Property Synthesis PROPERTY: WHAT IS PROPERTY? WHAT IS PROPERTY? General Rule:Property rights serve human values. They are recognized to that end, and are limited by it(i.e. the law has to work for us in a practical sense to reflect the things that we care about) Because property rights are relational, among people not people and things,they are not absolute. y Property rights, as abundle of divisible entitlements, include the right to: (1) exclude, (2) transfer, (3) occupy, (4) destroy y Property rights can beheld in a variety of forms granting the right to possess, use and enjoy different aspects of a determinate thing y Legal obligations to others are incurred with the assertion of property rights. y Property rights are limited to ensure that property use and ownership do not unreasonably harm the legitimate, legally protected personal or y property interests of others.
WHAT IS PROPERTY?:Tensions in Property Law Rule: property entitlements are limited in a manner which ensures that the exercise of a property right is compatible with the property and personal rights of others 1. 2.
Exclude v. Access: Privilege to Use v. Security of Harm:
3.
Power to Transfer v. Power of Ownership: Immunity from Loss v. Power to Acquire:
y
Property owner has a right to exclude however non-owners retain a right to access property under exceptional circumstances Property use may make others vulnerable to the effects of that use however people within proximity to the property have a right to be free from certain harms Economic theories of property law seek the most efficient solution to these competing interests Right to devise or convey property to person of your choosing may be limited by contractual agreements
y
Right
y y y
4.
to not have property taken is balanced against the governments power to take your property for federal usage. No property owner is guaranteed to be immunized from the depreciation in value on their property, in general.
WHAT IS PROPERTY?: Recurring Themes Social Context Alienability Dilemma
Contractual Freedom Social Welfare Justified Expectations Distributive Justice
Matters in defining property rights The ability to transfer; tension between promoting alienability through: (a) the consolidation of rights in owners and (b) promoting alienability by allowing owners to disaggregate their rights into unique bundles constructed by them Minimum Standards which may be placed on the freedom to contract granting owners power over property which ensures they can obtain resources to satisfy human needs encourages productive activity by granting security to those who invest in economic projects To insure that peoples expectations are metalways look at expectations with property expectation of deriving certain advantages from propertyand the relation in which one stand in light of that property Idea that property is power and that a redistribution of property is a redistribution of power and wealth Property is one of many forms which wealth takes, and involves the right to control tangible assets. Who is helped and who is harmed?
WHAT IS PROPERTY?: Normative Approaches to Property Law 1. 2.
Indian Conceptions of Property: Positivism and Legal Realism: (Comes up a lot in the semester)
3.
Rights Theorists/Justice and Fairness:
y y y y y
4.
Utilitarianism/Social Welfare Advocates:
y y y
5.
Social Relations:
y y y
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Based
on communal understanding of law in which the land is considered sacred Law is separate from morals; Law is not from the divine but rather the commands of the sovereign promulgated for public policy reasons This paradigm conflicts with Natural Law theory An individual interests that is so important from a moral point of view that it deserves legal protection which trumps overriding general considerations of public policy Rights so rooted in the nature of human beings or so rational from a moral point of view that a particular individual interest is fundamental Looks at consequences of law and chooses that which has the best consequences overall for society Seeks that most efficient approach in order to maximize the its positive effects and minimize any negative effects Compare the costs and benefits of alternative property rules or institutions with the goal to adopt rules which will maximize social utility or welfare Property rights are relations between people not possessions Maintains that property rights can only be understand in relation to people and how they act interact with one another Legal realists: interpret property rights as delegations of power to individual s by the state which therefore should be defined so as to accommodate conflicting interests
Property Synthesis PROPERTY: METHODS OF ACQUISITION General Rule: Generally
the right to property is acquired by (1) contract, (2) familial relations, (3) social custom, (4) claim based on possession or labor and investment, (5) receipt from the government, or (6) conquest These paradigms usually function as mutually exclusive and competing grounds for claims to the Original Acquisition of Property
y y
Acquisition of Property: How do we get property? 3. Familiar Relation 1. Conquest: (Johnson v. M c·intosh-conquering c·intosh-conquering another another coun countr tr )
2. Labor/Investment: Very strong in American property philosophy (Johnson v. Mc·intosh)
4. Social Custom: (Pierson v. Post-hunting fox)
5. Government grant: (Johnson v. Mc·intosh- indian land) 6. Transaction/Contract Transaction/Contract
Methods of Acquisition: Acquisition: Conquest and Distribution Distribution by the Sovereign Sovereign Doctrine of Discovery:
I.
Rule: Absolute title rest with the discoverer of the land and not the indigenous inhabitants that resided there at the time of the discovery. The right to transfer is separate from the right of occupancy that is held by the indigenous inhabitants. Therefore, the United States, as the successor to English control, is the exclusive sovereign. Titles which descended from transactions with Indian nations do not supersede US title.
II.
Case Application: Johnson v. M'Intosh(pgs. 4-13): Dispute over landpurchased by Johnson from Indians and which MIntosh bought from the United States States Analysis: BecauseIndians were savages wandering the land and notusing it according to E uropean custom they gained no property interest in the y land beyond the right to occupy. Native Am. did not mix their labor with their land and parceled out, so they did not possess their land according to European standards. Justice Marshall determines title to the land by looking at the law of the state that governs the dispute (positive law, law that actually y exists) and NOT abstract justice (natural law, questions of morality, objective fairness). This case is significant because it establishes the theoretical framework for American property law which is a shift from natural law theory y to positive law. Holding : Native American retained their right to occupy but NOT transfer land. y
Doctrine of Discovery
y
Abstract Justice or Natural Law Right to Occupancy
y
Right to Exclude
y
Aboriginal Title
y
Indian Land / Title
y
y
Title to newly discovered lands lay with the government whose subjects discovered new territory. The doctrine has been primarily used to support decisions invalidating or ignoring aboriginal possession of land in favor of colonial or post-colonial governments. There is a law above that which man has created which cannot be changed by man Right to use the land; tribes retained the right of occupancy however the power of transfer and alienability was assumed by the Discoverer or C onquestor Allowed to subject others to the right of the land
i.e. effectively right of occupancy; Retained right to occupy and exclude after discovery however no right of alienation Today, Land is held in trust by the government while tribes retain right to occupy and exclude; tribes may only sell their right of occupancy to the discovering sovereign but they cannot transfer and have alienable rights to it.
Methods of Acquisition: Acquisition: Capture 2
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Property Synthesis PROPERTY: METHODS OF ACQUISITION General Rule: Generally
the right to property is acquired by (1) contract, (2) familial relations, (3) social custom, (4) claim based on possession or labor and investment, (5) receipt from the government, or (6) conquest These paradigms usually function as mutually exclusive and competing grounds for claims to the Original Acquisition of Property
y y
Acquisition of Property: How do we get property? 3. Familiar Relation 1. Conquest: (Johnson v. M c·intosh-conquering c·intosh-conquering another another coun countr tr )
2. Labor/Investment: Very strong in American property philosophy (Johnson v. Mc·intosh)
4. Social Custom: (Pierson v. Post-hunting fox)
5. Government grant: (Johnson v. Mc·intosh- indian land) 6. Transaction/Contract Transaction/Contract
Methods of Acquisition: Acquisition: Conquest and Distribution Distribution by the Sovereign Sovereign Doctrine of Discovery:
I.
Rule: Absolute title rest with the discoverer of the land and not the indigenous inhabitants that resided there at the time of the discovery. The right to transfer is separate from the right of occupancy that is held by the indigenous inhabitants. Therefore, the United States, as the successor to English control, is the exclusive sovereign. Titles which descended from transactions with Indian nations do not supersede US title.
II.
Case Application: Johnson v. M'Intosh(pgs. 4-13): Dispute over landpurchased by Johnson from Indians and which MIntosh bought from the United States States Analysis: BecauseIndians were savages wandering the land and notusing it according to E uropean custom they gained no property interest in the y land beyond the right to occupy. Native Am. did not mix their labor with their land and parceled out, so they did not possess their land according to European standards. Justice Marshall determines title to the land by looking at the law of the state that governs the dispute (positive law, law that actually y exists) and NOT abstract justice (natural law, questions of morality, objective fairness). This case is significant because it establishes the theoretical framework for American property law which is a shift from natural law theory y to positive law. Holding : Native American retained their right to occupy but NOT transfer land. y
Doctrine of Discovery
y
Abstract Justice or Natural Law Right to Occupancy
y
Right to Exclude
y
Aboriginal Title
y
Indian Land / Title
y
y
Title to newly discovered lands lay with the government whose subjects discovered new territory. The doctrine has been primarily used to support decisions invalidating or ignoring aboriginal possession of land in favor of colonial or post-colonial governments. There is a law above that which man has created which cannot be changed by man Right to use the land; tribes retained the right of occupancy however the power of transfer and alienability was assumed by the Discoverer or C onquestor Allowed to subject others to the right of the land
i.e. effectively right of occupancy; Retained right to occupy and exclude after discovery however no right of alienation Today, Land is held in trust by the government while tribes retain right to occupy and exclude; tribes may only sell their right of occupancy to the discovering sovereign but they cannot transfer and have alienable rights to it.
Methods of Acquisition: Acquisition: Capture 2
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Property Synthesis Possession: I.
General Rule:Possession creates a presumption of ownership which puts others at a disadvantage if they intend to acquire it from the possessor y
Sub-Rule:Possession requires that the possessor have both (1) physical control over the item and (2) an intent to control /exclude /exclude it from others.
y
3
ways in which Possession Rights can be formed: Social Custom: by culturally contingent factors such as social custom, hard law, precedent, formal codified law (many factors may be a. used when there is no rule that governs the circumstances) b. Corporal (occupancy) Possession : the clearest form of possession; the actual possession of an item Law of Capture: demonstrate an (1) unequivocal intent to appropriate for ones individual use; (2) through legitimate means (3) to c. bring under certain control the common resource available to the parties. Depriving animal of actual liberty; mortal wounding is sufficient to establish certain capture a reality of hunting, immediate removal may not be possible Labor and pursuit is INSUFFI CI ENT to establish right over property Unreasonable waste of resource from negligence doesnt qualify as capture ( Elliff v. Texon)
EXCEPT: When Trespassing and Capturing. A hunter on anothers land as cannot retain possession of an animal killed on anothers land without the consent of the owner if they are a trespasser and the land owner has asserted his right to the property POLICY: this is the best rule for sake of certainty and preserving the peace and order of society
II.
Case Application: Pierson v. Post (pgs. 76-79): Occupancy « Hunter Chasing Fox Case »Pursuit is not sufficient to establish possession. Only if hunter mortally wounds an animal with the intent to possess it does possession apply. RULE: Property is acquired by occupancy only ANALYSIS: There must be a deprivation of the animals natural liberty to establish occupancy which can only come about by a wounding (to the point where animal cannot survive on its own or capture is virtually certain) or capturing an animal If animal is in the process of being entrapped, and the door has not snapped shut, it has not been captured MAJORITYS POLICY RATIONALE (Pierson Rule): Possession is given to the person who actually obtains occupancy of animal. This rule would create more certainty and preserve peace and order in society with less litigation costs. This is intended to reward the effective and successful individual and not just the individual that attempts. (First in Time) Intended to reward results, success, not necessarily the individual that tried y DISSENT: (Post Rule) anyone who has a reasonable prospect of taking (capture) should be the possessor. y Dissent feels it should have been decided by the social customs of hunters and NOT case law. Rationale:greater emphasis on fairness Post may have been successful because fox was tired. The benefit should go to the y individual who acts without a guarantee that their effort will lead to results rather than the free-loader. B ecause he mixed his labor with the activity and this would incentivize fox hunting. (Duty of Sportsmanship) POLICY: when arguing for either side concepts to be aware of are the level of certainty and incentive that would be created based on use of the rule of capture (versus another-like pre-possessory interest), questions of fairness (first to invest labor, etc.) or moral duty, significance of labor investment, etc.
Equitable Division/Pre-possessory Interest:
What Does Possession R equire?? i. General Rule: If more than one party has a valid claim to a single piece of property (both innocent parties, neither unlawful) the court may recognize that there is an undivided interest in the property in proportion to the strength of the claim. If neither party has a stronger claim then equitable division is used. y Possession Interrupted by Unlawful Acts: Where an actor undertakes significant but incomplete steps to achieve possession of a piece of abandoned property and the effort is interrupted by the unlawful acts of others, the actor has a legally cognizable pre possessory interest in the property. ( Court has created a property interest for Popov) ii.
Case Application: Popov v. Hayashi (pgs. 79-82): « Baseball hit by Barry Bonds was caught by Popov who was then tackled to the ground where the ball was dropped and picked up by Hayashi; Neither men were wrong-doers in the case » ANALYSIS: The rule of capture established in Pierson v. Postonly applies to animal cases because it is physically possible for a baseball to be controlled vs. a fleeing animal, custom creates an expectation that a person must have complete control before claiming full possession. Court rules that P had a legally pre-possessory interest in the property while the D had the HOLDING: Both men have a undivided interest (each has a right to the entire ball and it cannot be physically divided) therefore when the ball is sold proceeds will be divided equally
iii.
Compare: Pierson v. Post and Popov v. Hayashi; Hayashi; in Post, the was not interrupted by outside unlawful intervening event and therefore his right of possession based on labor was insufficient to trump the right of actual possession, however in Popov v. Hayashi was disturbed inappropriately and therefore his labor granted him a pre-possessory right equivalent to that of actual possession
Correlative Rights Doctrine-Under the Law of Capture: rights of land owners are correlative to eachother and no liability will exists to the other if the property is gained through reasonable and legitimate means. 3
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Property Synthesis i.
a.
ii.
General Rule:If each party has an equal right to acquire or access a resource from in a common source that is able to migrate legal accessible to all parties, the party that has captured the resource in a reasonable and legitimate manner is the owner. This theory rewards actual possession but limits by (1) a prohibition of waste of the resource (reasonable use) and a (2) duty to not harm others. JUSTIFICATION of Rule: Courts create liability for the wasteful capture of property to an agent with pre-possessory property right in n that same property if the property is a limited resource and the interest exists to benefit the greater society. Background Rules: Mineral Rights (Right to Exclude v. Right of Access): Each owner of land has a separate, distinct and exclusive right to all o the oil and gas under his land because they are considered a part of the realty. Owner has usual remedies against trespassers that appropriate minerals or destroy market value Case Application: Elliff v. Texon Drilling Co., (pgs. 83-87):«Parties had adjoining property on which each operated oil & gas wells; B ecause oil and gas is migratory, move back and forth underneath the earth, it makes it impossible to establish a rule of absolute ownership. Ds well blew up destroying resources underneaths Ps land. Ellief is a compromise position between (1) doing whatever you want and (2) absolute control of ownership» ANALYSIS: Court rejects L ouisianas precedent bc its an archaic rule that doesnt account for new technology that allows land owners to measure resources beneath the earth. L ouisiana also uses the law of capture for minerals bc of the uncertainty of knowing under whose land the resources was located. Court applies a caveat to the rule of capture to promote efficiency and fair dealings, which states HOLDING:Texon can legally withdraw as much gas/distillate by use of its own well as is possible, even if this means taking from underneath Ellifs property. Drainage from a common pool is okay as long as the drainage complies with the spirit and purpose of conservation statues and the removal is reasonable and legitimate LIMITATION:No right to negligently waste of gas must use due care. Obligated to withdraw minerals pursuant a standard of due care that is both reasonable and legitimate i.e. (1) legitimate: Must drill from your land (2) reasonable: [(a) cannot cause harm, (b) cannot cause waste, (c) must be reasonable] (negligence standard)
POLICY RATIONALE: (1) Incentivizes parties to develop and produce oil and gas; (2) Balances tension between rewarding labor v. protecting lawful possession and promoting fairness v. encouraging development of resources (3) rewarding late-comers for their capture will disincentives early investment for others (4) exploitation would occur too quickly and result in waste and be inefficient HYPO ARGUMENTS: To protect the party who invested the labor in rendering the property capturable, but the property is gained by another through the law of capture who benefits from the prior agents investment and work. C ould argue that the original investor has a pre-possessory interest in the allocation of the resource but it is not absolute. On the other hand, this could create a monopoly on a resource that is not yet absolutely possessed by the other party & would create inefficiencies. COMPROMISE: TO prevent unfair competition and advantage to late-comers, then those who gave original investment could have a period of exclusivity to take advantage of their initial investment??maybe..
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Property Synthesis
Methods of Acquisition: Labor and Investment Quasi- Property: is a compromise between two extremes absolute title vs. free market of resource Relativity of Title:When examining quasi-property rights title to property may not be absolute but rather relative to the parties involved and therefore st nd rd the 1 party may have an ownership or interest in a property that is superior to that of a 2 party competing for it but this does not mean that a 3 party st may not have a superior claim to that property than the 1 party. The relationship between the parties is significant, while a party may be protected against a competitor they may not be protected against a non competitor. Title can be relative depending on the circumstances and the parties AND the level of labor Doctrine of Unfair Competition: General Rule:(Labor and Investment )A claim of unfair competition may be actionable when it is based on the appropriation of another a. partys literary work (News Reports) if the words are repeated by a the appropriating competitor in the same business in such a way as st to convey a misrepresentation that materially injures the 1 party to use them Exceptions: lawful capture first possession without waste or negligence property, b.
Case Application: (Quasi-property, R elativity of Title, and Unfair Trade) INS v. AP, (pgs. 32-41): INS used the news stories gathered from AP, claiming that news is not property. AP has a "quasi-property" interest as it relates to their competitors and therefore AP's work is protected under a theory of unfair competition & relativity of title, however it would not have one against readers. By creating a quasi-property interest in reported news awards the right of first possession and labor and investment against competitors. Rationale: News as a factual account of the history of the day is considered common property for the public-at-large and cannot be copy-written however as it relates to the misappropriation of a competitor of the words or specific style of writing may be copy-written. This is because news gatherers labor and investment should be rewarded because it will incentivize the gathering and reporting of news which is a public good. Because the very nature of the news is dissemination (making it public) if this was considered abandonment there would be no viable business. Profit should come from gaining reliable information and getting it to the public quickly and not misappropriating a competitors work. INS used unfair competition by misappropriating Holding : News becomes quasi-property when gained legitimately and may be protected from a competitor that would seek to misappropriate it for their own profit Tensions: AP principle of rewarding labor and promoting fairness v. INS principle of protecting (lawful) possession (claimed it was abandoned in public domain) DISSENT: Brandeis- INS did not do anything wrong bc the news is not property and not copyrightable. Therefore, AP is not owed attribution/credit for its story if it is not copyrightable or even property. It owes AP nothing once info is communicated to others. Holmes-There is no property right to words or thoughts and facts expressed by those words. But INS owed AP credit for its labor and investment. Therefore, INS should be prevented from using A Ps story based on fraud for at least a number of hours unless it gives proper attribution to the true source of the reporting POLICY: Deciding factor was creating incentives to encourage parties to develop resources in a productive way i.e. encouraging the gathering of news by protecting the one that invests its labor c.
Case Application: Moore v. Regents of University of California, (pgs. 45-52) Labor and investment rewarded if socially beneficial. Plaintiff with leukemia went to hospital to receive tests, blood drawn was valuable in scientific analysis; he was told he needed to have his spleen removed, consented, doctors intended to take portions of the spleen to send out for scientific testing; doctors were exploiting plaintiffs illness to benefit financially. Issue: Because one does not have a property right in an item they abandon can a establish that he retained a property interest in his tissue. Rationale: If the patients cells are not unique, the patient doesnt have any property interest in cells. Cell line is not Moores property because it is legally distinct from Moores body, product of invention; raw material was different from the cell line for which patent was sought therefore cannot establish a property right Holding:Patient may bring a claim for breach of fiduciary duty but not conversion because he has not established a property interest in his human tissue. Tension:Patient's Right of Informed Medical Decision v. Scientific innovation. Patients right to an informed medical decision should not hamper scientific innovation. States decide differently, this is just a principle. L ook at general principals and issues. POLICY: Extending conversion to medical research based on harvested cells would have a broad impact and increased liability and could hamper medical research making it more difficult. Maintains that the patients likeness can be protected better by enforcing informed consent and fiduciary duty and not by allowing conversion claim. Should the human body be for sale? Or parts? Bio-ethics community grapples with this fact. Anything that would be harmful to survival cant be sold but always donated. Think about affects of allowing foreign countries to sell surrogate mothers or babies or breast milk? Affects on hospital and healthcare system if ppl sell their parts and get sick more and cost system more overall.
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Property Synthesis Methods of Acquisition: Gifts and Finders Law Gifts Law: General Rule: Voluntary, immediate transfer of property, without consideration, from one person to another. Once taken a gift is irrevocable unless it is transferred with a condition. The donor must (1) Intend to make a gift, (2) Deliver the chattel to the donee, and (3) donee must Accept the chattel
1.
INTENT to transfer title
a.
2.
present intent: in the moment transfer was made there was intent transfer title without consideration; doner must intend to transfer title and not simply possession evidence of intent: actions, letters, words, etc o Exception: A promise to give property in the future is not a gift. o
DELIVERY of the property
a.
actual: donor physically transfers possession of item such that donee has dominion and control over it
the easiest and clearest cut C onstructive: ( delivery must be impractical ) physically transfer the means of access to the property. Hand over the means of obtaining possession and control of the property (e.g. car keys) o Even if there is evidence of constructive delivery-may not be sufficient b/c the item can manually be delivered. c. Symbolic delivery : object given that symbolizes the property to be transferred o
b.
eg. Writing (i.e. like a will is symbolic but a deed could be seen as actual delivery), not promise for future
o
d.
delivery through a third person: donor instructs his agent to deliver a gift to donee or donor delivers gift to agent of donee
when the donor cant personally deliver the object and so it gives it to another person to give it to the donee the issue here becomes when the object is not delivered but rather is kept by the agent, in a dispute when would the delivery be considered made? depends on whose agent it is i. if the agent is from the receiver of the gift then can show that you were going to accept the gift ii. if the agent is from the gift giver then courts will say that the property is still in gift givers possession
o o o
3.
ACCEPTANCE by the donee o o
3
the donee must accept the chattel, and therefore may reject the gift when the gift is beneficial or has a lot of value to the donee, acceptance is presumed
types of gifts: o Inter vivos(during life time) property transfers made during the donors life; once made it is irrevocable. Causa Mortis: a gift made in contemplation of immediately approaching death; revocable if donor recovers from illness that prompted the gift. o Testamentary transfers (after death) property transfers effectuated at death through a valid will or inheritance o
Engagement Ring Scenario (exception to irrevocable gift): the ring is a gift received with a condition Traditional view - man gets it back if they neutrally agree to not get married or she is at fault in breaking off the marriage a. b. Modern view - is that the donor should always recover the ring and fault is not a factor, courts do not want a ring to entice marriage and courts dont enforce fault in divorce so it shouldnt be a factor in engagement Finders Law: General Rule: (Intent of True Owner) An owner of property does not lose title due to lose of property. The owners rights in some circumstances persist though the article has been lost or mislaid. A finder has rights superior to everyone but the true owner. Background
Rules: Possession: a person is in possession of an object if he physically controls an object Ownership: usually proven by documentation showing transfer of title to present titleholder. Possession is not necessarily ownership (i.e. a lessee of apt.) Ownership by Occupancy: property belonging to no one becomes property of a person taking possession of it if w/ intent to acquire the right of y ownership (Res Nullius) Case Application: Charrier v. B ell, (pgs. 92-95): Plaintiff located and excavated Indian burial ground and attempted to sell property. Intent of previous owner/purpose determines whether discovered/found items can be possessed or not. ISSUE: Did the Indians abandon the artifacts? RULE: Occupancy of land above burial ground- usually one can acquire property over something that belongs to nobody becomes the property of the person who took possession of it with the intention of acquiring a right of ownership. Except with unmarked Native American burial groundsthese are not abandoned and still belong to them (mislaid property) Rationale: Because burial is not abandonment but rather the intent that the goods will remain with the buried indefinitely and therefore burial goods are not treasure if they were it would promote despoilment of burial grounds. The ultimate owners (Native Americans) of the artifacts presented substantial evidence that they were not unjustly enriched by the excavation because of the substantial upset over the ruin of "ancestral burial grounds". And Ps impoverishment was due to his own negligence. Holding: The court held that objects buried with the dead could not be considered abandoned and therefore could not be acquired by obtaining possession over the objections of the descendants.
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Property Synthesis HandoutNAGPRA, Indian Remains&UC Berkley: Landowner who discovers Indian burial grounds must notify public officials to negotiate with the affected tribe for reburial of remains and associated objects, items belong to the lineal descendants or to the tribe on whose land they were found or to the tribe having the closest cultural affiliation with them y
Unjust Enrichment:unlawful acquisition of money or property of another; criteria ( Charrier v. Bell ) 1. There must be an enrichment to D ( Charrier v. Bell : no enrichment of Indian tribe) 2. There must be an impoverishment to P ( Charrier v. Bell: no impoverishment b/c he was aware he had no right to excavate) 3. There must be a connection between the enrichment and resulting impoverishment 4. There must be an absence of justification or cause for the enrichment and impoverishment; and 5. There must be no other remedy at law available to plaintiff
y
Relativity of Title: The finder of lost or mislaid property does not acquire title against the true owner but will prevail over everyone else. TRUE OWNER Prevails over POSSESSOR (finder/thief ) Prevails over SUBSEQUENT POSSESSOR o whether the finder then retains the property depends on the owners intent; abandoned (Finder) v. lost or mislaid (True.Owner.) o Res Nullius: Property of none and never had an owner; may be owned by the first person that finds it (wild animals) Res Derelictae: Things that have been abandoned and are no longer owned Policy Rationale for Superior Right of L.O .: claim than a finder because person who left it there may come back and claim it
y y y
owner accidentally misplaces property Who Prevails On somebody elses property On somebody elses property On somebody elses property On somebody elses property Exceptions
Lost
True Owner (Right of Recovery-TO) a) If a finder trespassing, no rights b) If with permission and in the house, the property owner has better title than the finder c) If with permission and in the open, the finder has better title than the property owner d) Treasure trove: the finder has better title than the property owner e) if finder is a trespasser, employee, guest, or licensee, OR if property is found in a highly private locus or buried-owner of locus gets possessory rights.
owner intentionally placed property however forgot where it was placed and failed to recover because of inability to relocate
Mislaid
Who Prevails On somebody On somebody On somebody On somebody Abandoned
elses property elses property elses property elses property
True Owner (Right of Recovery) a) If a finder trespassing, no rights b) If with permission and in the house, the property owner has better title than the finder c) If with permission and in the open, the finder has better title than the property owner d) Treasure trove: the finder has better title than the property owner
owner formed intent to voluntarily relinquish title and possession and has in fact acted in a way to relinquish both title and possession Graves are not abandoned because the intent exists to leave the object in a location indefinitely and not for anyone else to possess y Who Prevails On somebody On somebody On somebody On somebody
elses property elses property elses property elses property
Finder (Owner Forfeits Right) a) If a finder trespassing, no rights b) If with permission and in the house, the property owner has better title than the finder c) If with permission and in the open, the finder has better title than the property owner d) Treasure trove: the finder has better title than the property owner
Treasure Trove: Treasure trove is found gold, silver or money intentionally buried or concealed in the soil with the intent of returning to claim it. When the true owner of property is unknown the property goes to non trespassing finder even though its embedded. Treasure trove does not include objects buried with the dead, which do not belong to the finder. fide Purchasers: A thief can never acquire good title. And one can ever acquire good title from a thief, unless it is a merchant in which case if the merchant is entrusted with the goods and deals in that kind of goods, the merchant may sell them without permission to a bonafide purchaser. Bona
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Property Synthesis Methods of Acquisition: Trespass and Right of Reasonable Access MAJORITY RULE: Absolute right to exclusion as limited by state and federal anti-discrimination laws. However, Innkeepers and C ommon Carrier is cannot exclude arbitrarily with out reasonable cause (disruptive to safety, drunk, criminal) Reasonable to exclude if people are (1) disruptive or (2) threaten safety (drunks, petty offenders, disorderly) because owner has a duty to protect y other patrons. It is Unreasonable to exclude if person is (1) a protected class of persons (race, creed, gender, etc) Right to Exclude: exclusion is not absolute, may not be used to injure the rights of others, and is limited by (1) Fed anti-discrimination laws and (2) common law Majority View: proprietors have absolute right to exclude, arbitrarily (as long as not against federal or state anti-discrimination laws) anyone from th premises. Common carriers and hotels cannot exclude protected classes per 14 Amendment Minority View: When property owners open up to public for their advantage, they cannot exclude for arbitrary or unreasonable reasons. (Shack ; Uston) but CAN exclude anyone who is not a protected class of people.
A. B.
Trespass: is the (1) unprivileged (2) intentional (3) intrusion on property possessed by another; infringement on the right of possession 3
Elements:
1. 2. 3.
Defenses:
privileges which grant a right to access private property because of: (1) necessity to prevent a more serious harm to persons or property, (2) encouraged by public policy (e.g. fireman) (3) consent from owner (invitee or licensee)
Types of Trespass:
2
y y
Remedies at Law:
y
y y
Mistaken entry,is NOan acceptable defense Forced to enter ISan acceptable defense (involuntary)
Civil Trespass:Owner sues the trespasser, i.e. border dispute, one builds a house that hangs onto anothers property Criminal Trespass: prosecuted by the government, go to court and may have to go to jail or pay a fine
y
Remedies at Equity:
Unprivileged: without consent of owner Intentional: a voluntary act (strict liability for voluntary physical invasion; not necessary to intend to trespass rather intend to enter) Intrusion: occurs the moment the non-owner enters the property (may be an inanimate object, i.e. building, tree limb, overhang)
Ejectment: lawsuit to remove the trespasser from land If trespasser has occupied property Declaratory judgment: court confirms partys legal rights against another party
y
Injunction: order the wrongdoer to cease wrongful conduct and require wrongdoer to remedy harm Nominal damages: (no harm) establishes right to property and right to exclude Compensatory damages: (harm) restoring to previous condition due to diminution in value Punitive damages: intended to deter outrageous or malicious behavior
y y y
Minority Rule: State v. Shack, (pgs. 104-108)( MINORITY RULE?) Defendants entered on property to aid migrant workers employed and housed there; one defendant entered to provide medical attention the other legal aid; owner of land allowed them on the property but would not allow them to talk to the workers alone, defendants refused and owner called police for trespass by Ds. Reasoning: Title to property cannot include dominion over the destiny of persons the owner permits to come upon the premises (visitors, workers, etc.). Right in real property is not absolute and it is curtailed by society and the best interest of others. Property Owner cant use his property in a manner that harms others, in particular those in vulnerable situations. RULE: if purpose of land entry is to serve needs of community one may enter land if it doesnt interfere with owners business and property interest Decision: Trespass conviction overturned because under NJ state law, ownership of real property does not include right to bar access to government services available to migrant workers which are fundamental rights and should be protected (Supremacy Clause trumps state law). Tension: Owners Right to Exclude v. Govts Right to Access (Supremacy Clause trumps state rule) POLICY: The landowner's right to exclude must be limited to protect the migrant workers' fundamental human rights.
Right to Exclude (trespass)? : S I S Y L A N A
1) What interests are being protected by excluding others from property? 2) What interests are exerted by the non owner to enter the property? 3) What law is claimed for the right of access? a) Where does it come from? b) What is being invoked? 4) How is the judge going to analyze the competing interests and balance the interests of the P.O. and the Accessor?
Right of Reasonable Access (Owner cannot exclude)? : S I S Y L A N A
1) Interest of property owner v. interest of person entering premises? 2) What is the character of the property? a) Open to public? 3) Status / class of person entering premises? 4) Type of property? a) Innkeeper / Common Carrier? b) Other business?
(Unston) If property owners open their premises to public in the pursuit of their own property interests, Proprietors can y
o t t h : e g d i u R l O c x N E
y y
Cannot
exclude Individuals based on an unreasonably reasons (duty not to act arbitrary or in discriminatory manner) Cannot exclude visitors of temporary occupants of a property (leassor) Innkeepers/ Common Carriers have duty to allow access to public
y
o t t h : e g d i u R l S c E x Y E
y
Those who disrupt regular and essential operations of premises or threaten security of premises and its occupants Owner cannot use their property to injury other people
Uston v. R esorts International, MINORITY RULE(pgs. 116-118) D is a card counter and the (P) casino didnt like it so P excluded him from entering the casino Rule: Proprietor whose land is open to the public do NOT have the right to unreasonably exclude particular member of the public. Same as innkeeper or common carrier, and does not violate state/federal law. Reasoning: Reasonable if disruptive or threaten safety (drunks, petty offenders, disorderly). Cannot exclude because does not threaten security or disrupt function of casino operations
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Property Synthesis Holding: The Casinos exclusion of him is unreasonable, and therefore, impermissi ble. The more the owner opens the doors to the public, the more they are prevented from arbitrary exclusion. The Casino was not threatened by the Ds presence and bc its open to the public it cannot exclude without good causeunprofitable patron is not enough.
Property: Relations among Neighbors Adverse Possession: Law and Policy Color of Title ( CoT)-Mistake of fact regarding deed (deed says you own certain amount of land, but deed is wron g) This type of A/P requires that possession of land be in good faith. Claim of Right (CoR)-No deed, only occupancy and no state of mind of good faith is required. CoTConstructive Possession-if A/P is established by CoT then A/Por is entitled to all of the land stated in deed, not just t he land that was used. CoTConstructive Possession-if A/P is established by CoR then A/Por is ONLY entitled to the land that was used and proven to beA/Ped. Statute of Limitations (SoL)
POLICY Justifications for Adverse Possession 1. Fairness: Justified Expectations
a.
b.
protects A/Por who has become attached to land & relies on it BUT Denies TO right to land and for whom recovery of land may be an unexpected windfall
Law & Economics: Provides degree of certainty of ownership by eliminating stale claims which
y
y y
2.
Efficiency
y y
y 3.
Counter-point to Efficiency argument
By
rewarding A/Por who is productive, and penalizing TO who is unproductive, doctrine encourages productivity Encourages maximum use of land by: o decreasing likelihood property is idle increase development & progress o SoL varies by state, most 15yrs y y
maybe the best use is for it to be idle adverse possession laws are archaic
decreases administration costs by establishing rightful ownership by quieting title and o o foreclosing stale claims decreases uncertainty in transactions courthouse recording system has deed of every property and parameters
Claim of Right: Brown v. Gobble, (pgs. 179-184): (TO) sought injunction to prevent neighbors from interfering with 's use of 2-ft wide tract of land running between adjacent yards. s counterclaim, alleging ownership of land by A/P . Holding: owns propertybc prior A/Por held land for many years which would satisfy statute of limitations (tacking) A/P B urden of Proof ( BoP): clear and convincing evidence (higher standa rd than preponderance of the evidence) due to the issue of fairness y and equity Fairness and equity are significantly increased because interest at stake is the loss of a homestead o BoP on the party that claims title by adverse possession y uses doctrine of tacking to establish adverse possession periods because connected by privity of title of claim o Evidence used to prove elements: Actual: repaired fence, garden, removal of weeds etc o Exclusive: owners of property did notobject o Open & Notorious: reputation in community of 2 ft tract-owned by previous owners (privity) o Claim of tile: claimed A/P pursuant to occupancy o Continuous: Blevins maintained cultivated land claimed (Privity) o Color of Title: Romero v. Garcia, (pgs. 185): Filed suit to quiet title based on A/P under color of title (paid taxes) but deed was non specifics and lacked signiture Deed is sufficient for color of title even though it lack signature. y Deed not void for lack of proper description, if deed + extrinsic evidence is sufficient for a surveyor to ascertain boundaries y Evidence used to prove elements: y Good Faith: P made continuous payments of taxes-property as hers under color of title. o Good Faith: Can ascertain boundaries by conduct of parties by erecting house o Under the surveyors notes it ends up being 12.75 acres and this was sufficient for the court Nome 2000 v. Fagerstrom, (pgs. 187-191)dispute over a tract of land on which s erected a cabin on the northern part of the parcel after many years; uses adverse possession as a defense to ejectment Reasoning : A/Por were entitled to only a portion of the entire disputed parcel because use of southern portion of disputed parcel did not provide a reasonably diligent owner with visible evidence of their exercise of dominion and control but the area that was used could be included in A/P Evidence which proved elements: y Actual & Exclusive: look at character of property, seasonal use o Evidence: building a cabin, improvements on land shows time they used land like a TO would Hostile: objective test, no intent, looks at how the possessor is acting towards the land o
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Property Synthesis Adverse Possession (A/P) General Rule:
y
To establish title by A/P, the party claiming adverse possession must show by clear and convincing evidence (1) actual entry upon land (2) giving exclusive possession, that is (3) open and notorious, (4) adverse and hostile under a CoR or CoT, and (5) continuous for the (6) statutory period .
Background:
y
Property is state law, varies by states; consult state statute on A/P (if none on exam then use common format listed below) A/P typically occurs between neighbors for property line disputes ( Cannot adversely possess govt. property) Transforms Trespasser into true owner (TO) therefore possessor can only take the property rights that the TO has o affirmative lawsuit may be brought against another party to quiet title in which court will determine ownership affirmative defense to ejectment or trespass claim (analyze character and use of property) o
y y
Elements of A/P
Process
Analysis
1.
ACTUAL
Is there a statutory definition provided? if not use format definition.
2.
OPEN AND NOTORIOUS
Rule: Possessory act must be sufficiently visible and obvious that a reasonable TO would be on notice that the property is occupied by the A/Por Standard of Proof: What a reasonable owner should know? y Actual OR Constructive Knowledge: Actual knowledge is unnecessary only reasonable TO should know o TO is charged with seeing what reasonable inspection would disclose. Test: are actions of A/Por so O&N as to put TO on notice that property is being possessed y Cannot be infrequent, sporadic, or hidden o Actions that are Open and Notorious enough to give notice: o Sufficient: (1) Building a structure, fence, wall, put up signs (2) Mowing land, (3) Using land for storage, etc, (4) Harvesting, planting, using it for outdoor activity, (5) But they cant be sporadic Insufficient: (1) clearing a few trees, (2) grazing cattle or goats without enclosing land Policy Rationale
A/P
Create
y
Criteria of Possession for
3.
EXCLUSIVE
10 | P a g e
Rule:Engaging in significant activities on the land such as the owner would make of it in ordinary use for which land is capable (triggers SoL) Most jurisdictions define the term actual occupancy by statute (however if not then use def. above) y Physical occupation o Affirmative acts of ordinary use: (1) living on the land, (2) developing the land, (3) etc. o User Right v. Possessor Right y The actual use may be one of a user and not necessarily a possessor and therefore court may only o grant prescriptive easement (shared use with permission ex. Shared garden between neighbors)
exist bc it encourages TO to use their land sufficiently and not be dormant land security for occupiers Allows TO sufficient time to sue Limits TOs ability to evict after a period for time Place TO on notice so TO may raise a claim of ejectment within statutory period Farmland: fencing, cultivating, erecting building y
Wild undeveloped land:
y
wild, undeveloped land not suitable for farming, but suitable for fishing and hunting can be A/Pd by acts of indicating a claim of dominion
City land:
y
totality of the acts must give a picture of a person claiming dominion
Minerals:
y
A/Por
must remove minerals. Possession of the surface doesnt give cause of action to the separate owner of the minerals until the minerals are disturbed
Rule: disputed property has to be used by the A/Por in a manner consistent with the character of the land and NOT with the True Owners use or knowledge or consent cannot be shared possession with the TO or general public y co-use with TO will defeat claim of adverse possession o co-use of A/Por with someone other than TO may or may not defeat claim of A/P o C o-owners may adversely possess someone elses property as tenants in common y
Property Synthesis 4.
ADVERSE OR HOSTILE (VISI BILITY) under Claim of Right or Color of Title
Consent Given by TO?
Rule: the non-permissive possession of property is required, however if TO is silent then the law generally assumes that the possession is non-permissive state of mind of TO and actions to show approval of use y If TO can show that A/Por was given permission then A/P claim fails o o Tension: What if TO sees A/P and gives some signal, was this permission or acquiescence?
IS THERE A DEED?:
Claim
of Right (C oR) vs. C olor of Title (C oT): Majority perspective, state of mind of A/Por is unimportant SoL periods may be different between CoR and CoT CoRA/Por believes property is theirs based on an informal occupation of land o In some case unnecessary to believe it is actually A/Pors, may just want it (Intentional Trespasser) A/Por can only possess area actually occupied or controlled in manner consistent w/ ownership o CoTthe claim is based on an erroneous or flawed deed that was believed to be correct: A/P may obtain entire property indicated by the deed even though only used a portion o o Deed may be faulty due to: (will serve as basis for C oT claim) (1) lack signature, (2) faulty procurement procedure, (3) mistaken/ambiguous parameters doc. (parole evidence rule governs) sufficient under objective and good faith; insufficient if intentional trespass is required Constructive Possession Doctrine: Demonstrate A/P to any part of the land under the deed will o allow a claim for the entire land under the deed (considered good faith claim) if an actual entry on part of the land is described in the deed, the possessor may be deemed in constructive possession of the rest, BUT an actual entry on some part of the land is required.
y y
y
IS THERE A MINDSET REQUIREMENT:
5.
CONTINUOUS
Review
y
st
state statute 1 , if none then assume majority view that state of mind is irrelevant 3 different mind sets for the adverse possessor o Objective (majority view): state of mind of A/Por is irrelevant rather actions of A/Por are analyzed is A/Por occupying land under community norms and w ithout permission of the owner occupation of the land is prima facie evidence under a claim of title which triggers SoL Quasi-objective: The adverse possessor must act toward the land the way an average owner would. o Intention to appropriate land need not be expressed, but can be inferred from conduct. Good faith: (C oT) bona fide or good faith belief A/P has title to land (Did he pay taxes on property?) o If possessor knows he has no title, and that someone else has title, possession is not adverse Intentional trespasser: Bad faith A/Por must know property it is not his and intend to take title o
Rule: control must be continuous (1) use in the manner of a TOs use for the duration of the (2) So L look at: (1) nature of the property, (2) location of the property, (3) character of property Must be continuously used in the manner that a TO would use land y A/Por use must be consistent with a TO of that property o e.g. If seasonal property then seasonal use is permitted If A /Por abandons property, without intent to return, continuity of A/P lost, A/P resumes on return o Abandonment : intentional relinquishment if possession y
Tacking (Brown v. Gobble)
6.
STATUTORY PERIOD
11 | P a g e
Rule:
Successive periods of possession, by previous owner with whom the A/Pors is in privity, that are aggregated and through which A/Por may fulfill the statutory period and satisfy requirements of A/P Privity of estate: possessor voluntarily transferred to a subsequent possessor either an estate in land or y physical possession; prior owners must have purported to have passed title to the property in dispute Tacking is allowed to provide sufficient time and use to establish A/P time requirement was meet y
Rule : (1) Set by statute (exam: statutory period is 10 or 15yrs) and (2) toll So L when TO brings suit y SoL may change depending on color of title claim, claim of right, etc. Doctrine of Tolling : some jurisdictions may toll So L of TO due to a disability of TO: (a) Infancy, (b) insanity, (c) incompetence, (d) y imprisonment, (e) absence from the state, (f) war Some jurisdictions will: (1) toll the statute only after the disability ends (2) modify the SoL after disability ends (3) provide a o max period greater than state So L even if disability is not terminated A/Por must still satisfy ALL elements of A/P during this Toll period to prove possession B ut if the A/Por begins A/Ping o before the true owner experiences any of the exceptions then statute of limitations runs normally. Dilemma: What happens if you adversely possessed the property that has limitation on it? Rule: A/Por can only get the property to the extent that the TO has ownership of it. Policy: A/Por should only be allowed to receive the rights that a TO would have
Property Synthesis Other Informal Title Transfers ENCROACHMENT Definition:
An
infringement (encroachment) of anothers rights in which a party interferes with or intrudes onto anothers property (ex. Neighbors new roof extends past boundaries of other neighbors property. Remedy would be compensation to TO) Majority Rule:
y
y y
Relative Hardship Doctrine: The court, in circumstances in which an improver that has mistakenly improved the land of another, may refuse to issue an injunction to require an Improving Trespasser to remove property and entitle the Trespasser to the value of the improvement Elements: (1) encroachment is innocent (an intentional encroachment cant use relative hardship doctrine), (2) o improvements harm is minimal or beneficial, (3) interference in TO property interest is small, (4) cost of removal is substantial If both parties are innocent the remedy will depend on the circumstances and relative equities o Examine good faith i.e. were the necessary measures taken BUT acting in bad faith will require that the structure be removed. Analytical Approach:
y y y
Did encroacher act in good faith or intentionally build on land? Is hardship incurred removing structure disproportionate to harm caused? Cost of removal?
Minority Rule (Traditionalist):
y
Absolute Right Doctrine:Property owner has an absolute right to an injunction ordering an encroachment cease no matter what the cost
Remedy:
y
Order the TO to pay the encroacher for the value of the improvements to the land Order removal of the encroaching structure If trespasser is allowed to continue encroachment: award damages to compensate the landowner for permanent encroachment o grant encroacher an easement over the land or o force sale of land to encroacher for fair market $ and any damages for loss of land o
y y
ENTIRE STRUCTURE ENCROACHMENT Definition Majority:
Majority Remedy:
Minority:
Minority Remedy:
When a trespasser builds an entire structure on anothers property and it becomes a fixture When a builder mistakenly constructs an entire structure on land belonging to another, the courts rule that the landowner becomes the owner of the structure built on the land by another. And may keep or remove a structure regardless of the affects on TOs property value. TO becomes the new owner of the structure A NNEXATION If court looks at overall societal benefit = weigh value of structure on land and price of removal and waste of removal If court looks at rights of parties = weigh the interests of each party and their interest in the structure and burden of keeping or removing structure (judges personal experiences and thought process matters on which remedy is chosen) (Somerville v. Jacobs) C ourts will grant relief to one who through reasonable mistake of fact and in good faith places permanent improvements upon land of another, with reason to believe that the land so improved is that of the one who makes the improvements and that the Ps are entitled to relief. y y y y
Unjust Enrichment:
y
de minimuscuratlex:
y
Boundary
Disputes
Order the TO to pay the encroacher for the value of the improvements to the land award damages to compensate the landowner for permanent encroachment grant encroacher an easement over the land or force sale of land to encroacher for fair market $ and any damages for loss of land Unlawful acquisition of money or property of another intentional improvements by one who k now s he is trespassing belong to the owner of the real estate; the bad faith o of the improver negates the injustice of the enrichment
that the law will not concern itself with trifles Crt will not grant equitable relief for if it will do no good but work a hardship uncertainty or dispute by parties; has to be with intent for agreement to draw the boundary line Boundary by Agreement : y
Boundary
by Acquiescence:
knowledge but silence; no agreement
Boundary
by Estoppel:
A/P
reasonable reliance and act to his detriment
Somerville v. Jacobs, (pgs. 218-221): In good faith (in reliance on a surveyors report) and by mistake, P built warehouse on a lot; D learned of the building after construction and claims annexation, improvements passed to them as part of the land; Ps claim equitable relief Rationale: In order to prevent unjust enrichment benefitting property owners y Decision: P entitled to equitable relief because TO would be unjustly enriched y Relief sought by P: (a) damages of $20.5K for value of improvements to lot, or (b) s be forced to convey their lot to them for fair consideration. o Dissent: D did nothing wrong and P should be the one to take windfall bc it was the Ps fault. Options should be that D can sell building to P or have P y remove building. Evidence which proved elements: y o Good Faith: court found that both parties acted in good faith
12 | P a g e
Property Synthesis o o
Cost of Removal is Substantial:removal not possible of the structure Unjust Enrichment:TO will be unjustly enriched if not reqd to pay or sell and P will suffer a substantial loss
Adverse Possession SoL for Personal Chattel Property Replevin
action for repossession of personal property wrongfully detained by another 3 Diff Rules for SoL: Conversion, Discovery (New Rule: Majority), or Demand (New Rule: Minority) y thief cannot acquire good title, nor anyone that receives property from a thief y Bona
Fide Purchaser:
unaware property was stolen not able to retain ownership unless So L tolls Exception: (UCC ) entrusting possession to a merchant dealing in kind of goods given will empower to transfer all rights of y entruster to buyer vesting good title in buyer
Conversion Rule:
(Old Rule)So L begins when property is wrongfully taken and TO is dispossessed of property (Tolls even if theft is concealed)
Discovery Rule:
SoL begins on stolen property once TO discovers where stolen property is Not accrue while TO uses due diligence to locate property o Does accrue once TO (1) knows or reasonably should know whereabouts of property and (2) identity of o Possessor BoP: TO must use due diligence in locating missing item o Due Diligence: what tools were available for recovery? Conduct of the owner is analyzed and not that of possessor o Rationale: greater protection of innocent TO of stolen property o
Demand Rule: New York Rule
SoL begins when TO demands return of chattel and GFP refuses return Until demand and refusal property is not considered wrongful y
Nuisance
Nuisance General Rule:
Nuisance:is both the substantialharm AND unreasonable interferewith a partys use and enjoyment of their land. B ut NOT an Absolute Right. Distinguishable from a trespass b/c trespass requires intentional physical invasion of property, but nuisance does not require a physical y component (noise, smoke). Trespass attempts to protects the physical ownership of land & Nuisance protects the use/enjoyment of land Physical components that invade a land (pollutants, carcinogens, microscopic invasion) could be under nuisance or trespass bc of y advancements in science they are now quantifiable enough for trespass. Trespass is an intentional physical invasion; however nuisance is intangible/not physical interference in landowners use and enjoyment of y land Distinguishable from Negligence bcnegl is about the reasonableness of conduct and how it is carried out BUT Nuisance concentrates on the y result of the conduct whether reasonable or not
Rational
Nuisance Maxim: (when analyzing nuisance claim) no one has the right to use their property to the injury of another, however there is no right to absolute security in property because everyone will incur some cost by the virtue of living in the world (point to remember) Measure y Reasonableness Standard:when gravity of harm outweighs the utility of the actors conduct it is unreasonable R§826 Unreasonable Lawful operation of trade or industry test: the reasonableness of conducting a trade or industry in a manner at the o Use: place and under the circumstances (flexible doctrine, facts of each circumstance is important) Ultra-hazardous activity: Strict Liability will be imposed when a party engages in ultra-hazardous activity (no showing of o substantial or unreasonable is necessary under strict liability formula) Unreasonableness and offensiveness of conduct is measured by a normal persons sensitivities o Factors for reasonableness analysis (causes a substantial harm or is unreasonable) : y 1. Character of the neighborhood : Is use typical to manner and function of land 2. Hypersensitive: Plaintiff cannot devote his land to an unusually sensitive use and claim nuisance for his disturbance. 3. F irst in Time: Preference by priority; (Who was at the location first? Did the complainant come to the nuisance?) Nature of the alleged wrong: what is the harm being caused? And is it common? Should it be tolerated? 4. Way of Conceptualizing Unreasonable: y Fairness Analysis: focuses on parties themselves, Does the Ps right to security prevails over the Ds right to act 1. 2. Social Welfare Analysis: focuses on society as a whole, is society better off if the conduct continues with the harm
l l i w s t r u o C e c n a s i u N f o t n e t x E G N I T A U L A V E N I
Measure Gravity of Harm
Extent
y
Character
y y y
Measure Utility of Conduct
y y y
of harm caused of harm involved aesthetic harm less serious than health/safety concerns Social value of activity should owner shoulder costs (pass on to customers or make Plaintiff shoulder burden? Suitability of the use to its location did P come to the nuisance? Burden of Plaintiff to avoid the harm Social valueoverall benefit of primary purpose of conduct Suitabilityconducts appropriate to the character of the locality Impracticability unable to prevent or avoid the invasion
y
Measure Fairness
Measure Welfare
13 | P a g e
y
y
of harm involvedaesthetic harm less serious than health/safety concerns Distributive Considerations should individual owner bear the costs of Ds socially beneficial activity or should the cost be spread around to D and his employees & customers? Fault is the activity disfavored? Is conduct appropriate for area Did P come to the nuisance?
y
Cost
y y
y
Character
and benefits cost/benefit of allowing conduct & const/benefit of prohibiting conduct Incentives what incentive will liability and immunity have? How will balancing of burdens incentivize safety or desirable economic activity?
Property Synthesis Impracticability of preventing or avoiding the invasion which party can more cheaply avoid the cost?
y
Rule: rules which provide remedies for a partys uses of real property in a manner that (1) cause substantial harm and (2) unreasonably interferes in an individuals right to use and enjoy their property. Typically applied when there is no special rule that has been created by court or legislature
Private Nuisance Doctrine :
Examples:
y
Light & Air
Majority Rule: ( Fo unt.)
toxic waste, air pollution, drug dealers, flies, noise, dust, odors, from manure plant damaged property interests, decorations that draw a crowd
Minority (P rah)
in absence of a statute or agreement to the contrary, owners have absolute right to develop their property without liability for any interference in their neighbor's interests in light and air however it cannot be for the sole purpose of maliciously harming neighbor without being useful or beneficial (Spite Fences). y
There is no absolute or unlimited right to use land, rights of neighboring land owners are relative and therefore use by one must not unreasonably impair use or enjoyment of other ( usefulness)
Rule: a member of public may sue for a public nuisance when there is an (1) unreasonable interference with a (2) right common to the general public (historically brought by a civil servant, however slowly opening to public in general)
Public Nuisance Doctrine:
Examples:
Fairness or Utility
y
public health; keeping diseased animals, maintenance of pond with mosquitoes; public morals brothels, indecent exhibitions, public peace loud and disturbing noises, public comfort bad odors, dust, smoke, public convenience obstruction of public highway
Reasonableness Test Policy Decisions: Rights and Fairness analysis vs. Social Utility and Welfare analysis () y
y
y
Rights and Fairness Policy: analysis focuses specifically on the parties involved (narrow set of concerns, only parties involved) o Rights analysis: Who has the right? Where is the property entitlement placed at the outset? F airness analysis: What is ultimately fair between these two individuals? o Social Utility & Welfare Policy: promoting welfare & good social outcomes analysis focuses on society as a whole(this can be in opposition Fairness analysis) o Social Utility analysis: Cost and B enefits? o W elfare analysis: What advantages will be accrued to society by allowing or prohibiting an activity? Judicial Role Analysis: how far reaching should the judicial go to promote change and the roles of judges o Do we want Crystals or Mud? Clear rules vs. sliding scale for fairness
Page v. Honeywell , (pgs. 273-76): D and P have business located next door. Ds computer (leak of radiation) caused Ps televisions to malfunction (tv store) interfering with business fro two years. Holding: Ds use of land was unreasonable and substantial despite it being a lawful activity. Measure of Unreasonable: If gravity of harm outweighs the utility of the actors conduct then the use is unreasonable. Factors:manner activity is conducted, place conducted, type of business carried, circumstances of operation, appropriateness of location, character of neighborhood, nature of wrong. H ERE it took D two years to fix radiation leak. Disruption of the Ps business. Ps use of land was not ultra-sensitive bctvs are common.
1. 2. 3. 4. 5.
Extent
1. 2. 3. 4.
Costs/benefits
Fairness
1. 2. 3. 4. 5.
character of harm (aesthetic harms will be viewed as less serious than health or safety concerns) distributive considerations Who is at fault? Is Harm a nuisance because it is not fair to make bear harm w/out compensation? 4 absolute right to be free from harm v. ( right to freedom to act? Who gets entitlement? y
Welfare
1. 2. 3.
costs and benefits of allowing the harmful conduct must be compared with the costs and benefits prohibiting it Incentives: what effects will liability or immunity have on incentives to engage in the activities? Lowest cost avoider: which party can more cheaply avoid the cost?
Gravity of Harm
Utility of Conduct G N I T A U L A V E N I
social value the law attaches to primary purpose of conduct the suitability of the conduct to the character of the locality impracticability of preventing or avoiding the invasion
4?
v.
Social utility of (s activity?
Social benefits of (s activity?
v.
What would society lose?
Extent
f o s s i s s e l y c a o r n P A
of harm (must be substantial) of harm Social value that the law attaches to the type of use or enjoyment invaded Suitability of the particular use or enjoyment invaded to the character of the locality Burden on the person harmed of avoiding the harm Character
of harm to
Overall relative social costs of conflicting land uses?
v.
Overall relative social benefits of conflicting land uses?
means at lowest cost?
v.
Which use was established first?
motive (Profit=legitimate)
v.
(s
Alternative
(s
motive ( Spite/Malice: illegitimate)
Remedies: Ex. Remedies
INJUNCTION DAMAGES
14 | P a g e
Dismissal of Complaint, Damages, C ost of restoration, R epairing the damage, Bringing back property back to its prior condition, Diminution in market value, Injunction ( C ourt order for to do or NOT do acts), Purchased injunction, Conditional injunction, Order to stop activity on condition that s reimburse P may obtain an injunction against Ds conduct when:
y
Ds conduct is UN REASON ABLE (causes more social harm than good) and causes SUBSTANTIAL harm to the P
P may obtain damages but NO Injunction if:
y
Ds conduct is reasonable (it causes more social good than harm and
Property Synthesis should be allowed), BUT the harm to P is substantial so that it is unfair to burden P with Ds socially useful conduct NO REMEDY
P is entitled to NO remedy if:
y y y
PURCHASED INJUNCTION
P is entitled to a purchased injunction if:
Ds Purchased No P gets R absolute emedy damages injunction right but on to engage Ps inalienable to be secured in land and right in activity injunction NO Ds conduct injunction or bybe Pright to secure from to beDs free from harm is inalienable (No bargaining) harm stop (Bargaining activity allowed)
y
The harm to P is NOT SU BSTANTIAL; OR Ds conduct causes more social good than harm, and it is not unfair to impose the costs of Ds activity on P; or The imposition of damages would put D out of business and need to avoid this result (bc of the social value of Ds conduct is more important than preventing the harm to P) Ds conduct causes more harm than good BUT it is not fair to impose the cost of shutting down Ds activity solely on the D. (g. when P comes to the nuisance)
NUISANCE (Light and Air)
F ontainebleau&P rah y
y
present contrasting visions of economic activity& Right to Air/ Light that erecting structures that serve no use or benefit for the purpose of spiting a neighbor should not be allowed, but if a useful and beneficial purpose exists (regardless of spite) then it will not grant an injunction Paradigm: all development of land without regard to external consequences is a logical and defensible pursuit o P rah external harms caused by development of land is not allowed if it prevents use of an exploited resource (included sunlight with solar panels) Paradigm: views land & resources as limited in supply and therefore external harms caused by development should nto be allowed o F ountainebleaurules
Fontainebleau Hotel C orp. v. Forty-Five Twenty-Five, Inc., (pgs. 284-85): ( Majority R ule for Nuisance L&A) Little hotel (P) v. big hotel (D) in sunny Florida Issue: Can a party enjoin their neighbor from constructing an addition that interferes with light and air on the partys property? y Rule: Nuisance doctrine applies only to legally protected rights and there is a no right to light and air unless created by statute or contract. y Reasoning : No legal right to the free flow of light and air from the adjoining land, and since the structure serves a useful and beneficial purpose, it y does not give rise to a claim though it causes injury by cutting off the light and air, regardless of the fact that the structure may have been erected partly for spite Prah v. Maretti, (pgs. 302-07): ( Minority Rule for Nuisance L&A) pre-existing home with solar energy system; is a new neighbor who wants to build Issue: Does s development of land interfere with unobstructed access to light for his solar energy system? y Element Analysis: y Is the harm substantial? o Yes, activity precludes 's use of solar panels which is a highly desirable activity and built home first, so harm cannot be avoided Is the interference unreasonable? o Yes, harm to and to society if people have no protection from interference with use of sunlight as alternative energy source Reasoning: Court believes that the doctrine of the Ancient Lights used in England should be used as a principle ( Ancient Lights = if landowner received y light across adjoining party for a specified period of time, the landowner was entitled to continue to receive unobstructed access to sunlight). Since there is no absolute or unlimited right to use land the rights of neighboring landowners are relative and therefore the use by one must not unreasonably impair use or enjoyment of other. The use of Ps land includes the exploitation of the resource available on his property which was sunlight. A landowner compliance with zoning laws (D) does not mean he cannot be sued for nuisance. Dissent: D had a lack of notice of the restriction that his land would be subjected to, whereas the P knew of the possibility of such a restriction and failed y to mitigate damages by either compensating the D or purchasing the lot himself. Ps use is hypersensitive and not entitled to an injunction. The D was building his house within his legal right and the P is not exercising a free right (no right to light and air) BUT legislature can act regarding these issues, not court.
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Property Synthesis Property: Private Land Use Controls Servitudes
Easements
Benefit
v. B urden Dominant v. Servient Run with the land Appurtenant in gross
Servitudes Definitions
General Rule:
Dominant Estate: Land receiving benefit of use of land Servient Estate: Land allowing use of that parcel Negative Easements: agreement NOT to do something, C ourts stopped using Neg easements overtime (only some exists today) Appurtenant: attaches to the land and runs with the land Easement in Gross: attaches to the person and runs with the person (till death) and NOT with land
a private contract (actual or implied) between parties that creates a right or obligation that runs with the land or with an interest in the land is an easement. Common issues in servitudes: (1) formal requirements (When do informal revocable expectations become irrevocable?) (2) interpreting y ambiguities substantive requirement, (3) modifying and terminating servitudes Interest in the Land
y
Burden
Runs with the land:
y
passes automatically to successive owner and occupiers Rules governing when an easement runs with the land depends on whether it is an express or implied easement
y
on a S/E passes to subsequent owners of the S/ E giving the easement owner contract rights against the original grantor and all his successors
For a Burden to Run w/ Land (S/E)
16 | P a g e
easement is in w riting in thedeed granting the property and must describe in detail or refer to an earlier recorded writing; easements do not needed to be included in subsequent deeds not necessarily in the deed conveying the property but must be in writing and must be reported y the original grantor who created the easement must have intended the easement to run with land
Property Synthesis grantor has to intend to bind future owners which is either clearly stated or implied when examining intent ask if it is really an easement or a license subsequent owners of servient estate had notice of easement at time of purchase (3 types of notice) Actual: subsequent owners in fact know about the existence a. b. Inquiry: visible signs non-owner use require a reasonable buyer to investigate for easements Constructive: if deed conveying is recorded properly and in the chain of title c. y y
for a Benefit to Run w/ land (D/E)
y y
non-possessory right of use granted in the land of another that is permanent and irrevocable; as a formal right, rather than a privilege, it grants substantial interest in anothers land, may be subject to statute of frauds and may be transferable Easements grant a right of use as opposed to a right of possession and may be limited in scope by (1) time and (2) use License: permission given by a landowner granting a non-owner an informal and revocable privilege to do things that would otherwise be classified as trespass
. v t e n s e n e m c i e s L a E
License: y
ermission --P ermission
--informal
--Revocable
--Not
--Not
--Not
--Not Subject Sta.
Inheritable
Devisable
of F rauds rauds
Transferable
Substantive Limitations of Easement
by Landowner
y
interests in land however within certain limited circumstances may be removed
--Right
ormal --F ormal
ermanent --P ermanent
--Irrevocable
--Transferable
--Inheritable
--Devisable
--Subject
Requirements:
y
Ambiguities:
y
alidity: V alidity:
y
Modification:
y
Substantive R equirement to Establish Validity How can a servitude be modified and under what circumstances?
y
Can
Termination: Statue of Frauds
to Sta. of F rauds rauds
Identifying the Formal Requirements (When are informal expectations recognized as a right or obligation) What evidence is acceptable when reviewing ambiguous language
the servitude be terminated and under what circumstances?
Easements
are considered a substantial interest in land and are subject to the Statute of Prescrription, Prior Use, Necessity
y
Exceptions: Estoppel,
No Affirmative Easements to act on Own land
y
traditionally not allow creation of an affirmative obligation to do something on someones own land for the benefit of other owners Aff. easements are rights to do something something on someone elses land Neg. easements are obligations not to do something on ones own land
Location Change
y
y y
Traditional rule:S/E owner cannot relocate easement without grantee consent; grantee
cant extend Easement y y y y
Additional Investment
SCOPE: Determining the scope of easement:
This question comes up when a use of the easement and the type of harm caused is challenged (too broad of use, undue burden, improper subdivision)
17 | P a g e
Easement:
No interest in the land is granted however the privilege of use may become irrevocable under certain circumstances
Major Issues in Easements:
t n e m e s a E
Test: What is the intent of the grantor? Appurtenant: benefit is treated as if attached to a particular parcel and meant to benefit parcel y In Gross: benefit is NOT attached to particular parcel but meant to benefit the person not land y
RST: allows at the expense of S/E owner if: changes do not significantly lessen the utility of the servitude increase burdens on easement grantee in use and enjoyment or frustrates the purpose for which the easement was created
y
Easement
holder may prepare, maintain, improve or repair the way in a manner and to an extent reasonably calculated to promote the purposes however it must be: (1) confined to the area within the exterior border of the easement (2) not cause an undue burden upon the S/ E (3) not cause an unwarranted interference with S/ E owners independent rights
y
3 Issues in determining if an owner is misusing an easement is based on the intent of the grantor Note: It is Possible to engage in activity clearly contemplated by easement and still exceed the scope Kind of Use Approach : What kind of activities were intended to be encompassed? y Contemplated? o Broad View: (Majority) generallyany reasonable use is permissible, it is (Henley) not necessary that it be a purpose contemplated by grantor o Narrow View: (Minority) rights of ways are limited to specific useit was contemplated for at the time it was created Analysis: y What rights did grantor grant at time easement was originally granted? o Should easements be interpreted narrowly or broadly? o Should easement grantee be permitted to use easement in other way? o What result most parallels o original intent of the grantor and grantee? o Should alienability be a goal and what result most favors alienability? o If not alienability, then what should be the goal? o o
1)
2)
Heavy use constituting an undue or unreasonable burden on S/E not contemplated by grantor?
Is use so heavy constitutes unreasonable burden not contemplated by grantor? Approach: Approach: Unreasonableness analysis focuses on what a grantor intended at the time and if thedisputed use has gone beyond that intent; protect the property rights of the S/ E holder Analysis: What was the grantors intent? y Look at (1) language of the easement then (2) outside evidence o o Grantee may not (1) cause undue burden on S/ E or (2) interfere with y
Property Synthesis independent rights of others with similar right of use Even legitimate use may need to be limited if causes undue burden If ambiguous the court will balance interest of easement owners freedom to develop property vs. S/ E owners security from overly burden property
y
3)
Can the easement be subdivided ?
y y
s f t o n s e e m p e y s T a E
Appurtenant: (divisibility) appurtenant easement benefits entire entire D/ E and is divisible among subsequent owners if D/ E is divided In Gross: (apportionability) if exclusive can be divided RST: In gross can be divided unless (1) contrary to intent of easement o grantor/grantee or (2) unless unreasonably burdens the S/ E
Negative:
y
an easement that allows a non-owner the right to restrict the use of a Servient Estate
Affirmative
y
an easement that grants an affirmative right intended to be permanent or irrevocable which gives a right to do something on someone elses land Types of A/E:
y
Types of Estates:
(a) Express or (b) Implied ((1) Prescription, (2) Estoppel, (3) Prior Use, (4) Necessity) Servient Estate: (S/ E) land that is burdened by the easement Dominant Estate: (D/E) land that is benefited by the easement
(1) (2)
Decide:
Appurtenant v. In Gross
Appurtenant v. In Gross
Apportionability
Transferability
y
Appurtenant: easement which benefits the owner of a parcel in the use and enjoyment of that parcel (D/ E) and is inseparable from the D/E
y
In Gross: easement that is a personal right serving the holder which does not benefit its owner in the use and enjoyment of his land but rather grants a personal right to use the S/ E.
Express Easements Must be created by written agreement (usually a deed or separate document referred to by conveying deed) between parties to secure enforceability under statute of frauds because transfer of an easement is analogous to sale of a piece of property (by grant or by reservation) Note: y Easement by Implication do not require written agreements to be enforceable (1) prescriptive, (2) easements by estoppel, (3) prior use, (4) necessity, (5) constructive trusts o No reservation of easement in a third party y
t n e m e s Express v. a Implied E s s e r Analysis: p for burden x to run with E : t the land n e m e s a E e v i t a m r i f f A
Burden E xpress:
What the grantor intended to grant To person or parcel? What the grantor intended to grant Rarely attaches to a person y y
Implied:
Must be riting in W riting
Intents
of
arties P arties
runs with the land if intended to do so reasonably necessary for benefit (1) Writing, (2) Intent, (3) Notice Notice is most relevant for Burden-side analysis y y
Sets forth the creation of the easement, parameters, location, purpose, use and must have been recorded in an original deed; does not need to be recorded in all future deeds or deeds that convey the property Scope: States (1) scope and (2) physical dimensions of easement (1) 1. Analysis: y a. Use is of the kind contemplated?: Defense unanticipated development or tech change b. Unreasonable B urden?: Defense Identification : States name of Parties and parcel to which it is attached 2. Recorded: Correctly recorded to provide notice and locatable in chain of title of the property 3.
y
Intent that the obligation run with the land found in language of document conveying the estate y Phrase: and to their their heirs and assignees forever No Phrase or Ambiguous: look to purpose and circumstances and assume, if an easement (1) benefits a y neighboring land and (2) touches and concerns land, is intended to run arol P arol Evidence Rule:
Notice
Benefit
a. b. c.
y y
Unambiguous language: parol evidence may NOT be introduced to determine the intent of the parties if the language of the instrument is unambiguous Ambiguous language: parol evidence may be introduced to ascertain the intent of the parties if the language of the instrument is ambiguous
Actual: buyer was actually told about it or was otherwise made aware of it (Notice is most relevant for S/Eburdened) Inquiry: When reasonable inspection merits investigation; Condition of premises indicates land burdened by easement Constructive: Knew of should have known because the easement is recorded and locatable in a chain of title search
Transferability of Express Easement and Construing Ambiguous Language: Green v. Lupo, upo, (pgs. 350-352): Plaintiffs owned all the property, but now retain several acres and an easement across Defendants' land. Plaintiffs developed their remaining property for a mobil e home and some occupants use the easement as motorcycle practice run. Defendants block access with logs, etc. The Easement: Promised to "Don Green and Florence B. Green" [described the easement] "for ingress and egress for road and utilities purposes." Ambiguity centered around whether the right was in gross or appurtenant (individual or runs with land) Holding : Easement is interpreted to be an appurtenant based on parol evidence and P granted continued access to easement land. Analysis: How to interpret easement
18 | P a g e
y
Are
the parties named and no other language to suggest that future landowers are use easement
y
Look
for dominant estate and the benefit bestowed on it
Property Synthesis y y
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PRESUMPTION : Easements are appurtenant to some particular tract of land (personal easements are not favoredbc the benefit goes into a person and not to the land, thus no dominant estate exists)? Why is there this presumption again?? court must balance easement owners interests (freedom to develop) with servient estates interest (greater burden than originally contemplated) security from being over burdened in way they could not or should not have to anticipate o even a legitimate use can be limited o
Property Synthesis Appurtenant Easements; Easements in Gross
In Gross v. Appurtenant Distinguishing appurtenant easement from in gross requires analysis of intent of the grantor to have benefit run with a D/ E, if written language is not clear: D/E may repair or improve easement to promote purpose for which it was created, so long as it does not causing S/ E an undue burden ( C ox) y Ambiguity: generally will lead a court to conclude it is an appurtenant easement rather than in gross if:(1) benefit will be more useful to the y successor owner than the original owner, (2) the deed or (3) situation of the property indicates the benefit should run with the land Parol evidence: evidence outside the contract may be used when there are ambiguities in language of deed to discover intent of parties: o Evidence to be considered: (1)situation of the property (2) situation of the parties (3) surrounding circumstances at the time of execution (4) practical construction of the deed given by the parties by their CONDUC T or ADMISSIONS Policy Considerations: appurtenant will be favored because in gross potentially creates more uncertainty and obstacles to freedom of use Rationale: (1) maximized utility of land (2) facilitate use of land (3) simplify administration (4) make land more marketable alienable o Easement in EiGis a personal right and intended to benefit only the holder it was conveyed to and does not benefit its owner in the use and Gross: enjoyment of his land but rather grants a right to use the S/ E (belongs personally to grantee and is enforceable by grantee) Benefit does Apportionable: Grantee of easement is allowed to apportion rights in the easement to others so long as the easement is exclusive, not run w/ the but equitable limitations still apply to the new apportioned user. I f shown to be land and is apportionable Exclusive: y grantor (S/E owner) has no right to use easement with grantee personal then must decide therefore apportionable by grantee and can sell others further rights because: y (Burden runs w/ if it is within the o grantee is not interfering with any rights the grantor (S/ E) has the land scope of the grantee may sell or lease use of the easement to others o however) easement (undue generally commercial in nature o burden and Nony grantor (S/E owner) reserves right to use and enjoy the easement granted with grantee intent of grantor) Exclusive: therefore it is non-apportionable for grantee because it would constitute excess competition y with the S/ E owner for the use or sale of the right (grantor retains an interest)
: s i s y l a n A
Transferable:
Gross easement are transferable if commercial in nature ( per se transferable) Gross easements for non-commercial use are transferable if the parties intended the benefit to be manner by which an easement may be transferred depends on whether it is implied or express
y
In
y
In
y
Appurtenant Easement: Benefit does run w/ the land ( AND Burden runs w/ the land)
easement that benefits the owner of a parcel in the use and enjoyment of that parcel (D/ E) and cannot be separated or transferred separately from the D/E; when the D/ E is conveyed or transferred the right passes with D/E and is enforceable by future D/ E owners appurtenant benefits the entire dominate estate, not simply a portion (only limited by scope of use, reasonable limits) y Apportionable
y
Subdivision: an appurtenant easement benefits the entire dominant estate and is apportionable among subsequent owners if the dominant estate is divided. (examine: overuse or burden to S/ E)
Transferable:
y
Because
y y
an appurtenant easement is attached to the D/ E the benefits enjoyed by the possessor of the land are transferable with the D/ E unless the easement is personal in its terms (Benefits cannot be severed from land) The burden transfers with the S/ E when transferred manner by which an easement may be transferred depends on whether it is implied or express
Exclusive/Non-Exclusive Apportionable/Non-Apportionable Henley v. Continental Cablevision, (pgs. 358-361) Facts: Plaintiffs predecessors were granted right to construct and maintain electric, telephone and telegraphic service on all lots in subdivision and to grant easements to other parties for this purpose. Trustee gave easement to B ell (phone) and to Union (electric) to set up lines. C ontinental got licenses from Bell and Union to enter property to set up cable lines. Plaintiff sues C ontinental seeking injunction and damages for use of Ps property. Issue:Whether or not an easement in gross is exclusive and therefore apportionable by the utilities. Holding: Easement in gross was exclusive (of grantor participation) and so apportionable by grantee and the cable did not constitute an extra burden on P and other easement owner may use easement for purposes not inconsistent with principal use. Reasoning : When the grantee received an exclusive easement he may transfer it to as many other persons as he wishes as long as it is within the scope of the y easement o Scope is determined by the kind originally contemplated by the easement, but modern advances in the easement are allowed if the
burden is not unreasonable y y
The owner of an easement may license or authorize 3rd persons to use its right of way for purposes not inconsistent with the principal use granted. Just because easement is in Gross, the burden can still run with the land even though no D/ E exists as long as the requirements are met to have burden run with land Requirements for Burden to Run with Land: ??? o
Terminating Easements
20
|Page
Property Synthesis
Modifying and TerminatingEasements: Generally easements last forever unless terminated by
1.
Express Release: agreement in writing, in which both parties agree to release one another from benefits and burdens of easement
2.
Terms:by the terms stipulated in the deedeither by timeframe, Purpose, etc. (however it could still be appurtenant)
3.
Merger/Unity of Title: if holder of easement owns both S/ E and D/E ( Rationale: D/E owner no longer needs right of use)
4.
Abandonment: if owner of easement affirmatively indicated intent to abandon by taking some action that clearly manifested the intent to relinquish an easement (mere non-use in insufficient) and stopped use of easement for a long period of time
5.
Adverse : adverse possession or prescription by S/E owner or 3 party (1) exclusive (2) substantially interfere with usage of easement (3) for a statutory period of time (4) holder acquiesce or fails to act (5) constructs an enclosure
6.
Frustration of purpose: demonstrate easement no longer serves intended purpose; impossible or unnecessary (Minority View)
7.
Marketable Title Acts (statutory reqt to periodically re-record significant burdens every 30 or 50yrs; balancing interests of parties)
rd
Cox v. Glenbrook Co., (353-358): Facts: The S/ E (servient estate) granted the predecessor an easement over the estate to reach the predecessor's estate. At the time of the conveyance, the predecessor used his estate as a single-family residence and used a one-lane dirt road to reach the residence. There was another road through the S/ E to the D/E (dominant estate), but the S/ E blocked that road with a fence. The developers obtained the estate, planned to subdivide it into 40 to 60 lots and widened the dirt road. The S/ E sought to stop the expansion of the road. HOLDING: The court found that (1) the district court erred in restricting the easement to single family home uses where the wording of the easement unambiguously stated "full right of use," So the division of the dominant estate did not prevent the use of the easement on the S/ E. (2) the developers could maintain, repair or improve the way without unduly interfering with the independent rights of others who also have right to easement (3) the developers could NOT, however, widen the way as the road was to remain the same width as the date of conveyance of the easement, (4) the S/ E could relocate the easement at their own expense according to the easements writting, and (5) the court could not declare whether the proposed use of the way would cause an undue burden upon the S/ E. Analysis: Look to the intent of the parties! Via language of easement, actions, or whats NOT included in writing or limiting language or the benfit bestowed upon the D/ E RULE: Owner of an easement may fix and repair easement to promote the purpose for which easement was created, so long as it does not causean undue burden on S/ E When terms of easement are unspecified must look to INTENT of grantor at time of granting. 1) confined to area of borders that existed when first granted? 2) will not cause undue burden upon S/E? 3) will not cause unwarranted interference?
21
|Page
Property Synthesis
Prescriptive Easements y
y y
To acquire an easement by prescription the trespasser must establish that they (1) used the property, (2) open and notorious (3) continuous (4) adverse and hostile (5) statutory period. Additionally, some jurisdictions require a showing of (6) acquiescence however none require that it be to the exclusion of the property owner. Under C oR claim both A/P and P/ E may be brought simultaneously right to continue the kind and amount of use that existed during a statutory period rather than a property title as under A/P extent of use need not be proven w/ absolute precision rather only a general outline consistent w/ pattern of use throughout period Claim of Right
generally means use is not permissive but rather engaged in by P/ E claimant regardless of T/Os wishes Though criteria is similar to non-permissive element interpreted to mean the intent of the user ( G ood v. Bad Faith) If a user of land did not intend to trespass but rather believed they had permission of T/O, this may defeat a P/ E claim Defense: Permission will destroy a prescriptive easement claim
y y y
s t n e m e s a E e v i t p i r c s e r P
y
Elements:
Burden of P roof:
a. b.
Majority View: clear and convincing evidence Minority View: preponderance of evidence
Actual Use:
y y
O pen/ Notorious:
y
E xclusivity:
y
P ermissiveness
Majority View:most jurisdictions presume that use of anothers property is nonpermissive and property owner carries the burden of proving the contrary Minority View: use by non-owner of anothers land is permissive if as a neighborly thing to dolocal community custom is shown to allow such uses on anothers land
Uninterrupted use for statutory period typically 15yrs (Occasional or sporadic uses fails requirement) Tacking is also appropriate under this element y
Continuous:
P/E v. A/P: Differences
Negative Prescriptive Easements
Acquiescence:
y
(2 views)
y
t n e m e s a E e v i t p i r c s e r P
y
Minority Split:T/O should have known of sufficiently visible use & by not acting granted permission Minority Split: T/O was actually aware and failed to protect his/her right to exclude by suit
actual use
y
y
non- exclusive (possibly even w/ others & ow ner)
y
open/ notorious
y
adverse/hostile
y
continuous
y
statutory period (typically equal to A / P )
y
Additionally: Acquiescence by T/ O ( owner
did not
n y o i s s y e s s y o P e y s r e y v d A
actual possession (demonstration of dominion) exclusive
open/notorious adverse/ hostile continuous statutory period
assert right to exclude by trespass action )
y
Good Faith: Some argue that only good faith and bad faith trespassers should receive prescriptive rights because they were merely mistaken about the boundary lines and did not knowingly infringing on their neighbors property
y
Acquisition by public: the public cannot acquire an P/ E because continuity and exclusion cannot be proven and there is also a presumption that public use of private areas is permissive rather than adverse
y
Negative Easements cannot be acquired in the US prescriptively (contrast with English Doctrine of Ancient Lights) Policy Rationale:
y y y
|P a g e
acts sufficiently visible and obvious to place a reasonable TO on notice lands used by non-owner Majority View: Open and Notorious use is presumed to be adverse/hostile o
Exclusivity is not necessary as to T/O but claimant must be distinguishable from rest of the world Open and notorious use will be presumed to be adverse(Defense : use was with permission) Color of Title doesnt apply (constructive possession doctrine) y
Hostile/ Adverse:
Commentary
22
ordinary use to which land is capable and such as the owner would make of it Slight deviations in normal route wont deny easement, only substantial changes defeat definite and certain requirement
P/E rights are recognize a grantees right to use by barring a T/Os claims due to So L tolling lawful use of ones own property doesnt place the T/O on notice to protect their property rights Neg. P/E would ultimately interfere unreasonably with the free development of land
Property Synthesis Community
Feed Store, Inc. v. Northeastern Culvert Corp., (pgs.207-210): Slight deviations from normal route will not deny easement. Only substantial changes from normal route will be sufficient to deny element of actual US E (definite and certain line of travel). Extent of use can be proved with general outlines that show same pattern of use, absolute precision is NOT required. Tacking allowed: period of use by prior owners can be added to show that use of easement assumed from predecessors as part of land
y y y y
Easements by Estoppel y
l e p p o t s E y b s t n e m e s a E
Where a license is not a bare, naked right of entry, but rather includes a right to erect structures and acquire an interest in the land in the nature of an easement due to construction of improvements thereon a licensor may be estopped from revoking the license for whatever period is deemed just under the circumstances if licensee has exercised this privilege by erecting substantial improvements at a considerable expense. No claim for adverse possession because owner has consented to licensees use. (establishes an Irrevocable License) Oral Easements: Where grantor intends to convey an easement but fails in the formality, court will look to grantor's intent and y find that an easement exists anyway General Rule:
License:
Licensee
y
is presumed by a matter of law to know that it is revocable at the pleasure of the licensor permission to go on the land of the licensor which is held to be revocable at the pleasure of licensor and at which point any money expended in connection with entry upon the land is at the licensees peril
o
Analysis:
s t n e m e l E
License:
y
Must demonstrate that permission had been granted for use of the land in the manner used For access purposes, not a bare naked right of entry, more than just a right of entry o
Reliance:
y
Licensee o
Investment:
y
while grantor may not have meant to grant a permanent right the licensee in reliance invested substantially with money, time or effort. Necessity however is not a requisite element Significant Terms: substantial, reasonable, reliance (good faith) key concepts that color the analysis o
K now ledge:
y
Licensor o
y
license to use a pass-way where, with knowledge of licensor, licensee has in exercise of the privilege spent money in improving the way for other purposes connected with its use on faith or strength of the license
Rationale:
y
EbE
enforces presumed intent of parties and protects use of a license in a way that has created an interest Though the grantors intent may have been a revocable license from the outset a irrevocable license may be granted to protect the licensees interests based on reliance in continuing right of access
Grantors Right
y
Balancing
o
o
to Exclude (interests in control of property access) vs. Grantees R eliance Interests (interests in continued access) Factors for Balancing: Formal arrangements set down in writing vs. i nformal arrangements embodying parties expectations and founded in social custom ( Wh ich best effectuates intent of parties?) (1) Social Custom, (2) Reasonableness of R eliance, (3) Implicit understandings, (4) Oral Reassurances, (5) Conduct of Parties, (6) Intent of Parties This analysis is all about what is fair, particularly to the party acting in reliance
May be granted if:
Possession v. Use
had knowledge or reasonably expected licensees actions in reliance on the license license was an essential part of their enjoyment of their property
E xample:
y
Interest
acted reasonably and to detriment in relying on permission granted (higher burden on grantor) look to social customs of the (1) time and the (2) land
y
grantee invests substantially in reasonable reliance on grantor wished to convey an easement though it failed to comply with the requisite formalities y easement granted orally y writing that does not comply with the statute of frauds requirements y an ambiguous deed reference y a grantors deception of the grantee (fraud) y
Adverse
Possession treats the T/Os permission as a defense to a claim of a right to access but this gives rise to E by E Note: No statutory period required to establish an E.by Estoppel (Investment typically must be in the Easement) Law of Irrevocable Licenses ( Easement by Estoppel or Constructive Trust) contrary moral premise is that if an owner opens their property to others, their words or actions may create a reasonable expectation of continued access to the property. o
y
Holbrook v. Taylor, (pgs. 321-323) The homeowners built a residence on property adjoining the landowners' property. With the permissio n of the landowners, the homeowners used and maintained an access road owned by the landowners during the period of home construction. After the construction, the homeowners continued to use the roadway to access the public highway. The court found that the trial court was fully justified in finding that the right to the use of this easement was not established by prescription when there was no probative evidence which indicated that the use of the roadway was either adverse, continuous, or uninterrupted. However, the court held that the evidence justified the finding of the trial court that the right to the use of the roadway had been established by estoppel. The use of the roadway by the homeowners to get to their home from the public highway, the use of the roadway for the construction of the residence, the general improvement of the premises, and the maintenance of the roadway, all with the actual consent of the landowners or at least with their tacit approval, clearly established that the license to use the subject roadway could not have been revoked. Right to the use of a roadway over the lands of another may be established by estoppel where: 1. license is more than a right of entry and 2. includes right to build structures and acquire interest in land in the nature of an easement by constructions and improvement, 3. the licensor may NOT revoke the license and restore his premises to their former condition after the licensee has exercised his privilege given by the license and erected the improvements at considerable cost.
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Property Synthesis Easements Implied from Prior Use and Necessity General Rule:
An
easement recognized under certain circumstances despite the absence of an express contract that is meant to effectuate the intent of the parties as manifested by their conduct. The court may however determine that as a matter of public policy (Fair or Efficient Allocation of Property Rights) an easement should be granted even though the actual intent of the grantor expressly contradicts this inference Aanalysis: Determining type of implied easement ask: Was common grantor at one point using roadway? NO, then no prior use. Is the use necessary? Yes or No. y Easement necessity can be implied by manner in which land was severed o y
Types: Easement by Prior Use:
: s i s y l a n A
Easement by Necessity: (E/N)
to the Statue of Frauds: (1)estoppel, (2) prescription, (3) constructive trust, (4) prior use (quasieasements), and (5) easements by necessity
General Rule: when a landowner, after using a parcel or adjoining parcels in a manner that derives a benefit from another in an apparent, continuous, and permanent nature, conveys or transfers part, all the benefits and burdens that existed at the time of the conveyance of transfer, though not reserved in the deed, are also imparted ( Easement by Grant or Easement by Reservation)
y
3
n o i t a c i l p m I y b s t n e m e s a E
Equitable Exceptions
y
Elements to Establish Pre-existing use in absence of express agreement
1.
Unity of Title
y
Common
2.
Use P rior to Severance Notice
y
Prior to conveyance or transfer, severing the unity of title, common owner used part of united parcel for benefit of another part, and this use was apparent&obvious, continuous, and permanent Proof of the prior use is evidence that the parties probably intended an easement (Notice) o
3.
Necessary
y
Reasonably necessary and beneficial to use and enjoyment of parcel conveyed or retained by grantor Test: (Common Law) reasonable necessity (benefit) not absolute necessity o reasonable necessity: a use is reasonably convenient to the use of the land benefited more than simple convenience but less than absolute necessity y Factors: terms of conveyance, extended necessity, and manner of use prior to conveyance Must be slightly more necessary if is renter or conveyor Test: (R ST § 474) 8 factors from which an inference of intention to create or reserve an easement o may be drawn. [THIS IS NOT A CHECKLIST, SIMPLY THINGS TO BE CONSIDERE D] 1. Is claimant conveyor or conveyee y Greater necessity required of conveyor b/c had best position to protect interest 2. Terms of conveyance 3. Consideration given for conveyance 4. Whether the claim is made against a simultaneous conveyee 5. Extent of necessity of easement to claimant 6. If reciprocal benefits result to conveyor and conveyee 7. Manner in which land was used prior to conveyance 8. Extent to which manner of prior use might have been known to parties
&
Beneficial ( J urisdictional S plit )
General Rule: when a landowner conveys a portion that is entirely surrounded by lands owned either by the grantor or the grantor plus strangers the grantee is found to have a right of way across the retained land of the grantor for ingress to and egress. Easement by Necessity is also implied in a deed when the landowner retains the inner portion, conveying to another the balance. If there had been unity of title a right of way by necessity may lay dormant through several transfers of title, appurtenant to D/ E
y
y
E asement
Easement
by Reservation: by Grant:
Easement
E asement
Intent of Grantor: ( Jurisdictional S plit )
y
o
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Unity of Title: Prior common ownership of Dominant and Servient estate Necessity: Reasonably necessary for use and enjoyment of D/ E (landlocked: ingress/egress)
3.
P rior
Use and Dormancy:No evidence of prior use is required and the easement may lie dormant
However No E/N if: grantor intended to sell a landlocked parcelAND grantee knew parcel was landlocked
y
Common Law: The ultimate goal is to promote the development of property by preventing property from becoming landlocked and, therefore, taken out of the marketplace. Strict necessity must be established. 1. Unity of Title:Prior common ownership of Dominant and Servient Estate 2. Absolute Necessity: Strictly necessary for use and enjoyment of D/ E (landlocked: ingress/egress) 3. P rior Use and Dormancy: No evidence of prior use is required and the easement may lie dormant
y
Owner of the S/ E has a right to locate the E/N provided the location is reasonably convenient E/N lasts only as long as it is necessary and terminates upon cessation of necessity however can lay dormant No requirement of proof of a known existing use from which to draw an inference of intention
y y
necessity only need be established.
1. 2.
(2)
y
Rationale:
Reasonable
Analysis:
(1)
Note:
implied because seller reserved for herself an easement across the property being conveyed implied because the buyer has been granted an easement benefiting the land he has purchased
Restatement:Ultimate goal to effectuate intent of grantor.
o
: s i s y l a n A
24
ownership of both the Dominant and Servient parcels subsequent to a conveyance or transfer which resulted in the separation of that ownership. At one time one party owned the entire property. o
To effectuate intent of the parties, presumption grantor implicitly conveyed everything necessary for beneficial use To promote efficient utilization of property D/E holder would be impeded without the right and it is unlikely would knowingly purchase inaccessible land o Public Policy favors the maximum use of land and denying an easement would rendered land useless o
Property Synthesis Easement by implication Easement implied from a Pre-existing Use Granite Properties Limited Partnership v. Manns, (pgs. 333-339)Plaintiff (grantor) filed suit to enjoin Defendants' (grantees) interference with two easements by implication (on defendants' property) claimed by grantor for two separate and distinct parcels containing a shopping center and an apartment complex on property owned by the P. Easement # 1: Provides access to the rear of the shopping center and enables trucks to circle. Easement #2: Ingress and egress over a driveway which leads to a parking lot behind the apartment complex, driveway between units would be unsafe. Here, grantor had easement by reservati on: someone sells property and reserves an easement across it for themselves vs. Easement by grant: buyer was granted an easement benefiting his parcel when he purchased the land. While the degree of necessity required to reserve an easement by implication in favor of the conveyor is greater than that required in the case of the conveyee, even in the case of the conveyor, the implication from necessity will be aided by a previous use made apparent by the physical adaptation of the premises to it. So when apparent prior use supports an inference of parties' intention, the required extent of the claimed easement's necessity will be less than when necessity is the only circumstance from which the inference of intention will be drawn. Use need only be "reasonably necessary" - not absolutely-- for enjoyment and use.
Easements Implied by Necessity Finn v. Williams, (pgs. 339-340): 1895 Williams owned tract of land 140 acres. Conveyed 40 acres to Bacon. In 1937, Finns acquired title to the 40 acres. Defendant Williams inherited the remaining 100 acres.Finns prevented by Williams from accessing public road; claim easement by necessity.
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y
Easements
y
Easement
by Necessity can lay dormant through several transfers of title
by necessity is imputed by the presumption that a party conveys whatever is necessary for the property's beneficial use based on a policy against permitting land to remain in perpetual idleness.
Property Synthesis SERVITUDES: Covenants Express Covenants; Covenants Running with the Land General Rule:
d : n s t a n L a e n h e t v h o t C i w s s g e i r n p n x n E u R
y y y y
rules which turn a private contractual interest into a property interest that runs with the land Requirement of privity is the distinguishing factors between the real covenant and the equitable servitude Restatement merges real covenant and equitable servitude because a privity issue can be bypassed by a good lawyer o Original Covenantor is not legally responsible for actions of a subsequent owner of S/ E if property is sold (not the case for lease) covenant runs with the land only if (1) it is enforceable between convenantor and convenantee; (2) convenantor and convenantee intended that it run with the land; (3) the convenant touches and concerns the land; and (4) the parties are in privity of estate
Rationale:
y
A ffirmative
y
Negative
Response to courts limitations on neg. easements that could be created by landowners created them contractually
y
covenant which requires that the S/ E holder do something for the benefit of another rare, typically require payment of money (ex. Homeowner dues)
y
Real Covenants
A
and Equitable Servitudes are both species of negative Covenants a covenant requiring the S/ E holder refrain from doing something for the benefit of another (Restrictive Covenants) effectively creates an end run around the laws denial of negative easements All obligations restricting what Property Owner can do with their land are negative/restrictive covenants.
y y y
Big Issues:
Analyze
y y y y
benefit and burdened on each side of the following questions How do we determine if future owners are benefited or burdened by the covenant? What remedies are available for a breach of a covenant? Interpretation of ambiguous covenants: Termination of covenants
Davidson Bros., Inc. v. D. Katz & Sons, Inc., (pgs. 367-376) RULE: Alongside the touch and concern element of covenants, ct. should consider the following eight "reasonableness" factors: (1) the intention of the parties when the covenant was executed; (2) if consideration was paid in exchange for the covenant; (3) whether the covenant clearly and expressly set forth the restrictions; (4) whether the covenant was in writing and recorded; (5) whether the covenant was reasonable concerning area, time or duration; (6) whether the covenant imposed an unreasonable restraint on trade; (7) whether the covenant interfered with the public interest; and (8) whether changed circumstances now make the covenant unreasonable.
Summary, Whitinsville Plaza v. Kotseas, (pgs. 376-377): K sold land to Trust w a grantors promise not to use Ks remaining land in competition w/ T. T sold the benefited parcel Plaza. K leased its land to CVS.Kotseas sold a parcel of land to Trust with a restriction in the deed that they would not operate a discount pharmacy in the abutting land Kotseas retained - benefits the value of Trusts land and burdens Kotseas land because it limits use - Kotseas leases parcel to CVS Rule against B enefits in Gross: If the burden of a covenant runs, the benefit of the covenant MUST run with the land. y y y
26
RULE:
Presumption is that covenant will run with the land IF(i) it benefits future owners and (ii) touches and concerns the land ANALY SIS: A nti-competition covenant touch and concern the land because they limit the land and enhance the market value of the benefitted land
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Property Synthesis Encompasses
y
both remedies at law (money damages) and equitable relief and therefore is harder to prove Policy Analysis: Does the covenant unreasonably impede the alienability or free use of property? generally touches and concerns land if the conventor can perform it only as an owner or possessor of land
Burden:
W riting
y
restriction in document transferring property interest or prior recorded document in chain of title covenant is written typically a lease, declaration, plat, mat, deed or has a reference to a prior doc in chain of title Minority relax requirement enforcing oral representations or refuse to rigidly apply Statute of Frauds
y
Covenant
y y
Touch and Concern
) s t n a n e v o C l a e R ( d n a L e h t h t i : s i s w l y g a n i n n A n u R : s t n a n e v o C s s e r p x E
Does covenant exercises a direct influence (i.e. restriction) on occupation, use, or enjoyment of premises? Is it a reasonable restriction to be placed on the use of the Property? (Used for Intangible Covenants) Reasonableness: as a matter of public policy regarding the management of the land is it a fair o restriction and benefit on the use of the D/ E and S/E ( Reasonableness Test is used to limit a covenant)
Intent for obligation to run with land is found in language of conveying document(presumption of R/w/L must be overcome) Phrase: and to their heirs and assignees forever () y No Phrase or Ambiguous: look to purpose and circumstances and presume that a covenant that (1) benefits a y neighboring land and (2) touches and concerns land is intended to run Typically burden will not run if the benefit is in gross y
Intent
Notice:
3 Types of Notice
Subsequent purchaser of the S/ E must have notice of the covenant (req is intended to protect) Actual: buyer was actually told about it or evidence shows was otherwise made aware of it 1. Inquiry: if condition of premises indicates property was burdened by a covenant 2. 3. Constructive : deemed to know if restrictions on property locatable by C oT search
y
must be privity between the promisor and promisee as well as promisor and assignee
y
F airness
P rivity
Horizontal :
regulates the relationship between the original covenanting parties (severance of C/O) y Instantaneous Privity: (Majority) burden will run if one parcel of land has an interest in another which was given simultaneous (in the exact moment) to conveyance of land interest and in deed o Excludes agreements btw neighbors/others that do not occur at moment the land is conveyed y Mutual P rivity : (Minority) 2 owners w/ simultaneous interest in a parcel of land (l andlordtenant) End run around Requirement : convey titles to lawyer and then lawyer conveys titles back to owners RST Change
Removes
the difference and combines the rule, however it excludes : Agreement btw neighbors not part of simultaneous conveyance of other property right Agreement btw grantors and grantees not made at same time as the conveyance of property interest burdened or benefited by the covenant.
1. 2.
V ertical :
(GOOD EXAM SPOT: look for strict vert. privity)
Strict Vertical Privity:(Majority )relationship btw original covenanting parties and subsequent owners of each parcel that requires unbroken chain of conveyances(sales; not a leases) of the: burdened land connecting original convenantor to current owner ( No privity, then E / S ) y benefited land connecting original convenantee to current owner ( No privity, then E / S ) y therefore grantor cant keep any future interest in property (i.e. cannot lease) (keeps y nothing) Relaxed vertical privity : (RST ) imposes burden on any future possessor of the burdened land and the benefit of the covenant will be conferred on any future possessor of the dominant estate ( RST) Breaking the Chain:
Benefits:
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y y
Adverse
possession Purchase with no notice of covenant ( Bona F ide P urchaser )
generally touches and concerns land if it increases a convenantees enjoyment of his land or lands value (relevant in all areas of covenants)
Rule
against benefits in gross:
W riting
Touch and Concern
27
1. 2.
General Test:
that restricts touch and concern the land (pertain to the physical nature of the land)
comes up when you have a burden side; original covenanting party once it sells the land can no longer sue to enforce the covenant; Previous D/E owner does not have a right to sue to enforce a covenant Rationale: covenant was intended to benefit current D/ Eowner not prior possessors so if parties are not using, it has y out lived usefulness as it pertains to those parties ( RST, if P rior party shows a legitimate interest, may enforce covenant ) Policy: covenants restricting land use interfere with free use and marketability of property y Exceptions: (1) Homeowners association or (2) if you demonstrate a legitimate interest ( RST ) y y
restriction in document transferring property interest or prior recorded document in chain of title (typically in a deed or lease or has a reference to a prior doc in chain of title)
Covenants
benefit must touch and concern the land by: (simply stated: Does it benefit the D/ E?) if it improves the use and enjoyment of the land (benefits side) Increasing the market value of the land y If the benefit T& C the land it will be assumed to run with the land y General Test: Burden must relate to the use of the land and obligate current and future owners y Burden must legitimately benefit current and future owners of D/ E y Must increase the D/ E use or enjoyment or market value o y Burden must run with the land and have been intended to run y
Intent
Intent for obligation to run with land found in document language of conveying estate ( to heirs and assignees forever) No Phrase or Ambiguous: look to purpose/circumstances and presume that a covenant that (1) benefits a y neighboring land and (2) touches and concerns land is intended to run w/ land
Notice
y
N ot necessary to establish a servitude runs with the land on Benefit side analysis (assumed)
Property Synthesis P rivity
H orizontal privitynot required for a benefit ( vertical only, Horizontal never listed separately b/c implied in burden-
y
side )
) s . v r e S . u q E ( d n a L / w g n i n n u R : s t n a n e v o C s s e r p x E
Equitable Servitude:
S/E owner purchases property with notice of restriction and is bound by good conscience to protect expectations of D/ E owner Only equitable relief is available rule against benefits in gross: comes up when you have a burden side; original covenanting party once it sells the land can no longer sue to enforce the covenant; Previous D/ E owner does not have a right to sue to enforce a covenant Rationale: covenant was likely intended to benefit the current owner and not the prior possessors y Exceptions: (1) Homeowners association or (2) if you demonstrate a legitimate interest ( RST) y Burdens: W riting
y
restriction in document transferring property interest or prior recorded document in chain of title covenant is written typically a deed or lease or has a reference to a prior doc in chain of title
y
N o privity requirement : because it is considered simply a formality
y
Touch and Concern Intent
: s i s y l a n A
Notice P rivity
Benefits: W riting
y
restriction in document transferring property interest or prior recorded document in chain of title covenant is written typically a deed or lease or has a reference to a prior doc in chain of title
Notice
y
N ot necessary to establish a servitude runs with the land on Benefit side analysis (assumed)
P rivity
y
N o privity requirement: which is the rationale for limiting to equitable relief
y
Touch and Concern Intent
Real Covenant(at law)
. e v d t u t n i a v r n e e S v e o l C b l a t a i e u R q E
Burden
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Burden
Benefit
Writing
Writing
Writing
Writing
Touches+Concern
Touches+Concern
Touches+Concern
Touches+Concern
Intent
Intent
Intent
Intent
Notice
N o notice (intuitive)
Notice
N o notice (intuitive)
Privity (damages) Horizo y ntal Vertical y
Privity (damages) No horizontal y Vertical y
N o privity (only injunction)
N o privity
Remedies:
28
Equitable Servitude(at equity)
Benefit
Damages & Equitable relief
Remedies: Equitable R elief
only
Property Synthesis Implied Reciprocal Negative Servitudes in Residential Subdivisions - Doing in the private sector what zoning does in the public sector STRATEGY: Draw a picture to account for all parties and all privity Qs Like
other covenants it is a restriction on the use of land binding on successive owners but which is delineated by a common plan or scheme that applies to certain well defined similarly situated lots and is meant to allow purchasers to mutually bind each other and thus benefit. Created to bypass privity, intent, and notice requirements to bind both earlier and later buyers when (F ACTORS) a COMMON GRANTOR (developer) imposes grantee covenants but intentionally or inadvertently leaves those restrictions out of the titles of some of the lots y Zoning laws resolve most justifications for housing developments, such asprevention of commercial development, except aesthetic requirements Rationale: C ommon plan applies to each owner because this is the intent of the developer/grantor and because of the buyers reliance on it y y Balance: Excess restriction unreasonably limiting use of land vs. Increased property value due to reliance on restrictions Declaration: statement recorded with county clerk by the developer (prior to sale of any property) regarding which parcels are restricted, what y areas will be developed, and what restrictions should apply. C hain of title in this instance will not usually reveal the servitude A declaration constitutes and usually expressly includes a promise by the developer to restrict the remaining lots if sold or if retained o Grantee Covenant : Describe common plan and lists lot covenants so buyers have notice (constructive) of restrictionsrecorded prior to purchase o o Grantor Covenant: when a developer promises to restrict the remaining lots when sold
s n o i s i v i d b u S l a i t g n n d e i n a d t i s S e R n I : s e d u t i v r e S e v i t a g e N l t n a e t s c : i s n i y o s a s r l n e r A d p i d c A e R d e i l p m I
H omeow ner
s
Developer
H omeow ner
s Asso.
may sue for enforcement because are mutually bound and benefited (mutually enforceable as part of common plan)if the properties were all intended to be part of a common scheme or general plan Owners with restricted deeds may sue owners of unrestricted deeds because they are on constrc. notice o If all lots have been sold: y MAJORITY: may not sue because their legitimate interests are already satisfied (rule against benefit in gross) MINORITY (RST ): developer may be able to sue IF: (1) declaration reserves right of developer to sue even after all y lots sold AND (2) declaration also includes power of H/Os to amend declaration AND (3) developer has not retained unreasonable or imperious control over artistic decisions of H/Os after completion of subdivisions. If not all lots have been sold: may sue if own a remainder of parcels unsold A ND there is a legitimate interest in retaining control over the y subdivision y
may sue to enforce as homeowners agents long as declaration gives them authority ( Exception to R. Against Benefit In Gross) y Majority: require a provision that home owners be able to change or take away homeowners power
Question 1.
y
Intent:
y
Were properties all intended to be part of a common scheme or general plan? declaration (common plan) that provides buyers with notice of conditions, covenants and restrictions to subdivision Majority rule: Only parcels within common scheme are restricted and grantors intent to leave a tract or parcel out of the common scheme is determinative.
y
C ommon plan or scheme:
Analysis: Is
there a common plan or scheme?
--Factors:
y y
y y
Factors defeating a common plan:
Question 2. N otice
Analysis: W as
listed in all or most deeds (greater than 50%) to property in the area Plat recorded that shows the property is included with others controlled by restrictions Declaration recorded maintaining restrictions are intended to be mutually enforceable Must be filed prior to selling individual lots o Describes the area to be covered by the common plan and recites applicable covenants o Restriction is in last deed ( Rationale: gives an indication land remaining of grantor also restricted) Consistency in observance by owners in development and conformity written restrictions language stating that restrictions are intended to run with the land Some deeds are unrestricted (Some have power not granted to othersdoesnt destroy but limits) The restrictions are not uniform Interpretation: (1) plain language should be given effect. However(2) if text is ambiguous read narrowly in favor of the free use of property. If two sides enter a contract consisting of a covenant and a side breaches prior to sale of the land there is a breach of contract rather than covenant and the factor analysis is not required
on buyer to discover if common plan or scheme exists (3 Types are appropriate:
Actual,
Inquiry,
Constructive) Buyers
y
of unrestricted lots are on constructive notice of covenants if in other deeds in vicinity sold by same grantor is on purchaser, if aware there is a common developer, to perform CoT on properties in vicinity as well Majority: restrictions valid if grantor sold lots w/ restricted deed of same sort at same time in same area. Burden
will be bound if:
y y y
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Restrictions
there notice? (Majority/Minority )
Burden
y
o
29
y y
Buyer
Evans
y y
Note
o
y r o t y l a l a n i i c m a i R r c s i D
y
declaration on the parcel or in the chain of title Majority View:(Constructive) bound by restriction though not in deed/ CoT (must research neigh. titles) Minority View: (Inquiry) requires the declaration to be recorded prior to the purchase
Racially
discriminative covenants limit the sale, lease, or occupancy of real property to members of a particular race or exclude members of a particular race or races are unenforceable under constitutional, statutory, and common law. th 14 Amendment ensures that no state action shall deprive any person of E/P of the law based on race or alienage y State action cannot discriminate against a suspect class without showing the action is narrowly tailored to a compelling state interest o o Judicial enforcement of a private contract is state action, therefore grantors intention cannot be constitutional enforced by the State Private action/agreement is protected unless enforcing the private action will deprive another of their lawful property v. Pollock, (pgs. 395-99):
G eneral
scheme or plan need not apply to the whole tract, may apply to all similarly situated lots
Property Synthesis Owner can be held to a common plan or scheme he had notice of the restriction though it is not the deed or chain of title Purchase a parcel of land from a common grantor whom is selling other parcels and these parcels are related to one another on constructive notice even if the restriction is not recorded in a deed. Majority View: bound by a restriction even though recorded after your purchase Minority View: not bound by a restriction if recorded after your purchase
y y y y
Interpretation of Ambiguous Covenants; Changed Conditions; Undue Hardship;Statutory Regulations y
f o n o i t a t e r p r e t n I
y
ambiguity or substantial doubt in the meaning of a restrictive covenants may either be read narrowly in favor of the free use of property (Traditional) or be interpreted by focusing on the intent of the grantor (Modern) Restrictive covenants that discriminate against a group of people are unenforceable
Traditional:
interpret ambiguous covenants in a manner that will reduce burden and increase the free use of land (read narrowly) should be construed against drafter (typically grantor or developer) limiting effect of restrictions on land y Rationale:
y
disfavored because they restrict free use of land and therefore should be strictly construed
P olicy:
y
promote free uses of land, the rights of owners to be free from control, and free alienability of land
interpretation focuses on intent of the grantor Evidence: express language in a deed, declaration, and supplemented by extrinsic evidence to resolve ambiguity y
Modern:
Rationale:
y P olicy:
C hanged C onditions
Interest balancing: Freedom of Use v. R eliance interest on R estrictions Restrictive covenants that discriminate against persons with disabilities may violate federal civil rights statutes, including the A mericans with Disabilities Act and F air H ousing Act.
Tough Test to Meet: C ovenant will only be terminated if the purpose of the covenant can no longer be accomplished. The dominant estates no longer benefit from the covenant. restrictive covenant will not be enforced if a fundamental change has occurred in the intended character of the neighborhood rendering the benefits underlying the imposition of the restriction incapable of enjoyment by D/ E owners conditions have changed so drastically inside that enforcement will be of no substantial benefit to D/ E o
y
o
y
Analysis
s t n a n e v o C g n i t a n i m r e T
restrictions may actually increase property value allow purchasers to mutually bind each other and thus benefit
y
Focuses on the benefits sought to be granted to the D/ E (Is there a policy reason either way??? Reliance??? ) test is stringent and relief is granted only if the purpose of the servitude can no longer be accomplished y Test:
y y
Changes outside subdivision:
y y
Rationale:
U ndue
Is the change so radical that it defeats the essential purpose of the covenant? Is the change so radical that it renders the covenant valueless (benefit) to D/ E holder?(R emember mutually enforceable)
The changed conditions doctrine is likely to apply to changes outside the restricted subdivision only when those changes have so adversely affected so many lots in the subdivision that enforcement is pointless Changes adjacent to a subdivision affect but do not eliminate benefits in a subdivision will be enforced regardless (Examine benefits to the D/ E)
Inconsistent, unreasonable, and inequitable to enforce restrictive covenant that will not achieve benefit intended
TEST: covenant will not be enforced if the harm caused by the enforcement to S/ E owner is greater by a considerable magnitude than benefit to D/ E owner If o hardship is great and benefit small the courts may refuse to enforce the covenant however if the benefit of the covenant is substantial the courts are unlikely to apply the doctrine even if the hardship is substantial
y
H ardship
Doctrine
A
o
mere change in economic conditions rendering it unprofitable to continue the restrictive use is not alone sufficient to justify abrogating the restrictive covenant if other substantial benefits are accrued to the D/ E owner Analysis
Statutory Regulations
r e h t O 30
Some statutes require covenants to be actual and substantial benefit in order to be enforceable Marketability of Title Act y
those defense which based in equity may make a covenant unenforceable
y
s e s n e f e D e l b a t i u q E
Focuses on the harm (burden) to the S/ E (U ndue H ardships; not changed condition ) as judged against benefit to other parcels (or D/E).
Acquiescence:
y
occurs if has tolerated or failed to object to previous violations of the covenant by the owner of the S/
Abandonment:
y
occurs if has tolerated violation of covenants of other restricted parcels in neighborhood covered by covenant
U nclean
y
occurs if has violated the covenant himself
E
(acquiescence)
H ands:
Estoppel
y
D/E owner orally represents to S/E owner that she will not enforce the covenant may be estopped from asserting interests in enforcing covenant if S/ E owner changes his position in reliance on D/E owners oral statement
Laches
y
If covenant has been ignored or breached for a substantial period of time court may find unexcused delay in enforcing the covenant prompted investment in reliance on the failure to object to the violation and that enforcement of the covenant would be unconscionable. (basically an unreasonable delay in enforcement; Fact specific, decided by judge)
Mar ke table T itle Acts:
y
Language
in Instrument
statutes that terminate restrictive covenants if they are not re-recorded after a specified period of time
If the language says it will automatic terminate in a certain amount of time have to periodically renew the covenant in cases of homeowners associations y
Merger
y
if burdened and benefited estates come under ownership of same personcovenants will terminate ( Common Ownership)
Release
y
parties may agree in writing to terminate the covenant or release the property from it ( Express R elease)
P rescription
y
open and notorious violation of the covenant without permission for the statutory period may terminate the covenant by operation of
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Property Synthesis the statute of limitations.
31
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Property Synthesis Interpretation of Ambiguous Covenants; Changed Conditions; Undue Hardship; Statutory Regulations Interpretation of Ambiguous Terms: Blevins v. Barry-Lawrence C ounty, (406-408): Defendant wants to open a group home for retarded people however covenants restrict use of parcel to residential purpose and only single family homes allowed. ANALYSIS: Single-family homeclause applies to structures not to manner in which the property is used.(House will remain single-family even as a non-profit) o Since operation of group home has the characteristics of residential purpose the ambiguity is interpreted in favor of defendant and group home o Group homes cater to at-risk groups. Restrictive covenant/zoning that discriminates against a group of people are unenforceable. o PubPol: El
Di, Inc. v. Town of Bethany Beach, (411-415): El Di applied for and was granted a license to sell alcoholic beverages at Holiday House. Plaintiffs sue to enjoin the sale based on a restrictive covenant prohibiting both the sale of alcoholic beverages on the property and on residential construction. Restriction dates back to 1900. C ovenant is unenforceable where there has been a fundamental change in the intended character of a neighborhood that renders BENE FITS (to dominant estates) underlying imposition of restriction incapable of enjoyment.
Racially Discriminatory Covenants th
Shelley v. Kraemer, (1948)(433-9) 14 amendment yes state action, no enforcement of contract (This is private law, this provision intended to discriminate). The Equal Protection Clause of the Fourteenth Amendment prohibits judicial enforcement by state courts of restrictive covenants based on race or color. Evans v. Abney, (439-46) Cy pres doctrine no state action, application of state law (This is state law, the law was not crafted to pursue discrimination) The cy pres doctrine is not applicable when the testator would presumably have preferred to have the whole trust fail if the particular purpose of the trust became impossible to accomplish.
Land Use Regulation and Exclusionary Zoning
EXCEPTIONS TO ZONING LAWS PRIOR NONCONFORMING USES:
Non-conformance with a new zoning law TEST: creating an exception for prior non-conforming use 1. Owner must continue substantially same kind and intensity of use to remain exempt from otherwise applicable restrictions 2. Doubts are resolved AGAINST altering use
VARIANCES:
seeking to get a variance on a zoning policy to be allowed to be an exception TEST: giving a variance exception 1. undue hardship that leads lot at issue with no effective use 2. undue hardship cannot be self-imposed 3. must be due to the unique characteristics of the lot 4. cannot cause a significant negative impact on character of area that would constitute a substantial detriment to zoning plan
VESTED RIGHTS DOCTRINE:
business is operating some kind of housing development, business, home and then zoning ordinance changes have they invested enough to get around zoning? TEST TO FIND AN EXCEPTION UNDER VESTED RIGHTS: 1. Is the investment tangible? 2. Formally realizable? 3. Is this a concrete right that has already been vested or is it a future plan?
NAACP v. Mount Laurel, 899-907 INSERT BRIEF
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Property Synthesis Property: Interests Historical Overview & Fee Interests Wood v. Bd County C omm., (pgs. 516-518) (land devised to county for the purpose of veterans hospital) Mere intentional, hopeful or precatory language (for the purpose of) is not enough to create a FS Defeasible. W/o Express Conditional Terms, the court will default to a FS A in the interest of efficiency.
` Process of Analysis: (1) Identify the freehold estate? rd (2) Who holds a future interest in the property? ( Grantor or 3 P arty Grantee) (3) What are the rules that apply to the conveyance? (What has to happen for the future interest holder to get the property) (4) Do the rules that apply to the conveyance violate P ublic P olicy? ( Should the conveyance by permissible?)
Present Estates and Future Interests Nonfreehold Estates: Also referred to as leaseholds, because they were not created by the livery and seisin are regulated by different rules Freehold Estates: One of two major categories of present estates originally created by livery and seisin and protected by the royal court of England Core Tension: grantors desire to control future of its property vs. societys interest in promoting alienation and profitability of property y Recurring legal questions when analyzing future interests; begin w/ O wishing to control future:Who can have property in future?What be done with it? y (1) Is the future interest enforceable? Policy Analysis: giving grantor too much control over the property; facilitating dead hand control; taking property out of the market; overly restricting alienability; overly restricting marketability; excessive concentration of ownership (w/ families) (2) Has the condition triggering legal question occurred yet? Policy Analysis: (none given) Policy Analysis of an ambiguous condition will be analyzed with an eye toward encouraging the marketability and alienability of property: Does it create uncertainty? Too much uncertainty becomes a disincentive for people to invest and purchase property (remote vesting) o Does it disrupt property ownership? The court prefers there be clear property ownership because of its impact on taxes and alienability o Is the grantors expectation being fulfilled? This will encourage people to invest and engage in property transfer (consequentialist justification) o Is the grantee being unreasonably restrained? Balance dead hand control against the grantees interest to develop and alienate the property o y y
Rationale for preventing limits future interests:
W ords of P urchase: W ords of Limitation:
Presumption
y y
Words which identify who is receiving the property (TO WHOM?) Purchase: signifies only that the person takes by deed or will, and not by intestate succession y Words that describe the kind of property estate created (WH AT INTEREST?) y y
y
Transferability: Rules governing who 33
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Dead Hand Control: Owners may seek to control property regarding who takes under the will long after they die Social Hierarchies: By imposing restraints on alienation and use owners will have wanted or unwanted effect of concentrating ownership in hands of certain groups and excluding others
y y
Conveyance
transfers all rights owner possesses to grantee unlessconveyance suggests otherwise The law likes to know who owns the property, therefore a present possessory interest must always exist Conditional Interests: Fee Tail, Fee Simple Determinable, F/S E xecutory Limitations o Grantor future Interest: reversion, possibility of reverter, or right of entry o rd 3 Party future interest: remainder or executory interest o Remainderman: person w/ interest in property to commence at termination of present possessory interest Ambiguity: (Modern Law, P resumption Against F orfeitures) while intent of grantor is important, language of conveyance is key, and the conditions which under a particular interpretation may lead to the disruption of current property ownership will be strictly construed to lessen the likelihood of disruption and therefore will confer the largest estate permissible under the instrument o P recatory Language: language in a conveyance which does not have any legal significance, and because it holds no legal significance when determining ambiguous language it will not dictate the terms of conveyance Even if intent is found in precatory language, the presumption is against ownership disruption though it may only be caused by ambiguous technical terms Inter Vivos - transfer that is conveyed when the grantor is alive by gift or sale; reversions, remainders, and executor interests can be transferred inter vivos Devise - the transfer happens the day the grantor dies; every state permits devises of reversions, remainders, and
Property Synthesis will take y
executroy interests and almost all states permit devises of possibilities of reverter and powers of termination Descent - intestate succession, person died without a will; all future interest are descendible
Category
Present Interest Terms Creating Interest
Absolute
Determinable C ondition Subsequent
Executory Limitation Life
Estate
Fee T ail
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To A (Modern Law: Sufficient ) And her heirs So long as; While; During; Until; Unless Provided that On condition But if Until, then to; Unless, then to; But if, then to
Future interest In Grantor
In Third Person -----
------
Possibility of R everter
------
Right of E ntry
------
y y
for: Condition broken Power of Termination ------
Executory
Interest
For life (Common Law: O to A)
Reversion
Remainder
to A for life
Reversion
Remainder
Property Synthesis Fee Interests Text, 513 (fee tail), Text, 508 (fee simple subject to executory limitation), Text, 515 (chart) Is of potentially infinite duration, inheritable, and transferable P resent Estate
a present possessory interest; an immediate right to possess the land Must be: (1) Fee Simple, (2) Fee Tail; (3) Life Estate; (4) L easehold Estate y Absolute:
largest possible aggregate of rights, privileges, powers, and immunities with respect to land in which it exists thus comprising full ownership of land (default estate); potentially infinite, w/out limitations on inheritability, not divest Words of limitation are required at common law; w/out and heirs was a life estate; today presumption is for FS/ A y rd a present possessory interest without any associated future interest retained by grantor or vested in 3 party y To heirs: interest of As heirs does not vest until A is deceased; while A is still alive heirs dont have future interest y because the term is simply meant that it was a FS/ A (there is no vested interest); to heirs is no more than a term of art Terms
P resent Estate
Limitation her heirs in fee simple
P resent Estate
y
Present possessory interest granted
Future Interest
y
No associated future interest retained by grantor or granted to third party by grantor
P ossibility of Reverter
Grantor
retains the future interest and upon the happening of a stated event, the possibility of reverter automatically becomes possessory ( F / S Determinable;Grantor ) (at common law it ceased when grantor died) Adverse P ossession
y y
: e l p m i S e e F
2.
P ow er of T ermination:
Grantor
3.
Reversion:
Grantor
4.
Remainder:
Grantor
5
retained future interest b/c he gave away a smaller possessory estate than he held which takes effect upon the natural termination of the prior interest ( LE ; F T; Contingent Remainder; Tenancy for Years; Grantor ) Note: contingent remainder is not a property interest y Note: a reversion is always a vested interest, although it may be divested y rd
conveyed a future interest to a grantee ( Life E state; 3 P arty Grantee) Always follows politely upon the conclusion of the prior estate, but does not cut-short the prior estate i.e. there is no condition to be violated or which may fail to be meet o
5
Types:
Tw o P art T est:
Executory Interest:
holder of reverter faces risk that possessory title may come back w/out his knowledge, b/c retransfer happens automatically grantee may then acquire a F/S A bsolute title by A/P
retained future interest (Right of Re-entry) and upon occurrence of condition may enforce forfeiture of prior estate and recover possession of land or waive breach (F/S Subject to C ondition Subsequent; Grantor)
y
s t s e r e t n I t n e s e r P f o s e p y T 5.
Grantor
y y y y
1.
2.
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And
Defeasible: a present interest that will terminate at the happening of a specified event, other than the death of the current owner All Defeasible F/S Estates create a future possessory interest in the property which is not held by the current possessor y holder has no current right of possession though they have a possibility of possession in future y this possibility is a present property interest that may be conveyed or devised before it becomes a possessory right o inheritable, alienable but will terminate upon the happening of some event named in the original conveyance y upon occurrence right of ownership passes to the owner of the future interest o y Court Preference: vested remainder contingent remainder executory remainder (W E DO NT LIK E T O DISR UP T E ST AT E S) If future interest takes away an executory interest court will treat it as a contingent remainder (Presumption Against Forfeiture) o 1.
35
Purchase To A
1. 2. 3. 4. 5.
Vested remainder absolute (O to A for life, then to B [and we know who B is]) indefeasibly vested remainder, vested remainder subject to open (aka subject to partial divestiture), vested remainder subject to condition subsequent (aka sbjct to total divestiture) a contingent remainder (aka subject to condition precedent)
If either part is not satisfied it is an executor interest: 1. The interest must be capable of becoming possessory immediately upon termination of the prior possessory estate 2. It cannot divest a prior interest
conveyed a future interest to a grantee that cuts short a prior estate or follows a gap in seisen rd 2 types; F / S E xecutory Limitations; 3 P arty Grantee cuts short prior estate: condition may be meet by commission or omission giving the grantee a right to vest they are never vested at the time of the conveyance E/I always followsa gap in seisen (possession or ownership). E xecutory interest corresponds w/FSS EL S pringing: an interest in favor of a third party in future that springs out of O our grantor, can either cut short the prior state or follow a gap in seisen O to A , if A marries B: O possesses until condition occurs As E I Springs; i.e. gap in seisen until A o marries B (O has a reversion subject to executor limitation) O to A upon A s marriage: O has a Reversion/S EL (though O currently holds prop), A has a Springing EI o O to A as long as a gets married: O has a FS/S EL O to A for life, then to B if B graduates from law school o Shifting: an interest in a third party grantee, that shifts from one third party to another o O to A so long as it is being used for a school during As lifetime, otherwise to B A has a FS/S EL, B has a Shifting EI O to A for life as long as it is being used for a school, otherwise to B o A has a LE /SEL, B has a Shifting EI, O has a reversion
Property Synthesis o
Determinable
O to A for life, then to B , but if B dies before A, then to C: (B VRSD) + (C Shifting EI)
present possessory interest which ends automatically upon the happening of a stated duration and transfers possession back to grantor or heirs/devisees; occurrence of condition automatically shifts ownership back to grantor Words of Duration:words indicating ownership is to last for a certain time period (words indicating time) y A/P SoL begins upon violation of condition; assumed violation is sufficient to satisfy open and notorious reqmnt y A
Purchase To A
Terms
Condition Subsequent
y
Present possessory interest granted
Future Interest
y
Grantor
Until
Unless
maintains a Possibility of R everter(i.e. reverts automatically; vested)
present possessory interest which ends at discretion of grantor upon occurrence of a stated condition, not certain to occur Words of Condition:optional termination is legal distinction btwdeterminable and condition subsequent y FS/D language is durational while FS/SCS language is conditional; FS/S CS language indicating a right of entry in O y Ambiguity : Courts prefer construction least likely to cause forfeiture of title therefore condition subsequent y is preferred to a determinable estate (necessary phrase: at common law a right of entry) Laches If O sits on right of entry for too long to As detriment, O be barred from exercising right y Purchase To A
T erms
Executory Limitation
So long as
P resent Estate
Limitation Wh During ile
Pr ovided
P resent Estate
y
Present possessory interest granted
Future Interest
y
Grantor
Limitation On condition
that
But if
maintains a Right of Entry (O must assert right to property, not automatic; vested)
grantor conveyed future interest following defeasible estate to another grantee in same instrument and upon occurrence of stated duration or condition estate subject to executor interest automatically terminates in favor of a third party rd The distinction between words of duration and of condition is irrelevant (resembles FS/S CS however for a 3 party) y Purchase To A
Terms
Limitation Until, then to
Unless, then to
P resent Estate
y
Present possessory interest granted
Future Interest
y
Third party has been granted an Executory Interest
But if, then to
FT is not equivalent to a FS/ A because it is not assumed a blood line will continue forever which creates a future interest that is a reversion in O Only Delaware, Maine, Massachusetts, and Rhode Island still allow fee tails (carry over from English C ommon Law) Dis-Entailing a At common law it could be willed outside to someone other than a lineal descendent y Fee Tail: A must sell the land to someone outside of his blood line y Must be sold during A s lifetime because it cannot be willed away o y
l i a T e e F
y
Modern Rule:
y
Fee tails are restricted in that a Fee Tail will be interpreted either: (Methods of Modification) a. Some jurisdictions: As if A was granted a FS/ A (simple convert a fee tail to a FS/A) b. Some jurisdictions: A is granted a L/E and As heirs were given a FS/A (Compromise that allows 2 generations) Terms
Purchase To A
And the heirs of his body
P resent Estate Future Interest
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O retains reversion (when and if the blood line dies out )
Limitation And the male heirs of his body
Property Synthesis Life Estates An
y y y y y
estate which lasts for (measured ) the life of the present holder and is followed either by a reversion in the grantor or a remainder in a third party owner has no right to determine who owns property on their death since ownership automatically shifts to the reversioner or remainder holder unless the conveyance provides otherwise, the estate is transferable however the transferee obtains what the transferor owned can be adversely possessed however the adverse possessor only possesses as much as the current owner under A/P rules O would not be able to expel A/Por until after the measuring life ends at that point the So L will begin tolling o law imposes upon a tenant obligation to return premises to landlord or remainderman at end of term unimpaired by the negligence of the tenant Waste: neglect or misconduct resulting in material damages to or loss of property ordinary depreciation of property due to age and not normal use over a comparatively short period of time is not included o
Present Estates
a present possessory interest; an immediate right to possess the land ( A t Common Law, O to A designated a Life ) Purchase Limitation To A for life, for as long as A lives, Terms: Defeasible
y
Determinable:
O
to A for life so long as A remains unmarried
Condition Subsequent:
O
to A for life, but if A does not use land for agricultural purposes, O retains right to reenter
xecutory Limitation: E
O
to A for life, but if B marries during A s Lifetime, to B
I.
Per Autre Vie
L/E o o
II. o
o
Responsibilities
s e t a t s E e f i L
of r esent Interest P Life Estate holder
Future Interests
y y
owner transfers estate to a transferee and the transferee obtains an estate for the life of the transferor O conveys to B for the life of A (B has a life estate in which A is the measuring life) A , a life tenant, conveys her life estate to B (B has a life estate in which A is the measuring life) If B dies, O will not receive the reversion until A dies; Where will the property go? st Old Rule:When X dies and A is alive,1 person to occupy property after B dies will be the general occupant with a right to retain the property until As death Modern Rule: O can name in conveyance who will take the property in case B died before A; If O does not it will go to Bs heirs until A dies
Duty to maintain the status quo:merely a possessor or trustee and as such carries duties to: (1) pay costs: interest on mortgage (principle paid by future grantee), taxes, insurance; and (2) not to commit waste (3 types) Remedies: Injunctive relief, monetary, obtain a receivership a person who oversees the property T ypes of y Voluntary Waste: C onsists of acts of commission; some deliberate or voluntary destructive act that W aste: damages the property; Waste by affirmative acts (felling trees though it is not a logging property) Permissive Waste: Failure of the tenant to exercise the ordinary care of a prudent man for the y preservation and protection of the estate; Waste by virtue of omission (failing to maintain property) Ameliorative Waste: Character of property is changed by L/E, value goes up but property is not y what grantee expects to receive (home replaced by a commercial development which increases value but future interest expected home)
a future possessory interest in the property which is not held by the current possessor holder has no current right of possession though they have a possibility of possession in future y this possibility is a present property interest that may be conveyed or devised before it becomes a possessory right o Reversion: Grantor
Remainder: rd 3 P arty
the property reverts to the grantor when current life estate ends ( A dies) unnecessary to for conveyance to mention the reversion because O retains whatever property rights are not given away y xample: E O to A for life P resent Interest:
y
present possessory interest granted in life estate holder
Future Interest:
y
future interest is retained by grantor of life estate ( in the absence of a 3 party grantee)
rd
The grantor designates a third party to obtain ownership when A dies; polite and patient, wait for prior estate to end naturally, dont cut prior estate short but follow Life estates and tenancies for years that end naturally 2 Types: (1) vested (2) contingent y Vested:
Remainder
belongs to an ascertainable person and there are no conditions precedent that must be satisfied before the remainder is certain to become possessory other than the natural termination of the prior life estate when the life estate owner dies Include all remainders that are not contingent remainders y Vested Absolute:
y y
Subject to Open: subject to partial divestment
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during his life
Present interest with the possibility of a condition that would cut possession short and revert back to the grantor
y y y
Remainder
is not subject to change When L/E conveyed: (1) grantee alive and ascertainable and (2) unconditional xample: O to A for life, then to B E P resent Interest:
y
present possessory interest granted in life estate holder
Future Interest:
y
future interest is granted to a 3 party upon term. of L/E
rd
may be divided among persons born and those who may be born in future If L/E convey: (1) grantee named but possibly IN COMPLETE & (2) unconditional Potential additional group members have EI/Shifting E xample: O to A for life, then to the children of B (if B has any living children at the time of conveyance to A but B also is alive to have more children) P resent Interest:
y
Future Interest:
y
present possessory interest granted in life estate holder rd future interest is granted to a 3 party upon term. of L/E rd however this 3 party group potentially could expand
Property Synthesis Rule
of C onvenience
y y
Subject to Divestment: subject to total divestment
will be closed upon termination of prior estate parties will possess estate at As death and not have to share property with other potential members
may be destroyed by an event that occurs after the original conveyance If L/E conveyed: (1) grantee named and complete but (2) CONDITION AL ftr interest Because Bs interest can be completely lost, O has E I E xample: O to A for life, then to B, but if B has flunked out of law school, the property shall then revert to O
y y y
P resent Interest:
y
present possessory interest granted in life estate holder
Future Interest:
y
interest is conditionally granted to a 3 party upon term. of L/E and depends on the occurrence of some condition
N ote:
y
xample: E
rd
may be functionally equivalent to some contingent remainders to A for life, then to B if she survives A , otherwise to C (Con.Rem.)
O O
Contingent
Class
to A for life, then to B ,but if B does not survive A , then to C ( S / D )
Vest only when the remainderman has fulfilled the condition to take A contingent remainder vests only when the condition that makes it contingent disappears: If A died and B doesnt satisfy the remainder: y (O FSSEL) + (B - Springing EI) o O to A for life, then to Bs first child: y (A LE) + (Bs 1s child CR/FSA ) + (O reversion) o O to A for life then Bs children to reach 18: y (A LE) + (Bs C hildren born > 18yrs CR/SPD) or (If Unborn Shifting EI) o O to A for life then to Bs children in FSA: y o (A LE) + (Bs children all unborn CR/FS A) or (Bs Children at least 1 born V RSPD& Shifting EI unborn) + (O reversion) Alternate/CR (ACR): Grantees future interest is (1) present to someone and (2) future to another O to A for life, then to B if B gets married. If B not marry, to C: y (A LE) + (B CR) + (C ACR) + (O R eversion) o y 2 ifs p ACR: O to A, then to B . But if B marries, to C: (A LE) + (B VRSTD) + (C EI/Shifting) + (O nothing) o 1.
Event : remainder takes effect only upon happening of an event that Is not certain to happen E xample:
O
y
2.
to A for life, then to B if B has graduated from law school Remainderman conditioned by an event: ( A LE) + (B CR/FSA) + (O R eversion)
P erson: remainder goes to a person who cannot be ascertained at the time of initial conveyance
xample: E
N ote:
O to A for life, then to the children of B ( I f B has no children upon the conveyance to A ) Remainderman has not been born:( A LE) + (B CR/FSA) + (O R eversion) y O to A for life then to Bs first child to reach 18 Remainderman age requirement: (A LE) +( B CR/FS A) + (O Reversion) y O to A for life then to As widow/heirs Term of Art: As widow/heir is not fixed until As death (Heir or Widow = CR/FSA) y
remainder will become possessory when property shifts to remainderman remainder may be contingent on both a conditionally event and person separately contingent remainders may be functionally equivalent to some V/ R Sbjct to Divestment y Rule of C onvenience: a contingent remainder closes when remainder becomes possessory y y
Edwards
v. Bradley, 521-523 A conditional limitation imposed on a life estate is valid. (Bradley [P] brought suit against her mothers estate seeking to enjoin the sale of certain property devised by her grandmother because property was left to mother in life estate on condition it not be sold.)
Moore v. Phillips, 553-556 A defense of either laches or estoppel will not bar recovery in an action for permissive waste when no party was prejudiced. (Moore [P] and son sued as remaindermen to recover damages for the deterioration of a farmhouse resulted from neglect by the life tenant, Ps mother)
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Property Synthesis Future Interests
Rules Affecting Transfer of Property (See Present Estates and Future Interests Example Mindmap)
Rules and Regulations: s u o u g i b s m e A c f n o a n y e v o i t n a t o C e r p r e t n I
t s e r e t o t n I s n o i t e a c i r f i P d A u R t o M u n r e F d f o o M n o s r i e t d i a n a l u m R g e n e t e n R g i t n o C o t e l b a c i l p p A s e l u R
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1.
Rule Against The Creation of New Estates:
y
Since law will not allow the creation of a new estates the court will either (1) fit the conveyance into the most closely analogous existing estate (2) or default to a basic presumption that unless clearly stated otherwise the grantor is conveying an interest equal to their entire interest
2.
Presumption Against Forfeiture:
y
Law
Doctrine of Merger :
When a L/E Grantee holds the present and future interest, the conveyances may merge to give the grantee a FSA, however this doctrine cannot be applied if there is an intervening vested interest This doctrine is specifically intended to resolve issues of alienability y O to A for life then to B (B is alive and known): (A LE) + (B VR FSA) y A sells LE to B, B interest gets combined and turns into a fee simple absolute o O to A for life then to B for life then to C: ( A- LE ) +(B VRLE) + (C VRA) y If A sells LE to C , C cant combine future interest because B has a vested intervening interest o O to A then B for life if B has married, then to C: (A LE) +( B CRLE) + (C V RA) y If C buys As interest, wipe out B s contingent remainder as long as it has not vested yet o doctrine of merger allows you to destroy intervening interest if they are not vested
3.
o
does not like uncertainty and disruption in ownership Example: between a FSD and FSSCS; FSSC S prevail because avoid loss and ownership disrupt
1.
Wait and See Test (majority):
The courts will not hold that a future interest violates the rule until the perpetuities period has passed and they are certain that the future interest has not vested within that period
2.
Cy PresDoctrine:
The equitable doctrine under which a court reforms a written instrument as closely to the donors intention as possible, so that the gift does not fail; e.g. constructing charitable gifts when the donors original charitable purpose cannot be fulfilled Analysis: Is the intent general or specific as to the term to be modified? y
3.
Uniform Rule Against Perpetuities:
4.
Statutory Cut-Offs:
Validate future interests that would otherwise violate the traditional rule if the interestvest anytime within a 90 year waiting period. At that point it will be converted to a FS/ A, resolves issue of remote vesting. Some states cut off interests in the grantor following defeasible fees if the condition does not occur within a stated time period after the initial conveyance; Options to purchase are exempted from the rule of perpetuities as long as its purchased for value y
5.
Marketable Title Acts:
1.
Doctrine of Destructibility of C ontingent R emainder:
Modern Rule: (Majority) contingent remainders are indestructible; if not vested until preceding estate ends, - EI (usually, springing) for duration of his life, and O - Reversion FSEL O to A for life, then to B when she reaches 21: (A LE) + (B C/Remainder) B is 19 upon As death, O has a Reversion/S to Divestment and B has a Springing/ EI o Common Law: (Minority) contingent remainders are destroyed: (1) if they did not vest before the preceding life estate ended or (2) by merger ( L/E and contingent remainder came into the same hands) O to A for life, then to B when she reaches 21: (A LE) + (B C/Remainder) If B is not 21 upon As death, Bs interest is destroyed and O has a reversion Note: C ommon Law R ule never applied to Equitable Estates, thus C/R in a trust would never have been destroyed by the termination of the preceding estate
2.
Doctrine of W orthier T itles: (shady transfer to grantors heirs) (RULE OF CONSTRUCTION open to argument of good faith by grantor)
O cannot convey property to his own heirs during his lifetime (rule of construction, not a rule of law) O to A for life, then to Os heirs: (A LE ) + (Os heirs Remainder converts to reversion in O if O is alive) y simply converts to reversion in O rather than Os heirs if O is still alive y intent of grantor is important in this situation because it is a rule of construction not of law y
3.
Rule
in Shelleys C ase: (shady transfer to grantees heirs) (RULE OF LAW Automatic)
Interest in grantee today with a remainder in grantees heirs will convert the remainder in grantees heirs into a remainder in grantee, in effect merges L/E and remainder to create a FS (merger doc.) O to A for life, then to As heirs: (A LE) + (Heirs CRA) p (A FSA) y Fix this by rewriting it: O to A for life, then to A . Then Merger applies and A has FSA. y
Some states require that future interests be recorded periodically in the local registry of deeds to remain valid and enforceable B
Property Synthesis y y y
However: O to A for life, then to B for life, then to As heirs: (A LE) + (B V RLE) + (A VRA) Bs vested interest prevents merger Do not look at grantors intent simply correct irregularity in language
Johnson v. Whiton, (528-529): Grantors may not create new types of inheritance, and any attempt to do so will result in full fee being conveyed. (Johnson [P] claimed a deed to him was invalid because Whiton [D], having received only a qualified fee from her grandfathers will, could not convey a fee simple absolute.) Texaco Refining v. Samowitz, (545-546): An option to purchse contained in a commercial lease, at least if the option must be exercised within the leasehold term, is valid without regard to the rule against perpetuities. (T R [P] exercised an option to purchase commercial property contained in a lease of property leased to D. Other successors in interest to lessor refused to transfer property, P sues for specific performance.)
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Property Synthesis Restraints on Alienation
Restraints on Alienation General Rule:
y
y y y
condition placed on a property that limits the freedom of a property owner. While total restraints on FS are typically unenforceable, partial restraints (limited in time or to whom it can be sold) may be enforceable if there is a potential legitimate interest (more likely to enforce if the clause itself requires reasonableness, however the law still require a demonstration of reasonable relationship btw action and purpose) o Homeowner Assn will be required to show restraint (1) facilitates the transfer of property, (2) increases the value of the property, (3) st facilitates marketability when owners wish to alienate (Right of 1 refusal, duty to (1) pay fair market value in a (2) timely manner) Total restraints on alienation of FS interests in any form are uniformly held repugnant to the fee at common law However this is balanced against the positive effects to the value of a property interest by certain restrictions o Option to Purchase: enforceable if (1) limited in time AND (2) respect and secure the right of the seller to receive fair market value Different rules for LE: Can place more restrictions upon them because it is understood to be limited in nature A
Rationale:
1. 2. 3. 4.
Promotes efficiency in the use of property by allowing property to shift to a more valued use Promotes liberty by freeing current owners from undue restrictions imposed by past owner Promotes equality through dispersal of ownership and prevents arbitrary discrimination Alienation can enhance the value of the property
Types of Restraints
Disabling:
Directly forbid owner from transferring interest in property, no one can wave restraint Held null and void y violates the rule against benefits ingross and is unenforceable o
Promissory:
Covenant
by which grantee promises not to alienate the interest in the property held null and void (unenforceable) however not as bad as disabling violates the rule against benefits ingross and is unenforceable o most courts uphold total restraints on alienation of LE if in form of promissory y Provides a future interest that will vest if owner attempts to transfer the interest Generally held null and void (unenforceable) however not as bad as disabling y violates the rule against benefits ingross and is unenforceable o most courts uphold total restraints on alienation of LE if in form of forfeiture y y
Forfeiture:
STANDARDS TO APPLY ON EXAM:
Generally
1. Common Law:
y
2.
Reasonableness Test: Unreasonable restraints will be struck down ( A nalysis) 1. What type of property interest is being conveyed? Who is it thats getting the interest? Interest?: FS? Leasehold? LE ? o o Who?: look to who it is that gets the interest Is for charitable/non-profit or for profit use; Is it a standalone home or a Condo Is it a right of first refusal based on a fiduciary duty:(1) rationally related to the protection and preservation of proper operation of the property(2) Are you doing so in a fair and non-discriminatory manner 2. What is the duration of the restriction? o Analysis: Is the restraint for a reasonable amount of time 3. What are the consequences of restraint? o Analysis:Forfeiture? Fair market purchase? Sanctions?
Modern Law
Any
complete restriction on alienation of property would be deemed to be void as repugnant to the fee i.e. goes against the very nature of a Fee Simple because it signifies that the owner has all the sticks in the bundle A restriction that would require grantor consent for a grantee to sell a FS property is repugnant to the fee b/c it is a o complete restriction on grantees right to alienate without any manner by which grantee could circumvent restriction
Horse Pond Fish & Game Club, Inc. v. Cormier, (451-453) A restraint on alienation is valid only if it is reasonable in light of the justifiable interests of the parties. (P [Horse Pond] transferred an unrestricted property to a third party who then transferred the property back to P with a restraint on alienation.) Northwest Real Estate Co. v. Serio, (453-454) Covenants retraining a grantees ability to sell property are invonsistent with a grant of fee simple and are thus invalid. (NRS [D] prevented the sale of property to Serio (P) based on a covenant restricting the alienation of the property.) Riste v. Eastern Washington Bible Camp, Inc., (454-455) A restrictive restraint on the sale of fee simple title is a violation of public policy. (Riste [P] bought land in FS but title had restriction that he could only sell to a member of Assembly of G od church. P wanted to sell his property in violation and sues to remove restriction.) Aquarian Foundation Inc., v. Sholom House Inc., (455-458) A clause in a condos declaration permitting the association to arbitrarily (or capriciously or unreasonably) withhold its consent to transfer, when that consent is required for sale, constitutes an unreasonable restraint on alienation. (Condo owner sells condo to AF [P] w/o consent of Sholom Houses [D condo assn] board of directors. D sues to set aside conveyance. Ct finds preemptive offer clause illusory b/c doesnt come into effect until after sale takes place.) Wolinsky v. Kadison, (458-460) No person shall be denied the right to purchase or lease a unit because of race, religion, sex, sexual preference, marital status, or national origin (TEST FOR REASONABILITY of exercise of right of first refusal: 1. Is reason for refusing rationally related to the protection, preservation or operation of property/association? 2. Was power exercised in fair/nondiscriminatory manner?). (D [BofD] for a condo complex exercises its right of first refusal over Ps offer to purchase allegedly because she was an unmarried female w/ children.)
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Property Synthesis Trusts and Cy Pres Doctrine Cy Pres Doctrine:
A
y y
court will carry out a settlors charitable intent so far as possible by authorizing that the trust income be used for some other charity Trust: a property interest held by one person (trustee) at the request of another (settlor) for the benefit of a third party (beneficiary); grants a right to beneficial enjoyment of property to which another person holds the legal title. Occurs when a settlor (1) establishes a trust and has a (2) general intent to contribute to some form of charity, and the (3) particular charitable purpose identified by the settler becomes (4) impracticable or impossible to achieve
Analysis:
must determine whether the settler intended to was general or particular Did grantor intended to aid only a particular charity? Would grantor have intended trust income to benefit another charity if first beneficiary ended its existence? o Grantors intent was general: determine if an alternate charity (chosen by trustee) is of a kind settlor would have wished to benefit determine to whom trust principal belongs if settlors charitable intent is impossible to accomplish Grantors intent was specific: y
Court o
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Property Synthesis Property: Concurrent Ownership and Family Property Tenancy in Common; Joint Tenancy
Tenancy in Common and Joint Tenancy t : n p i e h r r s r u c e n n o w C O
Property owned by more than one party at the same time and that is structured in a particular way by both law and contract Courts are reluctant to micro-manage the kinds of decisions that must be made btw co-property owners because partition is always an option y 2 types of residential property ownership y a. Separately owned and managed: (1) condominiums, (2) cooperatives b. Jointly owned and managed: (1) tenancy in common, (2) joint tenancy, (3) tenancy by the entirety Joint tenancy is functionally similar to a life estate while a common tenancy is like a fee simple absolute (some jurisdictions allow a Joint Tenant to transfer property to themselves to create a Tenancy in C ommon) presumption that if two or more people are conveyed property and are unmarried to each other it is a tenancy in common Marital property is regulated by a separate set of rules
Form of concurrent ownership in which two or more persons own same property at same time, each with a right to possess the entire property, and each is legally obligated to share certain benefits and burdens of ownership (default tenancy) y Each tenant in common of real property may use, benefit, and possess entire property subject only to equal rights of cotenants Because interest not need to be equal deed must specify interest percentage of each owner or assumed to have equal shares y No right of survivorship; if a tenant in common dies, the ownership interest passes only by will or by intestate succession y Tenants in common have to receive their interests at the same time, in the same devise. y Property Interest:
) t l u a f e d (
n o m m o C n i y c n a n e T
F ractional
y
Interest
y
Rights:
y
right of possession is undivided but if sold profit divided in accord w/ fractional interest Ownership interest are fractional shares called undivided interests each share has the right to possess the whole property percentage of share only becomes important when property sold, refinanced, etc. each share will only receive its equivalent fraction of the value if sold Each
Formalities:
1.
Time :
No requirement to share unity of time, however existence of unity will not prevent creation of a tenancy in common
1.
Title:
No requirement to share unity of title however existence of unity will not prevent creation of a tenancy in common
2.
Interest
Unequal interests in the property is possible if grantor is silent the presumption is that parties hold equal shares however proof of contrary intent or y unequal payment of purchase price can rebut this presumption
3.
P ossession:
All
Benefits:
P ossession:
joint tenants have right to possess all of property Each
co-owner has right to possess entire parcel, therefore If one lives in property and other does not, tenant in possession wont have to pay rent to non-possessing tenant b/c he is only doing what he is entitled to do
y
Lease:
y y
E xception to P ossession:
rd
Co-owner
has a right to lease his undivided interest to a 3 party therebygiving renter a right to control the whole; co-owner has right to portion of the rent equivalent to his interest Lease can survive the death of the lessor
Ouster: Explicit act where one co-tenant wrongfully excludes another co-tenant and thereby must pay the ousted co-owner rent because they are being improperly denied there right to occupy Rent would be equivalent to the interest the ousted party has in the property y Constructive Ouster: ouster without physical act or fault has by the nature of a condition of the property created an ouster of the co-owner and therefore the ouster must pay ousted co-owner Ex. Apartment too small y
Burdens:
Remedies:
Basis E xpenses:
y
y
No duty or requirement to share unless agreed because once property is sold improvement can be accounted for in division of profit
Maintenance/ Repairs:
y
Potentially must be shared evenly
1.
Accounting
y
Bring
2.
P artition
y
y
Negotiated: co-tenants decide to change the ownership structure (voluntary) Judicial: court ordered, parties cannot resolve in which property is either (1) physically divided or (2) force sale of the property and divide proceeds according to fractional interest at which point claims will be offset Partition in kind: property is physically divided along interest with each party receiving respective amount Partition by Sale: property is sold and each party receives respective interest from the proceeds
y
Co-owner
y
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Mortgages, insurance, and tax must be paid in proportion to their fractional interest
Major Improvement:
y
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fractional interest is alienable, inheritable, and devisable Grantee of interest receives exactly what the grantor owned unless the grantor has sold less than their full interest right to sell, mortgage, lease interest in property without consent from the other cotenants and it does not end the tenancy in common
Contribution
proceedings, partition or contribution, to require co-owner to pay their portion of expenses, assessment of who paid what or owed what over a period of time
in exclusive possession of premises bears entire burden of expenses unless value of occupation is more than market value in which C oA for Contribution
Property Synthesis Form of concurrent ownership in which two or more persons own same property at same time, each with a right to possess the entire property, and each is legally obligated to share certain benefits and burdens of ownership (default tenancy); (at common law not as easily destroyed as in Modern Law) y distinguished from tenancy in common: (1) title was created by single will or transfer, (2) expressly declared in the will or transfer to be a joint tenancy, and there is a (3) right of survivorship and each (4) fractional interest is equally divided. if cotenant dies, interest equally split among remaining joint tenants; if all die at same time treated as tenancy in common and interest goes to heirs y N ote: if any formality fails property reverts to default estate (tenancy in common) (some states dont have Joint Tenancy) y Ambiguity: If the joint tenancy is ambiguous it is interpreted as a tenancy in common Property Interest:
Formalities:
F ractional Interest Rights:
y
fractional interest are not alienable, inheritable, or devisable; when co-tenant dies his share goes to the surviving cotenants and is equally divided ( right of survivorship)
Lease
y
Split: jurisdictions disagree as to whether a lease may severe a joint tenancy Majority:Lease wont sever joint tenancy; leasee has tenancy per autre vie that expires on joint tenant dies, o preserves survivorship and encumbrances placed by deceased joint tenant become unenforceable against surviving joint tenants Minority: o
Four unities of time, title, interest, and possession are NECESSARY . 1.
y c n a n e T t n i o J
Ownership interest are fractional shares called undivided interests because each share has the right to possess the whole property
Time
y
interest has to be created at the same moment in time
2. Title:
y
all joint tenants acquired title by the same instrument
3. Interest:
y
All
joint tenants have equal fractional interest in the company.
4. P ossession:
y
All
joint tenants have right to possess all of property. Note: if deed restricts possession to a joint tenant then it cannot be a joint tenancy
o
Benefits:
P ossession:
RULE:
Each
Lease:
y
xception to E
Ouster: Explicit act where one co-tenant wrongfully excludes another co-tenant and thereby must pay the ousted co-owner rent because they are being improperly denied there right to occupy Rent would be equivalent to the interest the ousted party has in the property y Constructive Ouster: ouster without physical act or fault has by the nature of a condition of the property created an ouster of the co-owner and therefore the ouster must pay ousted co-owner Ex. Apartment too small y RULE: if fair market value is greater than basic expenses, possessing co-owner pays ALL basic expenses.
P ossession:
co-owner has right to possess entire parcel, therefore If one lives in property and other does not, tenant in possession wont have to pay rent to non-possessing tenant b/c he is only doing what he is entitled to do See above.
Burdens:
Remedies:
Basic E xpenses: P artition
Rent
destroys the joint tenancy, no right of survivorship Voluntary: co-tenants decide to change the ownership structure (negotiated) y Judicial: court ordered partition if parties cannot resolve in which property is either (1) physically divided or (2) y force sale of the property and divide proceeds according to fractional interest at which point claims will be offset Question of C ontribution: if a co-tenant in sole possession of property pays more than a fractional share on o interest etc. will not get contribution if value of benefits exceeds money he is paying. Amount due is offset by Fair Market Value of benefit received o
Severance
y
Termination
y
y
y
Carr
sell property, destroying unity of time and title; happens only between selling owner and remaining owners (destroys joint tenancy as related to portion sold and not to the remaining owners) newcomer is not joint tenant however B and C remain joint tenants o Does not change relations of remaining owners among themselves o A, B , and C are joint tenants, if A wants out of the joint tenancy he can sell to X and sever the title, B and C remain joint tenants but they as a couple are tenants in common with X, if B dies the remaining interest goes to C , still retain right of survivorship A, B and C are joint tenants A wants to destroy joint tenancy and become a tenancy in common A can sell property to straw-man conveyance X and sell it right back to A, privity, interest destroyed and severed and A is now a tenancy in common (some jurisdictions allow this to be done by simply allowing owner to convey it to self) IN MOST JU RISDICTIONS, A can convey his interest from himself to himself, thereby creating a tenancy in common w/o the middleman.
v. Deking, (pgs. 580-581): Tenancy in common: A co-tenant may lawfully lease his own interest in the common property to another without the consent of the other tenant and without his joining in the lease. (George Carr, owner of a parcel of land with his son, Joel Carr [P], as tenants in common, executed a written lease agreement with Deking [D] without Ps authorization) father and son were tenants in common; the father and tenant go behind the sons back and form lease. father dies and son tries to evict tenant issue: did the lease survive after the father died? the common tenancy is an undivided interest and each party can sell, lease etc. w/out the other partys consent. (he cannot eject them b/c Deking has stepped into the shoes of the lessor.)Deking is entitled to a partition but he is also entitled to the benefits of the lease as long as he accepts the terms of the lease. In this case to partition will mean a physical partition because the property lend itself to it
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Property Synthesis Tenhet v. B oswell, 581-584: Death Two joint tenants 1) A lease entered into by a joint tenant does not sever the joint tenancy. 2) A lease entered into by a joint tenant expires upon the death of that tenant. (like a LE sold to another; it becomes a LE per outré vie and is measured by the original LE holder) (Johnson, a joint tenant w/ Tenhet [P], leased his interest in the joint tenancy property to Boswell [D] for a term of years and died during that term.) w/out Tenhets knowledge, Johnson leases his interest to B oswell for ten years Issue: does the lease survives? Does the lease severed the joint tenancy? The ct says that you can also look at it as a life estate and it wont severed the joint tenancy. The ct concludes that the lease did not severed the joint tenancy b/c it takes a higher standard to create a joint tenancy the law will assume a higher standard to destroy it, and Johnson didnt do any of the things to clearly severe it. The lease disappears because is a fundamental rule that when a joint tenant dies the interest shifts to the other tenant and the other tenant is not obliged to hold the lease because interest has to transfer w/out encumbercies
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Property Synthesis Form of joint tenancy only available to married couples; requires the four unities of time, title, interest, and possession, and additionally marriage. Individual interest cannot be sold, transferred or encumbered without consent of other spouse. (if one spouse passes the survivor will have FS A) Co-tenant dies interest passes to surviving tenant, but if die simultaneously treated as ten. in common and interest to heirs y Abolished in a majority of states; available in about 20 states (Not Cal) which declares that you cannot exercise any of the sticks in the bundle y without spousal consent; not available in community property states P olicy: Shortage of fee simple family homes, allowing debtors to attach detrimentally burdens the family y y In arm length transactions creditor knows type of property of the home owner, put on notice
y t e r i t n E y b y c n a n e T
Distinguishing from joint tenancy:
Creditors
y y
Property Interest:
1. 2. 3.
The individual undivided interest cannot be transferred without the consent of both spouses The individual interests cannot be reached by creditors of one spouse Partition is unavailable as a remedy for disagreement about property (only divorce may divide)
Property cannot be sold, or encumber by a mortgage without consent of both parties Typically creditors will not be able to attach property in order to collect on one spouses debt o Rationale: to allow attachment by collectors for one spouse is anathema to nature of tenancy as one strictly for married couples to respect the family unit Creditors rights: not unfair to creditors because in an arms length transactions creditors would know nature of asset and will not rely on existence of asset
F ractional Interest
Rights:
Formalities:
y
Ownership interest are fractional shares called undivided interests because each share has the right to possess the whole property
y
fractional interest are not alienable, inheritable, or devisable; when co-tenant dies his share goes to the surviving co-tenants and is equally divided
Four unities of time, title, interest, and possession plus marriage 1.
Time and
Time - interests must be created at same moment in time
2.
Title:
Title - all parties must acquire title by same instrument
3.
Interest
equal interest in property which lasts same amount of time
4.
P ossession:
Each
5.
Marriage
Co-owners
has the right to possess all of property must be legally married
Kresha v. Kresha, (584-585): Pursuant to a divorce proceeding where one party is awarded the entire ownership of certain lands, those lands are taken subject to any leasehold interests other parties have in the other partys former ownership interest.
Divorce, Wife and husband had a joint tenancy. Husband leases land to son w/out wifes knowledge, mother finds out. Couple gets a divorce the wife gets the property and tries to kick the son off. The son says the lease survives The ct says the lease survives b/c the father owned at the time entering into the lease a fee simple and he could give it away which ever way he wanted she knew about the lease at the time the land went to her and she could have settled that at the time the land was completely being conveyed to her Obligations of Co-Tenants Olivas v. Olivas, 576-578 When a spouse departs a residence held as community property due to marital friction, a constructive ouster is effected.
Husband and wife get divorced but the partition of property doesnt happened for 3 years Husband claims he was constructively oustered and wants her to pay him rent for the 3 years He claims that the emotions made it impossible to live together and this the ct says can be seen as a constructive ouster Ct says that he didnt move out because he couldnt live w/ her but he left her for another woman She doesnt have to pay rent to her Pg. 578 the impracticality of jointconstructive ouster Tenancy by the Entirety Sawada v. Endo , 587-591: The interest of one spouse in real property, held in tenancy by the entirety, is not subject to levy and execution by his or her individual creditors absent consent of both spouses. Endo
gets in car accident w/ the Sawadas has no liability insurances The Endos conveyed the property to their sons The Sawasdas are claiming that the conveyance is fraudulent and seek to nullify it so that they can attach the debt to the property Court say that the debt could not be attached to the property because is a single debt and the wife interest should not be burden The court really emphasizes the importance of family interests v. creditors Dissent: Says that if women are going to share benefits of the property then they should share on the burdens of the property. Endo
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Property Synthesis Property: Leaseholds Leaseholds & Rent Conflicts
Four types of tenancies exist, the basis for distinguishing each is by their duration or by their method of termination Procedural Regulations: Formal requirements for establishing a landlord-tenant relationship ( L eases lasting longer than a year must be written) y Substantive Regulations: defines theparties rights and obligations toward one another, some may be contracted away but others cannot y
y
Leases o
are governed by express terms and implied terms; residential v. commercial are basis for difference in policy considerations implied terms: covenant of good faith and fair dealing, quiet enjoyment, and implied right of habitability
T enancy of Years
fixed dates, terminating automatically without notice to the tenant at the end of the term; similar to a LE in that it ends naturally y C ertain T erm: the beginning date and the end date must be fixed (any period of time) y T ermination : contains termination date so no additional notice is necessary Note: Death of either party will not terminate the tenancy however may be able to negotiate an end y rd Note: Landlord maintains future interest as a reversion unless stipulated that it will go to a 3 party at the end of the y lease If Tenant is not breaching lease, tenant cannot be evicted during the period of the lease. y
P eriodic T enancy
continues from one leasing term (period of time) to next automatically unless either party terminates at end of period by notice y T ermination : automatically renews for a further period unless valid notice of termination is given o C ommon L aw : period less than 1yr require a full periods notice prior to termination (1yr = 6mnths) o Modern: 30 days notice for any tenancy, but must be effective as of end of period Note: Death of a party will not terminate the tenancy however may be able to negotiate an end y Note: typically created by implication y
T enancy at W ill
e t a t s E d l o h e s a e L
(1) no stated duration and (2) may be terminated at any time by either party (a quasi-unregulated tenancy) Termination: no notice is required to end tenancy; however most jurisdictions require at least 30 days notice effectively y converting it to a periodic tenancy; very few jurisdictions allow for less than 30 day notice y Note: death of a party terminates the tenancy Note: typically created by implication y Assumption: court will assume if one party has the right to terminate at will the other party does also y
T enancy at Sufferance
When a tenant wrongfully remains as inhabitant of premise at the end of a valid lease (aka Holdover Tenant) (not trespass) (1) Permission to enter but (2) non-permissive continuance of habitation (distinct from non-permissive entry) y landlord has right of election between (1) evicting tenant; and (2) holding him to another term as tenant y if landlord accepts check will be construed as creating a tenancy at will o Majority: creates a month- to-month periodic tenancy Minority: creates a one year periodic tenancy Avoid by (1) not accepting the check or (2) asserting check does not create a new tenancy o
T enants Rights
y y
Landlord Rights and Obligations
Right to Actually take Possession of the property which was under lease Covenant of Quiet Enjoyment: An implied promise that the landlord will not, by an act or omission, substantially interfere with tenants possession or use of leased premises
Right to: (1) receive rental payment, (2) premises remain reasonably intact (tenant cannot commit waste), (3) reversion Duty to: Present possession to tenant (If land still occupied, Landlord must reasonably try to remove a Holdover Tenant) Holdover: tenant wrongfully remains as inhabitant of premise at the end of a valid lease y o
o
Majority : duty to deliver actual possession Holdover Tenant: unable to take possession may (1) terminate lease, (2) recover damages for breach ( in equity ) Minority : duty to deliver legal possession, not actual Holdover Tenant: unable to take possession, new Tenant must sue to eject holdover and is still obligated to landlord
Tenant in Breach:
Non-material
Term:
Material Term: tenant refuses to leave:
tenant leaves:
y
May evict tenant for breach of material term y (1) accept new periodic tenancy or (2) summary process and seek back rent
y
Majority view: landlord must use state court to eject tenant (no self-help)
y
Summary Proceeding - state court mechanism, parties quickly present defenses and claims against one another
prior to completion of lease: may accept surrender and sue to recover back rent and transaction costs duty to mitigate: landlord must make a reasonable effort to replace tenant y if he seeks to recover rent due from a defaulting tenant Re-letting on tenants account: suing old tenant for a difference between y new tenants lease and walked-away tenants lease
y
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May not evict however may refuse to renew lease
Accept a surrender: recover back rent, transaction cost in renting apartment, and difference in fair rental value
Property Synthesis An
y
implied promise that the landlord will not, by an act or omission, substantially interfere with tenants possession or use of leased premises Claim landlords act or omission so significantly interfered with tenants use and enjoyment that it essentially constituted an eviction Typically used by Commercial lessees b/c of advent of IWH which is more favorable for a residential lessee (Still applicable for resi.,use cause slightly lower standard )
C onstructive Eviction:
t n e m y o j n E t e i u Q f o t n a n e v P artial o C onstructive C Eviction:
(Majority Rule) Tenants use and enjoyment has been substantially impaired (eg. excessive noise or odors) rd Burden on tenant to prove claim, high bar, typically doesnt put much liability on landlord for 3 party actions y omissions is wrongful only if there is a duty to act by: (1) express clause in lease, (2) Statutory y duty concerning premises, (3) limited repair duties traditionally imposed on the common law landlord (duty to maintain common areas, minor repairs) If successfully asserted the tenant will be allowed to break the lease without penalty y rd
Analysis:
(1) What is stipulated in the lease? (2) What is landlords conduct (and 3 party under split)? (commission or omission) (3) Does the conduct constitute substantial interference of a tenants use and enjoyment? (such a major interference that a reasonable person would conclude dwelling is uninhabitable but it is not necessary that it be permanent nor prevent tenant from occupying premises) 1. 2.
Wrongful Conduct (a) acts and omissions of Landlord (express clause in lease, statutory duty, repair duties under rd rd common law) (b) conduct of 3 party(LL right to control 3 party) Substantial interference: defining substantial interference(reasonable person would conclude uninhabitable) (b) partial constructive eviction
Tenant is required to:
1. 2. 3.
Provide notice of faulty condition ) Give reasonable time to cure condition(Tension: reasonable time to cure vs. reasonable time to move Vacate premises within a reasonable period of time (Rationale: necessary to substantiate claim) Must vacate prior to (1) terminating lease or (2) stopping payments o o Minority view: allows a tenant to partially vacate (P artial Constructive E viction )
(Minority rule; RST) defense due to eviction of an abandoned portion of premises due to landlords act/omission in making portion of premises unusable by tenant (Minjak: hybrid spaces) ( Po tentially increase litigation); adopted by NY; more board and fluid (lower bar) Restatement:
there is a breach of landlords obligation if during the period where tenant is entitled to possession of leased property, landlord, or someones conduct attributable to him, interferes with permissible use of leased property Difference RST
in and C/ L
1. 2. 3.
Third Party interference
Landlord
y y
Standard requires interference be more than insignificant; lower standard than C/L (substantial) rd Explicitly adopts Blackett Doctrine placing some liability on landlord for conduct of 3 parties i f rd landlord has any ability to control those 3 parties even if they may not have a legal duty to do so It does not require that the tenant vacate the premises; no longer a requirement rd
is responsible for 3 Party interference of enjoyment if the landlord has caused or consented to conduct rd rd Modern: landlord is liable if he had a legal right to control conduct of 3 Party (Relationship btw LL and 3 Party) rd Traditional: landlord is not responsible for conduct of 3 parties if conduct interferes with quiet enjoyment
implied warranty in residential leases that requires premises be fit for human habitation(broad) or at lease bare living requirements (Narrow, inhabitable) May be a defense or an affirmative cause of action; may withhold rent, make repairs (Minority View: defines scope of warranty by housing code) y Public Policy reason for denyingwaiver ofIWH : Unequal bargaining power, Unfair burden, Unfair for Social Relationship y P laintiff Must Show
y t i l i b a t i b a Analysis: H f o y t n a r r T enant Remedies a for violations W d e i l p m I
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1.
2. 3. 1.
Is there a Housing code violation alleged as a breach of landlords warranty? Narrow View : defined by House Codes; a minimum standard of inhabitability; necessary but not sufficient a. b. Broad View: must be fit for human habitation; jurisdiction will use the house code to inform the minimum standard but not to define the minimum standard, more independent and flexible Fact intensive analysis based on the circumstances (No heat in Alaska vs. no heat in Arizona) y Did the alleged violation exist during the period for which past due rent is claimed? Was the portion of the rental obligation suspended due to the landlords breach? Reasonableness:
a reasonable person would consider premises uninhabitable Minor Defects: regardless if listed as housing code violation, a minor defect will be insufficient to show violation Defense: potentially claim the tenant has an expectation higher than the minimum standard promulgated by code o At time of Lease: defects cannot be apparent at time of lease signing (considered a waiver of liability) y No violation until landlord is (1) given notice of defect, (2) specify type of defect, and (3) allowed reasonable time to cure Tenant will not need to move out if burden on tenant to find a new place is an enormous y y
2. 1.
Rescission :
(IWH, CQ E) violation of obligation entitles tenant to stop performance of contractual obligations May repudiate contract, move out prior to end of lease without liability for remaining lease Rent withholding:(IWH) breach of implied warranty allows tenant stop paying rent and continue living in premise landlord sues for back rent or eviction and tenant will raise violation as defense to claim y Rent abatement:(IWH) tenant is entitled to a reduction in rent ( J urisdiction S plit: pay to escrow ) Repair and deduct : (IWH) tenant may pay for repairs and deduct cost from rent paid to landlord ( F YI : typically statutory rest.) Injunctive relief, or specific performance : (IWH) sues landlord, injunction ordering to comply with housing code, make repairs Administrative remedies: (IWH& CQ E) state provided administrative remedies, outside court, regulated by local housing code Criminal penalties: (IWH/CQ E) criminal penalties provided by state building code for landlords failing to fix unlawful conditions Compensatory damages: claim for damages exceeding rent rather than a reduction or reimbursement rent already paid Punitive damages are appropriate if a landlord is morally culpable and the award could deter that conduct in others y landlords act was (1) intentional and malicious or (2)conduct implies criminal indifference to civil obligations o y
2. 3. 4. 5. 6. 7. 8.
Property Synthesis Court
eviction proceedings are usually required to evict a tenant; restrictions on evictions: Anti-discrimination Laws, R ent Control Laws, Regulate apartments turning into condos, Federal Laws Public Housing and Low Income, R etaliatory Eviction Landlords rights to evict
Retaliatory
Eviction
: s n o i t c i v E
Depends on whether tenant breaches a material term of the lease,other than material term Landlord cannot evict until lease expires Traditional Rule: landlord may evict for any reason if they abided by the statutory requirement for notice in that jurisdiction Modern Rule: landlord is not free to evict a tenant in retaliation for tenants report of housing code violations however proof of a y retaliatory purpose does not entitle tenant to remain in perpetuity (statute will dictate: B oP standard and protective timeframe) y
Removal
y
of a tenant from possession of a property due to a the tenants complaints or conduct which is the landlord is opposed of a complaint filed recently (range 90days-1yr.) will give rise to Presumption of Retaliatory Eviction 1. Does the eviction fall within the timeframe? a. If outside timeframe, no presumption of R/E, burden is on claimant to show b. If inside timeframe, presumption of R/E, burden is on Landlord to show 2. If burden is on Landlord do any of the factors apply? (Factors are positive or negative) Presumption onlandlord, must show legitimate non-retaliatory reasons (reasonable judgment standard) 3. BoPthen shifts to ,Preponderance of Evidence; burden is ultimately on the tenant to show Tenant must show a clear nexus between activity related to tenancy and eviction: i.e. complaint against landlord must allege an eviction due to discrimination or response to tenants housing based complaint (e.g. broken sink, dirty halls) Policy: Landlords should have some power to chose who lives on their premises y Analysis: E vidence
F ACT ORS show ing ASONABLE NE SS for RE
eviction: Bloomquist case
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1. 2. 3. 4. 5. 6. 7.
decision was a reasonable exercise of business judgment in good faith desires to dispose entire leased property free of all tenants in good faith desires to make different use of the leased property lacks financial ability to repair the property and in good faith wishes to have it free of tenants was unaware of the tenants activities which were protected by statute did not act at the first opportunity after he learned of the tenants conduct act was not discriminatory
Property Synthesis
Landlord
landlord conveys property interest to a new landlord pre-existing benefits and burdens remain if they run with land same right to rental fees however tenants rights (interest) survive, subject to same terms of eviction y Apartment lease grants the landlord a future interest right of reversionary y
Tenant
2
Types of Prop. Transfer
If Lease is Silent
Assign
Sublet
y y
P artially Required
If lease agreement is silent regarding assignment or sublease generally a tenant is entitled to transfer possessory interests by either sublet or assignment Rationale: promotes alienability and marketability most efficient use of premises (party willing to pay for and use) o
Required
y y
y t r e p o r P f o r e f s n a r T
conveys all tenants remaining property interests without retaining any future interests to enter prop. Assignment means that assignee becomes new tenant assuming all rights and responsibilities y tenant retains some future interests or right to control property in future ( L ess than entire interest) y Sub-tenant and Landlord are not in privity because contract is still btw original tenant and the LL Landlord must sues original tenant and original tenant sues sub-tenant for indemnification o landlord may sue for equitable release under the theory of equitable servitudes o because landlord can evict tenant and subtenant only has rights tenant, may also be evicted o
for sublet but not assignment Majority Rule: construe strictly to terms of the contract; if a lease contains a consent or approval clause without stipulating a standard, landlord may withhold consent arbitrarily or capriciously so long as it is not discriminatory Modern Rule: term sublet may be general which includes assignment Residential no requirement to be reasonable in refusal, as long as the reason is non-discriminatory o Rationale: reasonableness criteria in C ommercial L ease because of (1) greater suspicion over consent clauses in commercial leases because it can be a way for a party to create an advantage by drafting (residential may have protections) (2) not the same types of concerns regarding scarcity of resources o P olicy Reasons for not extending reasonableness criteria: (1) open the as a change in standard litigation floodgates (2) not the courts place the change established standard, leave to L egislature o Commercial: requirement that the refusal be based on some commercially reasonable reason Rationale: undue restraint on the alienation of property, treat the lease as a contract with the Duty of Good Faith and Fair Dealing and not merely a conveyance of property (contract disallows arbitrariness) o Duty to Mitigate: No duty for leassor to look to anyone but the lessee for payment Response: C omplete dominion is gone, therefore it is reasonable to place a duty to mitigate o A pproval Clause: lessee could have bargained for a reasonableness clause Response: Assume that in the absence of the arbitrary language that it would be assumed reasonableness was the standard o Negotiated : was entered into under the existing majority rule Response: Simply because it is a majority rule the minority trend seems to be more correct o Market V alue: Any increase in market value should belong to the lessor and not the lessee Response: L essee took on the risk so it is not fair to deny him the benefit Reasonableness Factors: In the absence it is unreasonable
Expressly P rohibited
Reasonableness:
compare justifications for a particular restraint actually imposed (good faith standard: decision cannot be based on personal taste; not commercially reasonable) 1. 2. 3. 4. 5.
Financial responsibility of purposed assignee Suitability of use for particular property Legality of proposed use Need for alteration of premises (radically alter it ) Nature of occupancy
Sublet: tenant retains right of entry and right to take possession rent controlled premises may not be sublet at a profit y Landlord cannot sue sub-tenant to enforce covenants in original lease sue in court of equity for fulfillment of terms of lease (under equitable servitudes) y Exception: Sub-tenant expressly assumes lessee obligations; tenant sue to indemnify y Assignment: tenant conveys all rights and obligations to the assignee If assignee, in privity with landlord and may be sued by landlord on the contract y Original contracting party is liable under the lease o
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Property Synthesis Sommer v. Kridel, 663-667 entered into 2 year lease w/ paid a month, leaves RULE: a landlord has a duty to mitigate damages The burden is on the landlord to prove that he tried to rent the apartment etc. Conflicts About Rent (Delivery of Possession, Sublet and Assignment) Kendall v. Ernest Pestana Inc., 683-688 REASONABLE CONSENT: Commercial Leases Majority Rule - No reasonableness requirement implied in lease Minority R ule - Must have a commercially reasonable objection Limit restraints on alienation need for space in urban society
Issue: whether the consent has to be reasonable? Base line rule in Cal is that you can put this kind of consent clause on the lien and you are free to contract around that Majority rule says that you can arbitrarily refuse to approve a sublease unless explicitly said by the lease Commercially reasonable objection: Financial responsibility of the proposed assignee Suitability of the use for the particular property Legality of the proposed use Need for alteration of the premises Nature of the occupancy The court labels the commercially reasonable objection as the minority rule but is adopting it because courts are starting to look and construe leases as Ks The court says that it has to be Dissent says that there should be freedom of K and that the legislature should take care of it if there is a problem. I a Slavin v. Rent Control B oard of Brookline, 688-690 Rent Controlled Leases (Slavin v. Rent Control Board) Majority Rule - landlord may refuse arbitrarily in withholding consent Minority R ule - reasonableness test In rent controlled areas no economic incentive and no shortage of residential space POLICY: Allowing minority rule in residential leases would increase litigation over what is and isn t reasonable =
is landlord and applies to the rent control board to get an eviction Issue: is there a reasonable requirement on the residential context as in the commercial context General rule: a lease provision requiring the landlords consent to an assignment or sublease permits the landlord to refuse arbitrarily or unreasonably The court holds that reasonable requirement for denial is not required on a residential context because there are not the same implications as in the commercial context and the legislation should addresses it Covenant of Quiet Enjoyment; Constructive Eviction Minjak C o. v. Randolph, 701-703 Randolphs are on a part commercial part residential area They have all these problems occurring to them They argue that they had to abandon a portion of the premises Important about this case: -Shows how the doctrine of partial eviction can be used -Is a minority rule and a hybrid case Blackett
v. Olanoff, 703-705 says that landlord is liable for renting his other space to a bar owner The court ruled for the tenant Court
Implied Warranty of Habitability Javins v. First National R ealty C orp., 709-714 Ct moves form common law to modern rule: Contract Law Consumer Protection Cases Person buys a product and expects it to work properly, same expectation from tenants Inequality of Bargaining Power People living in bad conditions are burdened Housing code - implied warranty derived from code, legislature has established minimum housing standards Retaliatory Eviction Hillview Associates v. Bloomquist, 726-730 Tenants formed tenants association to bring complaints to management - management evicts tenants after escalated situation - tenant brings defense that eviction was retaliation ANALYSIS: Landlord must show that tenant was evicted for another reason 51
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Property Synthesis Tenant has the ultimate duty of proving the defense Tenant shows that complaints were made in good faith, housing was rundown, witness testified that landlord wanted to get rid of tenants Landlord offers evidence to meet burden in regards to one tenant but not two Tenants are complaining about housing problems and they form an association They meet w/ management several times and the last time it gets physical The tenants in that last meeting get a notice of eviction They defend by saying that is a retaliatory action. Court says you cant evict on retaliation The tenants have the ultimate responsibility of proving the affirmative defense 7 factors to look at to see if the landlord has committed retaliation
Imperial Colliery Co. v. Fout, 730-732 is part of a union and he participates on a strike His landlord ask him for the property, he ask for an extension and get two months extension to vacate the premises He doesnt move out and ask for another extension doesnt get it and he claims is retaliation This court adopts the same case as D. C. which says that a landlord should not be evicted in retaliation Then the issue becomes if it has to be related The court held that there has to be a connection between the landlord/tenant relationship to assert a retaliatory eviction
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Property Synthesis Property: Family Property Marital Property (Separate & Community Property)
O'Brien v. O'Brien (599-604): Couple divorces. The only asset of the marriage was the husbands license to practice medicine. Issue for the court was whether the husbands license was martial property subject to equitable distribution or if it is separate property. C ourt presents a question: does the absence of one of the sticks in the bundle (in this case, lack of alienability of a medical degree) preclude a finding that the object is in fact property? C ourt answers in the negative: even though you cant transfer a medical degree, you can still consider it as property by quantifying its value and making an award based on that calculation. (this is not the view of all states). Note that even though the New York court did consider the graduate degree martial property (it was defined as such by statute), this is a minority approach and most jurisdictions dont consider graduate degrees martial property subject to distribution. Montana E quitable Distribution Statute(70-71): Husband, a professional gambler, and wife divorce. Wife gets the house, one of the few assets they have. Husband wants the house sold and the proceeds divided between he and his wife, but the court, taking into consideration the wellbeing of the children and the unlikelihood of the husband to be able to pay routine child support (he was a professional gambler) gives the wife the home. In re Marriage of King(71-73): Watts wasnt married to her mate and when they break up he tries to take all the property and leave. She prounounces 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. C ourt affirmed declaring that plaintiff had voiced several claims upon which relief could be granted. Elective
y y
share rule-some jurisdictions allow the surviving spouse to take under the forced share statute or under the will (whichever is greater) tenancy in entirety and tenancy in common do not exist in community property states Couple marries in a community property state and moves to a separate property state? characterize property by the state in which the couple is domiciled when they acquire it o the rules of that state where the property was acquired governs the newly acquired property o
y t r e p o r P y l i m a F
P re-marital
y
Agreement
y
alter property rights, may potentially alter all existing property rules (may modify terms of relationship at any point) Uniform Pre-Marital Agreement Act: adopted in 19 jurisdictions, codify the majority view, enforces reasonableness and unconscionability standard viewing the circumstances under which the party entered the agreement Majority V iew: focuses on voluntariness (duress) o o Minority V iew: Two distinct views (1) enforce the terms of the pre-marital agreement as stated (regardless of terms); (2) are the terms of the pre-nuptiual unconscionable
in which a court may refuse to enforce a contract that is unfair or oppressive because of procedural abuses during contract formation or because of overreaching contractual terms, especially terms that are unreasonably favorable to one party while precluding meaningful choice for the other party
U nconscionability:
extreme unfairness Divorce
Maintenance: required to provide money to the spouse until they are able to care for them self, intended to help spouse achieve economic independence Alimony: a court-ordered allowance in which one spouse is required to provide financially for the other spouse for maintenance and support for the rest of the spouses life or until they re-marry Re-imbursement:for direct financial contribution F uture E arnings P otential: forecast the value of some property interest over a given period of time Rehabilitative
y
Awards:
y y y
Community: Minority V iew
because people are marrying later they will tend to have more property they may wish to protect (encourages marriage by gaining security)
Rationale:
property acquired during a marriage belong jointly to husband and wife from the moment it is acquired and upon death or divorce and is treated as belonging equally to each spouse (50-50); governed by civil-code, prevalent in the western United States (9 states, CA) property acquired during marriage is presumed to be community property however this is a rebuttable presumption by showing it y falls within one of the classes of separate property (community may gift or loan money to a spouse individually) Before marriage Gift or inheritance
y t r e p o r P y l i m a F
devise, bequest, or inheritance, received during marriage, remain personal property may be converted to community property by contract
T ransmute:
y
a written contract that shows intent for personal property to be converted to community property (co-mingling creates involuntary transmuting)
C o-mingling:
y
Party allows separate personal property to mix with community property Requires Court to decided if the parties actions demonstrate intent for the property to be community or not Separate property comingled with community property retains its character as separate property if it can be traced, but, if it cannot be traced, then it will be treated as community property
y y
Earnings
Divorce
All
y
earnings are community property Personal property remains the individuals property however the community property is split 50-50 unless otherwise stipulated by marital agreement E quitable
Statute
Death Marital
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Gift,
y
Distribution
53
Property gained prior marriage remains separate from community property throughout marriage
y
(Minority) a party enters marriage with property however during marriage the parties do not amass community property and divorce will effectively leave one party destitute if a portion of the partys personal property is not distributed to the other spouse
party may will away all their personal property and they are entitled to devise there portion of the community property Property accumulated by a married couple during the term of their marriage
Property Synthesis property:
Separate: Majority V iew
Migrating P roperty Couple: property is characterized by state in which they are in at time it is acquired
y
While each spouse maintains a legal obligation to support the other (potentially sue for maintenance), they own their property separately however they may choose to share or mingle their property but each may attain some ownership right in the mingled property. Property/debt earned during marriage remains separate (e.g. wages), spouse wide freedom to sell personal property during their life y If a spouse enters a marriage with property that can change in value any increase in value remains separate y o Exception: may become community property if primary job during marriage is managing that property (mixes capital/labor) Equitable Distribution Statutes
Upon divorce, a statutory regulation enforces a fair distribution of marital property based on a variety of factors Court approaches: (1) Future earning potential, (2) alimony, (3) reimbursement, (4) maintenance o Split: some states allow a consideration of fault, other states reject a consideration of fault in divisi on of property.
y y
F actors
to consider: fact specific
y y y y y
Statutory forced Share:
y t r e p o r P y l i m a F
y y y
status (maintain lifestyle equal to marriage) rehabilitation (maintenance in lieu alimony) fault (sometimes) Level of education Contribution
y
More efficient if society ensures survivor spouses are not left destitute but rather provided for
property acquired by either or both spouses during a marriage and before the execution of a separation agreement or the commencement of a matrimonial action regardless of the form in which title is held absence of a stick in bundle will not necessarily preclude object/concept from consideration as property ( OBrian) y Ex. Lack of Alienability (Medical Degree) (non-tangible good can be quantified and a portion of value awarded o New York Rule: (Minority YES) property is defined by law, not independent abstract concept, regardless whether an interest fits classic notion is unimportant if legislature chooses to include as type of property y Counter -argument: ( 1 ) License are not property because they are not alienable, (2) require effort not simply money, ( 3 ) value of object is indeterminable, ( 4 ) the award was fixed and final Traditional Rule: (Majority, NOT property) it must be transferable, there must be some method by which the entitlements/rights could be disaggregated Direct or indirect contribution made to the acquisition of marital property, career, or career potential are relevant in considering the equitable distribution of marital property Standard: significant contribution to increased productivity or ability to produce income y
y
Intended to protect the interest of the spouse and children in the home; effectively creating a Life Estate o Statutory limits: prevents amassing debt prior to death and using a home to protect interest from collectors Tension: the spouses interest (that may not have created debt) vs. those of collectors Alternate perspective: allow a lien be placed on a home for the portion of the interest owed by the debtor o Creditors are unable to take home of a deceased spouse providing shelter for the surviving spouse and kids
y
a party is able to contract away from rules
y
Law s:
P remarital Agreements:
y
All
Contribution:
H omestead
y
spouse may devise their personal property to an individual other than their spouse however most jurisdictions will impose a statutory forced share per state statute (regardless of decedents wishes) permits property redistribution (1/3 1/2) based on length of marriage to ensure surviving spouse is not o destitute; Contingent on the length of marriage Elective Share Rule: survivi ng spouse may either take under the will or choose the statutory elective share o
y
P olicy:
Marital P roperty
age of parties length of marriage what one gave up to help the others gain relative need btw parties (child support) level of indebtedness
Unmarried Partners/Same-Sex Marriage Watts v. Watts, 608-611 Dalton excerpt, 612-614 Unmarried:
y
If unmarried in a state that without common law marriage, a suit may be brought under implied contract or unjust enrichment Implied
y t r e p o r P y l i m Same-Sex: a F
Contract:
Non-sexual services performed by a partner in a long-term relationship may be grounds for an implied contract in place of suit for marriage Unjust E nrichment:
Constructive Trust: P olicy Rationale:
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Benefit
conferred on the defendant or knowledge by the defendant of the benefit conferred by the plaintiff Acceptance and retention of the benefit that makes it inequitable for defendant to retain Appreciation
an equitable device (a remedy) created by law to prevent unjust enrichment (2 elements) (1) Must demonstrate the elements of unjust enrichment (2) Abuse of a confidential relationship or some other form of unconscionable contact (may be inferred)
Pro: recognizing a joint venture (a partnership not a marriage); unfair to deny her compensation Con: Ignore his intent not to marry (no longer free to decide not to marry); no C ommon Law marriage for a reason (imposing retroactively); unfair to effectively hold him to a marriage though he choose not to marry
y y
Defense of Marriage Act
y y
property passes to the surviving spouse, federal protection is only for heterosexual couples who are married signed into law by Clinton
F ull F aith
y
causes each state to recognize marriages of other states
and Credit Clause
54
(1) (2) (3)
Property Synthesis Property: Regulatory Takings Law Background:
Ad hoc test Miller v. Schoene, 957-958 Penn C entral, 959-965
Takings federal, state, and local governments are prohibited from taking private property unless the taking is for public use and the property owner receives just compensation ( C onstitutional Law) (No limit on power of the government to take so long as it is (1) for public purpose and (2) just compensation) Analysis: Does not focus on what constitutes an act of taking but rather: (1) W hat is a legitimate public use? (2) W hat is just compensation? y Law does not guarantee a property owner most beneficial use of land nor is it a taking if law prevents use of land in the most beneficial way y th th 5 and 14 Amendment grant Fed and State governments the power to take private property for public use (eminent domain is a category) y E xception:
y
the taking clause does not apply to Tribal
Eminent Domain: (aka Condemnation P roceeding )
y
Per se Takings Pruneyard, 976-979 Loretto, 979-984 Public Use
Kelo, 1051-1065 Just Compensation Tee-Hit-Ton, 14-19 Sioux Nation, 1074-1082
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CoA
filed by government with a court for right to take the property of a private property holder, without the property holders consent, and pay of just compensation fair market value or a fair price for the property
Analysis:
: e s u a l C g n i k a T
Government
(1)
Is there a taking? (actual appropriation of property is clear under eminent domain) question is resolved at outset by nature of action requiring govt to file with court for title y
(2)
Is the taking for a legitimate public use? (Question of Deference (Majority) vs. Non-Deference (Minority) when private property is transferred between private holders) (Kelo Case) y Rule 1 : sovereign may not take personal private property of an individual for sole purpose of transferring it to another private party though the original property owner may have been paid just compensation. o The government cannot use the public use as a pre-text to confer a benefit on a private party Is there evidence of illegitimate purpose? y Rule 2: sovereign may transfer property used privately to other private user if raison dêtre is to serve public Majority: Public Use defined as Public Purposes a broader more flexible reach (Public Good) o Strict public use is not necessary rather "public purpose" is the standard which is broader and more flexible and encompasses public good (Majority) Majority: position is Judicial Deference/Rational Basis (while a private party may benefit, so long as there is y a public purpose served and that the overall public good is enriched) Minority: Heightened (Strict) Scrutiny: Affirmative Harm as pre-text for taking (O Connor) y o Thomas: too much deference will lead to this disproportionately affecting poor and minorities
(3)
What is just compensation? Is there title of ownership for which compensation is due? (Tee-Hit-Ton, 14-19) y Recognized title is compensable: (1) recognition by treaty or statute (2) act btw the group and the US o What level of property interest is compensable? o Aboriginal Title: Right of Occupancy is not compensable (Tee-Hit-Ton) Was the compensation sufficient? (Sioux Nation, 1074-1082) y o Fair market value. What of holy place
Property Synthesis y
area is rezoned or laws are enacted greatly reducing value of a property by diminishing potential return on an investment b/c of a change in scope of property right that limit the potential uses of a property or at least use for which it was intended to be employed regulatory decision changes scope of property rights to such an extent that contend the change constitutes a taking o not eminent domain because the right of ownership has not been appropriated by the government o Rationale: government prerogative to enact laws which benefit public health, welfare, safety (Police Powers) o P olice P ow ers:
y
Power of the sovereign to enact legislation which limits private conduct to protect the health, welfare, and safety of its citizens (states have a robust police power inherent in sovereignty, allows them to regulate for their citizens)
N uisance Exception: Noxious Use
y
though acting within bounds of law, abiding by all zoning rules, the activity conducted is so bothersome to those in immediate vicinity of property owner that it is within police power of state to prevent property owner from performing that activity even if it diminishes expectation of investment, greatly reduces prop. value, or in some sense physically take portion of property
(1)
Is there a taking? Question: By how much must the value of a property need to be reduced in order demonstrate a taking? R/T Analysis: Has the government gone too far? (analyze under Penn Central test: Ad-hoc factual analysis) y Not every reduction in value due to a government regulation is a taking o so long as the government is acting within the legitimate sphere of its police power Tension: Where is that line drawn? Is the taking legitimate? What is just compensation?
Analysis:
(2) (3)
: e s u a l C g n i k a T
T est:
: g n i k a T y r o t a l u g e R
Is there a rational relationship btw the government action and a legitimate government interest government regulation that falls outside scope of nuisance exception will convert to a taking y Ad H oc Analysis:Case-by-case factor/balancing analysis: (factual inquiry) (meant to be fair & just result) 1.
Economic
y
y
2.
Protection of reasonable investment backed expectations ( Intent of the landowner ) Reliance interest: Did the property owner purchase with the reasonable expectation that they would be y able to invest in property and employ that property in a manner that would allow a return on the investment that would be reasonably expected? What was the status quo at the time of the purchase? o Was the expectation based on what had been at the time of the purchase a permissible interest which changed only subsequent to that purchase Owners are not entitled to the most beneficial use of their property Analysis: How should the property be valued? (2 perspectives) o E ntire P roperty: analysis in terms of entire property (lost value) Component P art: analysis in terms of aspect affected (lost value)
3.
Character
y y
Analysis P er Se
s g n i
k
a
impact of the regulation on the particular owner (Two-Sided Analysis) Subjective: (P enn Central Test ) Can this particular property owner continue to receive a reasonable economic benefit from this property? ( Economic impact on that claimant) Lost opportunity cost rather than as an actual deprivation of an economic benefit o Loss of a current use or activity versus loss of a potential use or activity o Objective: How greatly has property value been reduced? no total fixed loss % est. that turns a valid use of police power to a taking o Diminution of market value is not dispositive unless value is reduced to zero o Typically an important factor but not held as dispositive
of the government action ( Is it arbitrary??? ) We should not over-impose cost of public good on individuals (fairness) Benefit to society vs. B urden on the individual o Analysis: Does regulation single out a group or affect everyone equally Is there a nexus btw govt power and action and how are they related o Is it comprehensive scheme or a singling-out directed at individuals? o Rationale:
of regulation in which courts will not use ad hoc balancing test because it is a taking per se; 3-5 categorical taking types
Taking:
y
permanent physical occupation authorized by government is a taking without regard to the public interest it may serve (versus temporary or limited authorization) Under certain circumstances a government regulation will be considered a taking per se and not o require the entire ad hoc analysis where it is shown that there is a permanent physical occupation dictated by the government A
Analysis:
Character
T
l a c i r o g e t a
C
y y y y
Is the owner left with any right to possess, use, occupy, or exclude? Can owner use property to further a private interests, financial or otherwise Does any economic benefit remain after the government regulation? Is a stranger granted right to directly enter and invade owners property?
Property: Intellectual and Cultural Property 56
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of governmental action: (Have core property rights been attacked or diminished?) 1. Permanent Occupation: y Majority : focuses on effect of activity being regulated, i.e. box permanently on property vs. transient protestors y Dissent : focuses on the character of activity being regulated, i.e. the box will always be there vs. the protestors can always protest 2. Physical Occupation: 3. Government mandated Occupation: rd 4. Facilitating a 3 Parties Occupation:
Property Synthesis Trademark: Qualitex Co. v. Jacobson Products, 1089-1092; *supplemental materials to be provided* Copyright & Patent: Feist Publications, Inc., 1095-1099; Suntrust Bank v. Houghton Mifflin Co., 1117-1127 Publicity Rights: Martin Luther King, Jr. C enter for Social Change, 1129-1137; *supplemental materials to be provided* Cultural Property: *supplemental materials to be provided* Copyright
(Constitutional roots, Federal statutory regulation) Copyright grants owners of original works that are fixed in a tangible medium of expression set of interest in his original work for his lifetime, plus 70yrs after which it converts to public domain. Possessor of copyright owns interest in copyright, not the work itself ( note: work for hire has: 95 yrs from first pub or 120 yrs from creation -- lesser of either) y Public Domain: Parody: a works aim is to comment upon or criticize a prior work by appropriating elements of the original and creating a new artistic as y opposed to a scholarly or journalistic work Right to Exclude:
Copyright
holders can prevent others from: (1) reproducing work, (2) creating derivative works, (3) distributing copies of work to public, (4) performing work publically, (5) displaying publically, (6) perform via digital or audio transmission
y
P olicy
Tensions
y y
Remedies: Analysis
Protect to encourage innovation (not creators) vs. free flow of info to foster more innovations Goals: (1) Promote learning, (2) protection of public domain, (3) grant exclusive rights to author
y
(1) injunction, (2) impoundment/destruction of infringing copies (3) damages: actual damages suffered, plus profits made by infringer, or damages set by statute (Purpose of copyright is to promote innovation not necessarily author)
1.
Does the claimant hold a valid copyright in the work? (Focus on originality, not labor )
y
To establish a copyright cause of action the claimant must establish that the work is (1) original, (2) authorship, and (3) fixed in a tangible medium (not intended to protect labor, just originality) Example: Gone w/t Wind ( YE S: Sun Trust), Phone numbers in telephone book (NO: Feist case) o I. Original (Constitutional requirement)
II.
III.
2.
y
The work must be an (1) independent creation of the author ( YES: novel; NO: short phrases, slogans or titles), AND (2) demonstrate at least some minimal creativity (YES: selection and arrangement of a factual compilation; NO : alphabetical order) (standard: minimal degree of originality of thing) Copyright is intended to award originality, not effort: o Copyrightable: compilation or arrangement of information focus on originality) (protects the arrangement not the info itself) Not Copyrightable: facts, ideas, basic org. schemes, stock characters
Authorship
y
A
F ixed Medium
y
fixed in a tangible medium of expression (Poem: recitation, No; written, Yes)
corporations/person has 8 types of authorship: literary (including computer programs), musical, dramatic, pantomimes and choreographic, movies, pictorial/graphic/sculptural, audiovisual, sound recordings, architectural. o Idea vs. Expression: copyright is intended to protect the form in which an idea is expressed, not the idea itself (facts NOT protected). Note: functional works (i.e. procedures, processes, systems) governed by patent law o
Did the claimant copy the work Claimant
must provide evidence that establishes (1)the defendant had access to the work (2) the defendants work is similar enough to the original work to show copying y C ontinuum : greater showing of similarity, lesser access necessary (v. versa) 3.
y
Was the copying an "improper appropriation? Claimant must demonstrate that copier has copied so much of the original work that the two works are substantially similar.
Fair U se Defenses Doctrine:
y y
y
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Copyrighted
material may be used without the owner's consent if used for transformative uses, i.e. uses that rely on copyrighted work as raw material to create new and different works (this is a limitation on Copyright) Factor Analysis: (total of the evidence) I. What is the purpose and character of the use? commercial nature vs. non-profit educational purposes o property infringed w/ intent to earn profit receive higher review while capitalizing on key elements is it transformative Examples of Fair Use purposes: education, parody, criticism o II. What is the nature of the copyrighted work? film, song, book, etc. o III. What is amount and substantiality of portion used in relation to original? IV. What is effect of use upon potential market for value of copyrighted work Reduction in MV may be ra result of but cannot be in exchange of o Note: defendants intent and 1st Amendment protection may also be relevant.
Property Synthesis
Intellectual Property Labor/Dessert
T heories
Theory
Utilitarianism
Copy L eft
Movement
New Movement
(C/L roots, federal statutory regulation) any word, name, symbol, or device used by a person "to identify and distinguish his or her goods" from those sold by others, and to indicate the source of the goods. N ote: Service mark does the same for services . Lanham Act creates federal trademark registration system with a variety of federal remedies for infringement y Trademarks created by state law may be registered with Fed P&T Office (considered constructive notice) y Post-registration must use in connection with a business within a year; only protected if the mark is used in commerce to sell goods or services and y failure to use a mark for a period of time may constitute abandonment ( protection has no durationlimit unless abandoned ) Non-Functionality doctrine issues: important NOT to inhibit legitimate competition by allowing a producer to control a useful product feature. vs. y Quicker decisions as consumere.g., particular yellow of Post Its, or shape of G old Fish crackers. (1) abandonment of the mark, (2) fair use (3) equitable defenses (laches, unclean hands)
A ffirmative Defenses:
Remedies:
(1) injunction against further infringement, (2) disclaimer "Not connected with..", (3) monetary judgmt
1) ensures that consumers are not misled or confused about the origin of goods and services 2) encourages quality goods and/or services by allowing the owner a financial reward related to reputation
Rationale:
P olicy Questions: NonTrademarkable:
y
Analysis
k r a m e d a r T : y t r e p o r P l a Receive a u Trademark t c e l l e t n I
Does it incentivize desirable outcomes?
y
trademarks which may disparage, disrepute, bring them into contempt or falsely suggest a connection with: persons, institutions, beliefs, or national symbols (Indian Mascots: Racial or Tribal -- Mostly racial)
In order to prevail in an infringement action under the Lanham Act, the claimant must establish: (1) Does the Claimant hold a valid mark? (2) Has the defendant used a copy or imitation of the mark "in commerce"? Dilution: signifies that there is a lessening in the capacity of a famous mark to identify and distinguish a good or service in the absence of any actual competition with that mark or any likelihood of confusion. The owner of a famous mark may obtain injunction against anothers use of mark if the use (a) begins after the first mark y has become famous (b) causes dilution of the famous mark. (2 types of dilution) a.
Tarnishment: an inferior product is placed in commerce which is simil ar in kind and in trademark to another more respected product thereby harming the goodwill associated by consumers with the trademarked product ( goodwill is destroyed by a similar product ) (S plit: show actual economic harm)
b.
Blurring:
a product is created that prevents or disrupts the original meaning or association to another product; another company sells something similar that causes consumer confusion as the mark loses association with particular company
(3) Is the defendants use likely to cause confusion, or to cause mistake, or to deceive? Would an appreciable number of ordinarily prudent consumers incorrectly think that defendants good or service are y related to claimants mark? Factors considered: (a) the similarity of the marks (b) the strength of the P's mark (c) the similarity of the two parties o goods or services (d) any evidence of actual confusion (e) the defendant's intent. y
I.
3
requirements must be established to receive trademark protection:
Distinctiveness: Does it allow goods and services of one person to be distinguished from those of another? Secondary Meaning: A particular product or service is associated with a mark in the minds of consumers o four categories, in order of strength : o 1. A rbitrary
or
F anciful
2.
Suggestive
3. Descriptive
4.
II. o
o
III.
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Generic
Standing alone, suggests nothing about nature of the product or service, (e.g. Kodak) and therefore is inherently distinctive and requires no proof of acquired secondary meaning Uses existing words or symbols, but requires imagination to determine the nature of the products or services involved (e.g. Coppertone--suntan lotion) and therefore it is inherently distinctive and requires no proof of acquired secondary meaning necessary Describes some aspect of the product or service (e.g. Play-Doh) and therefore does not qualify for protection unless it has acquired secondary meaning (i.e. that the public has come to associate with the mark of a particular source for a product or service) Qualitex C o: SC held that the use of a color (green-gold) on dry cleaning press pads could be a o trademark, b/c it had attained secondary meaning. difficult to disqualify use of a color as a mark b/c it may serve to distinguish which is the basic o purpose of a mark Frequently used to refer to a type of good or service (eg, Jelly Beans) and therefore cannot qualify for any protection, because it is unable to serve to distinguish their origin.
Non-functionality: if aspect of a product is exclusively functional, it may not be trademarked (only patented) Functional: if it is essential to the use or purpose of the article or if it affects the cost or quality of the article, i.e. exclusive use would put competitors at a significantnon-reputation-related disadvantage. Trademark law deals with source identification, unlike Doctrine of functionality (trademark ala patent) First Use in Trade: first person/corporation to make use of a mark in trade in a particular geographic area will have secured protection for the mark within that region however bona fide use in marketing goods or services in the ordinary course of business is required. (Lanham Act: fed registration is deemed constructive use of the mark throughout the US)
Property Synthesis Publicity Rights
commercial value of a public image does not terminate upon death and therefore is commodify to an extent in property law MLK Case: 4 issues y (1) Right of Publicity vs. Right of Privacy, are they different? Right of Privacy: the individual possesses a personal/private sphere, cannot be presented without your knowledge y Right of Publicity: right to exploit your image during your life for personal gain, control what is associated w/ your image y (2) Does the Right of Publicity survive the death and is it inheritable and devisable? Right of publicity survives death because the law should incentivize people to act w/out fear of loss of value due to death y (3) If the Right of Publicity is devisable must it have been exploited during the life of the individual? Exploiting your image during your life is not necessary to take advantage of it upon your death y Rationale: E xploiting your image during lifetime is not a necessary pre-condition because there is a right of nono publicity where a public figure chooses not to exploit their image in that manner during their lifetime
Patent
(Constitutional roots, Federal statutory regulation) a patent must satisfy four necessary elements [ (1) patentable subject matter (2) utility (3) novelty (4) non-obviousness to be approved by U.S. Patent and Trademark Office ( Broad in rights limited in Duration to encourage innovation) Patent is referred to as hard IP while the rest are referred to as soft IP y
Cultural
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Traditionally referred to tangible resources w/ distinct relationship to a group of people that reflected their cultural heritage or identity (Liberty B ell, Statute of Liberty, etc.), today however it extends to intangible resources (Star Spangled Bannerthe song) The owner is conceived of as a people rather than as an individual (Nation States) y Geographical indications: cultural property issue framed by a location of origin, and is principally used to resolve imbalances in trade y Questions: y (1) Is it property at all? (2) How do we conceive of nation states request for repatriation of goods removed? 2 responses: (1) Your descended from them but you have no greater claim than we do (2) Y ou are not related to them so you have no greater claim than we do (3) Preservation vs. R epatriation? Market Nations w/out cultural property acquire other nations property, Source Nations that are rich in artifacts but have little money (illicit trade for the products) M/Nations argue that they have money to protect it Hague Convention: Prevention of looting during war time and the destruction of antiquities Cultural Internationalism Position y y UNESCO: intangible objects -- Cultural Nationalism Position UN Declaration: y National y
