UNOWNED ITEMS: Pierson v. Post: P. 11 Facts: Post (p) huting a fox.

Pierson (d), knowing this, killed fox and carried it off. Issue: Has person in pursuit of wild animal acquired property right over animal to sustain action against a person who kills it and carries it away? Holding: No. Property in wild animals only acquired by occupancy. Pursuit alone does not constitute occupancy or vest any right in pursuer. Dissent: New rule needed. Property in wild animals may be acquired without bodily touch, provided pursuer is in reach or has reasonable chance of catching. RULE OF CAPTURE: Law of Capture: Owner of property has right to oil and gas that migrate onto his property. Creates incentive to drill, rewards investor, easy to administer. Eliff v. Texon: P. 12 Facts: Texon (D) argued it should not be liable to Elliffs (P) after it caused severe damage to after it caused severe damage to Ellifs oil drilling operations. Issue: Does the law of capture insulate a landowner from damages caused by the wrongful drainage of gas and distillate from beneath the land of another? Holding: No. The law of capture does not insulate a landowner from these damages. Why does court limit law of capture: Discourage negligence/recklessness. Popov: Facts: Guy caught homerun baseball after melee. Wants to keep it. Holding: Court cant tell who had captured and had possession of the baseball. Split the difference. INVESTORS AND COMPETITORS: Feist Publications, Inc. v. Rural Telephone Service Co., Inc. P. 161 Facts: After Feist (d) took 1,309 listings from Rurals (p) white pages when compiling Feists own white pages, Rural filed suit for copyright infringement. Issue: To be copyrightable, must a work be original and possess at least some minimal degree of creativity? Holding: Yes. A phone book is a list of facts. Not original/creative. What is the purpose of copyright? Not to reward the worker. To promote the arts and sciences. Gives incentive to create. (Oxymoron?) As a matter of economics, originality and creativity need protection. Entrepreneurship does not. International News Service v. Associated Press P. 4

Facts: Associated press (p) sued to enjoin Intl News Service from publishing its own news stories obtained from early editions of AP publications. Issue: Is the publication for profit of news obtained by other news-gathering enterprises a misappropriation of a property right? Holding: Yes. Nobody can own the news. Non-profit dissemination thereof cant be enjoined on the basis of property rights. But taking someone elses news for profit is a misappropriation of APs property. Brandeis Dissent: Court invents a right ill-equipped to do so. Old rule of law can be modified, but new common law rights cannot be created. Distinction between Feist and Intl News: With Intl News newsgathering was companies primary business. In Rural, making white pages was auxiliary to plaintiff. Hypo: Work for the budget dept. of Starbucks. CEO says budget has to be cut in order to make company profitable. Cuts location dept. Starbucks will open across the street from wherever Dunkin Donuts opens. Dunkin Donuts sues costs money to decide where to put locations. P: They didnt take our product, but they took our research. D: Suck it up. Real case taken to court (Wendys and Burger King). Court said suck it up. Upton v. JWP Businessland: P. 7 Facts: Upton (p), single mother, brought suit against her employer seeking damages for termination due to her refusal to work long hours. Issue: May liability be imposed on an employer if an at-will employee is terminated for a reason that violates a clearly established public policy? Holding: Yes. No public policy rationale enforced by preventing an employer to require an employee to work long hours. RELATIVITY OF TITLE AND THE IMPROVING TRESPASSER Tapscott v. Lessee of Cobbs 52 Va. (11 Gratt.) 172 (1854) Parties: Defendant: Tapscott, who took over property Facts: 1800 Thomas Anderson dies, he was a landowner 1802 patent for the land issued to the executors of his estate: Harris, Rives, Anderson 1820 - 25 the executors sold the patent at auction, knocked off to Rives 1825 Rives sold the land to Sarah Lewis. She takes possession of the land and lives there until her death but her full payment for the land is never proven. Upon her death she leaves her land to Cobbs. 1842 Tapscott takes possession without a title. Cobbs sues to eject Tapscott on behalf of a fictional lessee. Issue: Can the plaintiff in ejectment recover based on defects in the title of the defendant rather than the strengths of his own title? Holding: Yes

Rationale: While there may have been problems with Cobbs title, it was better than Tapscott who basically had nothing to support ownership other than possession. Somerville v Jacobs 170 S.E.2d 805 (W. Va. 1969) Parties: Plaintiff: Somervilles, owners of three lots who built warehouse Defendants: Jacobs, owner of one lot where Somervilles accidentally built warehouse Facts: Plaintiffs owned several lots in Parkersburg. Due to a surveyors error, they constructed a warehouse in an adjacent lot they did not own. That lot was worth about $2,000, but the warehouse was worth more than 10 times that. The plaintiffs did not realize it was being built on the wrong lot, nor did the defendants. The owners of that lot, the defendants, claimed ownership of the warehouse on the theory of annexation. Issue: In this case of a mutual mistake, can the plaintiffs recover on an equity theory? Holding: Yes Rationale: It would unjustly enrich the defendants to allow them to keep ownership. Rather, they should have the choice of either compensating the plaintiffs for the improvements or selling the property to the plaintiffs for the value of the property less the value of the improvements. This should only be available when there was a mistake of fact and both parties are innocent. Dissent (Caplan): This ruling weakens property rights generally and opens the door for private eminent domain. People often have long-term plans for their property. fIt is the plaintiffs who made the mistake they should pay for it. ADVERSE POSSESSION Brown v. Gobble 474 S.E.2d 489 (W. Va. 1996) Plaintiffs: Browns, landowners claiming additional two feet due to adverse possession Defendants: Gobble, landowners standing to lose that land. Procedural History: Trial court found for defendants, saying plaintiffs didnt prove claim. Facts: Plaintiffs moved into property in 1985. At that time, they believed their land went up to a fence separating it from their neighbors. The preceding two owners had maintained and cultivated the land up to the fence since 1935. But the fence was two feet onto their neighbors property. The plaintiffs purchased the neighboring property in 1989 before which they had a survey done and discovered the misplaced fence. In 1994, the plaintiffs decided to build a road on the land, which would have involved cutting down trees on the two foot strip. The defendants tried to stop them from building the road. The plaintiffs filed suit. Issue: Can the plaintiffs claim ownership of the land due to adverse possession?

Holding: Yes. The burden of proof is clear and convincing evidence, the highest civil standard, because of the strong interest in real property rights being preserved. The statute of limitations in W. Va. sets a ten-year limit after which ownership can shift because of adverse possession. There are four elements to an adverse possession claim:: (1) the taker must have held the tract adversely or hostilely, (2) the possession must have been actual, (3) that it must be open and notorious, (3) that possession has been exclusive, (4) that possession has been exclusive, (5) possession has been continuous and (6) that possession has been under claim of title or color of title. Six Elements to Prove Adverse Possession: Property held adversely (no permission) Actual possession Open and Notorious possession Exclusive possession Continuous possession Property has been held under claim or color of title Brown v. Gobble: P. 24 Facts: Brown (p) and Gobble (d) disputed ownership over a two-foot-wide tract of property on boundary of their properties. Fence two feet over the line. Gobble bought property in 1985 and Brown sued in 1989. From 1937 through 1985, previous owner had treated property as his own. Issue: Does the doctrine of tacking allow parties claiming adverse possession to use their predecessors conduct on the property to meet the time requirements of adverse possession? Holding: Yes. Six elements of adverse possession proven. Question of time period. Different adverse possessions can be added together (if sequential) to meet necessary term, so long as connected by privity of title or claim. Standard of Proof: Clear-and-convincing evidence required. Highest Civil Standard. Romero v. Garcia 546 P.2d 66 (N.M. 1976) Plaintiff: Romero, appellee, the widow of the defendants son Defendant: parents, appellants, claiming ownership of land Procedural History: Trial court found for plaintiff. Defendants appealed. Facts: Plaintiff had been married to the defendants son. In 1947, she and her husband purchased 13 acres for $290 from the defendant carved out from 165 acres he had purchased in 1923. The plaintiff and her husbands deed was recorded in 1950. They lived at the home until 1962, when he died and she moved to Colorado, ultimately to remarry. Deed was invalid. Plaintiff brought suit on theory of adverse possession to quiet title. Defendant-appellants charge the void deed was inadequate for color of title and the deeds description of the land was inadequate. Also, the father-in-law had signed the transfer but the mother-in-law did not. Therefore, the deed was defective.

Issue: Was description of land sufficiently clear to allow adverse possession? Holding: Yes. The area of the land, 13 acres more or less, was plainly described in the deed. A fence marked one of the lines and the fence had existed more than 50 years. Other landmarks including a pile of rocks marked boundaries, which, when used to construct parcel, came out to 12.95 acres. Indefinite borders can be clarified by subsequent acts. Here, the parties built a house and extrinsic evidence exists. The court ruled this was quite sufficient to establish where the land was. One of the requirements in this jurisdiction is that there has to be some color of title. This is why I believe it to be mine. The parents say an improperly signed deed does not give color of title. Court says that argument is clearly erroneous. The defective deed is sufficient. Defendants argued that, because she had in the past owed back taxes, she couldnt recover. She was recovering in that she had continuously paid property taxes. But the deed had never transferred to the state, so the court ruled the appellee substantially complied with the law. Romero v. Garcia: P. 25 Facts: Romero (p) with husband purchased 13 acreds from foather-in-law. Possessd, built home on property and recorded deed. Deed was unclear in definition of land. Romeros husband died and she moved away and remarried. Romero sued to quiet title on land she and her deceased husband bought from parents. Issue: May an indefinite and uncertain description of property in a deed be clarified by subsequent acts of parties? Holding: Yes. On insufficient description, court leans towards daughter. Little defect would defeat all the things the court cares about in doctrine of adverse possession. Color of Title: Shows good faith. Claim of Right v. Color of Title Has to be some reason why squatter believes this thing should be theres Color of Title: You have a piece of paper which seems to give you ownership over land. But, though it seems to, it actually doesnt. (Minority rule ( Without this no claim) Claim of Right: Have to have some basis either when you started or now for arguing that this land is yours. In some jurisdictions ( I have adverse possession In others ( Made clear to outside world you thought it was yours Nome 2000 v. Fagerstrom: P. 26 Facts: Fagerstroms (d) used a parcel of land owned by Nome 2000 (p) for various purposes from 1944 to 1987, but did not build a house on it until 1978, defeating some of their adverse possession claim, Nome argued. Nome sued in 1987 to quiet title. Fagerstroms countersued for adverse possession. Issue: Does claim of adverse possession necessarily depend on the existence of significant improvements, substantial activity or absolute exclusivity?

Holding: No. Use consstent with the use by any similarly situated owner is sufficient to establish claim by adverse possession. If its so cold the land can only be used in the summer months, continuous use in the summer months is sufficient. (Additional Rationale: In order to win an action for adverse possession (or a defense), you must prove, by clear and convincing evidence, 10 years of continuous, open and notorious, exclusive and hostile use to the true owner. These were proven. Continuousness, notoriety and exclusivity do not necessarily depend on the existence of significant improvements, activity or absolute exclusivity. They depend on the character of the land in question. More rural land requires less. As for notoriety, simple inspection would have shown the adverse possession. Hostility only requires the Fagerstroms intended to claim the property as their own. Plaintiff alleges they were acting as Native American-style stewards of the land. This is irrelevant. However, Fagerstroms use of the southern part of the parcel doesnt qualify. There they only used the land for recreation and picked up litter. At most, that would qualify for an easement.) Community Feed Store v. Northeastern Culvert Corp.: P. 27 Facts: Community Feed Store (p) claimed prescriptive easement over a portion of a gravel area used by its vehicles but owned by Northeastern Culvert Corp. (d). Issue: Is the general outline of consistent use sufficient to establish a prescriptive easement? Holding: When the parties havent talked about use, permission is assumed. Defendant claimed trucks took slightly different paths when turning around. Court said thats ridiculous Possible to assess general and consistent use. Open and notorious use without permission. Continuous for the statutory period. Some jurisdictions require acquiescence. Has to go 10 years depending on jurisdiction. A JOB AS PROPERTY? Local 1330, United Steel Workers of America v. United States Steel Corp: P. 8 Facts: Union (p) sought to enjoin U.S. Steels (d) plan to close two large steel mills that it had operated in Youngstown, Ohio, since turn of the century. Plants were unprofitable. Issue: Recognizable property right in a job that has been held for something approaching a lifetime? Holding No. Federal law protecting employees from plant closures needs to come from the legislature, not the courts. Hohfeldian Terminology (p. 198): Conceptual structures that allowed people to go on having faith in the system is that the terminology is poorly defined. There are rights and privileges. If you think more systematically about law, you wouldnt think everything is peaceful and theres a worked out system of rights but would understand that , at the root of it, there is a lot of controversy and conflict. II. EXCLUDING NON-OWNERS

A. TRESPASS Basic Rule of Exclusion: Property owner has right to exclude others from property. Exceptions: Cant exclude someone there by necessity, someone who is furthering a governmental purpose, if youre open to the public, cant exclude someone unless theyre disruptive, cant discriminate against certain groups, cant discriminate on the basis of someones speech, cant bar access to public trust lands. Desnick v. American Broadcasting Companies, Inc. 44 F.3d 1345 (7th Cir. 1995) Parties: Plaintiff-appellant: Desnick Eye Center Defendant-appellee: ABC Facts: Plaintiff operated an ophthalmic clinic that specialized in cataract removal. An ABC television program, Primetime Live, represented to the plaintiffs business that it wanted to tour the clinic for a program it was to do on eye surgery. Representations were allegedly made contrary to the television producers intentions. In fact, the show sent fake patients to the eye center where they were diagnosed and contradicted those diagnoses. The program aired a segment vastly critical of the eye center. The plaintiff sued in part on a theory of trespass, alleging the television program attained entry to the property by fraud. Issue: Can plaintiff recover for access gained from journalists who entered under false pretenses? Holding: No Rationale: The question doesnt go to whether fraud was employed for entry. It has to do with the interest that the tort of trespass protects the inviolability of ones property. The office advertised for and wanted patients and the test patients did not disrupt the services. There was no invasion of the home or of personal privacy. FBI agents employing similar tactics would not violate the Fourth Amendment, because there would be no invasion of a legally protected interest in property or privacy. State v. Shack: P. 112 Facts: Tejeras (d) and Shack (d) entered private property against the orders of the owner of that property to aid migrant farmworkers employed and housed there. Issue: Does owner of real property have the absolute right to exclude all others from that property? Holding: No. Real property rights not absolute. Law serves human values. This is not trespassing. Uston v. Resorts International Hotel, Inc. Facts: Because Uston (p) was well known for his ability to count cards, he was excluded from Resorts Intl Hotels (d) casino. Issue: Do owners of property open to the public have the right to unreasonably exclude particular members of the public?

Holding: No. Old common law rule gave property owners absolute right to exclude members of the public from the property regardless of the nature of their use. But now courts hold that to the extent property caters to the public, it must also take into account the publics right of use. (Additional Rationale: The New Jersey Supreme Court extended the public right of access that governed inns and common carriers. It noted the deep roots in common law of both the rights of amusement place owners to exclude unwanted patrons and the rights of the non-disruptive persons to access public places. The court held that the public has a right to access the premises of all property owners who open their premises to the public [unless the owners have a] legitimate interest in excluding certain persons. The court found the plaintiff did not threaten security in the casino nor disrupt its function.) Assumption of Risk: If you get into boxing ring and someone gives you a concussion, normally you could sue for battery, but you cant because state would hold you assumed risk. Casino said come and gamble. If people win, too bad you assumed the risk. New Jersey Rule: You can be there as long as you arent disruptive. But what is disruptive? ANTI-DISCRIMINATION LAWS Dale v. Boy Scouts of America: P. 19 Facts: Dale (p) was expelled from his membership in the Boy Scouts of America on the basis that he was a homosexual. Said he should not be excluded because Boy Scouts are a place of public accommodation. Boy Scouts argues it is not a place of public accommodation because it is not a place. Meets all kinds of places. Issue: Do all persons have the opportunity to obtain all the accommodations, advantages, facilities and privileges of any place of public accommodation without discrimination on the basis of their sexual orientation? Holding: Yes. Places of public accommodation are not limited to those enumerated by the statute, but have been held to include such places as Little League. Boy Scouts does not fall within distinctly private exception since it does not employ genuinely selective criteria, nor does it limit its membership to individuals who belong to a particular religion or hold a certain set of moral beliefs. C. ACCESS TO SPEAK FEELY Lloyd v. Tanner: P. 20 Facts: Tanner (d) distributed pamphlets in malls (p) protesting the Vietnam war (not related to the shopping centers activities or business). Issue: Is a privately held shopping center so dedicated to public use to allow private parties the right to exercise their First Amendment rights on its premises? Holding: No. Marsh (company town) not controlling. First Amendment rights only protected against state/federal action. Mall wants to create an atmosphere

conducive to shopping, which would be impacted by handbilling. Public being allowed in does not make it a public place. If you want that changed, go to legislature not courts. Hudgens v. NLRB: (squib p. 158) Facts: Labor picketing a shopping center. Holding: 1. Under the present state of the law, the constitutional guarantee of free expression has no part to play in a case such as this, and the pickets here did not have a First Amendment right to enter the shopping center for the purpose of advertising their strike against their employer. Lloyd Corp. v. Tanner, 407 U.S. 551. Pp. 512-521. 2. The rights and liabilities of the parties are dependent exclusively upon the NLRA, under which it is the NLRB's task, subject to judicial review, to resolve conflicts between 7 rights and private property rights and to seek accommodation of such rights "with as little destruction of one as is consistent with the maintenance of the other," NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 112. Hence, the case is remanded so that the NLRB may reconsider the case under the NLRA's statutory criteria alone. Pp. 521-523. New Jersey Coalition Against War in Middle East v. J.M.B. Realty Corp.: (squib p. 158) Facts: NJ SC had held its constitution allowed some free speech guarantees to extend to private property. Holding: Free speech clause in state constitution worded more expansively than in federal constitution. Every person may freely speak, write and publish his sentiments on all subjects State constitutios may grant greater rights, though not fewer. More an owner opens up his property for use by public, more his rights become circumscribed by statutory and constitutional rights of those hes allowing to use it. Malls are the new public square. Magnet for all people, not just shoppers. No evidence leafleting had or would have any financial impact on center owners. They could minimize disruption by regulating time, place and manner of leafleting. Balance of Property Rights v. Free Speech Guarantees: On one side, weight of private property owners interest in controlling and limiting activities on property. This interest is diminished when owner has intentionally transformed property into a public square or market, public gathering place or downtown business district. They have told the community in every way possible this property is theirs. Plaintiffs free speech interest is substantial in constitutional scheme. Involves speech that is central to the purpose of our right of free speech. Some speech can be exercised without discernible interference with shoppers and non-shoppers enjoyment. D. THE PUBLIC TRUST Matthews v. Bay Head Improvement Association: P. 21 Facts: Bay Head Improvement Association (d) permitted only members to use its beach area between 10 a.m. and 5:30 p.m. in the summer. Issue: Does the publics right to enjoy tidal lands include a right of access over privately held dry sand lands?

Holding: Yes. Public owns shoreline ( ancient principle. Too important a right to be privatized. If you cant get to the land thats in the public trust, the trust is pointless.. BHIA ( quasi-public association. Whether Matthews v. Bay Head would apply to a private organization is left unclear. III. SPATIAL BOUNDARIES CONFLICTS AMONG NEIGHBORS A. FROM RULE TO STANDARD COLLAPSE OF COMMON ENEMY RULE Common Enemy Rule: Water is the common enemy of develop, so we applaud people who get rid of it however they choose to do so. Traditional Exceptions: Large amounts of water. Civil Law Rule ( If you dump surface water on your neighbor and your neighbor is hurt by it, youre a bad actor no matter what. Armstrong v. Francis Corp.: P. 30 Facts: Francis (d) drained off excess water from its land by means of culverts and pipes, causing severe injury to its neighbors property. Killed fish in the stream, smelled foul. Issue: Does a landowner have an absolute right to rid his property of excess surface waters as he will? Holding: No. Most states use common enemy doctrine ( Water is the common enemy of develop, so we applaud people who get rid of it however they choose to do so. Court takes a different view. Reasonableness: You can dump law on your neighbor, but only if youre reasonable about it. Flexible test, middle position between Common Enemy and Civil Law doctrines. B. PRECEDENT AND THE GAME OF ANALOGIES Noone v. Price: P. 31 Facts: Noone (p), homeowner, contended Price (d), neighbor, breached her duty to supply lateral support for Noones hillside home by allowing a retaining wall to fall into disrepair. House built at base of hill along with stone and cement wall located at base of hillside. Another house later built on hillside above wall. Owner of house at the base made no repairs to wall and owner of higher house found it was slipping down the hillside. Issue: Is the adjacent landowner strictly liable for acts of commission and omission that result in the withdrawal of lateral support to his neighbors land in its natural state? Holding: Yes. However, if the land would have been fine but for the existence of the structure on the neighbors property, the landowner who dug is not liable. Court imposes reasonableness requirement on digger for damage caused to neighbors property. You have to dig carefully, use best methods so as not to cause damage to neighboring structure, have to give notice if you know its going to damage neighboring structure.

Friendsworth Development Co. v. Smith-Southwest Industries, Inc.: P. 32 Facts: Friendsworth (d) pumped lots of subsurface water from their land, causing subsidence in adjoining plots of land. Issue: Is a person liable for damages caused by drawing water from his own land limited to the extent that his activity was negligent? Holding: Yes. Court distinguishes from (old) English rule: If you take water out from under your own land and it damages your neighbors land, you are not liable. But now you can be liable for negligence, or if use is willfully wasteful or malicious. Rule applied retroactively. (Additional rationale: Holding: Water was traditionally a resource of which a landowner could pump as much as he or she pleased. This is known as the English Rule or Common Law Rule. Even negligence couldnt result in damages. Plaintiffs argued for American Rule reasonableness. Court declined to apply this doctrine. Texas legislature had begun regulating groundwater. However, this area was not regulated. The court encouraged the state government to more thoroughly regulate. The court did decide to strip the negligence exemption for drilling wells. But it still applied the negligence exemption in this case, because it was a Property case.) Dissent: We dont need a new rule just need to finesse the standard. Landowner may assert a cause of action against one destroying the lateral support to maintain his land in its natural state when the destruction is knowingly caused, or when the landowner can prove negligence or nuisance. C. PROS AND CONS OF NUISANCE DOCTRINE Page County Appliance Center v. Honeywell: Facts: Honeywell (d), neighboring business, placed a computer in a business adjoining Page County Appliance Center (p), appliance retailer, that interfered with Pages business of selling television sets. Issue: Does lawful activity constitute a nuisance if it unreasonably interferes with anothers enjoyment of his or her property. Holding: Yes. A litigant need not show negligence in an action for nuisance. Lawful activity constitutes a nuisance if it unreasonably interferes with anothers enjoyment of his or her property. Court says nuisance depends on reasonableness, so trial court was right in submitting questions to jury. However, trial court didnt instruct jury as to what reasonableness was, so Court sent it back. Also said needed to include instructions to jury on whether Appliance Center was unusually sensitive use and whether ITTs conduct was substantial factor in causing harm. Nuisance v. Negligence: Negligence focuses on reasonableness of tortfeasors conduct whereas nuisance focuses on reasonableness of the harm. Fontainebleau Hotel Corp. v. Forty-Five Twenty-Five, Inc.: P. 34 Facts: 4525 (p) sought to enjoin the Fontainebleau Hotels (d) construction of additiona that would block all sunshine from 45s hotel. Competed hotel would be

14 stories tall and completely block all light from Eden Rocs swimming pool area. Forty-Five sought injunction to halt construction of hotel. Issue: Is there a legal right to the free flow of light or air from an adjoining parcel of land? Holding: No. 4525 claims right to an injunction based on law of nuisance. However, nuisance law states one property holder cannot use his property right to harm the lawful rights of an adjacent landholder. No court has ever found that a property owner has a legal right to air or sunlight. Absent a right to the light, no claim for nuisance. Prah v. Maretti: Facts: Prah (p), homeowner, sued to enjoin neighbor Maretti (d), neighbor, from building on his land so as to block to flow of sunlight to Prahs solar heated house. Issue: Does the doctrine of prior appropriation apply to the use of sunlight as a protectable resource? Holding: Yes. Court changes old common law rule re: sunlight based on development of technology allowing practical use of solar energy that enhances its value. Given this new technology, sunlight must be regarded as a valuable resource and the doctrine of prior appropriation applies to protect those who exploit it. Dissent: Leave this to the legislature. Solar connectors are new-fangled and we shouldnt change common law for them. LAW AND ECONOMICS: Every case we read involved a conflict between two or more parties over resources. If the rules were crystal clear about which parties were entitled to which resources, they probably wouldnt end up in court. So a great deal of property law is saying what are we going to do when people are fighting over resources and the rules arent clear? Two Styles. Maybe the rules arent clear, but we have to do our best to figure out what they are. Have to give it our best shot. What playing field were parties operating on? Caution to the winds. We dont know what the rules were. Thats why theyre fighting. We ought now not to pretend as though we knew what the rules were. If we dont know, now we need a technique for adopting a rule. Law and economics enters at this point: The best rule is the one in which the winner will gain more than the loser will lose. Considered law and economics in the context of Nuisance: Two people living next to one another with incompatible uses. Law and economics says rule in favor of the party with the more valuable use. Alternative Theory: If we rule for the less valuable user, the more valuable user will buy the less valuable user out. Consider transaction costs. As it relates to nuisance law: You dont like their use? Pay them to stop.

But problematic. Bilateral monopoly. People tend to value things more when they already have them. People find its disturbing to be interrupted from ongoing action. Old rule in re: sunlight: No nuisance suit for blocking sunlight. Must be an expressly agreed-to easement. IV. TEMPORAL BOUNDARIES INTR. ESTATES IN LAND A. CONCEPTUAL BACKGROUND LAND CONVEYANCES AND INTERESTS Fee Simple Determinable O to A for so long as (condition) Key words: for so long as Fee Simple Subject to Condition Subsequent O to A, but if not (condition), back to O Key words: but if B. ALIENABILITY AND MARKETABILITY CONFLICT 1. GRANTORS INTENT AND PRESUMPTN AGAINST FORFEITURES Wood v. Board of Commissioners: P. 66 Facts: Wood (p) claimed that a grant of land to the commissioner of Freemont County (d) was subject to a condition subsequent that the land be used as a hospital. Transfer stated its purpose was that land be used as a hospital. After 40 years, county stopped using it as a hospital and put it up for sale. Donors heirs sued claiming right of reversion. Issue: Must a grant of fee simple determinable clearly state that the estate will terminate if not used in accordance with grant? Holding: Yes. A fee simple determinable is characterized by its expiration upon the happening of an uncertain event. Must clearly state estate will expire automatically. (Additional rationale: A fee simple determinable is normally shown by words such as so long as, until or during. The language must clearly state the circumstances that would cause the propertys ownership to revert. Here there was no clear language. The use of the word memorial fails to create a F.S.D. There was no statement of how long the memorial had to last in the deed.) Cathedral of the Incarnation v. Garden City Co.: P. 67 Facts: Cathedral (p) brought suit to extinguish or modify restrictions on the conveyance of property it purchased in 1891 as part of a bankruptcy reorganization plan. Garden City (d), sellers heir, opposed, said property should revert to them. Terms of original sale stated the land was being sold for religious and educational use.

Issue: May a restriction in a deed be modified or extinguished if the existence of the restriction substantially impedes the owner of the property in the furtherance of the purpose for which the land is held? Holdign: Yes. Chancellor here provided sufficient evidence that continued ownership of the property constituted a burden and drain on financial resources of cathedral that could otherwise be used to provide services to community. Hardship statute: If yore a school/charity and you own land that is subject to certain restrictions, but those restrictions now seem inconsistent with overall purpose, can sell them. Future interest is an asset. Can be sold or assigned. Garden City said dont take it away without due process of law. RULES AGAINST CREATION OF ESTATES Johnson v. Whiton: P.69 Facts: Johnson (p) claimed a deed to him was invalid because Whiton (d) having received only a qualified fee form her grandfathers will, could not convey a fee simple absolute. Whiton executed a will bequeathing on-third of his peropty to Sarah Whiton, d, and her heris on her fathers side, remainder over to his four oher grandchildren. All five grandchildren contracted to sell the land to Johnson who then refused to accept the deed, claiming Sarah Whiton could not convey fee simple absolute. Johnson sued to recover deposit. Issue: May grantors create new types of inheritance? Holding: No. Any attempt to do so will result in the full fee being conveyed. Under old English law, to take land by descent a person had to be of the blood of the first purchaser, that is, the closest relative on the fathers side, if the father was the grantor. Therefore, it was permissible to restrict inheritance to particular lineal decedents using words of limitation such as those contained in Whitons will. However, under Massachusetts law, inherited property may pass from one line to the other. Therefore, Whitons attempt to create an estate descending only to heris on the fathers side was a new kind of inheritance. As such, must be rejected. Left estate fee simple. 3. RULE AGAINST PERPETUITIES Rule Against Perpetuities: No interest is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest. For the purposes of the rule, a life is "in being" at conception. Rule Against Perpetuities ( Effort to limit dead hand control. But arcane line. Exception for reverter: Future interests held by O excepted from RAP. (Because of politics. Owners created rules.) O to A after Os will is probated.

Without statutory intervention, would violate RAP. Will could be contested for 100 years. Corrected by statute in most states. O to A for life and then to B. O will almost always have a current interest ( No RAP problem. A holds a present interest ( Secodn party has no problem with rule. B has a future interest and is a third party. Remainders vs. Executory Interests: Distinctions drawn for feudal reasons. When Im an O, and I want to assign multiple interests for property: Remainder Interest: O might want A to have land for a very well defined period of time, then it goes to B (life estate, fixed term). B has remainder interests. Also follows a fee tail interest (but fee tail abolished in most states). Executory Interest: O might want A to be in charge of the land, but if A gets married, then A is taken care of so land goes to B. Interest may never happen. Vested Remainders: No more conditions must be met. You need to know who gets it and there needs to be no remaining conditions necessary for the holder of the remainder to take title to the property. If remainder vested within time period required, were done. No need to determine distinction between vested and contingent remainder. Contingent Remainders: We dont know who or theres a condition yet to be met. Examples of Contingent Remainders: O to A for 10 years and then to the 2018 Oscar winner for best actor in a motion picture. (Dont know who will win. No RAP problem. If person is ever going to get property, theyre going to get it in 10 years and they have 21 years). O to A for life and then to B if B is still a vegetarian. (No doubt here who B is, but B might be eating meat, so no property. If that happens, on As death, back to O.) HYPOS: O to A for life. A has life estate. No perpetuities problem because its a reverter. O to A for life, then to B. A has life estate, B has remainder, O retains no interest. No perpetuities problem because future interest is already vested. Land transfers when A dies so transfer will be within 21 years of the death of one of the parties. O to A for life, then to B, but if B marries C, then the property shall revert to O. A has life estate. B has vested remainder subject to divestment. If Bs remainder divests, reversion to O. If B marries C before A dies, A never gets property. If B marries C before A dies, A never gets to property. If B marries C after A dies, B loses the property it reverts to O. O has a right of reentry. but if looks like fee simple subject to condition subsequent. ??????? O to A for life, then to B for life, then to C for 10 years, then to D.

Doesnt violate RAP. Theyre all vested now. If A, B and C die, Cs heirs get it for 10 years, then to D. O to A for life, then to B for life, then to third child of Q (and, at the moment, Q has only one child) then to D. Problematic???? O to A for as long as used for residential purposes. Then to B. Fee Simple Determinable. Subject to RAP: Not reversion, limit on use goes on forever. B has executory interest. Doesnt vest until possession of property is taken. Traditional remedy is to strike out then to B. Leaves you with O to A as long as used for residential purposes (FSD with O having conditional reversion interest.) O to A, but if the property is ever used for nonresidential purposes, then to B. Fee Simple Subject to Condition Subsequent. Subject to RAP. Traditional Remedy is to strike out then to be. But then but if clause doesnt make sense. So strike that out, too. Leaves A with Fee simple absolute. O to A, but if the property is used for non-residential purposes within 21 years of this conveyance, then to B. Executory interest subject to RAP, but no violation because limited to 21 years. O to A for life, then to B if B marries C. ???? O to A for life, then to children of B. A has a life estate. If Bs children are alive, they have a vested remainder. If B doesnt have children by the time A dies, it bests when they are born. No RAP problem because interest vests when A dies. If A dies before B has children and the interest is destructible, property reverts to O. If the interest is non-destructible (as in most states), property will revert to O and then revert to Bs children if he has them later. O to A for life, then to the first child of B to be elected president of the United States. Does violate rule. Bs child could take 30 or 40 years to be elected president. Central Delaware County Authority v. Greyhound Corp.: P. 70 Facts: CDCA (p) brought action to quiet title in land it used as sewage treatment plan, alleging restrictive covenants in the deeds for the land violated RAP. Deed said land would go back to original owner but original owner had to refund purchase price. Issue: Is restrictive covenant allowing unlimited time for repurchase of property conveyed a purchase option subject to RAP? Holding: Yes. Court prefers to view as repurchase option, which is subject to RAP. Poitn of RAP is to prevent dead hand control what we see here. Texaco Refining and Marketing, Inc. v. Samowitz: P. 71 Facts: When Texaco (p) exercised option to purchase commercial property it was leasing, Samowitz (d) and other successors in interest to lessor refused to transfer property, prompting action by Texaco for specific performance.

Issue: Is an option to purchase contained in a commercial lease, at least if the option must be exercised within the leasehold term, valid without regard to RAP? Holding: Yes. Defendants said the period renewed with renewal of lease, 15 years, plus five plus five plus five. But SC said question is really should RAP apply in longterm lease? No. Not really dead-hand control. If the tenant has long-term security, more likely to invest in land. Controlling party here isnt dead hand. Its the current possessor. Cambridge Co. v. East Slope Investment: P. 72 Facts: Condo resident sought to block sale because she had right of first refusal to purchase unit. Seller argued RAP rendered deed restriction moot. Rule: The RAP will be applied to preemptive rights only where purposes of the rule are served. Here, owner assured of receiving market value and no deterrence to sell. C. FUTURE IS NOW: CONFLICT BETWEEN PRESENT AND FUTURE INTEREST HOLDERS. PROBLEM OF WASTE Moore v. Phillips: P. 73 Facts: Guy died and left his wife a life estate to a farm with farmhouse, remainder going to granddaughter. His wife lived in farmhouse for a while, rented out land. Neglected farmhouse and allowed it to deteriorate. Issue: Defense of laches or estoppel bar recovery in an action for permissive waste when no party was prejudiced? Holding: No. Laches and estoppel are closely related especially where delay has placed another at a disadvantage. Laches is a wholly negative failure to act. Estoppel may involve an affirmative act of one of parties. Laches is not merely a delay, but a delay that works to someone elses disadvantage. Person claiming laches must demonstrate a change of position or prejudice of some kind. V. SHARING WITHOUT BOUNDARIES A. BASIC RULES OF CO-OWNERSHIP Same land owned by more than one owner at once: Common law, three types of co-ownership. Tenants in Common Joint Tenants Tenants in Common (most typical) A, B, C and D own land. Each has one-quarter interest. If A dies, As quarter goes to whomever A wants. Contemporary presumption for this. Joint Tentants When one co-owner dies, the other takes. Survivorship rights.

Limitation: Everyone has to have same joint share. HYPO: O to A and B jointly. A dies. B is going to say, I get As share. As heirs say, Not so fast. Jointly is a common-sense word. Contemporary presumption is for co-ownership is tenants in common. Conflicting Interests, solutions to Partition: Works well with farmland. Apartments not so much. Sever Ownership: Force sale. If you litigate interests, courts likely to make you sell. Divide money among parties according to interest of each. Olivas v. Olivas: P. 76 Facts: Tenatns were married. They separated. Husband moved out. Because of lengthy divorce, husband waited several years before seeking rent from wife, who had remained in home. Issue: When a spouse departs a residence held as community property due to marital friction, is constructive ouster effected? Holding: Yes. Husband and wife held family home as community property. After dissolution, they held it as tenants in common until judicially divided. But here there was no constructive ouster. The husband wasnt pushed out, he was pulled. Carr v. Deking: P. 77 Facts: Father and son owned tract of land in common. The land was leased to a man who farmed it and paid with portion of crops. Son decided he wanted cash instead of crops. Father didnt agree. Signed 10-year lease with farmer to be paid in crops without sons knowledge. Son brought action to have lease invalidated. Issue: May cotenant lawfully lease his own interest in the common property to another without consent of other tenant and without his joining lease? Holding: Yes. Each tenant in common may use, benefit from and possess entire property subject only to equal rights of other cotenant. Lessee steps into shoes of the leasing cotenant and becomes sons tenant in common for duration of lease. Proper remedy for son is physical partition. Tenhet v. Boswell: P. 78 Facts: Joint tenants. One leased his interest then passed away. Issues: (1) Does lease entered into by joint tenant sever joint tenancy? (2) Does lease entered into by joint tenant expire upon death of that tenant? Holding: (1) No. Four unities required to create a joint tenancy, interest, time, title and possession. Destruction of one of the unities destroys joint tenancy. Partial alienation of interest (i.e. lease) does not breach any of the four unities. (2) Yes. Joint tenacy must be expressly declared by a written instrument or tenancy in common results. Likewise, therefore, terminating joint tenancy requires clear, unambiguous intent. Can also be terminated if one tenants entire interest is conveyed ( not what happened here.

What about disappointed lessee? Sorry, you should have checked the title. Tenancy in Entirety: Like joint ownership. Right of survivorship. Kresha v. Kresha: P. 79 Facts: Divorce. Husband, before his marriage is dissolved, sets up a lease with son. Upon dissolution, land awarded to wife. Wife sues to throw out lease. Issue: Pursuant to a divorce proceeding where one party is awarded entire ownership of certain lands, are those lands taken subject to leasehold interests in the ex-spouses former ownership interest? Holding: Yes. General rule is one of several tenants in common can lease his or her interests to a third person. Similar to someone purchasing land that is subject to a lease. B. MARRIAGE AND THE CREDITOR PROBLEM Sawanda v. Endo: P. 80 Facts: Tenant and wife were owners of property by tenant in entirety. Tenant struck two people with car. Tenant and wife conveyed property for no money to children. Accident victim sued tenant trying to set aside conveyance. Issue: Is the interest of one spouse in real property, held in tenancy by the entirety, subject to levy and execution by his or her individual creditors absent consent of both spouses? Holding: No. Tenancy by the entirety is an estate held by both husband and wife in single ownership. Neither the husband nor wife has a separate divisible interest in the property that can be conveyed or reached by execution. Tenancy by the entirety carries indestructible right of survivorship. The point of the rule that is adopted here is it says to a couple who choose to take property in this form of ownership, If we were to select between a public policy favoring the creditors and one favoring the family unit, we would not hesitate to choose the latter. C. DIVIDING THE INTANGIABLE OBrien v. OBrien: P. 82 Facts: Divorcing wife (d) of OBrien (p) claimed a marital property interest in his medical license. Much of 12-year marriage devoted to him getting license. Wife had worked while he got it. At time of divorce, husband in residency. Didnt own much. Issue: May a professional license constitute marital property? Holding: Yes. Statute: Marital property can be anything acquired in the marriage regardless of the form in which the license is held. Court asks, is this thing enough like property? Statute: Regardless of the form in which title is held. Husband is saying, This isnt thing like enough. Court says, Thats not how we look at thingness. This reminds us of a pension. A pension isnt something you can hold onto.

Husband says, A pension is different. If I have a pension, all I have to do is live. To gain from the medical degree, I have to work. Court says suck it up. Problem: What if the guy no longer wants to work as a doctor? Or what if he wants to work as a charitable doctor? This is controlling his life. VI. LANDLORD AND TENANT: INTERSECTION OF PROPERTY AND CONTRACT LAW A. BACKGROUND HYPO: A buys car from B. A is paying $500 monthly installments. A gets a bunch of speeding tickets and loses license. A stops sending payments. B sues. What about Sommer v. Kridel? This is different: This is a sale, not a lease. B. DOES INTENT EXTEND TO REMEDIES? DUTY TO MITIGATE Sommer v. Kridel: P. 89 Facts: Sommer (p) did not attempt to relet the premises he had leased to Kridel (d), even though the opportunity to do so existed and Kridel (d) had specifically informed Sommer that he was unable to go through with the leasing or personal reasons and had asked acceptance of surrender. Issue: Must a landlord make a reasonable effort to mitigate damages by attempting to relet the premises when a lessee surrenders same? Holding: Yes. In contract law, duty to mitigate damages. Court says the same thing should apply in Sommer. If you cant find another person to rent it, you should get your money. But youre a landlord. Youre in the business of letting apartments. Influence of Contract Law: Enforce the deal that parties intended. At the moment the parties signed the lease, what was their intent with the question of whether the landlord had the duty to mitigate damages? Should tenants be able to waive landlords rights to mitigation in lease? Should residential leases and commercial leases be treated differently? C. LANDLORDS LOSS OF CONTROL GOVERNED BY LEASE OR LAW ASSIGNMENT/SUBLEASE PROBLEM Kendall v. Pestana: P. 92 Facts: Peastana (d) held assigned lease interest in hangar space at airport. Original holders of lease had also entered 25-year sublease with another party, who decided to sell the business to Kendall (p). Proposed sale included existing lease. Pestana refused to consent to assignment of lease maintaining he had an absolute right by contract to arbitrarily refuse any such request.

Rule: Where a lease provides for assignment only with the prior consent of the lessor, such consent may be withheld only where the lessor has a commercially reasonable objection to the assignment. Holding: Factors to consider in applying standards of good faith and commercial reasonableness: financial responsibility of proposed assignee suitability of the use for the particular property legality of the proposed use need for alteration to premises nature of the occupancy Here Pestana wanted more than he bargained for: To reap reward for increased value. Constructive Eviction: Something the landlord does or the landlord allows to happen force the tenant out of the property he or she is leasing. If plaintiff prevails, doesnt have to pay rent. To prevail, landlords actions or what landlord allowing were denying use of property. Ordinarily, good way to prove this: Move out. Common law doctrine of landlord-tenant law: The rent is the rent is the rent. Only exception was actual ouster. At common law even if place burned down, obligation to pay remains. Have to notify landlord of problem. If withholding rent, smart move is to put money in an escrow account to show good faith. D. DUTIES TO IMPLIED PROBLEMS INNOVATION OR OXYMORON? Minjack v. Randolph: P. 95 Facts: After Randolph (d) and Kikuchi (d) withheld their rent due to condition of loft space they were leaseing, Minjack Co. (p) sued for non-payment and Randolph and Kikuchi counterclaimed for breach of warranty of habitability. Leaking water and sand and dust coming into apartment. Construction workers leave holes in the stairs. Tenatns didnt move out. Tenant has to keep music equipment covered up, stop using part of space. Issue: May a tenant assert the defense of constructive eviction for nonpayment of rent, even if he or she has abandoned only a portion of the demised premises due to landlords acts? Holding: Yes. Here, evidence fully supported finding defendants had to abandon music studio portion of loft. Record shows jurys finding of morally culpable conduct allowing punitive damages in light of landlords dangerous and offensive manner.

Blackett v. Olanoff: P. 96 Facts: Tenants (d) alleged Blackett (p), the landlord, had breached his covenant of quiet enjoyment as a defense in an action for rent. Landlord rented adjacent space to lounge owner. The noise from the bar was often very loud and significantly disturbed apartment tenants. Blackett periodically warned bar tenants to keep noise down as they were obligated under lease, but the lounge would always become loud again. Issue: Can a constructive eviction be found where the landlord permits a third party to substantially impair the rights of other tenants? Holding: Yes. Intent on behalf of landlord to deprive tenants of rights not required. Where landlord permits an activity to continue, which he can control, which causes significant impairment of the rights of other tenants, this constitutes a breach of the landlords covenants. Question: Why dont tenants sue the lounge? Court says its easier for the landlord to sue the land. The landlord was playing with fire by renting to the lounge in the first place. Hypo: Tenants are living in apartment building and neighbor in 2B loves to walk around the halls with no shirt on. Tenants say, Put on a shirt. Neighbor says no. Tenants complain to landlord. Probably unlikely get an abatement. Javins v. First National Realty Corp.: P. 97 Facts: Javins (d) refused to pay rent due to numerous housing code violations. Alleged 1,500 violations. Landlord brought suit to recover possession and for pastdue rent. Issue: Do leases of urban dwelling units contain an implied warranty of habitability, the breach of which gives rise to usual remedies for breach of contract? Holding: Yes. Rationale: Old common law rule that the lessor is not obligated to effectuate repairs unless he covenants to do so in lease is outdated and must be rejected. Tenants are more transient today. Landlord better able to bear cost. Tenant has a legitimate expectation that apartment will be fit for habitation for lease term. Housing code also requires implied warranty of habitability. Code establishes standards and delineates penalties. Tenants obligation to pay is conditioned on landlords performance of these obligations. Notes on Javins and implied warranty of habitability: Typical struggle in American legal system: We have a government goal. How best to accomplish? Public enforcement or private right of action? Other reasons to update common law: In the old days, tenants were likely farmers; average urban apartment dwellers unlikely to know how to make repairs. Court says This is like contracts. Consumers expect what they contract for willb e safe. So apply contract rationale to modify property law. ( But thats problematic here. If obligations were contractual, they could be waive. Javins says such a waiver is unenforceable.

Right to withhold rent: Prior to Javins, if something goes wrong in the apartment, I can call the landlord and ask him to fix it, but I have to keep paying rent. Javins says if the thing that is wrong is a housing code violation, I am now entitled to withhold the rent and I dont have to pay any rent until the landlord fixes it. Landlords counterarguments: Landlords extremely unlikely to rent places where there are code violations. After fixing the place up, landlords will raise rent. Javins is likely to result in more places being fixed up, higher rents. Courts dont care if the rents rise: Warranty of habitability forces tenants to pay rent that they may not have otherwise have had to pay, but ensures they dont live in substandard conditions. Court is willing to make this trade. Parallels: Cars required to have airbags. Makes them more expensive. But society has decided this regulation is worth making. Rationales: Unequal bargaining power. Im little, youre big. People dont have a choice but to take contracts that are bad for them. Rationale of state regulations like warranty of habitability: Warranty of habitability is just one of many state-imposed rules that involve the state stepping in and looking to the person at the bottom (in this case the tenant) and saying, Weve looked at the choices available to you. Were embarrassed to live in a society in which you have to choose between medicine and hot water. Were embarrassed that weve allowed you to be put in this hole. And, because of that, were going to bail you out. Were going to say to you, Here comes the state to the rescue. So were going to choose for you. Retaliatory Eviction: Protections for month-to-month renters: Only way to preserve the warranty of habitability is that, even if people are on a month-to-month basis, landlords shouldnt be able to summarily evict people who ask for repairs. E. RETALIATORY EVICTION, RENT CONTROL AND THE PROBLEM OF PARTIAL REGULATION Hillview Associated v. Bloomquist: P. 98 Facts: Following physical altercation between tenant and a manager at a tenants meeting, a number of tenants (d) received eviction notices from Hillview Associates (p). Trenatns had formed association and contracted Iowa AGs office and state rep. regarding conditions of trailer park and rent increases. Issue: May tenants organize and join a tenants association and participate in activities designed to legitimately coerce a landlord into taking action to improve conditions without fear of retaliation? Holding: Yes. However, engaging in physical threats or violence is not a legitimate method of coercion. Arguments, even heated ones with raised voices, cannot fairly be described as being in violation of proper conduct. But tenant who struck manager crossed the line. Others established affirmative defense of retaliatory eviction.

Imperial Colliery Co. v. Fout: P. 99 Facts: Imperial Colliery (p) sued to evict Fout (d), who claimed the eviction was in retaliation for his participation in a labor strike. Fout had worked for Milburn Colliery Co. as a miner and was a month-to-month tenant for six months. After he went on strike, Imperial Colliery instituted eviction proceeding. Fout claimed it was for retaliation for his participation in the strike, in violation of his First Amendment Rights of speech and assembly. Issue: (1) May a residential tenant who is sued for possession assert retaliatory eviction as a defense? (2) Must a retaliatory eviction defense relate to the tenants exercise of rights incidental to tenancy? Holding (1) Yes. Retaliatory evictions can seriously jeopardize effectiveness of local sanitation and safety codes and render implied warranties of habitability meaningless. Tenants should not be punished for claiming benefits afforded by health and safety statutes. (2) Yes. Fundamental rights claimed to defeat retaliatory eviction must arise from tenancy relationship. Alleged violations of other rights may be addressed in independent action, but not to defeat eviction. Notes on Hillview and Imperial Colliery: If the reason tenant is kicked out is because he/she exercised Javins rights, started tenants association or complained to county, court will allow you to stay. But how to prove landlords bad motive? Who is the burden on? Hillview says the burden is on the landlord to disprove it. If you assert Javins rights, burden is on the landlord to disprove retaliatory eviction. F. LANDLORD LIABILITY Tort Claims Against Landlords Tort Claim: Landlord didnt fix the heat. Several weeks went by. Father was trying to warm children. Heated big pot on the stove. Went to pour water into tub. Child rean up to father and father spilled water on child, badly scalding him. Elements of Negligence Tort reminder: Duty, breach, causation, injury. Other standards: Strict scrutiny: Landlord has duty to provide heat. Landlord breached duty. End of discussion. Negligence: Rule generally used by most states. No strict liability for landlord. Negligence Claim against Landlord: Requires landlord have notice; protects landlord from liability without fault; Doesnt harm landlords for injuries when they werent negligent; keeps rents down. Middle Issue is Notice.

Negligence Per Se: If landlord breaks housing code, landlord is automatically liable for the harm breaking the housing code causes. Benefits: Easier to administer. No extensive fact-finding. Uniform standard. Incentive for safety. Landlord in a better position to prevent harm. In every Torts case, requirement to prove that landlords breach was the cuase of your injury. Two types of causation. But-for and proximate. Proximate Cause, two tests: Foreseeability and Directness. Foreseeability: Reminds of negligence Element of reasonabless No liability without fault Directness: Reminds of strict liability Coherence or aesthetic test Would assume judge would go from negligence per se to a directness proximate cause test. But judge actually likely to go from negligence per se to foreseeability proximate cause test. VII. AGREEMENTS ALTERING SPATIAL BOUNDARIES A. EASEMENTS Easements: Most created simply by writing words into a document Can also be gotten by prescription or by estoppel. Implied easements will run with the land if they are intended to do so and are reasonably necessary to the dominant estate. Holbrook v. Taylor: P. 39 Facts: Taylors (p) claimed an easement to use a road on the Holbrooks (d) property that they contended they had been using without Holbrooks permission. Taylors moved to property and built a home. Used an existing coal road for construction of the home. Continued to use it regularly and made improvements to it. Decided they wanted a written easement. Holbrooks got ticked and put up a cable. Issue: Where use of a roadway, improvements to, and maintenance of a roadway all have occurred with the tacit approval of the landowner, is the landowner estopped from barring access to the improving party? Holding: Yes Rationale: Cant get easement by prescription because Holbrooks gave them permission. But can get by estoppel. Can obtain license to use land by expending money and effort in connection with a roadway or its use with the knowledge of the owner. Would be unconscionable to allow owner to revoke license after he watched licensee expending money and effort on reliance on the existence of such a license. Once easement by estoppell is granted by the court. Do they intend to also sell the easement?

Granite Propeties Limited Partnership v. Manns: P. 41 Facts: Granite Properties (p) argued it had acquired, by implied reservation, easements over two driveways providing access to its properties when it sold an adjoining parcel of land to Manns (d). To access rear of Granites shopping center, trucks needed to use an area that extended 50 feet over Manns property line. Without this space, would have been very difficult for semis to turn around. Doors in front of shopping center not large enough for loading/unloading with forklift. In order to access Granites apartment buildings 70-space lot, cars had to come over Manns peroprty. Granite sued to prevent Manns from denying these uses. Issue: If a previous use is continuous and apparent, is the degree of necessity required to create an implied easement reduced? Holding: Yes. Easement implied by prior use arises when an owner of two or more adjoining parcels sells part of the property without mentioning any incidental benefit one parcel may convey to another. This benefit must be obvious, continuous and permanent, and the claimed easement must be necessary tot enjoyment of the parcel retained by grantor. Proof of the prior use is evidence that the parties probably intended an easement. In this case, alternatives to easement are expensive and impractical. Question in Granite Properties: Should we make plaintiff pay for having an insufficient writing? Court says bail him out. Easement by prior use: (1) The parcels were previously owned by one party. (2) The dominant party was using the serviant property in an open and obvious way at the time of the transfer. (3) The claimed easement is necessary and beneficial to the enjoyment of the conveyed parcel. Easement by estoppel: Elements: Permission; substantial reliance, work done in reliance was open and obvious. If we dont allow for this, party granting easement can extort unfair price. By giving Taylors an out, we create a new body of law wherein we cant always determine outcome by looking at written document. Finn v. Williams: P. 42 Facts: Finns (p) land was entirely landlocked after its purchase from Williams (d). For many years, access was gained over private roads of strangers and a road over Williams land. Williams died and Williams widow refused Finn any further access over her land. By that time other private roads had been closed. Finn was unable to take his stock and produce to market. Had to walk to highway on foot path. Issue: Is an easement by necessity created when an owner conveys a portion of his land which has no outlet except over retained land of the grantor or over land of strangers?

Holding: Yes. If at one time there had been unity of title, easement by necessity will pass with each transfer as appurtenant to the dominant estate and may be exercised at any time by the holder. Makes no difference easement not sed earlier. Easement came into existence when unity of title split. Easement by Necessity: Many courts have said, We dont care you agreed to be stuck. You cant agree to be stuck. In these cases, two parcels were once owned by one party. Party splitting the land is the one that created the problem. Terminology: Serviant Estate: Tract that grants easement to another. Dominant Estate: Tract that reaps benefit of easement. Appurtenant: A burden attached to real property that either benefits or burdens the owners right to utilize that property. Personal Easement/Easement in Gross: Different rules of transferability. They do not run with the land. (Right to watch birds on someones property, for instance.) Getting to Maybe on Excessive Use: If I have the right to drive my car over a road on my neighbors land, what if, instead of a car, I have 10 hummers? At what point does my conduct shift from a reasonable use of my easement to excessive use of serviant estate? Green v. Lupo: P. 43 Facts: Green (p) granted Lupo (d) a deed release upon the sale of his property on the condition that when Lupo acquired title he would grant Green an easement. Easement was described as for ingress or egress for road and utility purposes. Greens tenants started racing motorcycles in the easement. Lupo put up logs to block right-of-way, claimed the easement was personal. Issue: Is an easement personal if there is anything in the grant to suggest that itw as intended to be tied ot the land retained or conveyed? Holding: No. There is a presumption against personal easements. The written instrument granting Lupo his easement states it was to be granted for ingress and egress onto property. Therefore appurtenant. Not only can plaintiffs sell and have the easement move with the sale, they can subdivide and grant the benefit of the easement to all people in the subdivision. (Conclusion designed to favor development and subdivision over peace and quiet.) Cox v. Glenbrook Co.: P. 44 Facts: Glenbrook (d) owned land subject to an easement for access from Coxs (p) land; the parites contested the extent of the easement. Easement, sold by Glenbrook for $10, granted Quill right of way with full rights of use over Glebrooks roads as now located or located in the future, and to heirs and assigns forever. Quill died and property was sold and sold again. Cox wanted to subdivide it into 40-60 permanent homes and use the road for all of them (beaten-up, one-lane road). Issue: Where the grant is unclear, must the extent of the easement be construed broadly as necessary?

Holding: Yes. The trial courts construction of the limits on the easement erroneously makes the easement personal. As broadly as necessary for family use defines easement by person holding it rather than land it benefits. The grant was inteded to give ingress and egress to land. This intent does not support doubling size of road and paving it. Easement is limited to the size and nature at time of grant. Held further, D may grade the road at his own cost but not widen. Owners of the easement may not impose and undue burden on the servient estate. Notes on Cox: Rule: When an easement is ambiguous, appurtenant is preferred (holder's easement allows ingress and egress), the property should be allowed to be subdivided. When geographic limits are present, such as the width of the road (in writing or the state of things as they were at the time of writing), the court will not bail the parties out, even if it conflicts with the subdivision Scope of an Easement (misuse of): i. The kind contemplated by the grantor ii. Whether it is an unreasonable burden on the servient estate iii. Whether it can be subdivided a. Appurtenant easements can be divided and apportioned b. Easement in gross nonexclusive non-apportionable c. Easement in gross exclusive - apportionable d. Easements can generally be used for any reasonable purposes Henley v. Continental Cab