Property

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8/27/2010 Keeble v. Hickeringill Hickeringill was scaring away the ducks from Keebles decoy pond. This case was referenced in Pierson v. Post, with note to the difference in the case based on ratione soli However it wasnt based on ratione soli but rather he is getting this based onl on notes because at the time there wasnt the publication like we have today. If you had an accurate reading of Keeble does it aid Post in Pierson v. Post. o Like in Keeble, Keeble was hunting and in the process of capturing a wild animal, and was disturbed, in the exact same manner I was trying to capture a fox. So you need to rule the exact same way. Now argue for Pierson o Post was doing it for sport, whereas Keeble was pursuing his living. (Arguable) o Keeble was brought for the annoyance at the loss of the animals not the loss of the animals itself. (Arguable)

o It was done on Keebles own property. o For example the school master analogy, just because I did something better (Shooting the fox) doesnt make it illegal. Can you suggest a reason to accept it as doing the same thing, rather than the preventing of Post from hunting the fox. o He didnt pull a gun on Post and force him to not hunt. Hunter about to shoot a deer and at the last instance an animal rights activist fightens it away, the only relavent land is Pierson v. Post, and Keeble v. Hickeringill. Will he win. Pierson seems to harm the hunters case. Keeble seems to build the case Early a morning finds a cow, I begin hunting the cow, and that night I catch, kill and skin that cow. My neighbor notices that the cow resembles his lost cow, and so sues me. I claim that according to Pierce v. Post I should win. o It would depend on if the neighbor could show that it was for sure his previously.

Is a cow a wild animal? o It can be Is a dairy cow a wild animal? o NO Is there a reason to apply a different rule to domesticated animals? o Domesticated animals provide a value to society. What if T trespasses and takes and animal off of Osland and puts It in a cage, subsequently, R trespasses and takes the animal from T. T sues R who gets it. T would get it based on relativity of title. What about Oil, Gas, and water? These things are migratory and can move around in similar manner to a wild animal. Ways to distinguish it. o Oil and gas goes where it is easiest to go without thought. o Doesnt repopulate. o Can get oil and water without ever trespassing by drilling down on your land. Demsetz Communal ownership means that no one has exclusive rights to a property. Private property comes with the right to exclude others. Re-read Demsetz material. And pgs up to pg 56. 8/30/2010 What was the major difference between private property and communal property? o Private property can refuse use or other rights so another. What is the property with communally owned property? o It tends to be used inefficiently. For purpose of this discussion what do we mean? o Not a maximized use for the whole community. Talks about externality, what does that mean? o External costs and benefits. Its not an externality, unless What makes a cost or benefit into an externality?

o When a person incurs the costs and benefits of conduct without considering them. Costs or benefits of a persons use or property that falls on other people and of which I do not have to take into account when acting. Do people always ignore their externalities? o No they might, but only if they are a good person. So it is an externality because they dont have to take it into account. Demsetz refers to two different things that internalize what would otherwise be externalities. How does changing from communal to private internalize the costs and benefits that would otherwise be externalities? o In private property I am forced to take account of the costs of my actions because It is my property and so all decisions made affecting that property will directly affect me and my future prospects. What is the other way? o Reduction of transaction costs. How does that affect? o Hypo: 100 people own land with diamonds under the surface. The land has 100 tons of diamonds. Communal ownership, things go along fine for awhile, no problem cause not all that useful. Along comes Mr. X and he has someone who wants to buy the diamonds, does it cost him anything to dig out the diamonds? o Only his time, and technically the externality that the community looses their rights to the diamonds in the property. Another member of the community Mr. Y notices what Mr. X is doing, also wants to sell them. What can he do? o Cant stop X. Can only try and mine the diamonds himself. Mr. X figures out that down the road the diamonds will be worth more. Will he do that. o He cant because Y will continue to mine away. What if there were private plots what will X do now? o He will wait until the price goes up.

Do you think in a communal environment X could pay Y something not to mine something? o Yes but it wouldnt stop the other 99, so the transaction cost to stop the mining would be out of hand. In economic terms what is wrong with Trespassing? o With no enforceable trespassing rules it essentially becomes a communal property. How does the rule of capture interact with a communal property? o Result in overhunting etc. How can you limit it? License on how much you can hunt. Endangered species protection etc. would Demsetz explain the problem of pollution? It is a communal property and as such the externality is the pollution. Milton Friedman argued that there was a political freedom argument to a private property system rather than a communal system. o More freedom to critisize and speak mind etc. Post and Pierson both want fox. Both have a method of selling it o o How o Post for $10, and Pierson for $5. Assuming there are no transaction costs who will end up with the fox? o Post, either wins the lawsuit or buys it off of Pierson where they can both gain advantageously. This is called Coase Theorem. Any applications of this for how we ought to design our system of property? o You could give it to whomever stands to gain the least as it would result in a negotiation to the benefit of both.

9.29.10 What is the difference between a testament and an inter vivo gift.

8/27/2010 7:24:00 AM 8/30/10 Intelectuall Property What is intellectual property? o They are non tangible rights to property What kinds of Intellectual property do we have? o Copyright- Songs, writings o Patent Inventors o Trademarks Designs, or label names, symbols. o Trade Secrets formulas, methods, processes, etc. o Right of Publicity use of ones names and likeness etc. Does it make sense to call these things property? o Not really Can we analogize these cases to the animal cases? Is this just an extension of an analogy? o Yes generally this is an extension of property. Think about whether this analogy makes sense. Ways that intangible rights are like tangible property? For Wednesdays class, read pg 56-69 9/1/10 How is a copyright similar to a piece of land? o Copyright has the ability to stop someone from using the material, similar to the land. Do you have right as copyright owner to use and profit from the copyrighted work? o Yes Do you have the right to sell a piece of land? o Yes Can you sell a copyright? o Yes Can you divide a piece of land into different interests? o Yes, such as surface vs. underground oil, you can lease, etc. What about a copyright can you dvide it into different interestes and separate it between different people. o Yes, such as right to print the book and someone else the right to turn it into the movie. Are there limits to land? How many can use it?

o Eventually would hit a natural limit. What about with a copyright is there a limit to how many people can use it? o No One way they differ. In general why do we grant property rights in the form of copyright? o Protecting their right to profit from their labor. Is there utilitarian benefit to property rights? o Creates an incentive for others to create new aspects and expand the situation. INS v AP news. Why not a copyright suit? o Cant copywrite news per se Cheney Brothers v. Doris Silk Corp. Why could Doris Silk Corp copy the patterns. o There wasnt a patent on the silks. Why didnt they patent it. o Time issue with new silks coming out every season

o Hard to patent, since the designs occur frequently. Are there any dangers to creating new intellectual property rights? o Too much exclusion could hamper ingenuity and creativity. Nichols v. Universal Pictures Corp. For Friday read moore case and notes afterwards, you can stop at page 86. 9/7/10 Moore v. Regents of University of California What is at question? o 1st Moores claim under the existing conversion cases o 2nd whether Conversion liability should be extended to the claim. Conversion is a strict Liability issue. o Meaning that even if it is reasonably thought that they violator had rights to the property in question, they can still be liable for misuse or loss. Mosk in his dissent talks about a bundle of rights?

Do we need to have all of those rights constantly be bundled together? o No not neccissarily we could grant some of those rights without granting others and thereby creating a different method of looking at it. Then discussed types of property that can be sold but not given away. Given away but not sold. And neither given away or sold. o See pg 78. Jacque v. Steenberg Homes, Inc. o Civil trespass. State v. Shack o Criminal Trespass So is trespass a civil or criminal wrong. o It can be either. In State v. Shack Economic Opportunity Act of 1964 Suppose that someone was being paid to provide consumer information to the immigrant workers. Would that be permitted? o According to pg 90. We see no legitimate for a right in the farmer to deny the worker the opportunity for aid available from federal, State, or local services. Or from recognized charitable groups seeking to assist him. o

8/27/2010 7:24:00 AM 9.10.10 Armory v. Delamirie Why protect the interests of the finder against all but the origional owner. o Because in the future a finder wont seek out the true owner if he thinks that he has no chance to ever own it. What did they decide to compensate the sweep? o The value of the most valuable jewel that would fit the socket. Why not award the sweep the amount of the jewel minus the risk of true owner returning. o Because if the true owner returns then the sweep will be expected to return either the jewel or the true value of the jewel. What if true owner returns looking for the Jewel and the sweep is nowhere to be found. True owner sues the goldsmith who would win? o Court ruled in Winkfield that action against a present possessor if the bailee has already recovered is bared.

Meaning you can only sue the one who gained by the way of finding. Personal Property if you want the value you would file either a conversion, trespass to chattels, or a trover. If oyu wanted the actual return of the property you would file a Replevin. Real Property to recover the value od property would file a trespass, to have the poperty returned file an ejectment. Hannah v. Peel. 9.13.10 McAvoy v. Medina What does it mean for property o be lost? o Unintentionally placed somewhere and left there. What is abandoned property? o Property left with no intention to go back for it. What is mislaid? o Left with the intention of coming back for it.

Does it make sense to evaluate mislaid and lost property separately and have separate rules for each? is a statute of limitations. A limit on time that a person can make a claim. if it is a claim to property and the time passes. The person in possession obtains the property as a right of law. What if there were no statute of limitations? o You could go as far back as you want to determine who rightfully owns the property. o Disrupts peoples expectations. o Title insurance would go up. o There would be problems to investigating the facts if you had to go too far back to evaluate the claims. o Could create a risk of fraudgulent claims. Intestate investigation. This happens when a person dies without leaving a will. Who gets the property? o The state appoints an agent who enacts the statute of the state which dictates who would inherit. Sometimes a person could have multiple heirs. Does that create problems? o Could have equal claims and if they were allowed to claim it after extended periods of time, then it would create issues. Adverse possession. What is it? o What if people use property that is not their own. Under the doctrine of adverse possession when do they take ownership? o When the actual owner fails to take action due to the end of the statute of limitations. Are their policies that are furthered by having a statute of limitations. o This awards people who make the most beneficial use of land that would otherwise sit idle. o You quiet complaints to title after a period of time.

9.15.10 What o What o

How does the doctrine of adverse possession (AP) aid someone in proving meritorious titles? o If they lost everything they had indicating the title but have lived there long enough to earn the title. o Also protects against errors on the deed, such as misspelling of names or misstatement of the land in question. Oliver Wendell Holmes talks about how we get used to things and come to view them as ours. As such he suggests that we should look at (AP) from the perspective of the one aquiring rather than the one loosing.

Note 2 on pg. 115. Talks about the generation of a new title that is in effect from the time of the first point of entry. o So even if a 10yr statute of limitations we can still assume ownership of something found when they actually came into possession. Van Valkenburgh v. Lutz Owned 2 lots and are tryng to take adverse possession of additional land, Van Valkenburgh owned the title but never took possession of it. Lutz are trying to take adverse possession. Facts tell us that there were actually 2 lawsuits what was the first one that is relavent. o 1st lawsuit, Lutz sues Van Valkenburgh to prevent him from erecting a fence. Claiming that as he has used the pathway for a period of time, he has the right to use that path. o So he claims a prescriptive right, what does that mean? Similar to adverse possession but only for the matter of the pathways (??????????) o Second suit is for adverse possession o Where did they build their house? On their property, but they built a home for brother Charlie on the other lots as well as chicken coups and a garage, also left large amounts of junk and trinkets. Did not do anything to really mark the boundries, maybe marking one boundry according to the descent.

o According to trial court when did they come to own it by adverse possession? As of the year 1935. o How long does it take the statute of limitations to run? 15 years. Seisin defined as a common law term indicating the rights that a person has indicating the owning of a free hold. But if you own a freehold you have sesin of the property which can mean actual possession of the property or a form of legal ownership showing that there are tenents in actual possession while you still own it. There are essentially 4 different requirements that are neccissary to establish adverse possession at least according to the NY statute. o 1) Actual entry giving exclusive possession that is o 2) open and notorious o 3) Adverse and under claim of right o 4)continuous for the statutory period. There are two aspects you can use to determine if the land has been held sufficiently to grant adverse possession. o 1) Where it has been protected by a substantial inclosure. o 2) Where it has been usually cultivated or improved. In this case there was never an enclosure sufficient to show this. So the only question is if it was improved. o 39 seems to indicate that he should at least gain rights to the portions that he had been using. So why does Ltz not win. Court decides that he did not cultivate in a way giving rise to adverse possession as the garden was not consistently in one central place so as to grant that portion What about improvement how does that differ? o Something that would increase the value. Perhaps a building etc. What did they do to add improvement? o Charlies house, or the Garage. Why doesnt that satisfy the requirements? o At the time he built the house he knew that it was not his land. o The Garage, he thought he was building on his own property.

What mental state must one have to establish adverse possession under the NY statute.

9.17.10 Van Valkenburgh v. Lutz Does the court create a false dichotomy by their actions towards adverse possession. 9.20.10 What is the difference between color of title and claim of title? o Color refers to written title claim o Claim would be something like adverse What advantage does color of title grant in establishing adverse possession? o Gives credence to even such things that you might have only partially owned. Mannillo v. Gorski o Howard v. Kunto o Doctrine of Privity is designed to deny squatters or trespasses over another.

9.24.10 Problems on pg. 142 In order to gain privity to establish adverse possession requires a transfer of title that doesnt occur in problem 1. 9.27.10 Acquisiion by gift. o 3 things neccissary. Intent Delivery Acceptance Multipl types of delivery, actual, constructive, symbolic. o Constructive is giving a key, or something that gives a means of access. o Symbolic woud be like a deed or something symbolic of the transfer of property. Consider the steps of makng a gift in regards to problem on page 158.

o Is there intent, not origionally but afterwards. Causa Mortis gifts are considered on death bed and must be given right then. Inter vivos is when alive. 10.04.10 Fee Tail Estate. o A gift to a person and that persons lineal decendents. o Origional person could not do anything that would harm the decendents. What is the current status of fee tail? o Exists in 4 states, MA, RI, __, __ o In all others it either no longer exists, or else they allow the creation of future interest but it is different from the fee tail. In the states where fee tails still exists how can you eliminate the fee tail. o By conveying while still alive. Cannot be done through the will. White v. Brown o Do you need a witness for a holographic will? No o What is a holographic will? A hand written will. o Rules of construction Rules that the court feels will help them in determining a writers intent where they find the writing to be ambiguous. In common law it was assumed you were making alife estate unless otherwise specified. However the statutory rules of the state. Indicate that at the time of death you or bequeathing everything unless specifically specified otherwise. Pg 195 talks about 3 different kinds of restraints that exist. o Disabling restraints, forfeiture restraints, and promissory restraints. Which of the three is at work here? o Disabling restraint.

What is the conequence if the granter of a fee simple estate has created an absolute restraint on alienation. o Cant be done. What about a partial restraint on the property? Say only for 5 years or so. o If limited in some way, only partial, it is found to be valid if found to be reasonable.

10.6.10 Baker v. Weedon

8/27/2010 7:24:00 AM 10.04.10 Fee Tail Estate. o A gift to a person and that persons lineal decendents. Origional person could not do anything that would harm the decendents. What is the current status of fee tail? o Exists in 4 states, MA, RI, __, __ In all others it either no longer exists, or else they allow the creation of future interest but it is different from the fee tail. In the states where fee tails still exists how can you eliminate the fee tail. o By conveying while still alive. Cannot be done through the will. White v. Brown Do you need a witness for a holographic will? o No What is a holographic will? o A hand written will. Rules of construction Rules that the court feels will help them in determining a writers intent where they find the writing to be ambiguous. o In common law it was assumed you were making alife estate unless otherwise specified. However the statutory rules of the state. Indicate that at the time of death you or bequeathing everything unless specifically specified otherwise. Pg 195 talks about 3 different kinds of restraints that exist. o Disabling restraints, forfeiture restraints, and promissory restraints. Which of the three is at work here? o Disabling restraint. What is the conequence if the granter of a fee simple estate has created an absolute restraint on alienation. o Cant be done. What about a partial restraint on the property? Say only for 5 years or so.

o If limited in some way, only partial, it is found to be valid if found to be reasonable. 10.6.10 Baker v. Weedon 10.8.10

Future intrest

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10.11.10 Future intrests o Sometimes misleading in that it makes it sound as though they dont have current rights to the property but they do. Reversion o Reversion indicates that if there is a remainder interest that is not spoken for in a lesser estate then it reverts to the grantor or its heirs. 10.13.10 10.15.10 Available options for assistance Cali (software in library) should have future intrest stuff. O to A for life, then to B and his heirs, but if B declares bankruptcy, then to C and her heirs. o 1) A gets a life estate. o Any future interests. Yes. o What kind? Reversion? Not reversion. o A remainder Remainder means that it is at least possible that B will get it after waiting paitently for As life estate to end. Executory interest ends the previous intrest of a different individual. o Does O have a reversion? No. He gave a life estate to A and the Remainder to B. the combination of which completes the fee simple. o What interest does C hold? An executory interest. In order to receive it the remainder of B must be cut short. Is it a shifting or a springing? It is a shifting executory interest.

Because it cuts off the interests of a transforee. See page 231 for a great rule of thumb for determining how subsequent future interests exist. 10.18.10 Alternative contingent remainder. o This is a contingent remainder that are alternative in that if one if vested it makes it impossible for the other to vest. (a dicatomy of vested interests.) Trusts. o Why make trusts? Sometimes for tax exemptions. You want someone else to care for it till the trustees come of age. Destroying contingent future intrests. o Destructibility of Contingent Remainders. Origionally dictated that a remainder was abolished if it did not vest at or before the termination of the preceeding freehold estate.

10.22.10 10.25.10 Problem 6 pg 249 (c) o This is a class gift, therefore you have to be able to show that all members of the class will meet the rule. 10.27.10 Symphony Space, Inc. v. Pergola Properties, Inc. What kind of interest is at issue in the grouping case. o Rights of first refusal, which doesnt force you to sell, it simply gives you the first chance at buying it if they should sell it. Reforms to try and mitigate the harshness of the rule of perpetuities.

11.2.10 Exam stuff

o Usually the essay focuses on the modern law, occasionally a multiple choice question will be in the past (fee tails) o People usually get more points from the essay than they will from the multiple choice. Budget your time wisely and accordingly. How do you know when it is a reversion or something else. o Compare the vested estate that the transforer had vs. the vested estate that the transferor gives. If given is < than had then there is a reversion. o Sometimes there is a possibility of a reverter which is considered to be on a smaller level. o

Co-Ownership and Martial Interests

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11.3.10 When we are dealing with joint ownership there is the possibility of ending or giving away the property without the permission of another. Harms v. Sprague o 2 issues presented on pg 285 Does the issuance of a mortgage on a joint tenancy severe the joint tenancy? If it didnt then the title remains the same and the death of one would result in all of it going to the other. If it did severe then the it becomes a common and as such would go to SPrauge. Other question is if the mortgage survives as a lin on the property. If it does then Williams would be responsible for paying for the mortgage.

11.5.10 Harms v. Sprauge Joint Tenency Bank Account o True joint tenancy Half interest in everything deposited in account and survivorship rights. o Payable-on-death account Only conveys survivorship rights. o Convenience account Power to draw on the account to pay bills for the original owner (O joins A only so A can pay Os bills) As to litigation over joint bank accounts. Most jurisdictions operate on the presumption is that the joint account belongs to he parties in proportion to the net contribution of each party.

11.8.10 Spiller v. Mackereth Marital Intrests o 2 types of views.

Common Law, Separate property. It is separated based upon who provided it. Community property system. It is where the spouses share the ownership of the total earnings. Sawada v. Endo 11.10.10 How have the rles of alimony changed. o Generally only support until spouse can get on their own two feet. 11.15.10 Problems on 341 and 342 is an actual case dealing with community property. Claim is made against his estate that he had misappropriated her portion of the estate. Question was whether or not she would have to track don all the girls to recover the estate. o Court held that instead she could bring suit against the estate for breach of fiduciary agreement. Pg. 342 deals ith community property mixing with separate property. o 3 rules Inception at right. If aquired over time then you view the nature of the property to determine if it is separate or joint property. Time of vesting rule, looks at when you finish purchasing it and deal with it that way. Pro rata sharing rule you treat it as a separate property and community poperty in proportion to how much was done as separate and how much was done as community property. (dont forget to divide community property.) Problem 1. o The insurance policy was purchased from community property then the life insurance policy is community policy, meaning that on death half would be willed to the son as per Hs desire, half of it would go to spouse as equal owner in community property.

Migrating Couples o If moving to a new state the property is dealt with as the form of property it was when it was purchase. o However the rights of a surviving spouse are dealt with in the manner of the state where a person ends up. How do you reconcile this? Some states deal with it as a quasi community property. Rights of domestic partners. o Dont worry about the details of massachusets constitutional law in terms of the test. 10 multiple choice o Whether you know particular stuff. o 3 points per question o total of up to 30 points 1 limited area essay. o Most people get more points on the essay. o Traditional id issues and discuss the issues in as much detail as possible in the area provided.

Exam

Open book o Can bring hard copy of your notes o Self prepared outline. No group outlines No commercial outlines 11.19.10 Library has a number of sample exams on reserve. o Dont study from the sample answers since even the best answers will have incorrect facts. Strategies for answering the exam o First Identify the major issues. Go through the elements of the issues such as gift hit the three elements. Dont make the mistake of assuming that things are obivious and thus not discussing them.

o Occasionally there have been points for connecting it to a particular case, but usually it is points for recognizing the way that the rules interact with our facts. Suggestions based on previous exams. o Really bad idea to skip issues. Even if you dont known an issue as well, even a bad analysis ill likely get you some points. o Bad idea t change the facts of the hypotheticall, thats a really bad idea. Asked about this set of facts not the other set of facts. o Do address facts that you would need to know in order to answer the question, for example, is O really incapacitated. o Dont be wordy. o Dont worry about cosmetics. More important to get the content of the answers than a pretty paper. o Be thorough in you analysis. Flip side is if a partiular question only comes into play under a specific circumstance then dont discuss those issues if they arent there. o If you dont tell him things he may be unable to assume you know it. o Can bring an outline if it is one that you are preparing yourself. Try making a full length outline, and then maybe make an outline of your outline. Really develop your outline as a tool. o Prioritize the essay. Bulk of the points will come from the essay rather than from multiple choice. o Consider multiple possibilities. On a lot of issues there isnt neccissarily a correct answer. If there are multiple possible answers then note that as well and talk about it.

Midterm Exam Review

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Exam itself. 2 hour exam. 10 multiple choice questions. o Allows to test on a deeper level. o Set of facts, then question. o Some test knowledge of what was in readings. Limited Space essay question. 60 Lines. Typically what gets point o Saying something true and relevant about the law o Saying something that applies the facts to the law. Save space by doing analysis as you discuss the facts. Generally dont need to define the terms. Can have Book Class notes. Outlines you prepared yourself. With rules such as Shellys case, or doctrine of worthier title. On Multiple choice may indicate jurisdiction issues. On essay you need to determine how much to allocate to those options. Exam: what level of specificity are you looking for? For example rules of adverse possession which has 8 elements. Be as specific as possible with the 60 line limit. Will accept outline as an answer. Shellys case: One requirement is that both the life estate and remainder have to be legal or both have to be equitable. o Basically both have to be in a trust or not in a trust. Does a valid deed grant all property and chattel contained in the deeds description? Some kinds of personal property that can be transferred through deed, such as a car. o Or a gift in writing. Issue might be is this sufficient writing to transfer this property. Condemnation award:

In this country the gov. has the right to all property and can force you to sell them property. If the gov. steps in and does this then they must pay you for it, which is understood to be the value of the property. Property is a bundle of different rights. Most significant of those rights is the right to exclude others. o Some instances where you dont have that right at least with respect to some people. Adverse possession on Chattels: Traditional adverse possession for real party, focus is on the conduct of the possessor. With personal property the fact that it is ombile can make it difficult to monitor the property. o Way that they deal with it is the discovery rule as seen in _____case. Question is when should the owner have known of the necessity to identify who has the property and sue to regain it. Statute of limitations in discovery rule jurisdiction

begins running when the owner of property should have known. If there is adverse possession of a property, does there need to be same requirements as normal chattel that are found under rules for adverse possession of personal property? May be an issue of it running of the statute of limitations for the real property. Might also have issue I here is property on the real property that wasnt owned by previous owners and as such you have another issue of ownership. Assumin adverse possession of property, is that superseded by availment? Property is relavent, you can have right over some people but not over others. Class Gift: Vested subject to open, could ascertain some of the members, as such vested in them, but might vest in others later on. Under rule of perpetuities it still is not vested in respect to the rule.

Liens and mortgages: in joint ownership or joint tenancy, how is it affected by death if one granted a mortgage? Possible in a small number of jursdictions that have a title rule, otherwise wouldnt be severed. What happens to mortgage if it is only on one and he dies first. Horn book understanding is that the deceased persons ownership is disappeared and now all owned by survivor if there is a right of survivorship. If it is in common then the mortgage holder could still assert it against the property. Bailment: if clothes are given to wrong person at drycleaner who does bailor sue? Current possessor, or drycleaner? Winkfield case If Bailee has sued the possessor and recovered then the bailor could only sue the bailee. (gives defense to the possessor against the bailee) Disabilities: Is that only relavent when the statute of limitations? They hold the statute of limitations, if it is a disability that is occurring at the time that the statute of disability begins. You dont tack disabilities, only ones that matter are those that exist of the person at the time adverse possession started. Conversion is a strict liability tort. Even if you believe the right that you purchased. Etc. Remember Moore Case. Rule of perpetuities usually does apply to a trust. Greater the present interest the less likely that the actions of the possessor will be deemed waste.

Landlord Tenant Law

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1/14/11 Tenancies o How would you view a tenancy that has no known end but isnt periodic and is not neccissarily terminable at will by other party. 1/18/11 Statutes that prohibit discrimination in the sale or rental of property. o The Fair Housing Act o Civil Rights Act of 1866 How does discrimination work. o It is in the mind of the person who is discriminated against. o It is shown by looking for the effects. Such as, being rejected from the property, and the property maintaining open, or being rented to someone else. This establishes the Prima Facie case. At this point the burden shifts to the D to explain why they did not discriminate in their decision of renting/selling the house. P must show that there is a disparate impact that effects the party who was discriminated against. D would then have to defend their business reasoning for the manner in which they are effecting the party. In 3604 F there is a provision that deals with the fact that on occasion you are required to treat handicapped persons differently such as making certain provisions for their well being and allowing them to make changes for their benefit. Hannan v. Dusch o American rule is that L has no obligation other than granting T a legal right to enter into possession. Unless the lease allows for it under the American rule the T doesnt have access to leal remedies against the L. Theory here is that it might drive up costs to require L to do this and there are enough remedies available to T

to secure his rented/purchased land against the 3rd party trespasser. English Rule; L has a duty to ensure that T takes possession on the agreed day. o Here T has the rights to sue for damages, possession, or both. Depending on what they have to do. o Theory here is that the L has more knowledge and has the ability to do something about it before the tenancy begins.

1/20/11 How can you distinguish between sublease and assignment? o Sublease leaves a remainder in the original Tenant. When T transfers the lease to T1 is T still bound by the original lease? o Yes. What about T1? Are they bound by the K between L and T. o Depends on difference between privity of K and priviy of estate. o Is T1 liable under privity of K to L, unless T1 enters into a special K he will not be a part of the original K between L and T. There are some instances where a person is entering into a K for the benefit of a 3rd party (Think of life insurance that is made not or my benefit or for the benefit of the insurance company but rather my next of kin.) Here L benefits from the K between T and T1. And as such even though L and T1 did not enter into a K directly we might deem them as being in a K based on

Ls benefit o Assuming no privity of K between L and T1 is there another theory that L can try and hold T1 liable under the original lease. Privity of Estate: keep in mind that essentially everyone can be in a privity of K with L, infinite number of persons, but only one person is going to be in privity of estate with L. so if T retains privity of estate then he

would be liable, but if it is assigned to T1 then T1 could be liable for some things, although not neccissarily everything. Ernst v. Conditt o What does the court decide? Not really a reversion and we dont really look at the language but rather that of what it actually did. And what it actually did was transfer everything making it an assignment. o Is there a way that even if this was a sublease that you could argue that Conditt is in privity of K with the Ernst? Yes the K states that it is subleased to Conditt on the condition that the origional lease stand, potentially making him liable to L. Problem 2(a) pg 393. o T would retain both privity of estate and of K, as such L could sue T. T could possibly file to bring in T1. o What if T is insolvent or cant be found? L could terminate the rent with T and evict T1. Some states have a statute that allows you to recover rent from a sublet tenant. o What if T1 agreed to pay the rents based on the original lease? Then L would possibly be able to recover fro T1 since there might be a privity of K since T1 might have contractual obligations that L would be able to inforce. Problem 2(c) pg 394. o T would be liable to L on a theory of privity of K, but not because of Privity of estate since estate was assigned away. T was never released from the K. o T1, and T2 both dont have privity of estate, T1 has privity of K with L, but T2 doesnt have privity of K since, at least according to the facts we have, he made no promise to fulfill the K.

1/21/11 Problem 2 pg 402 Berg Case o Trial judge decided that if it was an eviction it was wrongful

o T3 might be liable under privity of estate but like T2 not under privity of K. Assuming that L is successful in suit against T, then T might have claim against T1 under privity of K, T might also have claim under theory of subrogation against T3, since T3 has privity of estate. Kendall v. Ernest Pestana Inc.

as a matter of law. o Common law rule found that an eviction was wrongful under 2 conditions. It was wrongful unless It was done peacefully. Have to show that you are landlord with right to re-possession. o Here L says that the lease was violated by the changes made to the building structure without the approval of L. In addition the restaurant was operated in a manner that was in violation of the health code and thus it was in violation. Court found that the method that the restaurant was taken was done peaceably only because she wasnt there, and had she been there then there would not have been a peaceful resolution to the changing of the locks. New rule out of Berg. o L needs to resort to the judicial process to evict a tenant, unless there is an abandonment of the premise by the tenant, or if the tenant forfeits the keys. Are there any arguments in favor o allowing self help for landlords? o Cheaper than needing to have a lawyer nd go to court. o Allowing landlords to quickly evict T who dont pay benefts. Sommer v. Kridel o (you were the one being questioned)

Dealing with the shift of the burden from tenant to landlord, landlord gaining the burden of re-letting the residence I possible. Also dealing with the idea of the L being responsible to show proof that he acted with due diligence in order to re-let the space. Finally dealing with the fact that the Restatment takes a different view since the T opens the L to a possibility of vandalism. What options does the L have in order to recover once a property has been abandoned. o Surrender Terminate the lease Could still theoretically be entitled to some damages in the future. Suing for back rent. Anticipatory breach Calculated damages by deciding; Lease Rent FRV = Future Damages. o If the L is not under a duty to mitigate Then you can leave it open and continue to collect rent from tenant. Additionally may have to sue for this to get it out. o If there is a duty to mitigate or L wants to mitigate. He can attempt to Re-let He does this on the tenants account. (Literally called Re-letting on the tenants account.) T would only be responsible for the time that L is not able to re-let.

Security Deposit Laws in GA. o Have to allow you to fill something out beforehand stating the damage that you found. o Have to return your deposit within 1 month. If they deduct for new damages they have to give you a list of the things that they have found wrong with the apartment.

If they dont give you the lists they cant charge the damages. o You can take hem to court if it is incorrect. If you win then they have to pay triple the amount wrongly withheld, and attorneys fees. Only applies if they have 10 or more apartments, or if it is managed. 1/27/11 Implied warranty of habitability. o Construcive eviction doctrine is still needed for commercial properties. o Also small landlords, or nonmerchant landlord might not be subject to the warranty of haitability.

Transfers of Land

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1/28/11 Would it be important to know the marital status of the seller? o Rule of Dower might make it important since the spouse might have rights to the property. o Or if you are in a community property district since both of you might have an ownership in the property rights. Sale of a property generally requires the transfer of a good and merchantable title is that satisfied by adverse possession. o It should not be by adverse possession, unless the adverse possession is beyond the statute of limitations. Could you ask for record title? You could ask for it and that would give you some extra protection since it is higher than marketable title. Can you convey marketable title while there is a covenant restricting the type of house built, or with an easement on it? o Yes, marketable title would be transferable, if indicated, and would only limit the buyers ability. Licari v. Blackwelder

2/1/11 Why is marketable title adequate in most instances? Lohmeyer v. Bower. o This case had a restrictive covenant that any house built on the property would be 2 stories tall. o Zoning ordinance/city ordinance not an encumberance on the marketable title. o Restrictive covenant is an encumberance on marketable title. 2/3/11 Suppose O offers to sell a piece of land, contract is not yet closed and O dies, if equitable conversion what might that do to Os estate? If A gets all real property, and B gets all Personal property. o B would get it after the sale goes through. Although A would be considered holding the property in the meantime. If the house burned down before contract is completed, then the doctrine of Equitable conversion would indicate that the loss goes against the buyer,

o Unless the seller has insurance in which case the seller is seen as holding the insurance in trust for the buyer. Are there any risks by placing the risk on the buyer in the time in between? o Only have to let them know about problems that people care about in terms of what adds value. 2/4/11 Jones v. Lee o Typically three options for breach of sale Damages Retention of the deposit (seller) or restitution of the deposit (buyer). Specific performance of the contract. Rule sometimes reffered to as the loss of the bargain rule. Buyer might be able to recover damages for loss of bargain. Seller we subtract the purchase price from the FMV and get the LoB (loss of bargain) For buyer we look at FMV (at breach) and subtract purchase price that gives us the LoB for the buyer.

o o o o

o Punative damages here were awarded due to the lies of the buyers who had the money to purchase the home Note on pg 510 outlines the issue with damages and timing which causes issues. o Such as in a declining market where the courts have occasionally assessed the FMV at the time of the breach. Other courts instead try and identify it at the time of resale, which in a declining market is a better measure of what is lost. o In climbing markets if the seller backs out then it could potentially be done in reverse and assess the damages at the time that the home is sold at the higher price. Kutzin v. Pirnie o Rule expressed that they dont get the deposit is considered the minority rule. Majority rule is usually that you can keep the deposit so long as it is not more than 10% of the overall contract.

Court identifies certain times when specific performance might be more just. Usually when FMV is not enough due to other value that the party places on the land such as sentimental value etc. For this reason in land specific performance is generally allow more.

Deeds o What happens if someone forges my name on a deed of land that I own. And then tries to sell it to someone else. A Forged deed is void. And the actual deed owner would prevail over the bonafide purchaser. However a good faith purchaser would prevail over someone when there is an error in the deed that the origional owner was aware of. Even if the error was that the origional owner didnt get paid, because the owner was in a better position to verify that he got paid etc. A Deed signed over in ignorance via fraud is another example of where the owner would prevail over good faith purchaser. Sometimes the first kind is called fraud by inducement. The second is sometimes called fraud in execution because the person signed away the deed without knowing that he was doing so. o Indentured servant.

2/8/11 Brown v. Lober o Why wasnt the covenant of quiet enjoyment violated? Because the people who owned the 2/3 mineral rights hadnt come in and done anything to infringe on their enjoyment there was no violation. Did violate the covenant of seisin as well as the covenant of the right to convey.

However here the statute of limitations had already run on both of those covenants. However the covenant on the right of quiet enjoyment could be violated at any point in the future. o Present covenants can only be violated at the time of transfer. o Future covenants create continuing requirements going forward. What would the Browns have to do to get a claim under one of the future rights. They could have tried to exercise their mineral rights and if the original owner did nothing then they would have been fine. And if they attempted to stop them then they might have had a claim since the original owners would have been attempting a constructive eviction AGC: go over the covenants on 517 and 518.

Frinberger v. Anzellotti o Covenant against encumbrances was claimed violated. This is a present covenant. o Interest was initially transfered over to current owner by brother who was a previous owner via a quick claim deed. Therefore no promises were made as far as encumbrance free etc. o Covenant against encumberances has 3 main types. Pecuniary damages; like mortgages judgement liens, tax liens, or assessments Estates or interests in the property less than the fee; such as leases, life estates or dower rights. Easements or servitudes on the land; such as rights of way, restrictive covenants and profits.

2/15/11 pg 552 and 553 note 4. Going forward what should we do different?

o From a consumer standpoint, dont live outside your means. From a lender standpoint, dont lend to people who cant pay you back. 2/17/11 What is the difference between purchasing the land subject to the mortgage or purchasing the land and assuming the mortgage. o In both case the debt can be satisfied by the selling of the land. o Lender can look to the purchaser when the person assumed the mortgage, not when they purchase it subject to the mortgage. o

Title Assurance
2/17/11 Orr v. Byers 2/18/11 Board of Education of Minneapolis v. Hughes Guillette v. Daly Dry Wall, Inc.

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Judicial Land Use Controls: The Law of Nuisance

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3/1/11 Remedies (and more on the substantive Law) Estancias Dallas Corp v. Schultz. o Two tests for reasonableness. Does the utility outweigh the gravity of the harm? Willard v. First Church of Christ, Scientist. You could draft a document to Petersen for the land and have Petersen write a lease for the church Could deed the land to the church and church deeds the land with an easement to Petersen. Note 4 pg. 676 asks if it is an easement appurtenant or in gross? o Appurtenant= and easement over a parcel of land that is pertinent to another parcel of land. For example a land locked parcel of land that needs the land (the dominant appurtenant) in order for a road to connect it to the highway. The subservient easement is the land that gives up and to the road. Usually, transferable. o In Gross= involve only servient estates Can be attached to a person not usually transferable. Willard had an easement that was a fee simple determinable.

Licenses License is a permission given to a person or occupant of the land to do something that would otherwise be considered trespass. Sometimes revocable. o Irrevocable under two reasons: coupled with an interest in the land. Under the rules of estoppel. Hollbrook v. Taylor. o D purchased property in 1942 there was a road built in 1944 to connect to a road that was use for mine purposes for 5 years. o Next used by tenants until 1961 to reach a home that was rented.

o Appellees want to imply an easement court gives us 4 ways. Express implication Prescription Similar to adverse possession but it doesnt have to do with who owns the property, but rather who has the right to use the property. Estoppel This is granted when a person changes position to their own detriment based on the other individuals opinion. Grant o Appellees claim to have granted temporary permission which was a license and that they were revoking the license. 3/4/11 Othen v. Rosier o Question is whether the easement that Othen is attempting to exert was implied. Three things neccissary for implied easement. Unity of ownership of the alleged dominant and servient estates Roadway was neccissary and not mere convenience. Necessity existed at the time of severence of the two estates. o How is this different from the previous case and the quasi easement. In van sant there is a pre-existing use of the owners property. What elements would be in both cases. The three above elements. Establish an implied easement by necessity. An applied easement by pre-existing use. Requires the first element above. Also need to show necessity at the time that the pre-existing use existed.

There is one more thing that you have to prove for pre-existing use (??????) Is the degree of necessity the same? Have to prove more necessity in case of preexisting use rather than just general necessity. o Court here rejects the implied easement by necessity? There is a Defect in Othens argument in that it was neccissary. No evidence that it was a necessity rather than a mere convenience on the date of the deed. Would have needed to prove more rather than just had this. It was his burden to establish the necessity that he couldnt have gone to a different road. o Othens second argument was that he should get the easement by prescription (essentially adverse possession. ) Court found that he wasnt using it exclusively. In the west the land owner that is landlocked can statutorily exert an easement over other land under necessity however we require payment. o Based upon the power of eminent domain Because it is based on this power might make sense to require payment. Easements by prescription o Most courts say that exclusivity has to do with specific rights not where the public is using it. Dont think of this in the exact same way as adverse possession Simply trying to establish that you have a right to to use the property. Rather than an exclusivity, or someone elses right to be there. Matthews v. Bay Head Improvement Association o Dealing with beachfront property that is the publics property to use.

o Court addressed in Avon case publics right to use the waterfront At least in some circumstances the public can be given the rights to dry sand owned by private entities. Reasoning of the opinion seems to apply in this instance. Seems to indicate that the public could use any of the private land But court indicates that it only has access to reasonable access and reasonable use. How does the court decide which of the land is going to be invaded. Could be that they decide on one and the others have to compensate that person. Could this possibly require payment under the just taking clause? o Not exactly a taking so not a traditional taking.

3/8/11 Miller v. Lutheran Conference & Camp Association Brown v. Voss o Brown received an easement for crossng lot A to get to Lot B but the started using the easement to get to lot C. o Vosss want to get an injuction to prevent the Browns from using the easement to get to lot C. Issue is whether the owners of lot C. The Browns have exceeded their easement. Presault v. United States. o RR origionally got the right to cross of lots A and B and the question is whether or not this qualifies as an easement. Land was origionally given right to the land after receiving a commissioners grant and then moving on and building the RR with help from the government who is excercising eminent domain. Lot C was granted but was not done through eminent domain.

3/10/11 Creation of easements o Express Terminated by Release o Prescription Terminated by prevention of use for the prescriptive period. o Implication (2 Kinds) Necessity Terminated when necessity ends. Pre-Existing Use. Terminated when o Estoppel Terminated by Estoppel, from easement owner saying something. Other termination o Through merger an easement can be terminated. o Condemnation; meaning the government needs the property for public use and that use is contrary to the use of the easement. Negative Easement. o A few certain instances where a person is prevented from using their land to affect another. Prevents a person from using your own property in certain ways. Blocking windows Interfering with air flowing to your land. Removing support for your building Interfering with the flow of water. Conservation and other novel easements. o Used to preserve the land for historical or environmental reasons. Covenant Running with the Land o Essentially a promise Affirmative covenant is a promise to do something. Negative covenant is a promise not to do something.

o If A covenanted with B that he would only use land for residential purposes then if the covenenant runs with the land it ould be binding upon subsequent parties who were not party to the origional contract. A benefit running to the land is a question about if a person sells their land that has the beneficial side of a covenant if the sale still carries the benefit. Burden on land is the same general idea. Problems on 744 o Problem one both parties might make a covenant to only use property for residential purposes only in order to preserve the lands value. o In order to establish a covenant that runs with the land, first we need to see that it was intended to run with the land. In problem 1 it was intended since it is a worthless deal if B can get out of it by selling it to someone else. o Also in order to establish it is necessary to demonstrate that it touches and concerns the land. o Both burden and benefit must have vertical privity, meaning from original coventor to subsequent owners. o Horizontal Privity is also required. To meet this typically going to need to meet the statute of frauds, meaning in writing. Remedy that is typically rewarded as a result of someone breaching a covenant is damages. Tulk v. Moxhay

3/11/11 Sanborn v. McLean

o Some of the neighbors are suing to attempt to restrict their neighbor from building a gas station on site. o What evidence is there that you could use to prove a common development scheme. Maybe a record in the home owners association etc. o D claims they are not bound by it because they claim that they had not received notice. 3/24/11

Pocono Springs Civic Association, Inc. v. MacKenzie o Has a covenant to pay association fees for the property. Didnt want to keep paying the fees on the property so attempted to abandon it because they couldnt use it for their origional purpose. o Might be able to get rid of the property by gifting it to someone who is immune. Homeless etc. Could transfer the deed to a corporation Conservation easements etc. Possibly give it as a gift to a neighbor, since that might result in only one set of home owner fees. If the government takes a property via imminent domain that has an easement, then they have to pay the holder of the easement. o Same would be true if it were a covenant. Common Interest Communities. o Most common form is a condominium. Village of Euclid v. Amer Realty Co. o Is there any question we can raise about them being harmed since maybe their more restricted property is worth less but their more restricted property is now worth more money.

Legislative Land Use Controls: The Law of Zoning.

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3/25/11 Village of Euclid v. Amber Realty Co. o Idea is tat under the due process clause of the 14th amendment the zoning law is unconstitutional. o What does the police power have to do with due clause, shouldnt due process clause be more procedural? Due process clause is applied in more than one way. Traditionally as a set of procedural guarantees. Also sometimes applied as containing substantive guarantees. 3/31/11 Asthetic Regulation. State ex. Rel. Stoyanoff v. Berkeley o House was decided to be too ugly to go in at the location where it was at. 4/1/11 Exam o Probably 15 multiple choice questions. And a 90 line exam. More weight will be put on the spring exam. o Oxford House.

Imminent Domain/Acquisition by Taking.

4/5/11 4/12/11

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Final Exam Review

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3 hr exam. 15 multiple choice questions. And a limited space essay where you will have 90 lines to use. Starts at 9 am in room A on Mon. o Make sure to have a pencil for the scantron. o Outline prepared by yourself, notes prepared by yourself, and your book. Covenant against quiet enjoyment, applies to commercial leases. Thus the theory of constructive eviction would be available to commercial lease. Warranty of habitability does not usually apply to commercial leases. Regulation prohibiting the construction of a single home should be considered a taking. o There are two kinds of taking, Per se and then there is a balancing test. o Per se: if a regulation deprives a landholder of economic use of the property then it is a taking. But there is an exception in common law, if a regulataion is deemed to be within one of these common law situations then it would not be a taking (pg. 1012) Exception is that if you can show that the activiy regulated would be deemed a nuisance then it will not be a taking. Lucas total value destruction rule with the old cases where burning down houses or oil refineries is an emergency situation was not a taking. o Pg 1012 foot note 29 tells us that the principle absolving the state of liability for the destruction of real or other property, and thus would still not be a taking. Applying the balance test to determine if there is a taking under a regulation. o On one hand you are balancing diminution of economical value vs. Public interest. Then look at the economic impact vs. in what way the government is acting. Most thorough treatment is the one from the pen central case. (pg 996) Here we are given a Series of considerations to help decide balancing test.

Note that not all of the factors that you should take into account. This is a little bit like nuisance law. Burden and Benefits running with the land, and how privity fits in regarding covenants and equitable servitudes. o Stronger privity requirements in a real covenant, than in equitable servitudes. Generally for horizontal privity, grantor/grantee had to exist (MA has different standard). Horizontal privity differ depending on burden/benefit. Burden side, successor has to succeed to the same estate to the successor for the successor to be bound. For the Benefit side, simply required that the benefitor had some lessor interest out of the grantors estate. o Equitable servitudes, horizontal privity doesnt exist, and vertical privity doesnt exist on the burden side, all subsequent owners are bound by the servitude. Benefit runs to subsequent receivers through vertical privity on the benefit side.

Regarding equitable servitudes and impling negative reciprocal agreement from a general plan. Under what conditions will a court imply the existence of restrictions on a piece of property even if the court hasnt determined this? o Courts will imply the restrictions if it is property being developed according to a common plan etc. Must have evidence of a common scheme or plan, to demonstrate this. If you have 100 lots and 90 contained restrictions and the other 10 dont the court might determine that there was a general plan and apply the same restrictions on the lots that dont contain the deeds. Can noise coming from somewhere other than directly above or on a lot ever be a permanent physical occupation or do the neighbors of the person who has planes flying directly over their house just have to deal with it? o Principle seems to be limited to noise of direct over flights.

8) (pg 614 problem) o B would prevail because of the 40 year marketable title act, because its been 40 years. o