited too long; however,
one of the plaintiffs was 1 years old at the time of the trademark registration
o Trademark owner thinks that theres too much unpredictability if you can
allow anyone at anytime to challenge a trademark
o POLICY: The theory behind this is that trademark registration would be
disincentivized if people could not rely on their ability to reap rewards from
their investment in the trademark.
NCAA implemented a rule that withheld financial benefits from schools that used Indian
Mascots without consent from the Indian Tribe whose name they were using.
These rules applied to the post-season tournaments.
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4/15/09
Copyright Law
4/16/09
Very little common law protection left in copyright casesFederal law has mostly
preempted the field.
We award originality we dont reward effort (in copyright). However, note that we do
care about labor in the general discussion of property, just in terms of copyright it is not
the defining factor.
Elements for copyright: original, authorship, fixed in a tangible medium of expression.
Statutory copyright is about fixing the owners interest in the copyright, not the thing.
Court says that a copyright is really about ownership in the copyright, not in the thing;
author never owns the work itself, he owns a copyright that expires after a certain
period of time and must comply with the Federal copyright statute.
Fair Use defense-there are some exceptions that excuse copyright infringement.
Factors to be considered as to a fair use defense are:
o The purpose and character of the use, including whether such use is of a
commercial nature or is for non-profit educational purposes
o The nature of the copyrighted work
o The amount and substantiality of the portion used in relation to the copyrighted
work as a whole
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o The effect of the use upon the potential market for or value of the copyrighted
work
Suntrust Bank v. Houghton Mifflin Co. (2001)
Parody of Gone With the Wind is written. Decedent authors trustee sues for injunctive
relief to prevent the parody from being published. Note the idea/expression dichotomy-ideas
not copyrightable. Only the expression of an idea is.
Court determines that an injunction is inappropriate. Have to find copying, of something
that is copyrighted, and that there is no defense to the copying. Court finds that there is copying
and there is a copyright, however the defendant has a valid fair use defense.
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4/20/09
Patent
Patent is the most scientifically based area of the 3 areas in Intangible property.
Patent is limited in its duration, because we want to encourage Innovation in
Patentable Items.
o Example: drugs Pharmaceutical companies can have a patent for 20 years,
and then any other company can use the same formula.
However, Patent gives you SIGNIFICANT legal rights
Theres a debate around the Social Justice Issues surrounding Patent Law
Issues regarding the Making of Drugs making them at NO or LOW cost for people
who cant afford them but need them (i.e. AFRICA!). Theres issues regarding the
extent to which drug companies should be compelled to provide drugs to needy
people.
Issues regarding The role of Research and Development in creating drugs and some
relationship with the developing world (?)
o Example: New weight loss drug thats derivative of a plant in South Africa
that people chew and suppress their appetites.
o Drug companies take indigenous peoples ideas and create a drug that they
profit from. ISSUE: the extent to which that forces native peoples off their
property.
Capitalistic inventions that threaten human well being.
o i.e. Monsanto sells seeds all over the world; they created seeds that would
only last one lifetimeTerminator Seeds, so that they could keep selling
their mother fucking product to dependent farmers. DRUG DEALER
MOTHER FUCKERS.
Mapping the Human Genome lots of projects going on around the world to collect
DNA and map the genetics of Human Beings. Issues that arise have to do with the
study of homogenous peoples.
o i.e. the tribe that lived at the bottom of the grand canyon, and ASU researchers
started doing research for diabetes but were really trying to map their
genetics and get a patent on the DNA
Martin Luther King, Jr. Center for Social Change v. American Heritage Products
company wanted to make some statutes of MLK, and they asked the MLK center for
permission, and they said they would give them a donation. Center didnt want to
give permission. Company decided to make the statues anyways, and donated 3% of
profits to the center.
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