PROPERTY LAW ATTACK OUTLINE 2018

REAL PROPERTY ................................................................................................................................................ 1

ADVERSE POSSESSION ....................................................................................................................................................... 1
FREEHOLD ESTATES AND FUTURE INTERESTS ............................................................................................................... 2
RULE AGAINST PERPETUITIES AND MARKETABILITY DOCTRINES ............................................................................... 3
WASTE DOCTRINE ............................................................................................................................................................. 3
CONCURRENT ESTATES ................................................................................................................................ 4
JOINT TENANCIES AND PARTITIONS ................................................................................................................................ 4
MARITAL PROPERTY .......................................................................................................................................................... 5
LEASING REAL PROPERTY ............................................................................................................................ 6
DISCRIMINATION ............................................................................................................................................................... 6
CONSTRUCTIVE EVICTION DEFENSE ............................................................................................................................... 7
IMPLIED WARRANTY OF HABITABILITY ........................................................................................................................... 7
TRANSFERRING TENANT’S INTEREST............................................................................................................................... 7
SELLING REAL PROPERTY ............................................................................................................................ 8
MARKETABLE TITLE ISSUES .............................................................................................................................................. 8
PROPERTY CONDITION ISSUES ......................................................................................................................................... 8
DELIVERY OF DEED .......................................................................................................................................................... 9
MORTGAGE SUITS .............................................................................................................................................................. 9
SEARCHING FOR TITLE IN PUBLIC RECORDS ................................................................................................................. 10
CHAIN OF TITLE ISSUES ................................................................................................................................................... 11
TITLE INSURANCE ............................................................................................................................................................ 11
PERSONAL PROPERTY ................................................................................................................................... 12
RULE OF CAPTURE AND FINDERS ................................................................................................................................... 12
ADVERSE POSSESSION ..................................................................................................................................................... 13
GIFTS ................................................................................................................................................................................. 13
INTELLECTUAL PROPERTY......................................................................................................................... 14
COPYRIGHTS ..................................................................................................................................................................... 14
PATENTS ........................................................................................................................................................................... 15
TRADEMARKS ................................................................................................................................................................... 15
RESTRICTIONS ON REAL PROPERTY ....................................................................................................... 16
EASEMENTS ...................................................................................................................................................................... 16
REAL COVENANTS AND EQUITABLE SERVITUDES ........................................................................................................ 18
COMMON INTEREST COMMUNITIES ............................................................................................................................... 18
REGULATING LAND USE ............................................................................................................................... 19
ZONING ORDINANCES .................................................................................................................................................... 19
PRIVATE NUISANCES........................................................................................................................................................ 20
AESTHETICS, “FAMILY” ZONING, AND EXCLUSION ..................................................................................................... 21
ENVIRONMENTAL REGULATION .............................................................................................................22
EMINENT DOMAIN.........................................................................................................................................22
TAKINGS..............................................................................................................................................................23
 ADVERSE POSSESSION 1
Was there ACTUAL possession?
- physically uses property as a reasonable Was possession OPEN AND
owner would given its character, location, NOTORIOUS?
and nature Was there EXCLUSIVE - must be visible and obvious so
possession? owner would be aware if she were
" Wild and undeveloped lands" - NOT shared with the owner to inspect her lands
Maj--gathering firewood, cutting timber, or the public - possession must put the owner
granzing, removing minerals is enough on notice that their title is being
Min--continuous and persistent minor use If ? uses some of the challenged
contested land, that portion
Recreational use does not satisfy exclusivity Commonly accepted ways
Maj--use of land solely for recreational (the rest does and can Clearing brush, cultivating crops,
purpose is visit not development (e.g. bring AP claim) fences, structures, signs, etc.
hunting, fishing, biking, etc.)
Balance frequency and visibility
Unclear boundaries
Can make it more difficult to determine what
is "actual possession" -- Van Valkenburgh

Was possession FOR THE

Was possession ADVERSE AND STATUTORY PERIOD?
HOSTILE? Ranges from 5-40 years
Was possession CONTINUOUS?
Most common = 10, 15, 20
Maj--claimant's state of mind Compared to reasonable owner
regarding ownership is irrelevant given the character, location and
nature of the land
Min--claimant believes in good
faith that she owns the land E.g. wild land or vacation home --> Are there color of title or
even twice a year can be enough disability or tacking issues?
Few--claimant believes in bad faith
that she owns the land
Color No Disability
Gurwit -- "no trespassing" sign was Tacking Title
sufficient to show hostile for
undeveloped lands Have there been
multiple, immediatelys No Was owner:
Was there invalidity imprisoned, a minor,
Fulkerson -- bad faith example successive possessors? of deed, judgment, or lacking mental
(min) -- possession of land is etc. granting title? capacity?
Yes
assumed to be subservient (not
adverse by default). Adverse (some jur = away on
position must be "clear, distinct, Have all possessors met the
No military serv. or
and unequivocal" requirements for AP? residing out of state)
May shorten the
Yes
required period for AP
by claimant and may
Is there privity between the allow for greater
subsequent possessors? acquisition of land Extends the AP
period during which
No owner can sue
Proving AP
Once elements are met,
Yes
possessor automatically gets Was the lack of
title (without litigation) privity because of a
technical issue in Many jur--disability
Rights Transferred the property deed? No must exist at
Only those rights present in the beginning of AP
original estate can be TACKING Yes
otherwise not valid
transferred to the possessor STATUTORY
through AP (e.g. life estate --> PERIOD
life estate, not fee simple) If possession was Maj--allows limited
in good faith, AP period of time after
is valid b/c disability ends for
Public Lands policy-wise we want owner to bring suit
Maj--no AP against gov't land to respect early less lenient
Min--AP against gov't land certainty of the land
ALLOWED ONLY if land used position during sale Min--suspend
for non-public purposes running of AP
CAN'T TACK period until
DISABILITIES disability ends
more lenient
 ADD = Alienable,
OVERALL FRAMEWORK FOR ANALYSIS
Devisable, Descendible
2
Grantor = GR
Grantor Grantee 3rd Party
Grantee = GE
Future Interest Present Possessory Interest Future Interest
Fee simple (FS) -- indefeasible (ADD)
Process and her heirs, in fee simple Process

Life Estate -- alienable: life estate "pur autre vie" is ADD) Remainder Common Law
Reversion
for life, until X dies, while alive after natural end FSD only descendible
or devisable to
Possibility of Reverter FS determinable -- defeasible (ADD) grantee with FSD
Common Law
automatic after nat end durational: as long as, while, during, until
FSCS only
Process
descendible + Right of re-entry Presume FSCS over
FS subject to condition subsequent -- defeasible/ADD
required (Power of termination) FSD where
conditional: but if, provided that, on condition that
grantor to not automatic: quiet title/notice
ambiguous b/c forfeit
physically Executory Interest of estate interferes
FS subject to executory limitation -- defeasible (ADD)
re-enter land Process shifting: divest GR's interest with marketability
durational or conditional language
springing: divest GE's interest
Mahrenholz
Split in Jur Reversion Fee Tail -- indefeasible, not devisable
Some abolish if no more heirs and the heirs of X's body
FSD --> only Process
FSCS instead Reversion Term of Years -- indefeasible, ADD
after end of term for # of years

Priority of Intestate 3RD PARTY FUTURE INTERESTS

Succession
1. issue (lineal descendants)
Does the interest
and surviving spouse
become possessory at
2. parents or parents' issue No Yes
the natural end of the
3. surviving ancestors
preceding estate?
and/or surviving collaterals
(all other persons related by
blood to the decedent not
already listed)
Executory CHECK RULE OF
4. escheat -- if no living Remainder
Interest
relatives, the property goes PERPETUITIES IF:
to the state 1. executory interest
2. contingent remainder
3. vested remainder
subject to open Is there:
Whose interest is
1. ascertainable individual recipient
cut off?
(at time of transfer, must be specific
not general class of persons)
2. no unmet condition precedent

No
Grantee Grantor Yes

Contingent Vested
Shifting Springing
Executory Executory Remainder Remainder
Interest Interest

Adverse Possession w/ Future Interests

Same factors applied Does the condition
subsequent only
Statutory period considerations: partially divest or
1. for FSD, clock starts running after estate leave open to more
ends if grantee retains possession beneficiaries?
Can a condition
Yes subsequent end up
divesting the interest?

2. for FSCS, clock only starts running after Yes No No

forfeiture claim/failed attempt to re-enter

3. for FSCS, grantor has a "reasonable time" Vested Vested Indefeasibly

to re-enter before right expires, giving fee Remainder Remainder Vested
simple over that estate to the grantee Subject to Open Subject to Remainder
Divestment
policy arg--b/c grantee has been making
productive use of the property

Is the future interest one of:
1. contingent remainder
2. executory interest
3. vested remainder subject to open
No
INVALID
VALID
RULE AGAINST PERPETUITIES
3
Is there any person whose
Is there any time Must the interest
death, or event in their life,
Yes restriction on when the Yes No vest within 21 years
affects the time the future
future interest can vest? of conveyance?
interest will vest?
Yes No
No
Yes
No VALID INVALID
Does the interest vest
Must the interest vest immediately upon the
Yes within 21 years of the No death, or event during life, Yes
death of that person? of a person who is alive at
the time of conveyance?

Modern Reforms to RAP

EZ Solution -- Savings Clause
1. "Wait-and-see" approach -- see what actually happens in these situations
Simple way to avoid rule is insert savings clause, which
2.Uniform statutory rule against RAP -- fixed waiting period of 90 years, reduces
prevents potential violation of the rule by requiring that every
uncertainty and likelihood of litigation
interest vest before the end of the perpetuities period
3. Cy pres -- reforming the instrument to comply with the RAP

RULE IN SHELLEY'S CASE

Purpose
Transfer rights from unascertainable
individuals to ascertainable ones Applies if the following are met:
1. one instrument Abolished in almost all jurisdictions
e.g. "to B for life, then to B's heirs" -- 2. creates freehold estate in grantee AND however, may apply to instruments created
changes contingent remainder 3. remainder in the grantee's heirs before the law was repealed
(unascertainable unborn heirs) to vested 4. both interests are legal or equitable
remainder in ascertainable B (merges with
life estate --> fee simple absolute)

DOCTRINE OF WORTHIER TITLE

Purpose
Prevents future interest in GR's heirs for Applies if the following are met: What happens
inter vivos transfers by the GR to 3rd party 1. Conveyance creates an executory or If met, the future interest in grantor's heirs
remainder interest is void, and instead, grantor retains a
Policy arg -- without this, property would 2. In grantor's heirs reversion
always come back to the grantor's family

DOCTRINE OF DESTRUCTIBILITY OF CONTINGENT REMAINDERS

Purpose What happens

Remove uncertainty of contingent
remainders by imposing time limits on how
contingent remainders can be put in place
Exception
All contingent remainders must vest by the
doesn't apply to an equitable interest that
end of the previous freehold estate. Those
is held in trust
that have not vested then are terminated

ASSORTED NOTES WASTE DOCTRINES

Restraints on Alienation
Waste
Disabling restraint (preventing A), forfeiture
Purpose -- protect interest of future
restraint (threatening forfeiture of interest if Common Law
property owners by regulating what can be
A), and promissory restraint (promise not No changes allowed
done to the property
to A) are all not permissible and INVALID
Majority View
Common Law Changes that improve the value of the
Equitable Life Estate property are allowed (essentially just got
1. Voluntary waste -- significantly reduces
Most common type of life estate rid of ameliorative waste)
value of the property
e.g. "O conveys Greenacre to T in trust for Woodrick v. Wood
2. Permissive waste -- failure to take
the use of B for life, then to C"
reasonable care to protect estate
3. Ameliorative waste -- substantial change
Some jur: term of years into FS if > 99 yrs
to property that increases its value
 CONCURRENT ESTATES 4
Wording Interest Transfer rights Usage Rights Sale Outcome

Tenancy in common
"to A and B" each tenant has each tenant has right to
alienable, devisable, proceeds divided according
"to A and B as tenants undivided, fractional possess/use whole
descendible to fractional interest
in common" interest in property parcel regardless of %

"to A and B as joint if one dies, other Transfer breaks unity of each tenant has right
Joint tenancy tenants with right of time and title --> proceeds divided evenly
automatically becomes to possess and use
survivorship" (most jur) severance (JT to TIC) among all joint tenants
sole owner (RoS) whole parcel

"as tenants by entirety" only ended by death, most states do not both have right to
Tenancy in entirety proceeds divided evenly
"as husband and wife divorce, or disagreement of allow transfer of possess and use whole
among all joint tenants
as tenants by entirety" both spouses. RoS applies. interest b/c no ind parts parcel

State Statute Tenancy in common

presumed b/c it is more
Establishing Joint Tenancy alienable, which helps
Majority of Jur What type of concurrent keep land in family. On
Requires unities in: Joint tenancy
estate is created if the CL the other hand, land
1. Time--acquire interest at same time presumed
writing is ambiguous? might not be used most
2. Title--get interest via same instrument productively as a result
3. interest--shares of equal size/duration Yes
4. possession--equal right to use & possess

Was "right of Modern Method

survivorship" or "not a Look at "four corners" to
Converting between JT and TIC No
tenancy in common" determine intent
Use a straw person. Sell to 3rd party, and
explicitly indicated? James and Taylor
then 3rd party sells back to concurrent
owners to establish type of estate desired

HAS JOINT TENANCY BEEN SEVERED?

Generally, joint Did a co-tenant

Did a co-tenant
tenancy is severed if a Did a co-tenant create a deed
mortgage their share
co-tenant transfers lease the property No conveying their No
of the property?
their interest in the to a third party? interest to a third
Split in Jur
property party if they die?
Yes

Common Law
leasing sufficient to
sever the interest
Modern/Maj
doesn't sever if co-tenant
didn't know about lease.
lease ends at death of
co-tenant lessor
HOW TO PARTITION SALE?
Partition by sale = property sold
and proceeds split by % interest
Partion in kind = divides land by
% interest of co-tenants
No
Split in Jur
Yes Lien Theory Title Theory
No severance mortgage = lien to morgage =
secure repayment of conveyance of title to
debt, preserves mortgage, severs b/c
unities so no destroys unity of time
Some Jur Some Jur severance and title
lease creates temp severance--if require deed severing
lessor dies while lease is active, the property to be
creates possessory interest recorded, otherwise
instead of RoS --> severance of JT invalid conveyance
Does mortgage
obligation survive the
death of the co-tenant
Partition by sale more favorable if: mortgagor?
1. property cannot be conveniently PIK Split in Jur
2. Interests of one or more of the parties will be
promoted by the sale
3. Interest of other parties not prejudiced by sale
Ark Land Co. v. Harper

Mortgage survives
Most Jur Ouster (co-tenant occupancy + rent obligations) Interest ceases to
death of mortgagor, so
Partition in kind is presumptive, Ouster = one co-tenant refuses to allow the other to exist at death, so no
co-tenant takes title
partion by sale as exception occupy the other co-tenant. Exclusive use of lien of the mortgage
subject to mortgage
property is not ouster; requires an act of exclusion.

Economic efficiency not enough to Maj--co-tenant in possession ONLY owes rent to

justify partition by sale other co-tenants if there is ouster
-- long-standing ownership + Min--occupying co-tenants must pay rent to
sentimental value/emotional interest non-occupying co-tenants
 MARITAL PROPERTY
Common Law
AR, KT, MI, OH -- modified CL Separate Marital Property System
1. At marriage, husbained got estate jure uxoris Majority Jur 5
over woman's property (except clothing/jewelry)
2. Husband had right to use, mortgage or sell
3. Creditors of husband could reach wife's property Rights at divorce
4. Married woman couldn't execute Ks/legal agrmts Most--equitable distribution
Rights during the marriage
5. If husband dies, widow gets dower = 1/3 life Property = earned during marriage (maj), earned during + before
1. Property separately owned
estate in freehold land that was (1) owned by her marriage (some)
by partner who acquired it
husband and (2) inheritable by his issue 2. Creditors can only attach
Method of distribution
property of the direct spouse
Trial ct judge (maj)
Community Property System 3. Workarounds--agrmt to
Factors considered = spouses' income, standard of living,
AZ, CA, ID, LA, NV, NM, TA, WA, WI hold in co-tenancy or gift
contributions during marriage, age and health, special needs,
1. all earnings during marriage = property of both length of the marriage
spouses equally, EXCEPT gifts of property +
property by inheritance
2. No right of survivorship (can and must devise)
Rights at death
3. Divorce -- half and half (maj), factors from
Maj--offer surviving spouse a forced share (or elective share) of the decedent's estate. Choice:
Separate Property system (some)
1. Take under the decedent's will OR
4. Death--half and half
2. Receive defined portion of decedent's estate (usually 1/2 or 1/3)
5. Moving from SP to CP: quasi-community property
so property acquired by either spouse considered
CP for death/divorce
6. Moving from CP to SP: property considered to be
have been jointly held, divide 50/50

TENANCY BY ENTIRETY
Rules for Managing Debts in Different Jurisdictions
Majority--recognized in about half of states

Group II Group III Group IV

Group I
MA, MI, NC
1. Essentially CL, unaffected
by Married Women's Property
Acts, so husband's creditors
can reach the wife's property
2. MA--entire estate is subject
3. MI/NC--use and income
from estate is not subject for
separate debts of either
spouse
AK, AR, NY, NJ, OR
Interest of the debtor spouse in the
estate may be sold or levied upon or his
or her separate debts, subject to the
other spouse's contingent right of
survivorship. If the debtor spouse is the
one who dies, the non-debtor spouse
would get the entire property. On the
other hand, if the non-debtor spouse is
the one who dies, the creditors would
get the entirety of the property
(assuming their debt is equal to or
greater than the value of the property,
otherwise the rest of the property
remaining after paying the debt would
go to the debtor spouse)
DL, DC, FL, IN, MD, MO, PA, RI, KY, TN
VT, VA, WY, HI Contingent right of survivorship
1. Attempted conveyance by either pertaining to either spouse is
spouse alone is invalid separately alienable by him and
2. Estate may not be subjected to attachable by his creditors during
separate debts of one spouse only the marriage. Use and profits,
(b/c family residence is important) however, may neither be alienated
Sawada v. Endo nor attached during coverture.
Common Point Among Groups
All respect right of survivorship for non-debtor spouse. This means no
unilateral action by a spouse can prevent the other spouse from gaining
control of the estate if the non-debtor spouse is the survivor
Savvy creditors can require both spouses to sign onto debt to avoid issue

RIGHTS TO INDIVIDUAL ACCOMPLISHMENTS

Is an advanced degree
considered marital property?
Guy v. Guy
Reimbursement -- some amount to compensate the supporting
Professional degrees
spouse's aid while the professional spouse gets their degree,
Maj are not marital
including factors relating to standard of living sacrifices as well as
property
Maj the monetary contribution to the degree (e.g. loans)

Value -- difference between the professional spouse's lifetime

Min Professional degrees
Alternative--in Guy, court finds earnings with the degree and without the degree. Courts will
not marital property but allows are marital property Min
determine some equitable distribution of the difference and give it to
equitable remedy considering the supporting spouse.
reimbursement and value

CONTRACTUAL DIVISION OF PROPERTY

Uniform Premarital and Marital
Agreement Act
Most commonly adopted standard
Premarital agrmt is enforceable
against a party unless the party:
1. Did not sign it voluntarily
2. Did not have access to
independent legal representation
3. Did not receive an adequate
explanation of the rights being
waived by the agreement
4. Did not receive adequate
financial disclosure
Non-Married Couples
Factors for determining amount
Usually, don't get equitable distribution or entitlement to forced share
Factors:
(1) age of the couple, (2) assets
Married individuals cohabiting with another where one gives promise of
being brought in, (3) existence of
support is held to be valid enforceable K --> amt of support = promised value.
previous marriage, (4) existence of
UNLESS personal service exception--if you promise services only you can do,
children from previous relationships,
and you die, there is no contractual obligation.
(5) existence of previous
estates/trust funds, (6) length of
No requirement of domestic work, sex, etc. -- relationship is held to be
time couple has known each other
multi-faceted and sufficient consideration for upholding the K
In re Estate of Roccamonte
Same Sex-Marriage
No exclusionary criteria for marital Split in Jur
rights based on sexual orientation Modern courts = OK, some = NOT OK b/c social harm (sex outside marriage)
 DISCRIMINATION IN LEASING PROPERTY 6
Can't discriminate in:
Discriminatory classes Can exclude for any reason if not discriminatory
1. Terms, conditions, and privileges of sale or rental
(FHA § 3604) Good faith = past evictions, crim record, bad credit
2. Provision of services or facilities within
NO--race, color, sex, Bad faith (still OK) = didn't like their personality
3. Advertisements, notices, or statements
religion, familial status,
4. Sale or rental
handicap, or nationality FHA anti-discriminatory provisions don't extend to
FHA permits discrim in actually renting
YES--sexual orientation roommate selection (Fair Housing v. Roommate.com)
sometimes, but blanket prohibits discrim ads

Bringing a FHA discrimination suit Some exemptions to FHA discrimination suits

Civil Rights Act of 1866
1. ? est prima facie case by proving ? knew or 1. Rooms or units in dwellings containing living
Additional protections
should have known ? belonged to protected class quarters occupied by no more than four families
against discrimation:
(e.g. partner dying of AIDS was held constructive living independently of each other, if the owner
1. inherit, purchase,
notice of HIV, handicap, in Neithamer) occupies one of such living quarters as his residence
lease, sell, hold, and
2. burden shifts to ? to prove non-discriminatory 2. Any single-family house sold or rented by an
convey real/personal
reason for conduct owner if he does not own more than three houses
property (DOESN'T
3. if ? meets burden, ? must show that reason is a AND does not use a real estate broker or agent in
APPLY TO ADS)
mere pretext so that ? was, in fact, discriminatory the sale or rental

Duration Termination Notes Dorm Rooms Tenancy for life is

1. Some states -- interpreted as a tenancy at
tenant's interest commonly used in license, not lease will. Attempted to create
Term of years tenancy fixed duration agreed tenancy for life to avoid tax
automatically expires commercial uses rather 2. Other states --
upon in advance for life estate
when term ends than residential leases it's a lease
Kajo Church Square
automatically renews
Periodic tenancy period depends on K unless landlord or Better way would be to
tenant terminates Statute of create term of years of
Frauds longest projected lifespan +
automatically terminates if Applies if the 10 years
no fixed duration, last
Tenancy at will either party dies, landlord Requires some form of lease term is
as long as parties in sells, the property or tenant advance notice
agreement more than 1 year
abandons the property

wrongful holdover of ends when landlord evicts

Tenancy at sufferance tenant or landlord renews
leased estate w/ no the lease (states have
right to possession limited 2nd option)

NEGOTIATING A LEASE
Standard Forms
(1) amount of rent, and (2) duration of tenancy are
If lease terms are silent, go to default rules
often negotiated. Use of standard form heavily
UNLESS parties have negotiated those terms
restricts bargaining power of prospective tenant
Keydata Corp v. United States
If rent control applies, it supersedes negotiation

DELIVERING POSSESSION Rationales for modern trend of favoring English Rule

If prior tenant is still living when
new tenant goes to move in, can
hold landlord liable for failure to
deliver physical possession
Is lease silent on the issue?
over the American Rule
(1) Landlord knows whether the prior tenant will be out in
time better than the future tenant
(2) Before the date of new tenancy, the landlord is the only
one with the power to evict a person improperly in
possession of the property
(3) the landlord is the only one who can get some assurance
from the prior tenant that he will not holdover
No Follow lease terms (4) the new tenant will receive less than he bargains for if he
must bear the cost of going to court to evict the prior tenant

Yes
American Rule
Minority
Landlord only needs to deliver
right of possession (i.e. not
withhold the tenancy rights),
doesn't need to physical deliver
possession to new tenant
Landlord's responsibility to evict
If new tenant finds prior tenant,
they must get eviction notice
Terminating the Lease
1. surrender--mutually agree to terminate lease early
2. abandonment--tenant vacates without justification, defaults in
payment, AND no present intent to return
English Rule If abandoned, landlord can (1) keep premises open for lease term
Majority and sue for all rent; (2) terminate the lease; (3) mitigate damages
Landlord must deliver actual and then sue for rent (e.g. charge only for time it takes to find a
(physical) possession at the new tenant).
beginning of the lease term Only 2 & 3 allowed under modern law -- Sommer
Eviction--landlord cannot evict as retaliatory measure, and must
any prior tenant do so in a peaceable manner (lockout NOT OK) but judicial
process (i.e. filing suit for eviction) is preferred

Was there wrongful ACT by the landlord
that substantially interfered with the
tenant's beneficial use and enjoyment of
the leased premises
(i.e. defective leased premises)?
No
Was there wrongful OMISSION by the
landlord that substantially interfered
with the tenant's beneficial use and
enjoyment of the leased premises
(i.e. defective leased premises)?
Policy: because the constructive
eviction test is so fact-specific, it can be
difficult for tenant to know whether to
abandon the property or stay
Policy: in expensive areas, constructive
eviction isn't helpful b/c no affordable
housing to move to. Implied warranty of
habitability (IWH) is helpful here.
Landlord Defense
Substantial compliance, even if not
total, with building and housing
codes is typically sufficient to
overcome IWH cause of action
unless serious effect on health or
safety of the tenant
Does tenant want to
keep a reversionary
possessory interest?
Yes No
Sublease Assignment
Procedural Steps
First, did landlord agree to
the transfer of interest?
Split in Jur
DEFINING LEGAL RELATIONSHIPS/RIGHTS
Assignment
Privity of contract b/w tenant
and landlord
Privity of contract b/w tenant
and sublessee
Privity of estate ONLY b/w
landlord and sublessee
Tenant NO LONGER has
property right in the leased
premises
Privity of estate governs who has
duties that "run with the land"
CONSTRUCTIVE EVICTION DEFENSE FOR TENANT
7
Constructive Eviction Defense Requires
Procedural Steps 1. Lessor intended that lessee no longer enjoy the
1. Notify landlord of problem premises, which intent the trier of fact could infer
Yes
2. Give reasonable period of time to fix from the circumstances
3. Vacate the premises if not fixed 2. Lessor, or those acting for lessor or with their
permission, committed a material act or omission
which substantially interfered with use and
enjoyment of the premises for their leased purpose
3. Lessor's act or omission permanently deprived
"Wrongful conduct" OMISSIONS justifying
lessee of the use and enjoyment of the premises
constructive eviction:
4. Lessee abandoned the premises within a
1. Failure to perform an obligation in the lease
reasonable period of time after the act or omission
Yes 2. Failure to adequately maintain and control the
Fidelity Mutual Insurance Co v. Kaminsky
common area
3. Breaching a statutory duty owed to the tenant
4. Failing to perform promised repairs Most states don't require total
5. Allowing nuisance-like behavior deprivation of enjoyment, but minor
JMB Properties v. Paolucci interference (e.g. crack in window) isn't
enough to invoke the defense
IMPLIED WARRANTY OF HABITABILITY
Three Remedies Available
Was there a violation 1. Withhold rent--usually most effective
of basic building or remedy b/c it incentivizes the owner to
Yes BREACH OF IWH
housing codes for the repair the premises. Landlord can't evict
leased property? because breach of warranty is a defense
to an eviction action by the landlord.
No Yes 2. Repair and deduct--tenant may repair
and deduct cost from their rent
3. Sue for damages -- tenant may sue for
Even if no violation of damages while possessing or after
building/housing codes, vacating premises. Courts differ on
can breach--did defect measure of damages (e.g. "percentage
No NO BREACH diminution test" in Wade vs. difference
impact health or safety of
the tenant? between value of dwelling as warranted
Wade v. Jobe and as it exists in defective condition)
TRANSFERRING TENANT'S INTEREST
Majority--assume sole discretion
Minority--assume "commercially reasonable"
considering:
1. Financial responsibility of the proposed assignee
If there was no standard in 2. Suitability of the use for the particular property
the lease, default rules apply 3. Legality of the proposed use
Split in Jur 4. Need for alteration of the premises
5. Nature of the occupancy (office, factory, clinic, etc.)
6. Preserving the image of the building/land
7. Part of the rent as a % of gross or net sales -- if as a
3 landlord you don't think the business will be successful,
that will materially impact the rent you receive
1. Sole discretion clause: can
refuse for any reason but NOT considering:
2. Reasonableness clause: owner 1. Personal taste, convenience, sensibility
may only refuse consent if 2. Denying to charge higher rent than contracted for
"commercially reasonable" initially
3. No standard in lease 1 or 2
Is there ambiguity in
the conveyance
language?
Sublease
Privity of contract AND estate Yes
b/w tenant and landlord
Privity of contract b/w tenant
and sublessee Test to determine whether sublease or
NO privity of contract b/w assignment
landlord and sublessee 1. Objective -- conveyance for whole term
Tenant retains reversionary + no reversionary interest --> assignment
interest in property after term of 2. Modern rule (subjective intent) -- looking
sublease is over ONLY at written instrument, was was intent
of the parties to sublease or assign?
3. Hybrid -- many courts will look at both,
especially if there's confusing language
 REAL PROPERTY SALE TRANSACTIONS
8
2. Closing
Procedural Steps
a. seller's title is examined 3. Title Protection
in a real property 1. Purchase K
b. condition of property is evaluated protects title through
sales transactions parties negotiate
Yes c. buyer obtains financing from bank/loaner title covenants, search
and sign a written
d. escrow opened to consummate transaction of public land records,
First, was there a purchase K
e. docs prepared--mortgage, deed, promissory and title insurance
written K of sale?
note, escrow instructions

No Yes Oral agreement that fails SoF can be

SoF Requires: enforced if: (Hickey v. Green)
1. Essential terms--identity A. Part performance--(1) buyer takes
Might be SoF issue b/c possession, (2) buyer pays part of
of the parties, price, and
oral agreement for sale purchase price, (3) buyer makes
property description Does the writing
is not enforceable No improvements to property
2. Writing--formal or satisfy the SoF?
unless there is some Maj--(1 + 2 OR 3)
informal memo
written statement
3. Signature of party you
are enforcing against B. Equitable Estoppel--(1) one party
detrimentally and reasonably relies on
***E-signature satisfies other's promise, (2) serious injury would
SoF for interstate real result if enforcement is refused
estate transactions*** ***Usually applied where buyer sells
property or owner refuses other offers;
some courts require hardship***

MARKETABLE TITLE ISSUES

Two avenues to marketable title:
General Standard Usually, title is unmarketable if:
1. parties include express provision
Marketable title is would a reasonable and 1. Seller's property interest is less than
that seller incldue marketable title
reasonably free from prudent purchaser pay the one she purports to sell
2. if no express clause, doctrine
doubt of validity fair market value for the 2. Seller's title is encumbered OR
serves as default rule to protect
property and accept it? 3. Reasonable doubt as to (1) or (2)
unknowing buyers
Private
Public
Marketable title is required by closing, Encumbrance
Encumbrance
which gives seller time to fix if needed
Majority Rule
Marketable title does not concern the usually causes title to be unmarketable
physical condition of the property (mortgage, easement, etc.). If recorded Majority Rule
and agreed to though, buyer held public restrictions (even if severe) do
Some courts hold landlocked responsible. HOWEVER, if in violation not make title unmarketable.
properties are unmarketable, whereas of private ordinance with private HOWEVER, if in violation of public
others say it only goes to value enforcement, unmarketable title. ordinance, unmarketable title.

ISSUES WITH PROPERTY CONDITION

Did the condition arise Caveat Emptor Jur

Is the condition/defect Was it within the
during executory No duty to disclose unless:
on-site? knowledge of the buyer
period (b/w K signing Yes 1. affirmative misrep of property
or readily observable by
and closing)? 2. actively conceal defect OR
the buyer? No 3. fiduciary relationship
Yes
Limited duty to disclose if Modern Jur
"material" condition Contractually No duty to disclose, unless
Does K specify who
affecting habitability, use, or Yes obligated party exceptions in caveat emptor
bears risk of loss?
enjoyment of the property assumes risk
(usually affecting physical No
characteristics of land) Caveat Emptor Jur
Did seller or buyer Party creating risk NO duty to disclose except:
Several reqs: Yes
create the risk? assumes liability 1. condition created by seller
1. Limited to developers 2. materially affects value
selling to residential No 3. not known or unlikely to be
homeowners discovered by prudent
2. Liability for purchaser exercising due care
Equitable Conversion Duty to disclose past
non-disclosure if condition Stambovsky (ghost case)
Maj, commercial trans--risk on buyer, but actions or psych conds
is known to the developer
buyer gets insurance proceeds Vast majority--do not
but not known nor readily
(if damages are insuranced) have to disclose if they do
observable by the buyer Modern Jur
Strawn v. Canuso not affect the physical Duty to disclose if condition
Residential--two approaches aspects of the property (in
1. seller bears risk as legal owner (many) materially affects value
part due to the danger of
2. party entitled to possession bears risk stigma). Very few states--
Policy: promote non-predatory
(modern trend). Vendee must be do have to disclose past
permitted to rescind deal and recovery sales transactions and prevent
events or psychologically
undue burden on buyers
any payments that may have been made. unsettling facts.
Brush Grocery Kart
 REAL PROPERTY GIFTS--DEED DELIVERY 9
Death escrows are valid if:
Deed must be delivered for 1. placed with neutral 3rd party
the conveyance to be valid. Valid delivery requires: 2. grantor intends to transfer
1. Grant has intent to make If right of retrieval of property at moment of transferring
Not an issue for sales b/c an immediate transfer the deed is retained, deed (i.e. irrevocable)
seller physically hands over 2. Objective manifestation of delivery is NOT valid Vasquez v. Vasquez
deed, showing intent to that intent
immediately convey title. Policy--don't want them to be
Splits in Jur used as will substitutes. Goal is to
Alternative solutions make grantor immediately bound,
Most--effective if grantor cannot
1. write transfer into will reducing ambiguity
retrieve the deed
2. write transfer into life estate,
Most--manual transfer =
transferring upon death
presumption of delivery
3. put property into trust and list
Some--absence of manual
grantees as beneficiaries
transfer presumes nondelivery

Mortgagor = borrower
Mortgagee = lender MORTGAGES -- BRINGING CAUSE OF ACTION Does sale of the
foreclosed property
Mortgage Theories
cover the loss to the
Split in Jur Promissory Note
mortgagee?
Title theory (CL)--mortgagee K where mortgagor
retained possession of title until promises to repay the Mortgagor
Foreclosure
mortgagor paid off loan on certain terms defaults No
Lien theory (modern)--mortgage and conditions, with Pursue
is only security interest, so mortgage set as security deficiency
mortgagor retains title unless No judgment
foreclosure occurs
Was there an
BREACH OF K FOR Judicial Foreclosure Was there a installment land Was there a
No contract?
SALE--CAUSE OF ACTION ? must prove default deed of trust? forfeiture clause?
No
Used primarily if Yes
Yes Yes
More likely to require specific bad credit score
performance (SP) since land is or not enough $
unique, unlike other property for down
Aff defenses for ?? Deed of trust goes payment. Buyer Split in Jur
Buyer has two options if 1. Reinstatement through ind trustee w/ pays in monthly Slone v. Calhoun
seller breaches: (most)--quickly pay any fiduciary duty to buyer installments.
1. Specific performance missed payments and seller. It allows for Modern
2. Equitable redemption CL
2. Monetary damages nonjudicial foreclosure,
(all)--repay loan in full which is faster than
before foreclosure sale (normal mortgage) judicial Seller retains title Seller retains
3. Deed in lieu of foreclosure process and any title, but buyer is
foreclosure--convey title payments made
of property to mortgagee entitled to
by the buyer equitable interest
Exceptions to SP Requirement as part of settlement
1. Is it impossible for seller to in the property
4. Statutory right of
perform (e.g. no longer has title redemption--mortgagor (like mortgage)
to the property) Did trustee act in a
must pay sale price + commercially reasonable
2. No SP req if damages are interest and costs
adequate legal remedy. More manner to sell property
after default? Can equitable
common in commercial Ks Pay buyer
where spaces are similar (obj. std. -- every aspect Yes interest by easily
of sale, incl. method, ads, accordingly
3. If SP so economically harmful measured?
as to constitute hardship time & place, terms, etc.)
Wansley v. 1st Nat'l Bank
No

Sell property and

Split in Jur Trustee not a distribute
Nonjudicial
Majority--SP only available to real trustee, NO accordingly
Foreclosure
buyer. Seller can't have SP b/c foreclosure
they haven't made any
payments to the buyer

Minority--SP also available to

seller, but heavy preference for
monetary damages
Giannini v. 1st Nat'l Bank
 TITLE ASSURANCE
10
Title opinion
Title covenant Title insurance
How can you tell based on search
grantor promises in insurance co. issues
whether the deed of public records Present Warranty
the deed that she policy that insures
has title? done by attorney or Damages
has right to convey grantee's title
other professional purchase price paid
by GE + interest

EXCEPT
Does the grantor Does the grantor warrant
What warranties Does the grantor cov't against
warrant against ONLY against defects rising
are provided to the warrant against any Yes No encumberances
defects rising before before AND after
grantee? defects at all? (ENs) --> lesser of
grantee obtains title? grantee obtains title?
(1) $ to remove EN
No Yes Yes or (2) amount by
which EN reduces
the property value
Special Warranty General Warranty
Quitclaim Deed
Deed Deed

Warranties Provided
Present warranties breached 1. Covenant of seisin--promise that the grantor owns the estate she purports to convey
at delivery of deed 2. Covenant of right to convey--promise that grantor has the right to convey title
1,2,3
statute of limitations begins 3. Covenant against encumbrances--promise that there are no encumbrances on the title
running immediately other than those expressly listed in the deed
4. Covenant of warranty--promise that GR will defend GE against claims of superior title
5. Covenant of quiet enjoyment--promise that the grantee's possession of the property
Future warranties breached after closing will not be disturbed by anyone holding superior title (only have cause of action after
most commonly applied when grantee is disturbance has actually taken place, can't be pre-emptive--> Brown v. Lober)
4,5,6 6. Covenant of further assurances--promise that the grantor will take all future steps
actually or constructively evicted by a 3rd
party holding superior title reasonably necessary to cure title defects that existed at closing

SEARCHING FOR TITLE IN PUBLIC RECORDS

Two systems for searching Grantor-grantee is the most common

Two Step Process
1. grantor-grantee index--organized by index used, records two entries under both
1. locate recorded docs affecting title 1
name of the parties to the transaction GE's last name and GR's last name. Index
2. evaluate legal significance of the docs
2. tract index--organized by parcel includes info: time of recordation, location
of recorded document, and brief
2 description of the property involved

Tract index gives all parcels a unique

Is there a valid chain of title? Subsequent purchaser has
identifier and houses all docs related to
Yes constructive notice and is
title of that parcel in one folder
obligated to uphold transfer

Does the deed describe the parcel

with sufficient specificity?
"Mother Hubbard" clauses
generally disfavored b/c only refer
to parcel in general terms
Luthi v. Evans
valid deed
If there are adverse claimants, who
has the better claim to title?
Yes
Which jurisdiction are we in?
1. Race--first to record has priority
even if actual knowledge or previously
created interest (NC/LA)
2. Notice--subsequent bona fide
purchaser has priority if she takes
without notice of a prior interest.
Purchaser does not have to record in
order to gain priority (~50% states)
3. Race-notice--subsequent bona fide
purchaser who BOTH takes without
notice AND records first has priority
(~50% states)
Transfer is invalid as to subsequent
No
Did the subsequent purchaser have purchasers
No
actual knowledge of the transfer?
Transfer is valid as to subsequent
Yes
purchasers
Is the subsequent purchaser a
bona-fide purchaser?
must have no actual, record, or
inquiry notice (reasonably prudent General Rule
person would have investigated the No First-in-time--person whose interest was created first gets
circumstances because they were priority UNLESS in race jur, where first to record gets priority
shown to be out of the ordinary)
Raub v. General Income
VALIDITY OF DEED
Zimmer Rule (min)--subsequent purchaser
has only "recorded" if all previous
Policy Rationale recordations of deed are valid
Purpose of this is so that people trust the public records
and have confidence in the subsequent purchaser so that Maj--recording not affected by previous
what they are buying is what they think they are buying.
Generally, diligent buyer who conducts a careful search of
the public records and finds no title defects will be
protected against existing unrecorded interests.
Only exception to the bona-fide purchaser doctrine is if
the buyer is protected by the state's Recording Act.

If a recorded doc can't be
found in a search, it is
outside the chain of title
and does NOT provide
notice to subsequent
purchasers making them a
bona fide purchaser
pg. 641-642 for examples
Yes
Deed from a Common Grantor
SP will only search for records on
her property, and won't see the
grant of easement on the other
property. SP gets the property
Split in Jur
Half of states--require purchaser to
search ALL properties deeded out
by a common grantor
CHAIN OF TITLE ISSUES/CAN'T FIND RECORDED DEED
Does the GR own
No
multiple properties?
Yes
Does one property
encumber (e.g. easement)
the other property?
Yes
Deed recorded too early
SP2 search is only after the
GR-GE transfer, which won't
reveal the GE-SP1 transfer,
so no notice.
SP2 gets the property
Some Jur--required to
search for every year GR is
alive. Since SP would see
GE-SP1, GE gets property
Was the original GR-GE
No
transfer recorded?
Yes
Was the GE-SP2 transfer
recorded before the
GR-GE transfer AND after
GE-SP1 transfer?
No
Was there a GE2-SP transfer
where the GR-GE2 transfer
was recorded before the
GR-GE1 transfer?
GR = grantor
GE1 = grantee 1
GE2 = grantee 2
SP1 = successive purchaser 1
SP2 = successive purchaser 2
11
Wild Deed
subsequent purchaser (SP) will
search from time GR got property
to present, but won't be able to find
the GR-GE transfer, so no notice
SP gets the property
Deed recorded too late
SP will only search up to the
GR-GE2 transfer, and won't see
the GR-GE1 transfer, so no notice.
SP gets the property
Some Jur--require search under
Yes
grantor's name from time the
grantor received title to the
present. Since SP would be on
notice of the GR-GE1 transfer,
GE1 gets the property

Buyer purchases a title insurance
policy to supplement the title
covenants in his deed. Coverage is
usually quite broad, and has
exceptions and exclusions.
TITLE INSURANCE
Insurer typically has:
Exception = problem concerning the 1. Duty to defend--if someone
particular parcel that the insurance company claims superior title, the insurance
will except from coverage (for example, an company will pay for legal services
existing easement) to prosecute the claim
2. Duty to indemnify--if the
Exclusion = potential risk that the company insurance company loses, they
is unwilling to cover in any policy have to pay you the amount of the
original purchase price

Use plain language of

the provision
No
Procedural Steps Do any of the
Is the language of the
filing claim of action against Use reasonable insurance provisions
provision ambiguous?
the insurer of the title Yes person standard, but actually apply?
more subjective (based
on the situation of the
property owner) Yes
No

Does the issue make the title Is there an exception or

Probable cause of
unmarketable? exclusion to coverage?
action
Probably no cause of
Yes No Yes
physical condition of the property effects of laws and action
Riordan v. Lawyers
(e.g. vehicular access) does not ordinances restricting title
TItle Insurance Corp
affect marketability are usually excluded

No

REMEMBER
Doesn't matter if the defect
tanks the value of the property.
Insurance here ONLY protects
against title defects, not the
marketable value
 RULE OF CAPTURE & FINDERS 12
Are there two parties
Was the animal Sole ownership by
Was the animal asserting capture? No
animus revertendi? No rule of capture
ferae naturae? Popov v. Hayashi
(pigs, horses, etc. w/
tendency to return) Yes Yes

Yes
Did Party 1 acquire
Was it captured on No Goes to Party 2
the property legally?
No unowned land?
Rule of Capture
DOESN'T APPLY Yes
Yes

Did Party 2 acquire

Were there reasonable No Goes to Party 1
No the property legally?
precautions to prevent
escape and show to world Yes
Rule of Capture that animals were captured?
Yes Goes to Party 2
APPLIES State v. Shaw
Did Party 1 No
mortal wound, death, etc. experience wrongful Equitable division -- pre-possessory
conversion before interest for Party 1, and legal
***Custom can inform*** they could secure acquisition by Party 2. Usually not
Yes
ownership? used for abandoned property.

(1) TYPE OF FOUND
PROPERTY?
General Factors to Consider
1. Nature of the item
2. Location of the finding
3. Character of the finder
Courts have significant latitude in deciding
Property
involuntarily and
unintentionally left?
(2) WHO HAS RIGHTS TO Gen Rule: finder has
Nonparty to the dispute
THE PROPERTY? superior title to all
cannot assert superior
EXCEPT rightful owner
title over the finder
General Framework Armory
Goes to whichever party is most likely to be
able to return the property to the true owner (3) WHAT PROPERTY RIGHTS
DOES THE FINDER HAVE?
Gen Rule: goes to owner of
General Framework
land where it was found
Finder has rightful possession but not unqualified
LOST Exception 1 - ? not employed ownership. Serves as bailee and must:
by owner, and owner never 1. keep chattel safe
physically accessed land 2. return to true owner (bailor) on demand
Hannah v. Peel
Exception 2 - owner has
constructive possession of all
Mutual benefit of Reasonable care
found money/items if they live
bailee/bailor? e.g. valet
there (unless open to public)
Hurley v. Niagara Falls

Gen Rule: goes to owner of the

Property voluntarily
locus in quo rather than finder Primary benefit of Extraordinary care
and knowingly
placed somewhere, MISLAID bailee (finder)? e.g. loaning book
Policy arg: since owner likely to
but unintentionally
come to where they remember
forgot?
losing it, owner of locus in quo
most likely to be able to return
the property to true owner Only liable if
grossly negligent
Primary benefit of
or bad faith
bailor (true owner)?
e.g. dog-sitting for
Owner knowingly Gen Rule: goes to first finder neighbor for free
relinquished all
ABANDONED Exception 1 - if 1st finder does
right/title/interest in
property? not secure property, after ALTERNATIVE
reasonable time, 2nd party can APPROACH
claim ownership
Statutory approach to lost property
Owner concealed - 1/3 of states have adopted
in hidden location
TREASURE Gen Rule: goes to owner of the - Typically requires the finder to:
long time ago (i.e.
TROVE land where it was found 1. Notify the police or other
coins, currency,
gold/silver)? government officials
2. Deposit the found article with them
3. Publish notice of the find
4. If the owner fails to claim the
**Subsequent possessor's full payment to the finder bars property within a certain period (e.g.
later action by the rightful owner. However, the rightful 6-12 months), the title is irrevocably
owner can compel transfer of payment from finder** vested in the finder

General Requirements
1. Adverse
2. Exclusive
3. Open and notorious
4. Hostile
5. Continuous for the
statutory period
Discovery Rule -- when owner discovers (or
reasonably should have discovered) where chattel is
O'Keefe v. Snyder
Shifts burden of proof from the
adverse possessor having to
prove elements of AP to the
owner having to show that
they have been reasonably
diligent in their efforts to
regain their items
Gift = immediate transfer
of property rights from
donor to donee without
any payment or
consideration
Is gift given while the
donor is alive?
Yes
Was gift given in
contemplation of death?
No
Donative intent -- donor
must intend immediate
transfer of property
Restricting ownership to
life estate counts as
present transfer of
interest (Gruen)
shown through wording:
1. Give painting after my
death (NO)
2. Give painting but will
retain until I die (YES)
Failure to pay gift tax can
be informative that donor
did not have intention to
make present transfer,
but it is NOT dispositive
Gruen
Est. donative intent by
clear and convincing
evidence can make valid
gift EVEN IF no delivery
ADVERSE POSSESSION -- PERSONAL PROPERTY 13
" Open and notorious" Factors
Statute of Limitations Period Usually
1. Uses the item as an ordinary person would
Shorter for Personal Property
2. Displays it regularly in a public forum
1. Make owners more secure in their title, Tacking
- Only displaying an item in your house is
especeially if good faith purchaser Split in Jur
not enough (O'Keefe v. Snyder)
2. Don't want people claiming things after
3. Uses it in a way that would notify the
successive transfers of ownership
owner of the location of his property
When does the statute of Maj--allowed if
limitations begin running? privity between
Split in Jur possessors
Applies if (1) hard
Min--NOT allowed
to figure out
b/c it would make it
where missing " Demand and Refusal"
Common Law -- when chattel is more difficult for
item is or (2) long statute runs until owner
taken, not when you notice owner to find their
time before demands return of her
Reynolds v. Bagwell property
discovery can property from good faith
take place (e.g. purchaser
med malpractice)
GIFTS OF PERSONAL PROPERTY
Gift causa mortis
Testamentary gift
1. only transfers an
interest to donee in the
future after donor's death #2 -- death doesn't Requirements
2. made through will need to match what is 1. Must be made in contemplation,
3. only valid if it satisfies precisely enumerated,
No fear or peril of imminent death
the Statute of Wills: just "closely related" in
2. Donor must die of illness or peril
A. signed by donor time and related to the
which he then fears or contemplates
B. witnessed by two or anticipate peril 3. Delivery must be made
more people Brind v. International
Trust Co Policy Args
Essentially a will substitute.
Disfavored by courts b/c it increases
chances of fraud (since these gifts
doesn't need to pass Statute of Wills).
Inter vivos gift
Requires
Engagement Rings
Usually gift of engagement ring (ER) is
subject to implied condition that marriage
occur, so gift is not aboslute until ceremony
Delivery -- donor must Acceptance -- donee
part with dominion/control must accept. Usually
Disposing after broken engagement?
by deliverying to donee presumed if valuable item.
Split in Jur
Manual--physical transfer
of possession of gift Majority -- "no-fault" approach
Ring is returned to owner regardless of who
breaks off the engagement or why
Constructive--physically
transfer object that gives
Minority -- "fault" approach
access to the gift
Determine who was at fault for breaking the
(if manual delivery is
engagement, and give ring to other person
impracticable/impossible)
NORTH CAROLINA = NO-FAULT
Symbolic--physically
transfer object
MONTANA = valid inter-vivos gift transfers
symbolizing the gifted item
that stay with the donee
(e.g. note of stocks gift)
-if manual delivery is
LAW HERE ONLY REFERS TO
impracticable/impossible
ENGAGEMENT RINGS, NOT OTHER
Checks as Delivery ENGAGEMENT PRESENTS
Maj--no gift until check is
Albinger v. Harris
cashed, b/c donor retains
dominion over funds and
could stop payment
 INTELLECTUAL PROPERTY 14
Elements in common to copyrights, patents, and trademarks
1. First-in-time system for allocating entitlement
2. Essentially same set of property rights (primarily right to exclude)
3. All are governed by federal statutes (though trademark historically under state law)
Common Law Approach (pre-federal statute)
In absence of recognized right in statute/CL, only chattels that embody the invention are protected, but NOT the design of the invention.
Policy arg: right to exclude is reasonable, but if unchecked, creates a monopoly that unduly burdens creativity
Cheney Brothers v. Doris Silk Corp

COPYRIGHTS - GENERAL REQUIREMENTS

Originality - independently created, Work of authorship -- eight Fixation -- must be written,

not copied from other source, and
minimum degree of creativity
Questions to ask:
1. Motive for creating work
(monetary gain vs. purely reg req)
2. Is the work intrinsically creative?
3. If not, is the work created in a
unique/imaginative way?
e.g. phonebook compilation that
just lists by alphabetical order is
not "original" per copyright law
Feist v. Rural Telephone
categories recognized: (1) literary
works (including computer
programs); (2) musical works; (3)
dramatic works; (4) pantomimes
and choreographic works; (5)
pictorial, graphic, sculptural works;
(6) motion pictures/audiovisual; (7)
sound recordings; (8) architectural
Illustrative categories--analogous
works may also qualify for
protection
***Originally granted for 50 years,
recorded, or otherwise embodied
but extended to 70 by CTEA
in physical form (must be more
(upheld by SCOTUS in Eldred v.
than transitory)
Ashcroft)***
***Registration and notice are not
required for a valid copyright***
Requirements for infringement
1. ownership of a valid copyright
2. copying of constituent elements
of the work that are original

Fair Use Exception to Copyright Infringement

Allows for use of copyrighted material without consent of the creator. Generally, minor uses qualify if no undue burden on creator's profitability and use
promotes creative endeavors. Typically productive uses that are non-commercial in nature (e.g. educational).

Weigh the following factors as a balancing test rather than required elements:
1. Purpose and character of the use, including whether it is for commercial or nonprofit educational purposes
2. Nature of the copyrighted work
3. Amount & substantiality of the portion used in relation to the copyrighted work as a whole
4. Effect of the use on either the potential market or value of the copyrighted work (i.e. is there detrimental financial impact to creator?)

Case illustration
e.g. confidential (even if non-fiction) cuts against fair use; type of material copied is more important than the amount copied (distinctive tracts of text
copied and published were counted as infringement); obvious financial impact due to publishing excerpt before release of book
Harper & Row v. Nation Enterprises

Parodies
Do a fair use analysis. More transformative the work is, the less the other factors matter. Financial harm due to parody doesn't produce cognizable harm

Proving Copyright Infringement

Strict Liability Offense
?'s knowledge and intent are irrelevant. Even if ? copied in good faith believing they had permission, still liable for copyright infringement
1. ? owns a valid copyright
2. ? actually copied the ? 's work
3. ordinary observer would conclude ?'s work was substantially similar to ? 's work

Infringement -- songs, painting, dance

More complicated cases because these might resemble another work but also have original components

Selle v. Gibb
Balance access and probative similarity -- if highly accessible, need less similarity. If not very accessible, need more similarity.
If there is no direct evidence of access, proving that the works are strikingly similar can create an inference of access. Striking similarity = "similarities
of a kind that can only be explained by copying, rather than by coincindence, independent creation, or a prior common source" (usually expert witness)

Special case--music sharing platforms (Grakster)

Not liable as long as they do not encourage copyright infringement. They are liable if they do (e.g. Napster)
 PATENTS 15
Policy Rationales for Granting Patents
1. Creates incentive for inventors to engage in creative effort
2. Helps bring socially valuable products to the public
3. By requiring disclosure of how invention is made, others may use to create different, non-infringing inventions
Basic Rights Given to Patent Holders
1. Right to exclude -- patentee may prevent others from making, using, or selling her invention during the patent term
2. Patent term = 20 years from date of filing with the USPTO
3. Patentee may transfer her right to others, and may destroy her patent by allowing it lapse
4. Patent does NOT grant right to use, which may be regulated by other statutes

Patentable Subject Matter
"process, machine,
manufacture, or
composition of matter"
Abstract --> NO patent
Diamond v. Chakraborty
Congress reads § 101
broadly. Any "product of
human ingenuity" is valid
patentable subject matter,
including generally
modified organisms
Myriad Genetics
Genes not patentable b/c
order was already in nature
GENERAL REQUIREMENTS
Novelty
Only new inventions can be
patented. Examine "prior
art"--all inventions, patents,
Utility publications, etc. that
Must offer actual benefit to predated the application
humans. Virtually every
type of invention offers One source of prior art can
some minimal benefit, so show not novel if
this is rarely contested 1. discloses every element
of the invention
2. enables a person skilled
in the art to make the
invention
Nonobviousness
PTO will deny if differences
between invention and
"prior art" "would have
been obvious to a person
... having ordinary skill" Enablement
Must describe the invention
Evaluation Criteria in such detail as to "enable
1. scope and content of any person skilled in the
prior art pertinent art" to make and
2. differences between use the invention
prior art and claim at issue
3. level of ordinary skill in
the pertinent art
4. secondary
considerations, e.g.
success or failure of others

Proving Patent Infringement

Can establish by demonstrating that every claim is: (1) literally infringed, or (2) infringed under doctrine of equivalents
If even one claim is missing from the accused product, there is no patent infringement

Doctrine of equivalents -- must show that that an element had a substantially similar function and used substantially similar means to yield a
substantially similar result to the patented element
Larami Corp v. Amron

TRADEMARKS
Any "word, name, symbol, or device" used to identify and distinguish goods sold by one person from those of others
Gives specialized right to exclude:
1. Sole (exclusive) right to use that mark for owner's goods or services in a geographical area
2. Owner may destroy their right to use the mark by abandonment

Policy Rationales for Trademarks

1. Protect consumers from being deceived into purchasing shoddy goods/services
2. Provide incentive for trademark owner to produce quality goods/services to ensure public goodwill behind the mark will be protected

GENERAL REQUIREMENTS TRADEMARK VIOLATIONS

Distinctiveness First-use in Trade Is customer confused about
Mark distinguishes goods of one brand from another.
No Yes
First to use a mark for a good the source of the product?
or service in a particular
Spectrum of strength of mark: geographical area gets the
1. Strongest (arbitrary or fanciful) -- indicate nothing trademark UNLESS someone Dilution
about the product else has registered the mark Chipping away at value Infringement
2. Strong (suggestive) -- suggests but requires use already in that market of trademark by using it "Likelihood-of-confusion"
of imagination to ID different products test usually applied
3. Weaker (descriptive) -- e.g. Coca-Cola Lanham Act requires first use
4. Generic -- so frequently used it becomes a in "commerce," which is Federal Trademark Exception -- where mark
commonplace descriptor of the general class of narrower than trade Dilution Act (FTDA) takes on "expressive
products, and thus loses its trademark requirements: meaning" so it is
Non-functionality 1. "famous mark" impossible to discuss
Secondary meaning test Must be a non-functional 2. Another person used item without using mark,
Commonly used words/colors/shapes/etc can take on feature, otherwise patent mark for "commercial the mark owner can't
secondary meaning w/ public at large to indicate a use in commerce" control public discourse
brand (e.g. Tide), rather than a feature of the product, Test for functionality: 3. Use began after mark Mattel v. MCA
if placed conspicuously on the product over time Is it vital to the use or purpose became famous
Qualitex v. Jacobson Products of the article? 4. Use causes dilution of Title Name (TN) Issue
the "distinctive quality of Rogers v. Grimaldi
the mark" Title artistically relevant
to underlying work?
Statutory exemptions to the FTDA
FTDA made to prevent: No --> Lanham vio
1. Comparative Advertising -- "identifying and parodying, critizing, or commenting" on a
famous mark or goods/services of marks' owner 1. blurring--weakening Yes, but misleads as to
distinctiveness source/content --> vio
2. News reporting and commentary
2. tarnishment--harming Yes --> no vio
3. Noncommercial use -- commercial speech "does no more" than propose commercial
transaction. Non-commercial speech protected by 1st Amendment (Hoffman) its reputation

Preliminary
Categorization of
Easement
not connected with holder's use
of any particular land (e.g.
hunting rights) AND ends with
death of easement holder or
change in servient owner (SO)
Creating an
Express Easement
voluntary by SO
No
Does the easement
arise by partition of
Yes
property by the
dominant owner?
Creating an implied
easement existing
by prior use
Transfer of a quasi servient
tenement (i.e.
dominant/servient relationship
between different parts of a
whole estate) results in an
implied reservation of an
easement in favor of conveyor.
Creating an
easement by
necessity
Typically applies to
"landlocked" parcels where the
dominant owner has no legal
way to cross water/surrounding
land to access her property
Creating a prescriptive
easement
Policy Args
want the most productive use of
land, which is why we have
prescriptive easements. On the
other hand, the argument
against overbroad acceptance
of prescriptive easements are
that it would reward a
trespasser of property for taking
another's property without
compensation
EASEMENTS
16
Does it benefit the
Does it allow the holder Affirmative
dominant owner (DO)
to perform an act on the Yes Easement
in use of land AND
servient land? most are affirmative
run with the property?
No No
Yes
Easement in gross
Negative Easement
Appurtenant
prevents servient owner from
Easement
doing something on land
Modern easements are usually recorded
Express easements must (but don't need to be)
Express easement
satisfy the SoF. Writing must:
by grant
1. identify the parties
2. describe servient and
dominant parcels Transferring express easement by sale
1. servient estate sold -- IF easement is
3. describe exact location of
recorded, and NOT bona fide purchaser, the
easement on servient land
Express easement easement is passed along
4. state purpose for which the
by reservation 2. dominant estate sold -- always transfer
easement may be used
UNLESS express agreement not recorded
Requirements:
1. severance of title to land held in " Reasonable necessity"
common ownership doesn't mean absolutely
2. existing, apparent, and continuous essential, but rather beneficial
use of one parcel for the benefit of or convenient is sufficient to
another at the time of severance, AND establish this requirement
3. reasonable necessity for that use
Policy Arg Bona fide purchaser?
goes to the presumed intent of the modern courts typically agree
parties and encourages productive use that there is constructive notice
of the land of underground utilities
Policy Args in Favor
Requirements: 1. represents the intent of the parties
1. severance of title to land held in 2. public policy generally favoring the
common ownership productive use of land Duration
2. necessity of the easement at the time
easements by necessity
of severance
Berge v. State of Vermont Standard only last as long as the
A. Majority--only require "reasonable
takes middle ground b/w maj and min necessity stands--once it
necessity," meaning beneficial and
positions by requiring "lack of is no longer necessary,
required for practical use of the land.
reasonably practical access" the easement terminates
BUT convenience is not enough.
B. Minority--strict necessity (i.e. owner
has no legal right of access to land) Similarly some, but not all, states say
that water access is sufficient
Requirements: What if DO searches but
1. open and notorious can't determine the SO
2. adverse and hostile by chain of title?
? must know who the owner of the property
is (req not met if they don't do title search
and determine the owner, in cases where
there is confusion--O'Dell v. Stegall)
Does intestate Bring action against
3. continuous
succession clarify? successor
4. for the statutory period
No
Assuming reasonable
Tacking can apply here
effort, can give notice to
if there are subsequent,
wider range of possible
successive DOs
owners
Creating an easement
by estoppel
(irrevocable license)
Don't need written agrmt --
oral agreement +
detrimental reliance by
licensee is enough
Requirements:
1. landowner allows another to use his land,
creating a license
2. licensee relies in good faith on the license,
usually by making physical improvements or
by incurring significant costs AND
3. licensor knows or reasonably should
expect such reliance will occur
17
Interpreting Easements
Marcus cable--narrow interp--> holds terms for
their plain, ordinary, and generally accepted
meaning. More liberal courts might allow for
changes provided they fall within the scope of
the purpose for the initial grant of the easement.

Terminating Easements (Part 2)

Terminating Easements (Part 1)
Abandonment--standard is in addition to
non-use, acts by the owner of the dominant
tenement conclusively and unequivocally
manifesting EITHER:
1. present intent to relinquish the easement OR
2. purpose inconsistent with its future existence
Generally, termination of easement on its own terms (e.g. if for term limit) OR
1. Condemnation of subservient land, in which case DO is entitled to just compensation
2. Estoppel--if SO substantially changes her position in reasonable reliance on the DO's
statement that the easement will not be used in the future
3. Merger--if one person obtains title to both the easement and the servient land,
easement terminates under doctrine of merger
4. Misuse--some jur --> if holder seriously misuses easement, it is forfeit
5. Release--DO may release, by writing, the SO from the easement

Negative Easements Traditional Modern

When can a DO prevent an only a few were Most common: conservation easement, authorized by leg in almost all states
SO from performing an action allowed--blocking sunlight, air, Restricts development and use of land to preserve open land
on the servient (SO's) land? flow of water
Policy args against
1. Goes against the productive use of land. Times change, and what may seem
Changes to conservation easements like a good idea may not be an enduring benefit.
Bjork v. Draper 2. Since conservation easement is a legal change, property can no longer be
easement can be amended, but not if it conflicts with other parts of the developed (in exchange for tax benefits--charitable deduction). If we are going to
easement. people usually opt for conservation easement because it's make a public investment for a conserved area, it should be done by local gov't
cheaper than obtaining fee simple for the property to keep it as open land so that the parcels preserved are done for the benefit of the public at large

Most of these are set up in covenants, conditions, and restrictions (CC&Rs)--goal is to set up harmonious land regulations in development areas. These CC&Rs
are the exception to the general rule that restrictions go against productive use of land, because CC&Rs produce harmonious regulation and allow for similar
expectations for properties in the general area (e.g. prevents a commercial development from coming nearby that would make a residential area unfit for living,
Real Covenants (RC) and
Equitable Servitudes (ES)
Promise concerning the use of
land which benefits and burdens
both the original parties and their
successors
Duty to continue over time to
perform what you are supposed
to do is the burden, and the right
to enforce the burden is the
benefit.
Covenants are enforced
privately rather than publically
Alternative
Framework
Combines RC and ES into covenant that runs at law. Type of servitude that arises when:
3. not arbitrary, unconstitutional, unconscionable, or violating of certain public policies (e.g. cannot unreasonably restrain alienation)
CIC = planned residential
development where: (1)
all properties subject to
comprehensive private
land restrictions and (2)
regulated by HOA
Changed Conditions
Vernown Township
Applies when no current owners
continue to benefit from the
restriction.
RS allows for compensatory
damages instead of an injunction
on the restriction in question.
What are the HOA
responsibilities?
Per most CIC declarations:
1. maintain common area of CIC
2. enforce the CC&Rs
3. adopt and enforce rules to
supplement the CC&Rs
4. collect assessments
5. take such other actions as are
necessary to administer the CIC
REAL COVENANTS/EQUITABLE SERVITUDES
18
Policy Arg
reducing the marketability of those residential properties)
Which is more appropriate for Real Covenant (burden reqs)
relief when the burden/benefit is 1. Compliance with SoF--usually not difficult (signed by both
not met--damages or an parties, in writing, recorded--though not always)
injunction? Dm 2. Intent to bind successors--"this agreement will run with the
land" though is not the only appropriate formulation of language
Note that modern courts often 3. Touch and concern the land--cannot be unrelated to the
blur this distinction property. In most cases, people dealing with something directly on
the property so not an issue
Inj 4. Notice--best way to do this is to record the covenant (actual,
constructive, or inquiry notice is sufficient)
5. Horizontal privity--rltnship b/w the original parties to the agrmt
A. Most--original parties have mutual simultaneous interests in
Equitable Servitude (burden reqs)
the affected land (e.g. landlord/tenant)
1. SoF--writing or common housing plan for
B. Nearly all--GR-GE relationship b/w original parties satisfes
residential developments (even if not in title)
C. Modern trend--abandoned the requirement
2. Intent to bind successors
6. Vertical privity--relationship between the successors in interest
3. Touch and concern the land
to that particular piece of land (either burdened or benefited land)
4. Notice
Majority Jurisdictions--only 1,2,3,6 required for benefit to run
Horizontal and vertical privity are not required
Only 1,2,3 needed for benefit to run
Restatement Approach
1. owner of the property to be burdened intends to create a servitude
2. she enters into a contract or conveyance to this effect that satisfies the SoF
COMMON INTEREST COMMUNITIES (CIC)
What defenses are
available to homeowners
CIC created by Declaration against HOA enforcement
1. HOA--to administer and regulate CIC of CC&Rs?
2. CC&Rs--covenants, conditions, and restrictions
3. Assessments--HOA fees to finance its operation Traditional ways to break
4. Ownership rights--each owner has FS for her unit, restriction: condemnation,
undivided interest in common area of CIC, and membership estoppel, merger,
in HOA. Some jur--HOA holds title for common areas prescription, or release
Abandonment
Fink v. Miller Unreasonableness
Could a reasonable avg person find that the std had been abandoned? Narhstedt Test
Restriction is presumed to be
Most courts will look at CC&R and anything that is non-conforming that would reasonable and is enforced
lead a person to reasonably believe there is abandonment. No set % of unless it is arbitrary, imposes
non-conformities indicating abandonment--context-dependent evaluation. burdens on use of land that
substantially outweigh the
If std is not visible, court will not typically find abandonment because the benefits to residents at large, or
average person would not readily find that the restriction has been violates fundamental public policy
abandoned (unless there are clear violations that can be apparently found)
Schaefer v. Eastman Community
Scope of judicial review
HOA is NOT acting ultra vires (outside its scope
of authority) unless it violates an express
Most--reasonableness std--HOA must "act reasonably
provision of the declaration. Less
in the exercise of its discretionary powers"
deference--reasonableness std--given to newer
CC&Rs (not original)
Some--business judgment rule--HOA not liable if
decision was in good faith and HOA rationally believed
Fountay Valley Chateau
it was appropriate
HOA asking resident to clean when there was
no fire/housing code violation didn't satisfy
Developer originally retains proportional interest in
"reasonableness" standard and also failed to
HOA until the last home is sold
show "good faith" rationale
 LAND USE REGULATION CONSTITUTIONALITY
Euclid Test
Rational basis review--regulation is
unconstitutional IFF it is "clearly
arbitrary and unreasonable, having no
substantial relation to the public health,
safety, morals, or general welfare"
Policy Arg for Euclid
Court decides that zoning is a more effective form of nuisance, and nuisance is helpful in
determining the scope of police power.
Court substantially defers to the legislative judgment of the village officials (they know the town
best, and if they need those margin areas to ensure that it isn't a nuisance, that is OK).
Typical Zoning Ordinance
Contains (1) text of the ordinance and
(2) maps that implement the ordinance
Two-step process of implementation
Minority
1. Adopt comprehensive plan setting
forth general planning goals
2. Enact specific ordinance to
implement that plan
Majority
Combined into one step. Can enact
ordinance as execution of plan at once.
What if the ordinance is passed while the
project is still being completed?
landowner has vested rights in the property and
is protected as long as they have (1) acquired
the necessary permits AND (2) spent substantial
amount of $ in good faith reliance
CHANGES TO ZONING ORDINANCES
Changes can be done by: (1) amendment;
(2) variance; (3) special exception; OR
(4) modern, flexible approaches
(1) Amendment/Rezoning
First step--is it constitutional?
Maj--Euclid standard
Min--"change or mistake approach" where
rezoning only valid if (a) conditions in zone have
significantly changed OR (b) mistake was made
in original zoning ordinance
Yes
(2) Variances
Refers to a variance from the terms of the
ordinance that are held valid for most jurisdictions:
Detwiler Standard
1. Unique physical circumstances or conditions
that are peculiar to the particular property, and
these circumstances create unnecessary hardship
(most jur--hardship = no reasonable use of the
land permitted under existing zoning)
2. Physical circumstances or conditions preclude
conforming to the ordinance in developing the
property, which impedes its reasonable use
3. Such unnecessary hardship has not been
created by the applicant
4. Variance will not alter the "essential character" of
the neighborhood, nor substantially or permanently
impair the appropriate use/development of
adjacent land, nor be detrimental to public welfare
5. Variance will represent the minimum variance
that will provide relief
19
Strict Scrutiny Review
Does the regulation:
regulation must be narrowly tailored to
1. discriminate against a suspect class
Yes accomplish a "compelling state
OR
interest," which is a higher standard
2. impair a fundamental right?
than rational review
No
"As applied" Challenge
Modern courts reluctant, but a zoning
law could be unconstitutionally applied
to an individual property even if the
regulation itself is unconstitutional
ZONING ORDINANCES
Assume you're implementing a new Policy arg regarding phasing out
zoning ordinance. Are there prior uses Nonconforming uses are an issue if the goal is
that are no longer valid? Euclidean separation of uses, because keeping
nonconforming uses (like banning business in
Yes
certain areas) prevents proper separation. On
the other hand, a business would want to keep
its operations particularly after passing a
These nonconforming uses are
Euclidean ordinance because that would result in
allowed to continue. However, they
a natural monopoly for the business.
cannot be expanded, and major repairs
that would extend duration of use are
banned (goal is to phase it out).
Ending nonconforming uses
Minority--allows intensifiication, so long 1. Amortization--within reasonable time
as "nature and character of that use is 2. Abandonment--occurs if (1) owner intends to
substantially the same" relinquish right to use AND (2) voluntarily
Trip Associates, Inc. ceases use for statutorily defined period of time
Was one lot zoned differently from the rest of
the surrounding area? Spot Zoning
Smith v. City of Little Rock
1, 2, or 3
Evaluate using these factors:
1. singles out a small parcel for diff treatment
2. mostly for benefit of private owner over public
3. inconsistent w/ general plan for community 1&3
Split in Jur--varies based on jurisdictions Reverse Spot Zoning
whether one, two, or three factors are needed
(3) Special Exceptions
Two types of variances use permitted in the zone if certain conditions (specified in zoning
1. Area variance =
ordinance) are met
permits modification of lot
size, setback, height, etc typically regulates uses that might cause aesthetic, noise, traffic or
2. Use variance = permits
other problems in the area
type of use prohibited by
the zoning ordinance Process--apply for use exception (i.e. permit) to local zoning
authority. Strict jur--must meet specific, detailed criteria to get
Some Jur permit. Lenient jur--OK if consistent with general public welfare
Stricter standard for use
variance b/c of greater
risk of non-uniformity. (4) Modern, flexible approaches
Use strict hardship test 1. conditional zoning--rezone when owner satisfies imposed conds.
for use but more lenient 2. floating zone--zoning district with unfixed location until owner
practical difficulties test applies for zone (e.g. shopping center/large-scale development)
(just show land can't 3. cluster zone--residential zone allowing developer to choose
practically be used, even location; permits "clustering" of residences to save space
if use is theoretically 4. planned unit development--allows developer to plan an entire
possible) for area. community; basically cluster zoning extended to all uses
policy args on pg. 818
 PRIVATE NUISANCES
20
Private nuisance = Plaintiff in a private nuisance must establish that it was:
nontrespassory invasion of 1. Intentional
another's interest in the private A. acts for the purpose of causing harm OR
use and enjoyment of land B. knows that the harm is esulting or substantially certain to result from his conduct
(dust particles, vibration, fumes,
etc. considered nontrespassory 2. Nontrespassory
in most jurisdictions--some do A. must not involve any physical entry onto the land of another
consider trespassory) B. noise, vibration, light and odors NOT considered trespassory invasions

Representing ? Strategy
Boomer v. Atlantic Cement Co
If facing injunction, optimal to
settle for an amount less than
the $ required to relocate the
facility. In this case, injunction
was granted, conditional on
payment of permanent damages
due to nuisance.
3. Unreasonable
Split in Jur
A. Many -- RS § 826(a): conduct is unreasonable if gravity of the harm outweighs the utility of the conduct
B. Some -- conduct is unreasonable if it causes substantial harm, regardless of the social utility of the conduct
C. Number of states -- use multi-factor tests that fall somewhere between these two approaches
4. Substantial interference
"real and appreciable invasion of the plaintiff's interests"
5. Use and enjoyment of land
?'s conduct must interfere with use and enjoyment of the land

Additional RS factors for evaluating reasonability

1. Gravity of harm
A. Extent of the harm involved
B. Character of the harm involved
C. Social value that the law attaches to the type of use or
enjoyment invaded
2. Significant social value on people's ability to live in their
home the way that they wish to use it ("home is my castle")
A. Suitability of the particular use or enjoyment invaded to
the character of the locality
B. Burden on the person harmed of avoiding the harm
3. Utility of conduct
A. Social value that the law attaches to the primary purpose
of the conduct
B. Suitability of the conduct to the character of the locality
C. Impracticability of preventing or avoiding the invasion

Aesthetics
Stoyanoff Rule
great amount of deference is given to the
committee to determine the "appropriate
standard of beauty and conformity" for a
given residential area, despite vagueness
Policy arg in favor of Stoyanoff
protect the single family home because it
is often their largest investment--holding
primarily driven by impact on property $
" Family" Zoning
How to review ordinances that regulate
reqs of familial relation b/w members of a
household?
Belle Terre Std (old)
Rational basis test from Euclid b/c house
residents unrelated + population issues
Moore v. City of East Cleveland (modern)
Applies higher bar than Euclid (likely
intermediate scrutiny) b/c intrusive
regulation of the family does not have a
valid rational relation to public policy
(here, residents were related)
Exclusionary Zoning
Two methods for doing this:
1. Growth control ordinances--restricts
number of housing units available
2. Exclusionary zoning--has effect of
excluding minority/low-income groups
from a community
OUTER LIMITS OF LAND REGULATION
21
Regulating Signs What if it only restricts signs?
City of Ladue v. Gilleo Ordinance must be drafted with
banning signs categorically is "particular care" -- content-neutral "time,
unconstitutional (violation of first am) place, and manner" speech can generally
be regulated (e.g. size, shape, # of signs)
but gets more deferential to owners when
signs are inside the house/content-based
More broadly, delegation of authority
from city to board to regulate design is
unconstitutional; however, property value
interest is sufficiently compelling for court
to overlook this in Stoyanoff
Ames standard for " family" zoning
Regional welfare--is there a relationship
Can " family" zoning be applied where
b/w health safety and general public
nuisance isn't available as remedy?
welfare for those whom it significantly
Ames Rental Property
affects? (not in Euclid test)
noise/partying in college town, but
couldn't bring nuisance charge b/c ppl
Looks at area as a whole rather than just
would move out before action could be
the municipality of the zone. Apply tests:
brought in court
1. Forecast the probable effect and
duration of the restriction
Ordinance here was more inclusive,
2. Identify the competing interests
despite restricting family relations in
affected by the restriction
single-dwelling home units, than Belle
3. Determine whether the ordinance, in
Terre or Moore
light of its probable impact, represents a
reasonable accommodation of the
competing interests
Procedural Steps
Was a fundamental right breached?
If yes, apply heightened scrutiny
If no, apply rational basis (Euclid)
 ENVIRONMENTAL PROPERTY LAW 22
Clean Water Act Issues
Public Trust Doctrine Borden Ranch Partnership
Policy Arg Nat'l Audobon Society Prohibits "discharge of any pollutant"
Conservation/maintaining Elements for analysis: 1. Discharge = any addition of any pollutant to
land in its natural state is 1. Purpose of the trust navigate waters from any point source
balanced against the evolves with changing public perception 2. Pollutant = inter alia "dredged spoil, biological
productive use of land 2. Scope of the public trust materials, rock, sand, cellar dirt"
3. Duties and powers of the state as trustee 3. Point source = "any discernible, confined and
discrete conveyance from which pollutants are or
Scope varies from state to state (e.g. ocean may be discharged"
waters, tidal wetlands, navigable waterways)
Weigh the practical advantages of development
versus the ecological harms

Comprehensive
Issues dealing with dumping Environmental Response, Does the owner have an
Was the hazardous waste
hazardous waste on land? Compensation, and LIability Yes innocent buyer defense?
found on the property?
United States v. Monsanto Act (CERCLA) primarily Requirements:
governs waste site cleanup 1. Acquired land after
No waste was disposed on it
2. No "reason to know"
NO there was waste on land
Is the ? one of these: Yes 3. Fully cooperate with
No LIABILITY
1. Current owner or operator government officials
2. Owner or operator at time of disposal
3. Persons who arranged for disposal or No
treatment of wastes LIABILITY
4. Waste transporters that selected the site

Def
Yes

Third party defense applies UNLESS:

1. Contractual relationship b/w property
owner and party disposing hazardous waste No Def
OR
2. No precautionary measures to prevent
actions or omissions have been taken to
prevent the consequences that foreseeably
result from the actions or omissions

EMINENT DOMAIN

Two primary requirements: Kelo v. City of New London

1. land is taken for "public use"
2. "just compensation" is paid for the land
Hawai'i Housing Authority v. Midkiff
As long as taking has public purpose,
reviewed under minimum rationality--taking is
justified it is "rationally related to a
conceivable public purpose"
Court held taking private property for
economic development (given dire straits of
town) was only subject to rational review Scope of " Public Use"
Narrow--public must
Many states in response statutoriy excluded physically use the land
"economic developmned" from "public use" Broad--rationally related to a
use that generally benefits the
Policy--one issue with fair market value as public at large
just compensation in these cases is the
owner often can't get a comparable home in
the area with that FMV payout
 TAKINGS
23
Takings clause of the Always a taking if:
How to determine 1. Permanent physical possession of the land (no clear brightline, but relates
fifth amendment
whether valid regulation to how much dominion/control over property is taken from the owner)
mandates compensation
or regulatory taking? 2. Causes loss of all economically beneficial or productive use of land, unless
for a regulatory taking
justified by background principles of property or nuisance law
A. total deprivation of beneficial use is equal to permanent physical invasion
B. if you allow total economic deprivation, that is essentially having private
property brought into public service without just compensation
3. Demands an exaction that has no essential nexus to a legitimate state
interest or lacks rough proportionality to the impacts of the particular project
Consider demoninator issue
Is the taken land the total If none apply
sphere of activity, or is it a
portion of the surrounding land?
Penn Central Test
Modern Standard
1. Economic impact of the regulation on claimant
Pennsylvania Coal Co. Standard 2. Extent to which regulation has interfered with
OLD --> NO LONGER USED investment-backed expectations (consider when
Diminution-in-value test--consider: property was bought AND must be reasonable)
1. Reciprocity of advantage--your property may lose some value, because 3. Character of the government action (i.e. physical
it is not possible for it to have commercial use. However, the value of your action more likely to be taking)
property is enhanced because you can't have a non-compatible use move in
next door (i.e. non-residential). Only applies for gov't seeking benefit.
2. Limitation on the government's right to regulate--"the general rule at
least is while property may be regulated to a certain extent, if regulation goes
too far, it will be recognized as a taking"
Other Categorical Tests
1. Nollan--must be essential nexus between the exaction
and a legitimate state interest, otherwise it is a taking
2. Dolan--exaction must be roughly proportional to the
project's impact, otherwise it is a taking