Professional Documents
Culture Documents
Trespass to Land
Jacque v. Steenberg Homes, Inc. Wisc. S.Ct. 1997 pg. 1
Facts:
ran over s yard w/RV as intentional trespass. Sneaky & deceitful went across anyways after
repeatedly told him not to cross land w/RV.
Rule: Society & private landowners have much more than nominal interest in excluding ppl from private land
Intentional trespass to land causes actual harm to indv, regardless of whether harm can be measured in dollars.
Reasoning:
A series of intentional trespasses can threaten indvs very ownership of the land.
Defs punishment of $31 is unlikely to deter defs from doing it again.
Notes
Any intentional intrusion that deprives another of possession of land, even if only temporary, is
considered a trespass. Restatement (2d) of Torts 158
Trespass to Chattles will result in liability only if it causes harm to the owner of the thing.
Restatement (2d) of Torts 218 cmt. e.
Property rights
Acquire
Exclude
Alienate (buy or sell)
License
Use/keep others from using or
allow to use
o Control
Right to destroy?
Limitations on rights
Disrupt neighbors
Disrupt public
Contract derivatives
Peril to Life
Ploof
Mouses
Case
(Cargo)
Jacques
No
Opportunity
to
Bargain
X
X
X
X
Reciprocal
Benefit
of
No
Property
But
Lives
Saved
X
X
Ad Coelum
Ad Coelum rule: followed in nearly all legal systems for purposes of defining right to exclude.
Owner of surface is also entitled to dig below (ex. For a basement) & above surface (ex. To build 2story house). W/o this understanding, bare right to surface would be pretty useless.
o Air Rights: rights to the column of space above the surface.
No court has ever concluded that operators of airplanes could be held liable in trespass for flying at
cruise altitudes over land below.
BUT4 different doctrinal moves have been suggested to accomplish how to carve out an exception for
over-flights from the ad coeolum rule w/o damaging rules general utility.
1) Action for trespass is available only to persons who are in possession of land (arguments for/against pg
14)
2) Plane over-flights are actionable as trespasses only if they cause actual harm to the surface owner
(arguments for/against pg 14)
3) Plane over-flights are technically trespasses, but surface owner isnt entitled to any damages or other relief
cause she obtains implicit in kind compensation from being able to take advantage of the benefits that
airplane travel has to offerfrom being able to commit similar trespasses over other peoples property
(arguments for/against pg 14)
4) Airspace in which planes travel could be classified as a type of public propertypublic navigable
airspacein which no surface owner has any claim of private property rights (arguments for/against pg 15)
US S.Ct. used 4th theory in US v. Causby (1946), concluding that Congress had effectively asserted fed gov
control over navigable airspace.
o Ct also included that the legislative declaration of fed ownership wasnt a taking of property, unless
the flights come in so low over property to destroy the use and enjoyment of surface area and
improvements.
EX: Google books infringing on the rights of authors. However, Google argued that the injury to each author
was so small or nonexistent, and the transaction costs of negotiating consents with each copyright owner
would be so large as to make the project of creating such a database infeasible.
Old rule of property: Ad Coleum
Even if not using itstill have value to you
o Argument: could still sale air to plane company
o High transaction cost
o Planes have unspecific route so would need license from all houses
Cost of owningpaying
Current rule of property: can use space above him as long as hes actually able to use & uses it
Trespass/Nuisance Divide
Cause
of
Action
Damages?
Number
of
Parties
Solution
Defined
When
does
it
apply?
Trespass
Entered/Stepped
over
a
line
N/A
2
Stop
it.
All
or
nothing.
A
or
B
wins
Protects
the
interest
in
possession
of
land
When
intrudes
on
land
w/object
large
and
solid
enough
to
physically
displace
from
portion
of
her
land.
EX
car/RV
Nuisance
Unreasonable
Use
Matter
Large-ish
Not
too
much
Protects
the
use
and
enjoyment
of
land
With
invasion.
Invasion
committed
by
small
objects
like
gas
particles
Noninvasive
interferences
w/use
&
enjoyment
of
land
[like
putting
up
a
spite
fence]
will
be
nuisance
not
trespass
Reasoning:
A Nuisance is:
Anything which annoys or distrurbs free use of ones property, or which renders its ordinary use of physical
occupation uncomfortable
Anything which interferes w/rights of a citizen, either in person, property, enjoyment of his property, or his comfort
A condition is a nuisance when it clearly appears that enjoyment of property is materially lessened, and physical
comfort of persons in their homes is materially interfered with.
Martin v. Williams (W.Va. 1956): defined nuisance including acts or conditions that affect either the general
public or a limited umber or persons.
Hark v. Mountain Fork Lumber Co. (W. Va. 1945): defined public nuisance = affects the general public,
and private nuisance = injures one person or a limited number of persons only.
Private Nuisance
Public Nuisance
Substantial and unreasonable interference w/private use
Examination of the reasonableness or unreasonableness
and enjoyment of anothers land
of the use of prop in relation to the particular locality
Includes conduct thats intentional & unreasonable,
Any determination of liability for a private
neg or reckless, or results in abnormally dangerous
nuisance must include an examination of the
conditions or activities in an inappropriate place
private use and enjoyment of the land seeking
protection and the nature of the interference.
Recovery for PN is limited to s who suffered sig
harm to their prop rights or privileges cause by the
interference.
No neg, reckless, or abnormally dangerous behavior. Can only look to intentional or unreasonable conduct.
Intentional
Unreasonable
When actor knows or should know that the conduct is
When gravity of the harm outweighs the social value of
causing a substantial & unreasonable interference
the activity alleged to cause the harm
Notes:
Inability to operate septic system is clearly substantial interference with use & enjoyment of land.
BUTif installed septic system, then wouldnt have been able to operate a well.
Question = was it unreasonable for to have well on his property?
Cause of similar competing interests, balancing of their interests = or slightly in favor of well.
Thus, havent shown that balancing of interests favors their septic system.
Not private nuisance cause didnt show it was an unreasonable use of land.
Maybe favor the one thats more difficult to install?
-
Bright Line
o Trespass
o Right to Exclude
Rules:
- Exclusion Strategies (one another gets it)
- EX: fridge and different shelves
Governance Strategies:
- Behavioral rules/geographical rules
- EX: using all food in fridge / Stephanies
roommate eating what she likes
Advantages:
- No doubles/Not taking space
Problems:
- Losing advantage of different parts of fridge
(w/beer in fridge)
EX: playground
- Each kid gets certain play area
- Want kids paying with each other
- Governance advantage strategy
Reasonableness
o Not too much
Governance
Strategy focuses on particular uses of resources, and
prescribes particular rules about permitted and
prohibited uses w/out regard to other attributes or
resources.
Law of nuisance, applied in Hendricks uses this
Crops
Rancher
Farmer
F Entitlement
R Responsibility
Fence $200
Damages $100
Situation #1B:
F Entitlement
R Responsibility
Fence $200
Damages $300
R builds fence
Situation #2A:
F Responsibility
R Entitlement
Fence $200
Damages $100
F takes damage
Situation #2B:
F Responsibility
R Entitlement
Fence $200
Damages $300
F builds fence
Notes on Theorem
If K transaction costs = 0, then same # of cattle will be raised by R, whether or not R is L to farmFer for
cattle trespass. Basic idea is that if K-ing=0, the parties will keep K-ing to modify initial assignment of prop
rights til theyve exhausted all possible deals to their mutual advantage.
o If we ignore distributional impact, & focus only on question of how resources in society are used,
result would be same regardless of initial allocation of rights, if transaction costs = 0.
Two assumptions that Coase doesnt make explicit are:
o 1. Indvs are rational maximizes & all values are capable of being expressed in $$$ terms.
o 2. People are natural cooperators rather than ruthless exploiters.
Assembly Problems
Arises when someone wants to assemble prop rights from
large # of owners in order to undertake a project
High transaction costs from large #s of K-ing parties
EX: Hinmanif planes had to pay every landowners air
it passed through
Bilateral Monopoly
Localizedsituations where prop owner needs
something that can be provided by only one other
person or entity
Problem cause monopoly on each side: one seller and
one buyer for contested resource
Also high trans. costs, cause each party has nowhere
else for an equivalent transaction
Extremely prevalent in prop law
Important to look to the future to identify potential assembly problems and bilateral monopoly problems before
the client gets trapped in a situation that precludes any kind of Coasean bargaining.
Building Encroachments
Pile v. Pedrick
S.Ct. Penn 1895 pg. 52
Facts: s built wall that projected onto s land by 1 3/8 inches. offered to make wall a party wall, but
declined. said had to remove parts of wall crossing prop line, but wouldn't let on his prop to do it. had
to remove entire wall and rebuild from s side.
2 possible remedies:
o (1) Treated, with plaints consent as perm trespass and compensated for in damages
o (2) Or, defs could remove offending ends of stone to other side of the line.
Plaints chose 2nd one and court below ordered it.
Richard Epstein: need to restore all property that you damaged
Holding:
Court says Tough luck, def. Take it down. Costs of this appeal to be paid by appellants.
Pile v. Pedrick
S.Ct. Penn 1895 pg. 54
Facts: Appeal from previous case.
Holding/Reasoning:
Defs had no right, at law or equity, to occupy land that doesnt belong to them.
Ct doesnt see how ct below couldve done otherwise than recognize & act upon this principle.
1 year to remove wall.
Golden Press, Inc. v. Rylands S.Ct. Colorado, 1951 pg. 55
Facts:
caused s foundation (when constructing building) and footings to extend from 2-3.5 inches on s land.
seek an injunction requiring that remove all footings & foundations on their property.
Issue(s): Was the encroachment of land intentional which would determine whether to find L?
Holding: Reversed injunction.
Reasoning:
When encroachment = deliberate and is willful & intentional taking of anothers land, equity may require
its restoration regardless of expense of removal compared w/damage suffered; but where encroachment was
in good faith, ct should weigh circumstances so its not oppressive.
If s encroachment = unintentional & slight, s use isnt affect & danger is small & compensable, &
removal is way much more expensive & causes grave hardship or making removal unconscionable,
mandatory injunction may be denied and will be compensated w/damages.
Ad coelom rule: owners own underground property.
The expense and hardship of such removal would be so great in comparison with any advantages of s to
be gained making it unconscionable to require.
Assignment
of
Entitlement
Wins
Wins
Mode of Protection
Property Rule
Liability Rule
Rule 1: Award entitlement to and
Rule 2: Award entitlement to plaint, but protect
protect this by a prop rule.ex
entitlement with a liability rule.
injunction (stop factory from
polluting or force factory to move)
Damages for health, prop. Boomer Case
Rule 3: Award entitlement to def
Rule 4: Entitlement is awarded to , but can
protected by a property rule.
force to transfer entitlement to in return for
payment for money compensation. Fact wins,
Hinman, no injunction, no damages.
subject to buy for FMV. Eminent Domain.
Stalnaker.
Like pay moving costs.
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Pile
wins, all or nothing or tear it down
(Exclusion Strategy)
Encourages care, will be more careful
Rules-based approach
Cheaper for courts (lowers admin. costs)
Encourages un-neighborly behavior
Golden Press
Distinguishes intentionalif this, then Pile
outcomevs. accidental encroachment (lesser
remedy, wins, but damages or injunction but
has to allow access) (Governance Strategy)
When do you draw the line? depends on what
jury says
Strategic Bargaining
---------------- No, give value of property
|-----------------------------------------------------------------------------------|
------------ Ill close windows
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ORIGINAL ACQUISITION
First Possession: Wild Animals
Pierson v. Post NY 1805 pg. 82
Facts: Post pursing fox w/his hounds. Pierson killed & captured fox despite knowing Post was hunting it.
Neither owned land they were hunting on. Post brought trespass suit contending he acquired title to fox when he
began to hunt it. Pierson said Post didnt have control over fox; so, he didnt acquire any prop interest in it.
Issue: Does fact that person is pursuing wild animal grant that person right to the animal?
Holding: No. To obtain title to wild animal, person must take it. If Post mortally wounded animal, wouldve
been sufficient to show possession since wouldve deprived animal of its natural liberty. But, only showed
pursuit & so didnt acquire prop interest in animal.
Rule: First to kill and capture. AKA First come, first serve.
Negative externality: Banana Peel
Positive externality: Plaint in garden
Dissent (Livingston): Externalitiestake consequences of something, dont hurt you, but hurts someone else.
o EX: Banana peel on ground.
o Rule of capture
Public Policy ARGUMENT [Dissent]:
Death of fox is matter of public interest.
As a public policy matter, decision should offer greatest possible encouragement to destruction of this
animal. It was nearly certain that Post wouldve captured the fox.
Has to POSSESSIONhard to draw line on who and when determines when prop right begins.
Custom
Ghen v. Rich US District Ct: District of Mass 1881 pg. 90
Facts: killed finback whale, but had to wait 3-5 days until it rose to surfacecustomary cause couldnt take
whale then. Usually, finder of whale sends word to town of finding, and owner / shooter, comes to pick it up
and pays finder. Here,guy found it and sells it at auction. buys it. Neither knew killed it, but knew or might
have known if they wished, that it had been shot and killed by someone engaged in this type of business.
- Right Whale = Rule of Capture
- Leading us to Iron holds the whale? Why Gentlemans Agreement
o Danger and effort; Size of boats; Character of the lance; Capital expense and labor; Value
Holding: Belongs to shooter.
Damages = market value of oil obtained from the whale, less the cost of trying it out and preparing it for the
market, with interest on the amount so ascertained from the date of conversion.
Notes:
- 2 major rules of customary whaling rules
o (1) Fast-Fish-Loose-Fish Rule: whale belonged to 1st harpooner as long as it was attached to his
boat, Then got to keep whole whale. Applied to slow-moving whales.
o (2) Iron-Holds-the-Whale (First-Iron Rule): 1st harpooner gets exclusive rights to whale as long
as he was in fresh pursuit. Applied to most valuable & most dangerous whales.
- ALSOCapture rule (whoever finds, gets it)
12
Keeble v. Hickeringill
Queens Bench, 1707 pg. 93
Facts: had decoy pond. Bought materials to catch wildfowl. knew & intended to drive them all away.
shot at pond scaring away wildfowl.
Holding: NOT allowed to go shoot up wildfowl and keep ducks away from
Reasoning:
- Nearness does establish claims
- Rule of Capture = not your duckBut if animal on your land, then duck is yours.
- Every man can use for his property what he wants; Everything did was lawful
RULE: Someone who hinders another in his trade or livelihood is L to an action for so hindering him.
Since it was done in a violent and malicious way, def is L. Had def just created his own pond which brought
waterfowl from plaints land, then that would be okay.
The tragedy of the commons describes problems associated w/an open-access resource where theres an
unrestricted privilege to capture some valued feature of the resource.
Examples of Tragedy of the Commons
Hunting (prob why tags)
Financial-Housing Market
Water usage
(Loan/Houses)
Fishing
Gas usage
Traffic
light
out
(everyone
Pollution
Rainforest usage
trying to occupy)
Littering
Each person would be better off it could get together & agree
13
Hardin on Population
As people grow economically, birth rates decline
o Hard in Chinasister
o Bringing women out of poverty
o Allocation of resources not same
o Rural people?
Space
Hague v. Wheeler, 1893 PDF
Both neighbors taking out gasone is destroying and other is piping it out to use. Gas is being depleted
for the one whos taking it out.
o Minerals moving around (oil& gas)who owns this?
Not really extortion (create situation of duress by expending resources in order to expend someone
elses) cause they can only purchase and sell it to each othermore like strategic bargaining.
Does the right to taking gas out mean a right to destroy it too?
o will get less gas because is flaring it off. ** Seeking injunction
o Big difference in value of gas between and
Solutions:
(1) Leave as are what happened
(2) When cant bargain, courts should be able to give to party whod pay most
(wants it most)
Home Run Baseballs (pg. 109)
Popov v. Hayashi 2002 (Cal. Super 2002)
- Like other abandoned property, they can be claimed by 1st person to take possession of them.
- Facts: originally caught Barry Bonds ball, but unclear whether he had full control of it.
o ended up w/it. sued claiming that he was 1st possessor and so was entitled to ball.
- Held: ball should be sold. Half proceeds given to each cause although couldnt prove he established
possession of ball, once it landed in his mitt, he had an exclusive pre-possessory interest in being
allowed to complete the catch w/o interference.
- First in time rules work best when potential appropriators have heterogeneous knowledge and
abilities.
o Homogeneity of appropriators conduces to well-functioning governance regimes.
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15
16
17
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DISCOVERY
Johnson v. MIntosh US S.Ct. 1823 pg. 113
Facts: From time immemorial, the Illinois and Piankeshaw tribes held and inhabited lands in controversy
Issue: Did Natives do enough to claim the land? (for 1st possession). NO.
Arguments:
: Deed-1773
o Native Am 1773 s
: US-Deed
o US (1803?)
[R]: Native Americans do not have title to land on which they live; they only have possession (occupancy).
Since they do not have title, they cannot convey title to others. Indians do not have a concept of individual
property rights and thus cannot have title. The United States has exclusive title to land because of the discovery
and conquest of America by Europeans.
Chief justice draws distinctions between sovereign title (dominion) based on discovery, and Indian
title (occupancy) based on possession.
Court used a practice of, when faced with conflict, recreating the chains of title underlying competing
claims in order to determine what party has the stronger claim.
The court bases its decision on property factors as understood by Euro society, and found that the US
has sole title, which it inherited from England after the Revolutionary War.
o But the tribes were nomadic people, so problematic to act in a way to disclose ownership per
European settlers standardsall the Euro settlers recognized was agriculture.
Cultural preference of prominence (agriculture)
Reasoning:
However extravagant the pretension of converting the discovery of an inhabited country into conquest
may appear; if the principle has been asserted in the first instance, and afterwards sustained; if a country
has been acquired and held under it; if the property of the great mass of the community originates in it,
it becomes the law of the land, and cannot be questioned.
Other ways of utilizing land that the Europeans recognized:
o Signals of land use (other ways of establishing property to claim property rights to land)
o Continuation of a soverign state of the tribe
Cant have territorial monopolies.
Mashalls Argument:
o England States (VA., etx.) US
o claim is voidnobody can extinguish claims except for US
o Alternatives
o NA have full property New Zealand
o Marshall: NA have undefined claims
o NA have nothing Australia
Notes:
The policy of only allowing non-Indians purchase land from Indians with the permission of the US gov
was disadvantageous to the Indians.
o Indians could theoretically remain on the land but could not force potential buyers to compete
with each other, thus depressing prices.
o They recreate the chains of title underlying the competing claims, in order to determine
which of the parties has the stronger claim.
CJ Marshall draws a distinction between sovereign title (dominion) based on discovery and Indian
title (occupancy) based on possession.
Tee-Hit-Ton Indians v. US US S.Ct. 1955: Congress could take Indian land w/o compensation.
19
ADVERSE POSSESSION
Method where someone, w/o the owners permission, acquires a new root of title to property already owned.
If own things, cant just buy, must take care & keep watch over it.
How hard person to control property VS. How likely its to be confused as nobodys there
20
Carpenter v. Ruperto
[F]: Plaintiff used some of defs property by planting garden, adding a propane tank to the property where defs
only used to store junk and debris on it. Plaint knew she was on defs property when planting.
[R]: Good faith is an essential component of claim of right. When knowledge of lack of title is accompanied by
knowledge of no basis for claiming an interest in the property, a good faith claim of right cannot be established.
cant claim AP over strip of prop if she knew she was planting on s yard.
Notes: In a survey of Am case law, courts generally grant AP only to possessors who act in good faith.
Howard v. Kunto Ct. Appeals Washington, 1970 pg. 208
Facts:
Many different properties purchased with the belief that its owners owned the land, was wrong. The
initial surveyer who surveyed the lands at purchase for each owner was off by 50 feet.
Thus, each owner s land was his next door neighbors and each owner was on someone elses property.
Oft-quoted rule:
To constitute AP, here must be actual possession, which is uninterrupted, open and notorious, hostile
and exclusive, and under a claim of right made in good faith for the statutory period.
Holding:
(1) Rejects conclusion that summary occupancy only of a summer home destroys continuity of
possession required by statute.
(2) Occupancy of tract B during summer months for more than the 10-year period by def and his
predecessors, together with the continued existence of the improvements on the land and beach area,
constituted uninterrupted possession within this rule.
For KuntoCourt just gave deeds to correctly drawn lines.
Comes out in favor of the Adverse Possessor.
Reasoning:
Its been firmly established that the requisite possession requires such possession and dominion as
ordinarily marks the conduct of owners in general in holding, managing, and caring for property of like
nature and condition.
It is not necessary that the occupancy should be actually on premises continually.
If land is occupied during period of time during the year its capable of use, there is sufficient
continuity.
Buchana v. Cassell Wash. 1959: purchaser may tack the adverse use of its predecessor in interest to that
of his own where the and was intended to be included in the deed between them, but was mistakenly
omitted from the description.
Faubion v. Elder Wash. 1956: the general statement which appears in many of the cases is that tacking
of AP is permitted if the successive occupants are in privity.
o The technical requirement of privity shouldnt be used to upset long periods of occupancy of
those who in good faith received an erroneous deed description.
o Their claim of right is no less persuasive than the purchaser who believes he is purchasing
more land than his deed described.
o The requirement of privity is no more than judicial recognition of the need for some
reasonable connection between successive occupants of real property so as to raise their claim
of right above the status of the wrongdoer or the trespasser.
There is sufficient privity of estate to permit tacking and thus establish AP as a matter of law.
o
o
o
21
AP & Tacking
The AP can eject trespassers before the statute of limitations runs, as long as the AP entered the property first.
The AP can also sell or give his interest to a third party.
Tacking: adding of time the first AP used the property to the time the second AP used the property.
Tacking of adverse possessions is permitted if the successive occupants are in privity, which occurs by
contract of sale, will, or other inheritance.
A series of successive trespassers not in privity cannot tack.
***Adverse possession protects the innocent 3rd party who acquires property from the adverse possessor.
NOTES ON DISABILITIES
Typically, state statutes provide that the statute of limitations is tolled for owners suffering from certain
narrow classes of disabilities, including being under age, insane, legally incompetent, or (sometimes) in
prison, at the time the AP entered.
Disabilities arising later usually do not affect the running of the statute, and disabilities in the same or
successive owners cant be tacked.
Also, other hardships that might hinder TO from bringing suit, ex poverty, dont affect running of statute
True Owners circumstances stops the clock for statute of limitations
o (1) Statute of limitations doesnt run against AP
o (2) Those in prison/jail
o (3) Poor personcant defend property, but can gain an asset
o (4) Public ownershipNo AP against public
EX: state park on Howard in Howard v. Kunto
Theory of Corruption (gov taking from people whos electing them) public official
AP on Chattles:
AP on personal property
o May discourage people from being friendly
o EX: A asks B for a book to borrow
A takes book from B without knowing
o EX: ArtworkMuseums
Family low price x y [. . . ] Austrian St. Gallery
Does this sale establish a claim of right?
o Theres a chain of titles and sale occurs, so belongs to gallery.
o Maybe toll statute of limitations as similar to a disability
VS.
Family Seizure (lawful under Nazi reign x y [. . .] Austrian gallery
Voluntary Transactionswill, purchases, gift (much more and more precise than involuntary
transactions/Quick!)
o At margins, lots of problems/similar to involuntary transfers
LAND TRANSACTIONS pg. 871
Once a written offer is accepted by the sellerits a Kgoverns dealings until closing.
Marketable title is title thats free from defects and encumbrances but need not be perfect title; rather
some notion of reasonableness animates this standard, such that marketable title is sometimes said to be
title that is free from reasonable doubt or title that a reasonable person would accept.
A general warranty deed contains a covenant by the seller that he is able to, and does, convey good
title to the buy.
A quitclaim deed contains no covenant of title; such a deed conveys to the buyer whatever the seller
had but contains no assurance as to what that is.
A special warranty deed gives a covenant against title defects stemming from acts of the grantor and
related parties, but not other defects.
22
The US S.Ct. upheld the Minnesota moratorium in the face of Ks Clause and Due Process challenges in
Home Building and Loan Assn. v. Blaisdell 1934 (pg 825)
o Minnesota law said that during the declared emergency period, mortgagors could obtain relief
from foreclosure and execution sales through authorized judicial proceedings and that period of
redemption could be extended.
o Court said: the economic interests of the State may justify the exercise of its continuing and
dominant protective power notwithstanding interference with Ks and likened mass
foreclosures stemming from the Depression to natural disasters.
Real Estate:
(1) Title Theory of (a loan) the mortgage
a. Meet conditions of loan or lose everything
b. K for deed
i. Pay elevated rent and down payment
1. Then refinance and get payment down
c. Just take it and thats itno further claim
d. EX: buy car from dealer.
i. Title and possession to car; bank has mortgage to car
1. Lien Theory
(2) Lien Theory
a. Lien: claim against property/security interest of at least amount of outstanding debt
b. If cant pay, bank will go through process to get title and repossess car, then sell car, and take
whats owedrest back to owners
c. Borrower gets excess money
(3) Trust Deed
a. Variation of lien theoryget interest out of hands from certain indvs.
23
Courts of Equity:
o Buyer gets an equity of redemption
Foreclosing equity of redemption
o Strict Foreclosure in Title Theory
Lenders take it all and do w/e they want
o Lien Theory Foreclosure
Sell property and pay lender/rest/excess goes to borrower
(1) Judicial Foreclosure
(2) Lender has power of sale
(3) Trust deedwho conducts sale?
24
Consumer
X
X
X
Commercial Transaction
- they knew where to go to find ad
- if buying in volume, not a problem
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RECORDS
Its important for environmentalists to have a recording system:
Passve usage/ownership
High value things
o Land
o Animalslivestock
o Cars
Why records?
Divided interest
Valuable
Not a lot of transactions
TITLE RECORDS AND THE TRANSFER OF PROPERTY: pages 859-860
can standardize, easier to show than personal property.
Title Records: by investigating the state of title through the title records, a potential purchaser can gain
assurance at reasonable cost that he or she is acquiring what the seller claims to have for transfer.
NEMO DAT pg. 885
Baseline principle of system of property regarding transfers of ownership: Nemo dat quod non
habetone cannot give that which one does not have.
o Usual rule on property transactions nemo dat
Derivation Principle: the transferees rights derive from those of the transferor.
o If someone owns something because someone transferred it to them, by sale, gift, bequest,
etc.hell normally have only that which the previous owner had and nothing more.
Also related to the principle of prior in time is prior in right.
Nemo Dat EX: A has rights and sells to B, but by mistake, A sells to C too.
But, according to Nemo dat, B would have the rights when A mistakenly sells to C, so by nemo dat, C
gets nothing.
Chain of transactions
o Current owners must be able to trace their ownership back in time through series of legitimate
transfers to an act of legitimate original acquisition
THE GOOD FAITH PURCHASER pg. 891
Good faith purchaser doctrine = important exception to nemo dat
EX: A sells goods to B but flawed transaction because Bs check bounced. B sells same goods to C.
o As long as C bought in good faith and didnt know of the flawed transaction from AB, then
law generally gives C title to goods as good faith purchaser.
o UCC recognizes nemo dat and good faith purchaser exception in 2-403:
Ppl w/voidable title has power to transfer a good title to good faith purchaser for value.
PROVING OWNERSHIP pgs. 901-904
What constitutes notice and how does one provide notice in a way that is fairly cost-effective?
Consent is rarely a sufficient showing of an accurate chain of title.
Taking physical possession of real or tangible personal property was necessary before a person could be
relatively certain that his claim was, and would remain, superior to that of others
Legal rule: to obtain priority in an asset over third-party claimants, an individual needed, in addition to
the consent of the prior owner, to take physical possession of the asset.
**Rules of transfer that require public recordation can reduce risks that a subsequent purchaser wont
acquire good title w/o increasing risk that a present owner will lose his property by theft.
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The recording system has the effect of reducing uncertainty surrounding a transfer of real
property w/o undermining consensual nature of those transfers.
Money is best example of property that is not suitable for a filing system.
Piece of personal property is often less valuable than a piece of real property and is likely to be
more frequently transferred.
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2. Noticesubsequent bona fide purchaser wins unless he has notice (actual, constructive, or inquiry),
and a recorded interest gives constructive, or record, notice.
a. Incentive to record immediately in order to be protected from subsequent good faith
purchasers.
3. Race-NoticeA subsequent good faith purchaser wins only if he has no notice and records before
the prior instrument is recorded.
a. Like race statute but solves problem of dishonest buyer under race approach.
4. Mixed RegimesSome states apply a race regime to mortgages but another type of recording act
to conveyances in general.
RECORDING DOCTRINES BASED ON CHAIN OF TITLE
The recording acts in conjunction with the notion of chain of title define a legally required search for
one who wishes to take advantage of the protection afforded good faith purchasers under the act.
The Wild Deed.
o If a grantee records before her grantor, the grantees deed is a wild deed because its not
connected up to the common grantor by a continuous chain of recording.
o Called a stranger to the title if thinks has a deed but doesnt because nobody recorded it
o Searches of traditional records wont find the wild deed in a conventional chain of title search,
because the name of the grantee would be unknown to searches.
o Majority of courts believe that one cant benefit from the recording acts exception to nemo dat
if one traces ones ownership to a wild deed.
Mugaas v. Smith S.Ct. Washington 1949
Mugaas brought action to quiet title to a strip of land she claims via AP against Smith who purchased the same
land with record title. Court holds that a conveyance of record title to a bona fide purchaser does not extinguish
a title established by AP. Court finds that the recording act does not apply to AP and that where title has been
vested by AP, it cannot be divested by any other act short of a deed- Policy- if the act were applied to AP then
the AP would have to keep his flag flying forever.
Notes:
AP can be an exception to the nemo dat principle, since it allows shifts in title other than by a chain of
voluntary transfers.
o The forced transfer from present title owner doesnt transfer rights greater than the owner
hadAP and nemo dat similarity.
Marketable Title Acts: legislation reflecting something of a compromise between reliance on recording
acts and allowing claims of title outside the record based on AP.
o Idea = allow ppl to stop title searches at point & not have to go all way back to the sovereign.
THE FAIR HOUSING ACT pg. 435
Prohibit a range of discriminatory behaviors against members of enumerated protected classes in the
housing field, with certain exceptions.
FHS, 42 U.S.C. 3601-3619
o 3604. Discrimination in the sale or rental of housing and other prohibited practices
(a) No discrimination based on race, color, religion, sex, familial status, or national
origin. (cant refuse to sell or rent based on those)
(b) Unlawful to discriminate based on those things
(c) No printing or publishing anything indicating a preference for any of those groups
(d) Cant say something isnt available when it is to those groups
(e) For profit, to induce or attempt to induce a sale to anyone from those groups
(f) No discrimination for the handicap
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Frimberger v. Anzellotti
Tidal Marshland. Ds brother transferred land to him via quitclaim deed. D conveyed land to P by
warranty deedfree & clear of all encumbrances, but subject to building & zoning restrictions of
record. P discovers part of prop in violation of st statute. St agency advised P to come into compliance,
but wasnt threatening litigation. P instead sued for breach of warranty against encumbrances.
Issue: Whether a latent violation of a land use statute, existing at the time of conveyance constitutes
an encumbrance such that conveyance breaches grantors covenant against encumbrances?
No: To render a title unmarketable, the defect must present a real and substantial probability of
litigation or loss at the time of conveyance. Latent violation of land use regulations, that are unknown to
the seller, as to which the agency charged with enforcement has taken no official action to compel
compliance at the time the deed was executed, and that have not ripened into an interest that can be
recorded on the land records do not constitute an encumbrance for the purpose of the deed warranty
Prevention: parties can protect themselves from latent conditions violating statutes by requiring
warranties of condition.
Swinton v. Whitinsville Savings Bank S.Ct. Mass. PDF 1942
D sold P a house. At time of sale, house was infested with termites, the seller knew about this and, the
termites were not readily observable on inspection, and seller did not warn him.
Held: Caveat emptor. Seller is not liable for cost of termite damages. Seller did not make any false
statements and did not keep the plaintiff from inspecting property, so no fraud.
Sellers not required to disclose all latent defects which materially affect the value of the property when
the defect is obvious upon reasonable inspection
Policy for caveat emptor: Judicial economy; shifts the burden on the buyer to make sure they are
responsible in making contracts
Notes:
What makes something latent? [anything a home inspection could catch isnt latent?]
o Obviousness vs. non-obviousness or patent
Theis v. Heuer Ind. Appellate Court? 1972 PDF
Plaintiffs bought house from defendant builders. Defect at time of sale/construction that rain water and
sewage would collect in the first floor. Ps had no reasonable means of inspecting this.
Held- The builder of a new house is liable for major defects which render the house inhabitable
Reasoning for new implied warranty of habitability: Caveat emptor does not satisfy demands of justiceespecially given unequal bargaining power and the fact that builder will have more information-analogy
to products liability; caveat emptor here encourages shoddy work and a warranty will make
construction better (think L. Hand: B<P*L)Over time shift from default rule of no warranty to implied warranty unless builder makes agreement to
get out of it: reasons- shift in expectations over time; advent of track housing & dec in quality housing
Implied warranty does not impose a duty to deliver a perfect house, but major defects that render it
unfit for habitation (and are not readily remediable) entitle the buyer to rescission and restitution.
Stambovsky v. Ackley NY App Div 1991 PDF
Pre-closing case; disclosure
D sold P a home she knew to be possessed by poltergeists. She had advertised the ghosts in readers
digest and in local press. Ps were not locals and did not know about propertys reputation; upon finding
out, plaintiffs sought rescission of the contract.
Court held that rescission was allowed because the Seller had duty to disclose possession by poltergeist
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Poltergeists are a latent defect which could not have been contemplated or discovered by the plaintiffs.
House was not vacant as promised.
Where a condition which has been created by the seller materially impairs the value of the
contract and is peculiarly within the knowledge of the seller, or unlikely to be discovered by a
prudent purchaser exercising due car- nondisclosure constitutes a basis for rescission.
Smith Dissent absent fraud or fiduciary relationship, caveat emptor rules and no rescission.
Contract Buyers League (buyer) v. F & F Investment USDC ND Ill. 1969 PDF
[F] BLOCKBUSTING: The practice of illegally frightening homeowners by telling them that people who are
members of a particular race, religion, or national origin are moving into their neighborhood and that they
should expect a decline in the value of their property. The purpose of this scheme is to get the homeowners to
sell out at a deflated price. They bought with the old title system of mortgage.
An real estate agent will then sell the vacated homes to minority group members at an inflated price, thereby
obtaining a large profit. Fair access to housing is defeated by blockbusting.
Claimed misrepresentation, civil rights, and unconscionablity...only civil rights claim survives
o Some of the misrepresentations were physical and patent, buyers just have to expect puffery
and its understandable for sellers to sell it for higher values then the property is really worth
o Unconscionability one element is you can get it somewhere else so it is a bad deal plus
unequal bargaining power, fraud, coercion, duress
In this case high price alone doesnt make something unconscionable
It is self correcting sellers and buyers would not sell into an inflated market and the
market would not adjust
o Civil rights claims sellers are selling at a higher market price to African Americans
The two separate markets could be segregation or to due to the higher demand for
property by minorities
The case turns into an arbitrage case
Notes:
Elements of Unconscionable
o Unequal bargaining power
o Must be a bad deal
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[F]: P was being treated for leukemia at Ds hospital. Physicians removes cells from spleen and used cells to
develop a new cell line, without informing P. New cell line had valuable commercial applications. Moore sues
for conversion (property interest). Use of body parts is repugnant based on slavery...BUT...
[H]: P has no action for conversion because he did not have any property interests in his spleen. However he
does have a claim for breaching fiduciary duty and failing to obtain consent.
***Although P had no property rights, the court assumed that D did.
***Court was worried about imposing unexpected liability on downstream medical researchers who
had previously used body tissue for research without inquiring about their right to do so
***Court thought it was best to await legislative action before treating body cells as property.
*** This case is an example of the cases which arise when new technologies force courts to re-examine
historical principles.
Informed Consent vs. Conversion:
Informed consent was a big outcome of Moore, as opposed to conversion of property rights. Informed consent
assumes the right to say no, which is functionally the right to exclude drs from getting their hands on the cells.
Reasons IC is preferred over Conversion:
o IC would not impose a duty on downstream researchers, only to Moores treating physician
o IC would apply to everyone, conversion only to those whos parts were later utilized
o Remedy is the big dealbut there is a limited remedy for IC breach; greater remedy if court
had found conversion.
Reasoning:
Moore is asking Court to impose a tort duty on scientists to investigate the consensual pedigree of each
human cell sample used in research.
o To impose such a duty, which would affect medical research of importance to all society,
implicates policy concerns far removed from the tradition, two-party ownership disputes in
which the law of conversion arose.
o Moore claims ownership of the genetic code for chemicals that regulate the functions of every
human beings immune system.
To establish a conversion, plaint must establish an actual interference with his ownership or right of
possession. Where plaint neither has title to the property alleged to have been converted, nor possession
thereof, he cannot maintain an action for conversion.
o He must show he retained an ownership interest in his cells (which he did not) cause:
(1) No reported judicial opinion supports his claim
(2) CA statutory law limits any continuing interest of a patient in excised cells
(3) Subject matters of the Regents patent cant be his property.
His cells arent uniqueeveryone has the same ones.
3 reasons why its inappropriate to impose liability for conversion based on allegations from Moores
complaint:
o (1) Fair balancing of relevant policy considerations counsels against extending the tort
o (2) Problems in this area are better suited to legislative resolution
o (3) Tort of conversion isnt necessary to protect patients rights
2 important policy considerations
o (1) Protection of a competent patients right to make autonomous medical decisions.
o (2) Is that we not threaten with disabling civil liability innocent parties who are engaged in
socially useful activities, like researchers who have no reason to believe that their use of a
particular cell sample is, or may be, against a donors wishes.
o MIDDLE GROUND: Liability based on existing disclosure obligations, rather than an
unprecedented extension of the conversion theory, protects patients rights of privacy and
autonomy without unnecessarily hindering research.
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(2) To repatriate N.Am. human remains, associated funerary objects, sacred objects, and objects
of cultural patrimony currently held or controlled by Fed agencies and museums.
To be judged cultural patrimony (from the NAGPRA statute), the object must have:
o (1) ongoing historical, cultural or traditional importance; and
o (2) be considered inalienable by the tribe virtue of the objects centrality in tribal culture
Mr. Corrow is knowledgeable about Navajo traditions and culture and would have been aware that
various tribal members viewed ownership of property differently.
Due process doesnt require that citizens be provided actual notice of all criminal rules and their
meanings.
o Constitution is satisfied if the necessary info is reasonably obtainable by the public.
o
Notes:
There is no separate prohibition, in the operative sections of the Act, of alienation, appropriation, or
conveyance of cultural patrimony in NAGPRA.
Federal law appears to require, (1) a determination that items cant be subject to private ownership or
sale as a matter of tribal law or tradition, and then, (2) a determination that someone has attempted to
acquire such an item in a manner prohibited by trial law or tradition.
Kennewick Man foundInteior Dept. ordered remains be repatriated to area tribes under NAGPRA
o Bonnichsen v. US D.Ct. Oregn and 9th Affirmed
Courts held NAGPA applies only to remains affiliated with presently existing tribes,
peoples, or cultures, and held that there was no evidence that any presently existing
tribe could trace its ancestry back 9,000 years.
S.Ct. been unsympathetic to claims seeking protection for culturally significant property as a matter of
constitutional law.
o Lyng v. Northwest Indian Cemetery Prtective Assn US S.Ct. 1988
Court rejected claim that building road through an Indian burial ground would violate
the Free Exercise rights of N.Americans.
o Navajo Nation v. US Forest Serv. 9th Cir. 2008
Rejected a challenge under NAGPRA to the practice of using recycled water containing
minute quantitites of human remains for snowmaking in ski areas.
Although NAGPRA is unusual in prohibiting any attempt to treat cultural patrimony as private
property, restrictions on the use and development of culturally significant properties are more common.
Museum Claims:
o (1) Adverse Possession
o (2) We took care what you didnt
o (3) More valuable to us than you
^ But may not be the best for itemlike Navajo-adopted kidsbut hard to quantity
value
ANTI-COMMODIFICATION AND INALIENABILITY RULES
Define inability rules: rules that prohibit the transfer of an entitlement
An alternative characterization of the rulings in many of the cases isnt that they deny the existence of
property in particular resources, but rather they conclude that the entitlements in question should be
protected by an inalienability rule.
Why does it make sense to recognize property in certain things but make them inalienable?
o (1) Might reduce externalities in some contexts
o (2) Might be justified by moralisms
o (3) May be justified by paternalism, if we conclude that a person may be better off if he is
prohibited from bargaining.
Restraints on alienation can be one tool for minimizing these dangers and can be used to influence
decisions to acquire a resource in the first place.
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FORMS OF OWNERSHIP
Divisions by Time
An estate is a type of property right and measures a persons interest in the land in terms of duration.
An interest may be either a present possessory estate or one that doesnt take possession until the
happening of some future eventa future interest.
ESTATES IN LAND
Estate for definite term: LEASE/estate for years
o Definite
o Landlord, tenant law
Estate for indefinite time: FREEHOLD estate
o No definite time
o If ends at all, must be by something like death
EX: wills
Freehold interests tend to be recorded in land registries, but short-term leases are not.
Present Possessory Estates
Freehold
1. Fee simple absolute
2. Life estate
3. Defeasible fees
Nonfreehold
4. Lease
Note that the holders of a freehold interest as well as leaseholders are still sometimes called tenants.
SEE PG. 505 FOR DIAGRAM OF ESTATES
PRESENT POSSESSORY INTERESTS
(1) Fee Simple Absolute = Propertylargest estate in time
Largest package of ownership rightsno natural end.
No owner will live forever, but the owner can designate a successor owner, by gift, sale, or will.
o Posses indefinitely from ownerowners heirs
If the owner dies intestatewithout a willa state intestacy statute will designate certain others who
will then take the property in fee simple.
Example 1:
o O grants Blackacre to Marge and her heirs or to Marge in fee simple, or to Marge.
In a transfer, a grantor is presumed to give all that she has, unless she indicates
otherwise.
A person doesnt have heirs until after her death (while alive, someone has at most
heirs apparent).
If Owner grants to Marge and her heirs, Homer and her children receive nothing.
And her heirs are words of limitation as opposed to to Marge, which are words of
purchase.
Only words of purchase designate someone who is to receive an interest.
(2) Life Estate
Life estates come to a natural end with the death of the named person, usually the holder of the estate.
Example 2:
o Current Uses
France PDF
Elderly relative
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Park service
AB for life then to C + his heirs
o Remainder
AB for life of X
o O grants Blackacre to Marge for life, and then to Lisa.
The life estate is alienable by gift or sale.
If Marge sells, the purchaser will receive a life estate pur autre viea life estate
according to Marges, not the new owners, lifespan.
So the new owner will lose the property to Lisa when Marge dies.
Problems with life estates:
o (1) Waste
o (2) Tax evasion
o (3) State claims
(3) Defeasible Fees
These are like fee simple absolute except they may end on the happening of a named contingency
o (a) Fee Simple Determinable
Ends automatically upon the occurrence of a named event, whereupon the grantor or
the grantors successor takes the property.
Example 3:
o O grants Blackacre to Springfield Law School as long as it is used for
instruction in the law, then to O.
The fee simple determinable is created using language of
duration, such as as long as, so long as, while, during,
and until.
o (b) Fee Simple Subject to Condition Subsequent
Continues indefinitely except that, upon happening of the named eventthe
conditionthe interest does not automatically end but can be ended by action (selfhelp or lawsuit) by the grantor or the grantors successor.
Example 4: O grants Blackacre to Springfield Law School, but if it is not
used for instruction in the law, then O has the right to reenter and take the
premises.
o School has fee simple subject to condition subsequent and O has a
right of entry (also called a power of terminiation)
o The fee simple subject to condition subsequent usually employs
language like but if, on condition that, provided that, provided
however, and if, (as opposed to lang of duration in the determinable
fee, e.g., as long as in Example 3), and condition subsequent is often
separated from description of the interest by a comma.
(c) Fee Simple Subject to Executory Limitation
If the defeasible fee is followed by an interest not reserved to the grantori.e.,
granted to some third party at the time of conveyance of the present possessory
estatethe defeasible fee is called a fee simple subject to executor limitation.
o Example 5A: O grants Black to Law School as long as its used for
instruction in the law, then to Springfield Animal Hospital.
o Example 5B: O grants Black to Law School, but if it is not used for
instruction in the law, then to Springfield Animal Hospital.
The fee simple subject to executor limitation fonclates the
nature of the two defeasible fees followed by an interest
reserved in the grantor (the fee simple determinable and the fee
simple subject to condition subsequent).
One can use as long as or but if style language
interchangeably.
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Although seldom used, the system of estates allows interest other than the fee
simple to be determinable and subject to condition subsequent.
The fee tail: acquired the feature of long-term alienability by the 15th century.
o It has been abolished in most states and has at most a theoretical
existence in others.
o To create a fee tail, one would use the language to A and the heirs
of his/her body or to A and his/her issue.
o Only when As bloodline endswhen A dies without issue, which
can happen hundreds of years after As deathdoes the fee tail end.
o The fee tail is a lesser estate than the fee simple absolute; the
difference is a reversion in the grantor, even if its not terribly likely
that this reversion will ever become possessory.
Changes hand on a natural event.
FUTURE INTERESTS
Compared with the fee simple absolute, theres something left, and that is a future interest.
A basic division is between interests retained by the grantor and interests created in a third party.
Interests retained by the grantor are now generally alienable.
o If they are alienated, they dont change their name or character.
Future Interests Retained by Grantors
1. Reversion
2. Possibility of reverter
3. Right of entry (power of termination)
INTERESTS RETAINED BY THE GRANTOR
If a person has a future interest, one also has to ask what present possessory interest one would have if
the interest becomes possessory, or in other words what estate is in waiting.
EX: If O grants to A for life, and then to B, A has a present possessory interest in life estate and B
has a remainder in fee simple.
Future interests retained by the grantor are sometimes called reversionary interests.
(a) Reversion
o Follows natural end of life estate & in contexts when an owner hasnt disposed of entire fee
Example 6:
O grants Black to Marge for life, then to O.
o O here retains a reversion.
o O had a fee simple and carved out a life estate, retaining the rest of the
original fee simple.
o The rest retained is a reversion.
(b) Possibility of Reverter
o Interest reserved to the grantor that follows a fee simple determinable.
o O will automatically get property back if limitation built into fee simple determinable occurs.
Example 3:
O grants Black to Law School as long as it is used for the instruction in the
law, then to O.
o If O has died, then Os successor will take. The possibility of reverter
can also be implicit:
Example 7: O grants Black to Law School as long as it is
used for instruction of law.
Here O isnt mentioned, but because O owned the entire fee
simple absolute and granted a fee simple determinable, O must
retain a possibility of reverter, here implicitly.
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This has been changed in many jurisdictions to require notice equal to the period of time at
which rent payments are made.
Tenancy at sufferance
o Indv, who are once in rightful possession of property, holds over after this right has ended.
o Differs from a trespasser cause tenants original entry wasnt wrongful.
o LL free to evict tenant at sufferance using forcible entry & detainer statutes, or by bringing an
action in ejectment.
(b) THE INDEPENDENT COVENANTS MODEL
Early leases functioned almost entirely as financing and risk-spreading devices.
Courts developed certain assumptions about the nature of the reciprocal obligations between landlord
and tenant.
A central assumption was that the lease was a conveyance of a possessory interest in property.
The possessory rightincluding the right to exclude others from the assetwas transferred from the
landlord to the tenant for the prescribed term of the lease.
o
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SUBLEASE: The original landlord would deal with the prime tenant, and the prime tenant with the
subtenant. But the original landlord wouldnt deal with the subtentant.
ASSIGNMENT: Assignee steps into the shoes of the prime tenant, and as such enters into direct
relations with the original landlord.
2 sources of landlord-tenant obligation: privity of estate and privity of contract.
o Privity of K:
Obligations deriving from here are simply the obligations that come from being a party
to a binding bilateral K.
If original LL and the prime tenant enter into lease, theyre both bound by privity of K.
o Privity of Estate:
Two conditions must be met for privity of estate to apply
(1) Parties to be bound must have interests such that one is directly carved out
of the interest of the other
(2) One of the parties must be in actual possession of prop or have a reversion.
If these conditions are satisfied, then the parties are bound by privity of estate in
addition to privity of K.
EX: if youre a landlord, and your prime tenant wants to exit from the relationship before the end of the
lease, which is better, a sublease or an assignment?
o Depends on how active youre in the management of the property.
If youre inactive, sublease b/c now the prime tenant will serve as the landlord to the
subtenant, collecting rents, answering complaints about broken plumbing, and so forth.
With assignment, tenant in possession owes a duty to pay rent and perform other
obligations that run with the land directly to you under privity of estate.
Two other concepts that are also relevant in the assignment context:
assumption and novation
o Assumption: occurs if the first assignee expressly agrees as part of an
assignment agreement to be bound by the terms of the original lease.
o Novation: occurs when the parties agree to erase any privity of K
liability on the part of the prime tenant.
Can have assumption w/o novation, or novation w/o assumption, or both or neither.
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Paradine v. Jane
P leased property to D and sued because D did not pay rent for 3 years. D claimed he shouldnt have to pay rent
b/c he was unable to use it b/c there was an army camped out on it. Court held: even though covenant of quiet
enjoyment was breached, the tenants obligation to pay rent continues. If the lessee is to make profits off
the property, also must be allocated the risk of losses and not require lessor to bear the risks of losses
Principle that tenant is the residual claimant with respect to economic gains and losses associated
with the property during term of lease continues to be sound.
Rule: No duty on LL for up-keepUP TO TENANT
Notes:
The lease in Paradine specified the amount of rent, but didnt expressly include a promise by the tenant
to pay rent. But court holds that such a covenant is implied as a matter of law in all leases. LL cant
evict tenant
This case is the leading example of whats been called the independent covenants model of the
landlord-tenant relationship.
When the property thats the subject of the lease is destroyed or damaged, the tenants obligation to pay
rent continues uninterrupted.
Whatever rule is followed, the allocation of risk of casualty loss is generally understood to be a default
rule subject to modification by the parties in the lease.
Hanna v. Dusch
P alleges that D leased him property but never evicted prior tenants. D argues that absent an express covenant
as to delivery of possession, he has no duty to oust trespassers or wrongdoers.
Two rules at this time: 1) American Rule (landlords duty is to give legal right of possession to tenant,
but NOT to put tenant in actual possession); and 2) English Rule (theres an implied covenant requiring
the landlord to put tenant in possession on day lease begins)
Holding: Court goes with American rule b/c 1) landlord didnt covenant against others wrongdoing; 2)
tenant is basically owner of property during term of lease, so up to him to protect against trespassers; 3)
VA statute allowing summary remedy for unlawful entry or detainer is Ps proper venue for getting rid
of trespasser/old tenant
Concurrence: points out that under common law, English rule is the law. However, b/c of VA statute
that leaves LL w/o power to evict tenant under expiring lease, necessary to apply American rule.
Arguments:
Landlord hasnt covenanted against the wrongful acts of another and shouldnt be held responsible for
such a tort unless hes expressly so Ked.
Conceded by those favoring English Rule that should the possession of the tenant be wrongfully
disturbed the second day of term, or after he has once taken possession, theres no implied covenant on
landlords party to protect tenant from tort of another, though he has entered into no such covenant.
Virginia statute giving summary remedy for unlawful entry or detainer: The adequate, simply and
summary remedy for the correction of such a wrong provided by statute was clearly available to this .
o It specifically provides that it shall lie for one entitled to possession in any case in which a
tenant shall detain the possession of land after his right has expired without the consent of him
who is entitled to possession.
DUTY TO DELIVER POSSESSION pg. 659
English Rule: LL respons. for clearing out squatters or holdover tenants at beg of lease. Coe v. Clay
Am Rule: tenant is responsible for getting rid of any squatters or holdover tenants. Hannan v. Dusch
Best default rule?
o Assuming both parties are fully informed about the relevant variables, the rule theyd adopt would
plausibly be the one that assigns duty to party who is best able to detect the presence of squatters or
holdover tenants and to bring actions to have them evicted before the lease starts.
In context of urban apartments, that party is almost surely the landlord.
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Holding:
For tenants: The landlords had a right to control the objectionable noise coming from the lounge.
Reasoning:
LLs had it w/in their control to correct the condition which caused tenants to vacate their apartments.
The lease for the lounge expressly provided that entertainment in the lounge had to be conducted so
that it couldnt be heard outside the building and wouldnt disturb the residents of the leased apartments.
The decibel level for the entertainment at the lounge was intolerable for the residential tenants.
Landlords shouldnt be able to collect rent for residential premises which werent reasonable habitable.
Notes:
Courts concluded that landlord misfeasance sufficiently serious to cause a reasonable tenant to vacate
was a constructive eviction, and excused the tenant from further payment of rent.
One theory for holding a landlord responsible for constructive eviction based on nonfeasance turns on
whether the landlords inaction violates some specific clause in the tenants lease.
Like in Reste Realty Corp., LLs failure to act was the breach of a specific duty outlined in the lease.
Theory is designed to single out landlord breaches that deprives the tenant of the enjoyment and
occupation of the whole or part of the leased premises.
The general standard is that a tenant must move out in a reasonable time.
Failure to act was the breach of a specific duty outlined in the lease.
Third Party Beneficiaries
o A K says pay C B [now A owes C]
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[F]: Busted sewer line, broken lock, trash, broken window, toilet backed up, falling plaster and bad wiring. The
court holds that the landlord is responsible for fixing the problems regardless of if they happen before or after
they are warranting to make it habitable for the entire period of the lease
o Latent/patent defects you may not know about when you look at an apartment
o Older buildings need to be kept up as well depends on tenant expectations, plus the cost of the
maintenance/change
Holding:
LL had duty. A warrant of habitability [during entire time of lease], measured by the standards set out
in the Housing Regulations for DC, is implied by operating of law into leases of urban dwelling units
covered by those regs and that breach of this warrant gives rise to the usual remedies for breach of K.
Reasoning:
Itd be unreasonable to hold, under such circumstances, that the landlord doesnt impliedly agree that
what hes letting is a house suitable for occupation in its condition at the time.
Its up to the LL to make the necessary fixings because it is in a better position to do so.
Also, since the appellants continued to pay the same rent, they were entitled to expect that the LL would
continue to keep the premises in their beginning condition during the lease term.
Notes:
The illegal lease doctrine: if LL leases property that is subject to one or more code violations, such that
the premises are rendered unsafe and unsanitary, then the lease is void and of no legal effect.
The doctrine of retaliatory eviction has been widely adopted to protect tenants who engage in
protected activity, such as reporting housing code violations or attempting to organize a tenants union.
The illegal lease doctrine suffers from the fact that if the lease is illegal, then itd seem that the tenant
isnt only released from the burdens of the lease but cant claim the benefit of the lease either (such as
the covenant of quiet enjoyment)
Constructive eviction may also be relevant under residential leases since the jurisdiction relies on its
housing code to define IWH content.
Remedies for violating IWH:
1. Recession of lease by tenant, allowing tenant to vacate without further obligation to pay rent
2. An order directing specific performance of IWH
3. An action for damages for breach of the IWH
4. If the LL had sued the tenant for unpaid rent, a set-off against rent liability reflecting the LLs
violation of the IWH
5. In some jurisdiction, withholding of all or a portion of the rent until the LL corrects the
violation of the IWH or permits the tenant to arrange for repair of the violation
Common-law baseline: we see that risk of casualty losses under a lease is originally placed on tenant.
o So, any tort liability for injuries incurred on the premises would lie with the tenant.
o LL has general legal obligation to maintain the premises in a manner consistent w/the housing
code, and otherwise to insure that it meets minimal standards of public safety and health.
o This legally-imposed duty can provide the foundation for a broad LL duty in tort to the tenant
and the tenants guests, including a duty to protect these persons against assaults by intruders
that couldve been kept at bay with proper security cameras and locks.
Theories of LL/Ten Waiver of Warranty:
1. Unconscionability >Determines Illegal Lease
2. Social Issues > Determines Illegal Lease
Could also be preventing crime in addition to public health concerns Neg. Externalities
Damages
Standard measure: FMV of apartment as warranted FMV as it = damages
46
Chicago ordinance requires security deposits to be held in Illinois banks and requires payment of
interest on security deposits; it also allows a tenant to withhold rent in an amount reflecting the cost to
him of the landlords violating a term in the lease; and allows a tenant to make repairs and subtract the
cost of repair from the rent; and forbids landlords from charging a tenant more than $10/month in late
fees
Posner finds that this ordinance will hurt poor people and will only benefit the affluent; landlords will
screen potential tenants more thoroughly and supply less housing.
The market for rental housing behaves as economic theory predicts: if price is artificially depressed, or
costs of landlords artificially increased, supply falls and many tenants, usually the poorer and the new
tenants, are hurt. So Tougher codes = higher rent = lower supply
Kramarsky v. Stalh Management NY S.Ct. 1977 PDF
Theres nothing illegal in a LL discriminating against lawyers as a group, or trying to keep out of his
building intelligent persons, aware of their rights, who may give him trouble in the future.
Sommer v. Kridel NJ S.Ct. 1977 pg. 702
Facts:
March 10, 1972def entered into lease with plaint. Def couldnt pay because marriage fell through,
discharged from army, and became student. Def wrote LL letter asking to notify at earliest convenience,
LL never replied. Someone interested in renting, but LL said already rented out to def. But plaint never
stepped foot inside apartment nor showed it to anyone until over a year later.
Holding:
LL does have obligation to make reasonable effort to mitigate damages in a situation.
LL shouldve treated apartment as vacantantiquated real property concepts which servd as the basis
for the pre-existing rule shall no longer be controlling where theres a claim for damages under a
residential lease.
Reasoning:
Sommer waited 15 months & allowed $4,658.50 in damages accrue b4 attempting to re-let apartment.
LL needlessly increased damages by turning prospective tenant away.
Notes:
Riverview Realty Co. v. Perosio NY Super. Ct. 1976
o Ct held LL still have duty to mitigate to all residential leases, whether tenant abandoned
apartment in middle of lease term w/no effort to communicate with LL w/frivolous defenses.
Sommer
v.
Kridel
Lease
#1
Kridel
1) No
possession
2) LL
sued
for
2
full
years
3) T.Ct.
for
tenant
Lease #2
Sommor
1. Took possession
2. LL sued for a couple months
3. T.Ct. for LL
Remedies
47
When is a LL picky?
Short time period
Qualitydelicacy
Interactive property (apartment vs. ranch)
Filtering Theory:
No matter where build housing, will always start at low end
o Apartment2 fam housesingle fam housemansionmansion
TRANSFER OF INTERESTS
Under a lease, possession of the property (land, apartment, car) shifts from lessor to lessee.
So, during term of lease, the lessee acts as the general gatekeeper of property and can exercise the in
rem rights of exclusion that we associate with possession of property.
General rule is that when LL transfers the reversion, the transferee takes subject to the tenants
leasehold interest, just as someone acquiring property in which another has a life estate would acquire
subject to the life estate.
DOCTRINE OF SURRENDER
Doctrine of surrender, like the doctrine of constructive eviction, is pro-tenant.
When court finds that the LL has accepted a surrender, tenant is L for full amount of rent owed up to
moment of acceptance, but is off the hook thereafter.
LL and tenant could create a mutual release by implied K:
o Would happen if tenant vacated the premises with intention never to return, in effect making an
offer to surrender leasehold estate, and LL responded by taking action inconsistent with the
tenants continuing right to the leasehold interest, in effect, accepting the surrender of the
leasehold estate.
Doc. Surrender
o Requires cts characterize both actions of tenant and LL as evidencing a particular state of mind.
Tenants state of mind must be to abandon leasehold.
LLs state of mind must be to accept abandonment and reclaim leasehold interest as
an entitlement belonging to the LL.
o Under NY law, LL has 3 options when tenant abandons
(1) Do nothing and sue for accrued rent;
(2) Relet as the agent of the tenant; or
(3) Accept tenants surrender and relet for LLs benefit.
Another lease clause LLs sometimes use to protect them in event tenant defaults: rent acceleration clause:
Purports to make all of the rent owing under the lease immediately due.
Fair Housing Act pg. 435-439
Communications Decency Act: includes a provision granting immunity from liability to online
publishers for content of user-generated material appearing on their sites.
Roommates.com could be sued under FHA cause site helped develop the content by asking users to
create profile based on sex and sexual orientation that was used to match user with others having
similar characteristics.
US v. Starrett City Associattes 2d Cir. 1988
o Court held that racial ceiling quotas (even to balance whites, Latinos, and blacks) violated FHS
despite owners claim that they were being used to maintain integration and prevent white
flight.
48
SERVITUDES
Doctrines allowing parties enter into Ks that run w/the land, meaning terms & conditions of the agreement
are binding not only on original owners but on all future owners of both benefited & burdened parcels.
Servitudes
Easement
Covenant
Hiking Trail
Cutting
timber
methods
EASEMENTS
Kind of a permanent right.
(1) Easements in Implication [Quasi Easements]
Even if not in deed
Easement goes to back owner even if doesnt ask for it
(2) Easements by Necessity
Arguing that gets an easement by necessity
Possible argument EX: Schwab v. Timmons [Wisconsin, bluffs, cliffs, public and private roads]
49
Facts: 1942 appellants purchased the subject property. In 1944, they gave permission for a haul road to be cut
for the purpose of moving coal from a newly opened mine. No evidence of any probative value which would
indicate that the use of the haul road during that period or time was either adverse, continuous, or uninterrupted.
Holding:
(1) Use of this easement wasnt established by prescription. like Adverse Possession
(2) License to use the subject roadway may not be recoveredright to the use of roadway had been
established bye estoppel.
Reasoning:
A right to the use of a roadway over the lands of another may be established by estoppel.
Notes:
AP involves the transfer of full possessory rights of ownership from the original true owner (TO) to the
adverse possessor (AP), after the statute of limitations runs.
An easement by proscription involves the transfer of an easement over the land of the TO to the
adverse user (AU), after the statute of limitations runs.
Under these statutes, the landlocked owner can force the servient owner(s) to convey an easement, but
must pay just compensation (fair market value) for the rights so obtained.
TERMINATION OF EASEMENTS pg. 1020
1. Most approved method is by deed, releasing or extinguishing easement.
2. As a matter of law when the dominant and servient tract come under common [could buy entire
property back and takes possession of easement] ownership
3. Adverse Possession or Reverse Prescription
i. If owner of servient tract blocks easement, and the owner of the dominant tract fails to object
before statute of limitations runs, then easement will be extinguished
4. If prolonged nonuse makes appear that its been abandoned.
50
MISUSE OF EASEMENTS
Penn Bowling Recreation Center, Inc. v. Hot Shoppes, Inc. Ct. Appeals DC Cir. 1949 pg. 1021
[F]: Penn Bowling acquired dominant tenement with easement through Hot Shoppes property for ingress and
egress. Hot Shoppes erected barrier claiming that Penn Bowling doesnt have right to use easement because it
was used improperly for parking and loading and unloading supplies for both dominant tenement and another
property for which easement was not created. Court find that the easement isnt forfeited for misuse and that
Penn Bowling can continue to use the easement so long as it separates its use so that the easement is only used
by the dominant tenement and not by their second property.
Appellants parking of vehicles on right of way at a time when appellee needs its use would constitute
an unlawful interference with the latters right.
Appellant may not use easement to serve both the dominant and non-dominant property, even though
the area thereof is less than the original area of the dominant tenement.
Reasoning:
The right to an easement isnt lost by using it in an unauthorized manner or to an unauthorized extent,
unless its impossible to sever the increased burden so as to preserve to the owner of the dominant
tenement that to which hes entitled, and impose on the servient tenement only that burden which was
originally imposed upon it.
Appellant is entitled to a reasonable use and enjoyment of the easement for purposes of ingress and
egressmust determine what is reasonable.
Bright-Lined Rule:
Can only use easement for dominant property for which use was designed for
Regular Easements
Positive: one party
uses property of
another
Attached to
another property
(Appurtment)
Weird
Negative: not using your property, but
telling you how to use someone elses
property
In grossnot attached to another
property
o Problem with easement in
gross: comes in transfer
Fontainebleau Hotel Corp. v. Forty-Five Twenty-Five, Inc. FL. Ct. Appeals 3d District 1959 pg. 1013
[R]: P, Eden Roc Hotel, sought injunction against D to prevent D from building 8-story tower which would
block sunlight over the Eden Rocs pool and sunbathing area. P claims that he has an implied easement (by
prescription) of light and air for more than 20 years.
[H]: While there is a rule that one must use his prop so as not to injure lawful rights of another, there is no legal
right to access of light and air. If P wants to change this rule, must amend the zoning ordinance.
Reasoning:
One must use his property so as to not injure the lawful rights of another.
Cant deprive adjoining landowner of any right of enjoyment of his property which is recognized and
protected by law, and so long as his use isnt such a one as the law will pronounce a nuisance.
Court doesnt want to change the universal ruleif the public wants to, they can by amendment.
No statutory basis for the right sought to be enforced by plaintiff exists.
Notes:
The court said that it doesnt matter whether the addition to the Fontainebleau may have been
constructed partly out of spite. [But, pure spite can sometimes lead to greater intervention.]
o Particularly where one landowner erects a fence solely to block light and air from a neighbor,
many courts have been willing to find a nuisance and issue an injunction.
o Mixed motives will usually lead to no liability.
51
COVENANTS
Closely related to easements
Covenants or promises respecting use of land
Less property like than easements
Lie closer to K end of property-K spectrum
Impose no duties of forbearance on third parties
Cant acquire a covenant by prescription,
implication, necessity, or estoppel.
Covenants
Right
to
insist
on
the
use
or
nonuse
of
land
Prescribe
elaborate
system
of
governance
rules
Either
affirmative
or
negative
1. Notice
2. Negotiability
3. Notice
Pos. Easement
A does X on Bs
property.
Neg. Easement/
Covenants
A doesnt do Y on Bs
property for As benefit
Limits on easement
in grossdoesnt
go to everyone
after first.
EX: driveway
No limits/
problems
Who do I go to
fix it?
EX: no antenna
Notice problems:
o What are the limits?
o Value to some,
maybe not to all
Positive
Covenants
B does Z on
Bs property for
As benefit
EX: will cut
hedge
Must do
more to
make stick
with the
land
Question
for
all
three:
Do
they
survive
change
of
ownership
or
do
they
not?
Limitations
Reasons
for
successive
running
with
land
covenants
52
Notice
Negotiability
Value
Negotiability
&
Value
RELATED
Remedy
in
Equity
Injunction?
Spec.
Perform?
Notice (real &
recorded)
Sufficient interest to
be or be sued?
Value package?
ALI
53
[F]: Realty Co. conveyed property to P1 with a covenant in the deed that they would provide water for
several months of the year for a fee. Realty Co was succeeded by EE and P1 was succeeded by P2. P2
got a well and no longer needed water from EE and did not pay fee. EE sued.
[H]: The provision does not run with the land because it does not touch and concern the land. P2 does
not need the water and thus the covenant provided no benefit to the land for P2, unlike P1.
Since the covenant was not in a lien (a security interest granted to secure payment), money
damages cases had to be resolved in common law court, not equity court.
Changed Circumstances Doctrine: Covenant became obsolete when the circumstances changed.
Therefore, covenant was terminated.
It is advisable to structure a covenant as a lien so there can be an equitable claim against an
asset to collect a just debt, instead of against an individual.
[F]: Invented the equitable servitude test. T owned Leicester Square and surrounding houses. T sold the square
to E by a deed that promised that E and his successors would maintain the square and let residents use it. The
square was eventually conveyed to M, whose deed said nothing about the promise, although he knew about it.
M wanted to build on the square. T sued for an injunction and won.
Tulk UpkeepElmsXYdef Moxhay
Although covenants usually only run when the promise is in the lease, M had notice of the promise.
Thus there is no requirement for privity, which then encourages negotiability about who the benefits
and burdens apply to, based on peoples interest in the property.
54
REAL COVENANTS
American invention. Covenant attached to fee simple property that, under certain circumstances analogous to
the LL-Tenant doctrine of running covenants, will bind successors in an action at law.
Neponsit Property Owners Association, Inc. v. Emigrant Industrial Savings Bank NY Ct. Ap. 1938 pg. 1031
[F]: P had a homeowners fee covenant in a lien on the prop conveyed to D. The fee was to be used for general
upkeep of the development. D refused to pay the fee arguing that it did not touch or concern his land. P sued.
[H]: judgment for P. This created the Real Covenant test. All requirements of the test were met.
Promise to pay certain fees can no be considered to touch and concern the land
This case is the reason why homeowners fees are structured as liens today, so they issues can be
resolved in equity courts.
It merges the common law courts and equity courts.
[Reasons]:
Real Covenant Test:
1. Must appear that grantor and grantee intended that the covenant should run with the land;
2. Must appear that the covenant is one touching or concerning the land with which it runs;
3. Must appear that theres privity of estate between the promise or party claiming the benefit of
the covenant and the right to enforce it, and the promisor or party who rests under the burden of
the covenant.
Trick to get around: put alien on the propclaim against property to enforce debt (equitable remedy)
Rule:
A covenant must touch or concern the land. Privity exists in substance if not in form for an
association that is comprised of property owners to advance their common interests.
Notes:
Covenants in leases run to successors of the original LL or tenant if:
o (1) The LL and Tenant intend that they will run; and
o (2) The covenant is one that touches and concerns the land
o This court adds (3) That there be privity of estate between the party claiming the benefit of
the covenant and the paty subject to the burden of the covenant.
THE THIRD RESTATEMENT pg. 1040
Advocates abolishing the traditional property law requirements for the running of servitudes, such as
the touch and concern doctrine and the privity requirements.
The restatement makes enforceability the default, subject to limitations based on requirements of
writing or violation of public policy.
Provides for a baseline for the creation of servitudes that is grounded in contract and party intent:
A servitude is created (1) If the owner of the property to be burdened (a) enters into a contract
or makes a conveyance intended to create a servitude that complies with Statute of Frauds.
A servitude is valid unless it is illegal or unconstitutional or violates public policy:
55
[F]: Covenant for single-family homes; P wants to build an office; restrictions end in 1970.
[I]: Doctrine of Changed Circumstances
[H]: Restriction is still enforceable b/c a benefit still accrues to other neighbors; circumstances havent changed so much as
to burden party w/o benefit to adjoining owners; Property rule for neighbors
Rule: Covenants are unenforceable under changed conditions doctrine when: 1) Purpose of restrictions are obsolete. 2)
Enforcement of the covenant no longer benefits adjoining owners.
56
57
58
59
Hidden Harbour Estates, Inc. v. Norman Ct. App. Florida, 4th Dist. 1975 PDF
Issue over whether the board of directors could adopt a rule prohibiting use of alcoholic beverages in certain
common areas of the condo.
[H]: Court finds that this rule is ok. Notes that the association could not adopt arbitrary and capricious rules
bearing no relationship to health, happiness, and enjoyment of the life of various owners. The test for this is
reasonableness. The court finds that this rule is reasonable, and that a lot of other condos (and government)
have similar rules- so they should be on notice that this may be expected
Court rejects trial courts reasoning that reasonableness is something that would halt a nuisance, and
notes that it is not necessary that conduct be so offensive as to constitute a nuisance to justify regulation
Reasonable is something within the range of things an owner was expecting when they moved in.
Reasonable = halting a nuisance
Justice Court Mutual Housing Cooperative, Inc. v. Sandow S.Ct. Queens County NY 1966
[F]: Sandow moves into coop with agreement that her kids could practice their instruments, and for first 6 years
everyones happy. Coop then adopts regulations limiting the amount of hours they could practice to 1 and
hour a day b/w hours of 10 am and 8 pm.
[H]: Test is whether the rule is reasonable - Court finds that its arbitrary and capricious; attempts to
regulate the occupants mode of living rather than their use of the land. 1 and hour rule arbitrary and
unreasonable (so each member of family played 1.5 hours at different parts of day (total of 6 hours) but the kids
cant play 6 hours?); 8 pm cut-off also arbitrary and unreasonable (occupants not allowed to have parties and
play music?)
Again: what do owners expect to have rules about about when they move in?
Twin Elm Management Corp. v. Banks: Playing piano for 12 hours a day wasnt unreasonable as to
constitute a nuisance and that mere annoyance to other tenants in and of itself didnt create a nuisance
or make the tenancy of the occupant undesirable.
o But flute and piano are VERY VERY different
This regulation is different from those prohibiting animals or machines (electronic equipment, etc) since
it attempts to regulate the mode of living of the occupants of the building.
But whether the music is the most subline noise that has ever penetrated into the ear isnt for the
judiciary to determine.
Nahrstedt v. Lakeside Villege Condominim Association, Inc. CA S.Ct. 1994 pg. 752
[F]: Homeowner sued to prevent enforcement of a restriction against keeping cats, dogs, and other animals in
the condo development. Owner asserted that the restriction was unreasonable as applied to her because her cats
were noiseless and created no nuisance.
[H]: Reasonableness or unreasonableness of a condo use restriction is to be determined not by reference to facts
of the objecting homeowner, but by reference to common interest development as a whole
As a matter of law, the recorded pet restriction isnt arbitrary but is rationally related to health,
sanitation and noise concerns.
Two categories of use restrictions: those set forth in declaration or master deed of the condo; and rules
promulgated by governing board.
o Rules promulgated by governing board are subject to reasonableness test
o Rules in the deed are presumed reasonable and will be enforced uniformly unless they are
arbitrary, or impose burdens on the use of land it affects that substantially outweigh the
restrictions benefits to the developments residents, or violate some constitutional right,
or violates public policy.
60
Standards of Review
1. CC&Rs/Initial Deeds [highest standard of review]
2. Amended & Recorded CC&Rs [next highest standard of review]
3. Association (HOA/POA) Rule Changes [lowest standard of review]
61
62
Civil Rights Act of 1864 resolved this issue: prohibited racial discrimination in any public
accommodation affected by interstate commerce.
o But what about racially-based trespass claims in private property? Does judicial enforcement of these
claims constitute state actionseems like no, discriminatory exclusion on private property allowed.
Charlotte Park and Recreation Commission v. Barringer NC S.Ct. 1955 PDF
[F]: B conveyed properties to P with the clause that the park was not to be used by back people, and if so, it was to be
reverted back to B. White only golf course that was created by people (including the city) to give away plots of land with
the reverter that it had to be a white only golf course. The Barringer deed is the only one left with a reverter so when it
became an integrated golf course it reverted to Barringer.
[H]: Private covenant is valid and not subject to public enforcement. (No plus factor).
[Reasons]:
Barringers get the land back and now have a bargaining chip against the golf course.
Developers didnt use reversionary clauses to continue discrimination due to enforcement costs.
Ruling didnt have a large impact on segregation.
Reverter clauses give an out to people who have very strong, maybe objectionable, preferencesthe
remedy is hard b/c you have to take it ALL back.
Nuisance
No body is a nuisance
Must do something
Goes through air (dust, vibrations, noise, smell)
Unreasonable use of own property
Trespass [exclusion
strategy]
Nuisnace
[governance
strategy]
Cause of Action
Invasion of
another
Subnormal use of
our property
Trespass
Stepping/interfering on someone elses
property
Transactional Costs
Low #s, clear rights
LOW COST
High #s, not all same nuisance level
EX: frat noise
HIGHER COSTS
Judge Involvement
Yes/No
Did cross line or not?
More discussion &
discretion
63
Nuisance
Higher cause more cases to make
decision
64
Policy:
Older law would say: no, not a nuisance
o Should shade be a nuisance in modern law though?
Plaint couldnt gotten an easement for the view in the first place.
Should nuisance law change?
Remedy?? EX: lose nuisance suit, but still have the right to cut down the trees [like Calabraisa Rule 4]
o California has no prescriptive easement.
View Wars & Problems [trees growing on hillcant see San Fran bay bridge]
#s issue/Assembly
Opportunity for hold out
Benefits of trees to hill
Free rider issues
SELF-HELP implications/issues
o Legal community doesnt think self-help is a good idea
o If SH being used and being abused, is there something wrong with the SH rules?
What can be done?
Turn into a public view by regulations
Suggestions/EX:
Drachonianno trees
No trees over X height [maybe this one plus prescription?]
No tress blocking someone elses view
Remove trees on request
Remove trees if neighbor pays for it
Tree arbitration board
Challenges to Regulations:
Takings Clause
o Which events are compensable and which are not? [what is a taking of property?]
EX: Raising speed limit from 25 30
Compensation? By gov?
Gov took some value of property?
Attacks on Regulations:
(1) This legislation is stupid and no reason for it (loser!)
(2) Its not stupid, the government cant do it because its not for a public purpose
o Keelo (not for public purpose)
Economic development is a public purpose to use eminent domain
^^ Neither is the usual takings argument
(3) Public at large is getting the benefit, not me, so the public should be the ones paying for it.
Takings Causes of Actions/Potential Claims:
(1) If gov takes title, then thats a taking & must be compensated
(2) Trespass/Physical Invasion (damages?)
(3) Lost value (maybe ALL/maybe SOME?) (reciprocal benefits) major regulatory takings issue
Defenses to COA Claims:
(1) Just preventing a nuisancenot taking anything
(2) Reciprocal benefits (Quid Pro Quo)
(3) Quit whining! Didnt lose anythingnot all, doubtful took much
65
Facts: Penn Central wants to erect a 50 story building atop Penn Central, after being refused by the
Commission to construct anything on it. COA = Loss of Value
Issue: Can a city, as part of a comprehensive program to preserve historic landmarks and historic districts,
place restrictions on the development of individual historic landmarksin addition to those imposed by
applicable zoning ordinanceswithout effecting a taking requiring the payment of just compensation?
Holding:
Application of NY Citys landmarks Law HAS NOT effected a taking of appellants property.
The restrictions imposed are substantially related to the promotion of the general welfare and not
only permit reasonable beneficial use of the landmark site but also afford appellants opportunities
further to enhance not only the Terminal site proper but also other properties.
Rehnquist, CJ, & Stevens DISSENT:
Landmark designation imposes on him a substantial cost, with little or no offsetting benefit except for
honor of the designation. Actions violated the 5th A nor shall private property by taken for public use,
w/o just compensation.
Public Policy Argument:
Freezing the exterior design of notable buildings, without providing any compensation for lost
development rights, may have 2 unintended consequences:
1) Persons who own buildings that are potential targets for historic preservation designation may
rush to demolish them before theyre protected; and
2) Persons who are contemplating commissioning the construction of new buildings may turn down
dramatic or innovative designs out of fear theyll be rewarded with a historic preservation
designation, and hence will be locked into the building for all of time.
Providing compensation for lost development rights would presumable eliminate these incentive effects.
But itd also mean thered probably be fewer historic designations, because of the expense to the
community of paying for lost development rights.
66
In Penn, plaint argues: Lost 100% of air rights and Transferable Development Rights (TDR).
o Youre making us pay much more for a public benefit
S.Ct. said: NO, cant compare air rights with zoning parcels
NY Argued: Compare air rights & property
Policy:
Cant compensate every piece of regulationjust not feasible
67