Property Outline (VillaZ) I. Property bundle of rights right to exclude the strongest stick- (vs.

s. access in easement, police, government services) right to transfer (not always, trusts) right to possess use (doctrine of quiet enjoyment) A. Theories of Ownership First occupancy- sloppy b/c each self-motivated person would gobble up limited resources. Labor-Desert theory- you are entitled to the product of your work (digging out the snow in parking lot article). Utilitarianism- Bentham. Property as a means to an end, allocated in the manner that best promotes the welfare of society.

State v. Shack - no prop rights are absolute. shack enters to aid migrant works. held no trespassing because right to property doesnt include the right to bar access to governmental services public policy safety/well being of migrant workers. criminal action RULES: Ownership of real property does not include the right to bar access to governmental services available to migrant workers. (p. 5) Title to real property cannot include dominion over the destiny of persons the owner permits to come upon the premises. (p. 6) Mans right to property not absolute. (p. 7) Right to exclude is protected by the law of trespass- CL- unpriveledged intrusion on property possessed by another. (intent is satisfied by voluntary act of walking onto the property mistaken entry on the land of another does not relieve the trespasser of liability. Criminal Trespass (by statute, state by state) - Any person who trespasses on any lands after being forbidden to do so by the owner. to trespass 1. consent 2. necessity 3. public policy

What if consent is fraudulently obtained? Desnick No trespass- consent was valid even if fraudulently obtained primetime crew gets acccess to Eye Center to see if Desnick is operating unnecessarily no invasion of specific interests trespass is meant to protect. Note: If he had signs up that said no testers or snoops, it may have been trespass. Food Lion Trespass- consent was invalid because the conduct went beyond the scope of the consent when they started filming back rooms. Right of Reasonable Access to Property open to the Public Old school: Blackstone if you served the public, you couldnt exclude (put a sign out, you offer to serve) assumpsit assumption of duties to the public. After Reconstruction, right to exclude without cause became very prominent. Tempered by Civil Rights laws. Majority rule: is a broad (not absolute) right to exclude. Majority rule today: places that are open to the public may exclude except if it violates civil rights laws Applications of the majority rule: Madden v. Queens County Jockey Club the racetrack asserted their right to bar patrons (not hotel or transport), so they could bar whomever they want and it was not a race matter. Brooks v. Chicago Downs -this case provides the reasoning for the broad right to exclude because market forces would preclude outrageous excesses assumes proprietors are reasonable people who usually do not exclude their customers unless they have to. defense of traditionally broad right to exclude the race track owner must be able to control admission to its fascilities wihtout risk of lawsuit, and necessity of justification Inn keeper / common carrier rule: except hotels and transport carriers, must provide reasonable access. Why special obligations for inns/carriers? more likely to be monopolies

 place people at risk they hold themselves out as ready to serve. Minority Rule (uston, access for everyone that doesnt threaten security). Uston NJ 1982 - Casino kicks out this guy who allegedly had card counting skills. Issue: Right to exclude vs. 14th amendment equal protection, protecting unreasonable exclusions. Held: Allowed in, he doesnt threaten anyones security. Uston extended the right of reasonable access to all businesses open to the public. The only legislative limitations on the right to exclude in the majority of states are civil rights laws that prohibit discrimination on account of : race, creed, color, national origin.

Public Accomodation Statutes canons of construction interpreting statues : 1 look to text first 2- legislative purpose, context and previous applications. Public v. Private Private if it doesnt advertise & is completely secluded. Civil Rights Act of 1964, Title II (a) equal access [to] any place of public accommodation Prohibits discrimination based on race, color, religion or national origin (not sex) (b) definition of place of public accomodation 1) inn, hotel, motel . . . Provides lodging 2) restaurant, cafeteria, lunchroom . . . Engaged in selling food 3) motion picture house, theater, concert hall, sports arena, stadium, and other place of exhibition or entertainment (4) establishment within the above establish. (e) Private establishments (exception) Provisions of this subchapter shall not apply to a private club or other establishment not in fact open to the public vs. Civil Rights Act of 1866 (regulates race only) 1981 all persons . . . shall have the same right . . .to make and enforce contracts . . . as is enjoyed by white citizens

1982 all citizens . . . shall have the same right . . . as is enjoyed by white citizens . . . To inherit, purchase, lease, sell, hold and convey real and personal property this act was thought only to apply to state actions until 1964, when cases applied it to discrimination in selling property and private school exclusion cases. Which led to CRA 1991- which codified broader interpretation of CRA 1866 -> saying it governed private conduct and that it regulates the terms of contracts not to just the right to make and enforce contracts/ (this fills the gap in CRA 1964). Jacques v. Steenberg a mobile home company cuts across the Jacques land. they sue for trespass and the court emphasizes the importance of right to exclude. No excuses for the trespass: Consent, necessity, public policy Matthews v. Bay Head Public Trust Doctrine everyone has access to the water. (ownership, dominion, sovreignty over land flowed by tidal waters). 3 other ways for public to get use of private land: 1) dedication 2) presription-been used for a while and public gets rights by default 3) custom Pottiner v. City of Miami (homeless rights to live) judge orders the stop to arresting homeless people (everyone has a right to somewhere to go) Oyama v. California (alien land law bans japanese) Supreme Court said the provision of Alien Land Law that prevented noncitizens from owning land was unconstitutional, and although they didnt overturn it, they California stopped enforcing the Aliend Land law Oyama Commonwealth v. Fremont (predatory lending practices) injunction against Fremont for ARM loans and even though there was not one statutue that specifically criminalize the behavior, the governement said it was established policy that these loans are bad news (FDIC had ordered cease and desist) court asked Fremont to prove that he could do it. Labor & Investment INS v. AP- (is the news property?) AP seeks protection under labor desert theory- their people put work into the news so they should own it. competitors have a special duty not to steal each others products if you are going to use another competitors stuff, you have to attribute it. news becomes property the instant of publication- but not btw. Them and the public, just quasi-property rights between themselves. keep competition fair to retain the incentive for getting news (public policy concerns) the illegal part is the fraudulent gain in competition between the two.

+ law has clearly recognized unfairness in competition when fraud is used (ie. passing off your own goods as the plaintiffs) Possession 1) intent to possess on the part of the possessor and 2) his actual controlling or holding the property. Pierson v. Post - Rule of Capture the hunter possesses the fox when he mortally wounds it + deprives it of his freedom + intends to exclude Dissent- constructive possession -> intent to deprive (reasonable opportunity or expectation of capture). Pierson was decided in a way that ignored local hunting custom. compare the outcome with the outcome under Social Utility Theory if you want to encourage people to hunt, which rule would be better? Compared with Popov v. Hiyashi - court saw that Popov had a prepossesory interest in the droppped ball, and so Hiyashi acquired the ball with a cloud on its title Remedy-> split the ball through equitable distribution. relativity of title quasi-property no one else has a right, but there is a right between the two (the two have better title than all others). Groundwater waters collected in permeable rock, sand, grave = aquifiers surface owners may want to get at this water underground water diffused through soil is called groundwaters or percolating water 1 free use or absolute ownership each surface owner is free to withdraw as much water as he likes from beneath the surface of his property without liability even if it has the effect of withdrawing water from under neighbors property. (I DRINK YOUR MILKSHAKE) minority of states follow this rule that you can extract as much water as you want from property , exception you cant withdraw water in a way that wastes it. 2 American Reasonable Use Rule Owners may withdraw to use solely on their overlying land if the use doesnt harm their neighbors. only if reasonable use. (or off tracts, as long as reasonable)

3 correlative rights allowing owners to withdraw in proportion to the aquifiers under their property.

Surface Water East of the Missippi riparian rights West of prior appropriation doctrine 1 Riparian Doctrine Waters rights to owners of land bordering on surface water source (riparian land) when deciding issues between competing users of land, they apply a reasonable use rule consider and balance factors such as : relative social value extent of harm to the cost of the relative utility of competing uses and choosing the one most valuable to society. 2 Prior Appropriation Doctrine first in time, first in right allocates water rights based on parties putting water to beneficial use. Such as irrigation, industrial uses, drinking water, and instream flows temporal priority. Proving Ownership : 1) evidence of title 2) possession. Wilcox v. Stroup (possession = ownership). sought declaratory judgement on the 444 documents he found at his stepmothers house, altho no evidence of title. Rule: Possession creates the assumption of ownership. Why: 1) avoid Gordian Knots, party not in possession has the burden 2) stability- the market rests on these basic presumptions. 3) here, there is no public policy concern for overturning the presumption * in other words, sometimes public policy reasons can overturn the presumption of possession as ownership p.175 lost, mislaid, abandoned Private Property trespasser will lose their claim Private property with consent courts are wildly divided. Public property finder has claim over abandoned, but not lost/mislaid. * only abandoned property can be found and kept 6

 lost/mislaid property can still be recovered from the finder. tribal property property could belong to Indians, and thus, not abandoned, only lost or mislaid I. In disputes between the landowner and the finder. The landowner will win if the finder was trespassing at the time she found the object (2) Modern cases deny possessory right to those who obtained possession illegally (4) If an object is found in a place open to the public some courts grant ownership to the finder and others to landowners. a. Some courts distinguish between lost and mislaid property awarding lost property to the finder and mislaid property to the owner of the premises. ii. - Ownership is given to the finder rather than the owner of the land so long as the finder was not trespassing at the time it was found. (1) Finder statutes - generally require that the finder report the find to the police and generally award the property to the finder if it is not claimed after a reasonable period of time Treasure trove for jewels that were hidden, US rule, ownership goes to the finder rather than owner, as long as finder was not trespassing. Armory v. delamirie finders have rights over everyone except the true owner (unless they were trespassing) chimney sweep finds jewel has more rights than the guy he gave it to for appraisal.

II. Present Estates and Future Interests History System of land ownership developed since 1066 All land owned by the king King allowed knights (and others under him) to use land during their lifetime or based on conditions Control of property by one or few people Restricted use of the land power to create future interests has two problems: 1) dead hand control clogging up the property market, and restricting the market in a non-efficient way. 2) social hierarchy dont want to create race exclusion or a caste system taking too much property off the market.

Seisen ownership of land Alienability the ability to transfer property between owners I. Estates in land Ownership Divisible by Time When we say one has an estate in land, we mean that one has an interest in land. An estate in land may be acquired by: Purchase Gift Inheritance Will intestate-dying without legal will. What is the state of the title? When asked this question, you are asked to state the: 1) Possessory estate (present interest) 2) Future interest A. Possessory estates (present interests) B. Future interests II. Two Categories of Estates A. Freehold estates (today - owning property) B. Non-freehold estates (today leasing property) III. Freehold estates I.Types of freehold estates A. Fee 1. Indefeasible a. Fee simple absolute (FSA) O to A and her heirs. O to A in fee simple. O to A. (modern form)

2. Defeasible - Estates that terminate at the happening of a specified event, other than the death of the current owner. Distinctions 1-whether future interest is in grantor or 3rd party 2-whether future interest becomes possessory automatically when the stated event occurs (or) only if the future interest holder chooses to assert his rights.. a. Fee simple determinable (FSD) future interest possibility of reverter.

Key words for FSD: Until, So Long As, While, During, Unless. b. Fee simple subject to condition subsequent (FSSCS) future interest right of entry/power of termination. Key words- But if, provided that, On Condition that, However. c. Fee simple subject to executory limitation (FSSEL) Grantor conveys property to grantee with a condition. If condition is violated, the property automatically goes to a third party. future interest executory interest (in FSA). key future interest vests in a third party. B. Life estateTwo different types of future interests that follow a life estate: held by the grantor - Reversion held by a third party - Remainder O to A for life. A: possessory estate in life estate O: reversion

O to A for the life of B. A: possessory estate in a life estate pur autre B. O: reversion. O to A for life. Then A conveys to B. A: life estate O: reversion B: posssessory estate in a life estate pur autre A.

C. Fee tail- Estates based on lineage (blood line). O to A and the heirs of his body. Abolished in most states and treated as a fee simple absolute. 9

Only recognized in 4 states (Delaware, Maine, Massachusetts, and Rhode Island). Even then, treated mainly as a fee simple absolute. Thus, no future interest. O to A and the heirs of his body. A: possessory estate in a fee tail As heirs (issue): none. Because abolished in the US, treated as a fee simple absolute. Key words O to A. For the life of, por autre Until, So Long As, While, During, Unless. But if, provided that, On Condition that, However. Interest goes to third party Present P.E. F.S.A P.E. in L.E. P.E. in FSD Future None. Reversion if back to the grantor. Possibility of reverter. Right of Entry. future Remainder if it goes to a third party.

FSA Life Estate FSD

FSSCS

P.E. in FSSCS

FSSEL

P.E. in FSSEL

Executory Interest.

Sub-categories of Future Interests: Remainders I. Contingent remainder which: 1. is given to an unascertained (to be determined) person O to A for life, then to As first child. (A has no children). OR 2. has a condition precedent (event must occur before remainder gets vested). O to A for life, then to B if B has reached 21 years old. Destructability of Contingent Remainders: Traditional rule destroy contingent remainders if condition did not happen in grantee (A)s lifetime. Modern honor grantors intent (but conveyance must pass the rule against perpetuities).

II. Vested Remainder.

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1. Given to an ascertained (particular) person. 2. There are no condition precedents. Absolutely vested. Vested remainder subject to open. Remainder is vested but there might be more members of the class who can get property. O to A for life, then to the children of B. (B has 1 child). - B can have more children after the conveyance. rule of convenience: Class closes upon As death A: life estate Bs children: vested remainder subject to open. Vested remainder subject to divestment. Remainder that is vested but may be taken away because of a condition subsequent. O to A for life, then to B, but if B has flunked out of law school, the property shall then go to C. - B has a vested remainder but he can lose the property if he does not pass law school [Put aside what C has at the moment]. Different types of executory interests. Shifting -Follows an estate in a grantee. Springing -Divests an estate in the grantor. Shifting Executory Interest O to A, provided that if A ever allows the timber to be cut, then to B. A: possessory estate in FSSEL B: shifting executory interest in fee simple absolute Property shifts from grantee (A) to B. Springing Executory Interest O to A for life, then to B five years after As death. A: possessory estate in life estate O: reversion subject to an executory limitation B: springing executory interest

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Doctrine of Worthier Title O to A for life, remainder in Os heirs. convert Os heirs remainder interest into a reversion. traditional rule applied because the above conveyance was thought to avoid inheritance tax today, most states look to grantors intent Rule in Shelleys case: O to A for life, remainder to As heirs. Prevents a grantor from using the same document to convey a life estate to a grantee and a remainder to the grantees heirs. Converts the above to give A a fee simple absolute. Note: abolished in most states and will honor the grantees intent. IV. Non-freehold estates A. Term of years B.Periodic tenancy C.Tenancy at will D.Tenancy at sufferance RAP If the interest will not vest within 21 years of a life in being at the time of the conveyance, RAP blocks it. B. Interpretation of Ambiguous Conveyances 1) courts seek to implement the intent of the grantor (the document itself, possibly the circumstances) 2) presumption against finding a future interest. Wood v. Board County Language in the deed suggesting the tract of land is conveyed for the purpose of constructing/maintaining a country hospital. not read to be a future interest because no provision will be interpreted to create such a condition if the language will bear any other reasonable interpretation or unless the language indicates an intention upon the part of the grantor that plainly admits of such construction. Edwards v. Bradley rule against creation of new estates - Numerus Clausus cant freely interpret what the grantor wants must make it fit at least into one of the preexisting categories.

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 Bradley (the child left out of a FSA interpretation) argues that the Grantors intent was a Life estate with a remainder to the children. the creation of a life estate was implied from the intent of the testator. VersusJohnson v. Whiton Rule: When a person tries to convey property in a way that does not conform to one of the traditional estates, the limitations in that conveyance will be invalid. This is to prevent restraints on alienation. Regulatory Guidance of Estate Creation/Transfer rule prohibiting new estates (Numerus Clausus) rule against unreasonable restraints on alienation rule against perpetuities interpretative rule prohibiting waste of the present estate prohibition of invalid racial conditions rule against unreasonable restraints on marriage

Rule Against Perpetuities No interest is good unless it must vest and close, if at all, no later than 21 years after some life in being at the creation of the interest. 4 concepts: 1. interest must vest and close Or Fail. 2. Must vest within the perpetuities period. 3. Lives in being are persons who have an interest in the peroperty. 4. Validating life is one of lives in being. She helps to prove that property is certain vest, and if not, then Fail. Will it vest more than 21 years after the death of someone in being at the creation of the interest? Policy: Avoidance of Dead Hand Control. Common law--COVE (applies to): a. Contingent remainder b. Option to purchase c. Vested remainder subject to open d. Executory interest i. Wait and See: don't invalidate future interests just because there's a possibility of vesting outside perpetuities, wait 21 years after the

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end of the life of interested parties, and if it hasn't vested, it can stay with grantor. ii. Cy pres: equitable reformation; strike out offending language and get the conveyance as close as possible to the grantor's intent iii. Uniform Statutory RAP: rules defined by statute , validate transfers that otherwise violate the rule against perpetuities if interest vests at any time within 90 years. O to A for Life, then to B for life, then to O's widow. Subject to RAP (contingent remainder for O) O is the validating life know at the end of Os life if he has a widow or not. Therefore, it doesnt violate the RAP. ******* O to A for Life, then to B if B reaches 50. (B is 10). Does this violate? ******** CDCA v. Greyhound (option to purchase subject to RAP) ambiguous conveyance is construed as an option to purchase an option to purchase that would vest 21 years later would violate the RAP. economic development and prosperity depends upon the free alienability of land. Moore v. Phillips (duty not to waste ) a life tenant is considered to be a quasi-trustee for the benefit of the remaindermen duty neither to commit waste or to allow waste to occur. Permissive waste- lack of ordinary care Voluntary -intent to destroy remainder does not have to until the life tenant dies to bring suit for damages from voluntary waste. Intellectual Property Trademark symbols, identifier Copyright- artistic work Patent invention /innovation Qualitex v. Jacobson (trademark of blu green pads) Qualitex patents the color of dry cleaning pads and pursues a trademark infringement suit against jacobson. Issue: Can a Color be trademarked? any word, name, symbol, or device or combo may be trademarked

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 secondary meaning is acquired when the public associate the feature with the source of the product Functionality Doctrine- prevents trademark law from inhibiting legitimate competition, where another producer uses a useful product feature but deosnt threaten the inventorfirms reputation. Dilution- tarnishment inferior brand messing with a better one Blurring distinctive mark losing association with a particular company Fed. TM dilution act provides relief when a mark is likely to cause dilution. (no proof of actual economic harm needed. Copyright created the moment the work is created, limited by Fair use doctrine (ie. use for teaching). Patent- controlled by government office. Requirements 1) machine, method or composition of matter 2) invention must be novel 3) nonobvious 4) useful Moore v. Regents Moore underwent surgery for leukemia . he sues the doctors for conversion because they patented his cells. his claim was based on unwanted publicity cases. the court says the doctors put in their own work to create the cell line, and the conversion claims fails. Dissent- appeals to the basic sanctity of the human body/fairness.

Personhood Theory Personhood theory justifies private property as essential to the full development of the individual. Under this approach, some items are seen as so closely connected to a persons emotional and psychological wellbeing that they virtually become part of the person, thereby justifying broad property rights over such items.

4. Publicity Rights

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Martin Luther King, Jr. Center v. American Her. Establishes a right to publicity as separate from a right to privacy. Right to publicity survives the death of its owners. Factors Etc. v. Pro Arts Boxcar owned the right of publicity , assigned to Factors after he died. The celebrity doesnt need to have commercially exploited that right before he/she died for it to survive. Should MLKs reticence to use his image for commercial purposes, therefore allow exploiters to do so after his death without his permission? No, obvi. HELD: Right to Publicity after death and so they have a legit claim Injunction Upheld. Haelan v. Topps Chewing Gum-1953 right of PUBLICITY first recognized Ball players had a claim of pecuniary worth and could grant it , thus barring any other advertiser from using their pictures. Exclusive right to name/likeness. Dred Scott v. Sanford Slave sues for freedom under the Missouri Compromise. He had been a free man in the north, but he moved back to the south. Justice Taney said, yes all men were created equal but they werent referring to Black men. Is he a citizen? No. How does this effect property ? He was treated as property. The Antelope Justice John Marshall of the U.S. Supreme Court (10 Wheaton 66) ruled that the African slave trade was
not contrary to the law of nations and that the American cutter had no right of search and seizure in peacetime. Marshall directed that the slaves be restored to the foreigner in possession at the time of the capture.

Relations Among Neighbors Adverse Possession Brown v. Gobble (remanded because the satisfied the statutory period by tacking the use of the previous owner). A. Standard of Proof for Adverse Possession Claims.

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 majority- A.P. must be shown by clear and convincing evidence. policy reason AP claims involve the loss of a homestead, a family farm assoc with traditional family and societal values. party trying to show AP has burden of demonstrating by clear and convincing evidence. Elements : C continuous H- hostile (is it against the owners wishes) A- actual N notorious and open C - claim of right (no deed) or-color of title (if successful under color of title, the whole land can be APd- not just the bit youve been using). E- exclusive S- statutory period- 20 years in general . s claim tacking adding together successive adverse possessors to meet the Ten Year requirement. must have privity of estate (vertical) with previous owner to claim this. there is a presumption of non-permissive use which will satisfy hostility unless the true owner proves permission. Good faith/bad faith jurisdiction (subjective elements) in a good faith jurisdiction required to be accidental, without knowing that the land belonged to someone) in a bad faith jurisdiciton, must have known you were against the owners wishes. Romero v. Garcia (spanish deed used for color of title with a sufficiently detailed descrition of the parallelogram of the land). Nome2000 v. Fagerstrom Fagerstroms have been camping on the land for a long time issues : were they using the land exclusively ? successfully argues they were using the land in the way Native Alaskans would use it (not super exclusive, but that was the custom of the area) - (a tract of rural land has different standards that urban land). were they hostile to Nome2000- court argues this is an objective test did they use the land as if they owned it other elements satisfied, but remanded to decide the scope of their AP claim. Four Approaches to the Adverse Possessors State of Mind 1) MAJORITY Objective test based on possession (majority rule)

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A. Lack of Permission all that matters is that the possessor lacked permission from the true owner. Subjective tests based on : 2) claim of right- possessors intention to appropriate and use the land as his own to the exclusion of all others(looks subjective but is actually a derivation of 1) -different approaches by state that can include subjective 3) intentional dispossession- bad faith must be aware of being in someone elses property + must intend to oust the true owner. (can be similar to claim of right) 4) MINORITY good faith- opposite of intentional dispossession- in some states require the opposite of an intent to oust the true owner must be innocent and mistakenly occupy property owned by someone else. Justifications for Adverse Possession 1) eliminates stale claims to land title (removing the risk that ownership will be based on the distanct past) 2) encouraging maximum utitlization of land. 3) Holmes - that the AP has roots and they would be displaced (personhood theory) 4) Posners economic argument. The AP loses the property, thats very bad. The original possessor, who hasnt had the property gets a diminishing marginal utility from reinstatement of the property. why protect the land pirate? 1) rest on actual use instead of amorphous good faith 2) failure of true owner to object might be understood as effective abandonment of the owners rights. 3) statute of limitations ( if you couldnt bring it in a ten year period the encroacher develops legitimate interests). 4) reliance. Class notes on justifications: 1- CL certainty of ownership - encourage maximum use of land 2- economic justification marginal utlity of income AP really wanted it, doesnt mean as much to the owner

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3-Moral personhood theory- people becomes attached to property and eventually it becomes an extension of them that should be protected by property interests.

Prescriptive easements, are implied easements granted after the dominant estate has used the property in a hostile, continuous and open manner for a statutorily prescribed number of years. Prescriptive easements differ from adverse possession by not requiring exclusivity. Community Feed Store v. NE Culvert Corp. Continuous Hostile Actual Notorious and Open Claim of right Stat Period. small wholesale feed business, has been using area on the property for loading feed, and for customers to turn around in for ages, until a survey said the land was and he built a wall around the area. the area had been used open, notorious, and continuous Rule- open and notorious use will be presumed to be adverse. Claim of right has to be practiced regardless of the wishes of the owner of the land. *****Acquiscence? Based on initial permissive use lost grant owner must have known about land use initially and positively allowed it to continue. **** is this specfic to prescriptive easement? Riparian owners: Accretion and Avulsion Acretion slow build up of silt or sand on the border of the land by the river belong to the owner of the land. Avulsion-sudden changes like earthquakes, not held to be changes in the borders of the property. A.P. for personal property- Conversion. Statute of limitations for replevin actions, then when laches begins to run can be a very important consideration.

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OKeefe v. Snyder Discovery- the statute of limitations should only start running when the true owner discovers or reasonably should have discovered where the stolen property is located. * UCC merchant exception clearing the title on goods once when a merchant receives them. Guggenheim v. Lubbell Demand Rule (favors the true owners) claim starts whenever you demand it. _____________________________________________________________________ Defining Unreasonable Land Use Nuisance neighbor is doing something lawful, however, impedes your ability to do use and enjoy your property. non-trespassory substantial and unreasonable interference on the right of neighbor to enjoy and use his property Nuisance Considerations: i. Unusually sensitive plaintiff (hyper-sensitive use) ii. Plaintiff comes to the nuisance (prior use-nuisance/lack of nuisance was there first) iii. Extent and character of harm (social value/social utility) Nuisance factors: substantial right, fairness, social value of conduct causing inference. Page county v. Honeywell (argued unusually sensitive plaintiff and lost for tv interference) question of fact whether the operation of a lawful trade consittutes a nuisance is the reasonable of conducting it in the matter, at the place, and under the circumstances. Priority of occupation and location who was there first is weighted honeywell came after Page County. (P appliance store was in the strip mall before D computer store; P did not "move into" the nuisance) standard Normal person in a particular locality but the cannot be making a hyper sensitive use of his land that an otherwise harmless behavior by the becomes a tort. Fountainbleu- no easements for light and air. interlocutory appeal from a temporary order enjoining Fountainbleu from continuing its construction of 14 story addition ot the hotel problem during the winter, the addition will put the swimming pool in shadows at the Eden Roc.

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 cis utere tuo ut alienum non laedas- one must use his property so as not to injure the lawful rights of another- ie. recognized and protected rights and doesnt cause a nuisance. 1. Fountainebleau: Fountainbleu hotel was on Miami Beach before P hotel; one reason why the court held for Fountainbleu. Extent and character of harm (social value) Prah: P's use of sunlight defeats the nuisance of neighbor building up to block his sunlight; social value to promoting alternative energy countervailing new policy concerns that suggest a protective easement for Light. 1. society has increasingly regulated for general welfare 2. access to light as energy changes its value 3. the need for easy and rapid development is not as great today as it once was, while the value of sunlight has gone up. (the old policy was to promote unrestricted development of land, ie. wild west- but now with increasing urbanity not as essential, respecting neighbors more important). ancient lightsdoctrine english common law a landowner could acquire a right to sunlight by express agreement or a negative prescriptive easement if the landowner had received lights for a long time. (old policy) American law doesnt usual protect easements for light and air, with the exception of a rule against spite fences (ie. building a light blocking fence just to screw over your neighbors access to light). could you argue that solar is an unusually sensitive use? Majority Rule - Owners have absolute right to develop their property without liability for interference with neighbors interest in light/air. (Fountainbleu) Exceptions: Spite Fences-the nuisance is causes maliciously, a factor for ruling for the . and Public Policy concerns (Prah) Interesting Note: Tennessee v. 889- disagreed with no light/air nuisances in genera, but said that a building can block anothers light based on a typical amount of urban sunlight with blocked adjacent structures Solar Shade statutes Cal. Stat. 25982. After the installation of a solar collector, a person owning or in control of another property shall not allow a tree or shrub to be placed or, if placed, to grow on that property so as to cast a shadow greater than 10 percent of the collector absorption area upon that solar collector surface at any one time between the hours of 10 a.m. and 2 p.m., local standard time.

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Remedies for Nuisance damages, injunction, or purchased injunction (paying off the ) 4 Key property rights: Exclude- trespass, public accomodation statutes, reasonable access, beach rights. Possess-estates in land, IP, adverse possession. Use easements, nuisance, covenants, zoning Transfer-takings.

Easements - right/privilege to use another persons land, usually for a particular purpose; you can revoke a license but not an easement A. Easement by Estoppel: Holbrook v. Taylor (built house along road, invested in reliance on license turns into easement) Easement by Estoppel: court grants an easement to the benefitted estate when the LL implicitly allows tenant to invest/improve the portion of the land used by the tenant; converts a license (revocable) to an easement (irrevocable) Facts: D granted a license to P on which he could build a house and built a road to transport construction materials, continued to use the road after the house was complete, D wanted P to either buy the road or agree to relieve D of liability for the road, P refused and D tried to prevent P from using the road; court held that the license became an easement by estoppel, Ps improvement of the land by installing the road and D's implicit permission to build and temporarily use the road entitled P to an easement

B. Prior Use- (Granite v. Manns). Elements a. Grantor had common ownership of the land and subsequently separated the property b. The single parcel was used previously by the prior owner and use was visible and continuous c. Easement is reasonably necessary and beneficial to the enjoyment of the property d. Buyer knows of prior use of the property

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 made use of a large tract of land, or two adjoining parcels, and then conveys the part of the property without mention being made of the incidental uses. Rule- transfer imparts the property with all the benefits and burdens which existed at the time of the conveyance. Facts: P owned property and sold part of it to D; D had a driveway that was used to service both Ps and Ds property, no record of an easement prior to selling part of the property, court held that P had an easement by prior use, P owned the land previously, P used the driveway, the driveway is the safest and most reasonable way to access the main road, D knew of Ps prior use of the driveway C. Easement by Necessity ( Finn v. Williams) 1. Elements a. At one time, there was Unity of title between grantor and purchasor (tracts had a common owner) b. Easement by necessity only applies to remaining land of the grantor, not to neighboring land generally c. MUST BE Landlocked (no other outlet except over the lands of grantor) d. Necessary for ingress/egress 2. Finn v. Williams: P acquired title of parcel from D, and the parcel was entirely landlocked; court held that: when an owner conveys a parcel which has no outlet except over the remaining lands of the grantor or over the land of strangers, a right of way by necessity exists over the remaining lands of the grantor.

D. Express: created by explicit agreement of the parties; for burden to run w/ the land the express easement requires: 1. In writing 2. Grantor's intent that the easement run w/ the land 3. Notice by owner of servient estate a. Actual: real knowledge of the easement b. Constructive: should go look in the deed if its in the deed , or on file . c. Inquiry: should realize there might be an easement and ask accordingly

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Appurtenenant v. Gross Easement (presumption of appurtenant easement) Appurtenenant easement: benefit of the dominant estate intended to "run w/ the land," such that the benefit of the easement will pass to any future owner of the dominant estate and continue to burden the servient estate. Gross easement: not intended to attach w/ the land; i.e. utility lines, sewer pipes, catered for a specific kind of tenant w/ special needs, etc Easement by Reservation grantor reserves for herself v. Easement by Grant- grantor gives neighbor the right to use. Interpretation of Ambiguous Easements i. Where the grantor's intent is unclear, the extent of the easement must be construed as broadly as necessary to carry out the purposes for which the grantor intended Modifying and Terminating Easements i. Easements last forever unless: 1. by agreement 2. by their own terms 3. by merger (owner of servient estate becomes owner of dominant estate) 4. by abandonment (owner of easement abandons it) 5. adverse possession or prescription 2. Marketable title acts require easements/encumbrances on property be re-recodred periodically (every 30-50 years). _______________________________________________________________________ Covenants - private agreements/promises concerning the use of land 1. promise to restrict one's use of land for the benefit of another 2. enforceable against each other and subsequent owner To be enforceable: 1- in writing 2- intended to run with the land (be binding on future owners).

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3- Notice (actual, constructive, inquiry) 4- Privity of Estate (vertical, horizontal) a. Horizontal Privity-between grantor and grantee b. Vertical Privity-between subsequent land owner 5 Touch & Concern a. Burdened/Serivent Estate: relates to the use of the land and is intended to benefit the the current and future owners of the dominant estate b. Benefitted/Dominant Estate: improves enjoyment of the land or increases its market value Vertical privity Common Law- formerly was not satisfied if the land was leased, and not sold. Modern approach leased land will satisfy vertical privity. (real covenents strict privity requirements v. equitable servitudes: looser requirement for privity) Express Covenant: Davidson Bros Inc v D Katz & Sons: (not enforced because reasonableness replaces the touch and concern test) Facts: Ps conveyed property to D1 w/ a covenant not to operate a supermarket on the premises, Ps wanted to avoid competition w/ their own supermarket on another piece of property, Ps store profitted but the city (D2) claimed town residents were deprived of a convenient supemarket, D2 then bought the land from D1and leased it to C-Town, a supermarket chain, despite having actual notice of the covenant against a supermarket Damages: Monetary damages for Davidson, instead of injunction preventing the C-Town store from helping the old people that lived nearby. Whitinsville Plaza v. Kotseas: (another example of reasonableness trumping strict touch and concern) Ds sold parcel to a trust w/ a covenant against using the land as a discount store; an anticompetition covenant, trust then conveyed the parcel to P plaza which was subject to the benefit of the covenant, Ds later leased a portion of their adjoining property to CVS to use as a pharmacy and discount store, P sued to enforce the covenant; court held, like in Davidson, that a reasonableness test should be used to determine if the anti-competition covenant should be enforced. Held Anti-Competitive covenant should be enforced. (injunction v. damages?) (doesn't strictly touch and concern the land but the reasonableness requirement trumps, and the restriction favors development of commerce etc.)

Interpretation of Ambiguous Covenants i. Blevins v. Barry-Lawrence:

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1. Covenant: real property for residential purpose only, No building built other than single or double family dwelling". 2. Question: did use of property as a group home for people with mental retardation violate the covenant. 3. Held: operation of group home has residential purpose; interpret the ambiguous covenant to promote free use of the land; group home considered a residential purpose, restriction on single or double family dwelling applied to adding structures rather than using the property in a nontraditional family setting ii. Doctrinal Approaches 1. Traditional Approach: "least burdensome"; free use of land 2. Modern Approach: "Grantor's intent"; honor expectations of the parties who buy land w/ restrictions on them and the neighbors who rely on those restrictions Modifying and Terminating Covenants i. changed conditions ii. Relative hardship iii. Statutory/Constituational concerns. i. Changed Condition 1. If benefit is still capable of being enjoyed, covenant will be enforced 2. If benefit is no longer capable of being enjoyed, due to changed condition, covenant is unenforceable 3. El Di v. Bethany Beach: town sued to enjoin store owner to enforce covenant against serving alcoholic beverages; court held the covenant was unenforceable, the nature of the community has changed from a quiet beach community to a commercially profitable beach town, covenants restricting commercial development has been ignored, "brown bagging" of alcoholic beverages has been allowed; the benefit of having a sober, quiet town is obsolete

ii. Relative Hardship: 1. If harm of enforcing the covenant substantially outweighs the benefit of not enforcing the covenant, covenant will not be enforced 2. If harm of enforcement is less or only slightly worse than benefit of non-enforcement, covenant will be enforced

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Racially Restrictive Covenants i. Shelley v. Kraemer: racially restrictive covenants cannot be enforced by the court; constitutes state action in discrimination; would violate the 14th Amendment ii. Evans v. Abney: court can follow the grantor's intent to restrict the property to whites and allow the conveyance to fail rather than enforce integration against the grantor's intent; racial motivation was from a private person rather than the state

Types of Leaseholds i. Term of Years: lease lasts for a specified period of time agreed upon by the parties, usually at least a year, at the end of the lease term the property automatically returns to the LL ii. Periodic Tenancy: lease lasts for a specified period of time, usually less than a year or a month-to-month lease; at the end of the lease term the lease renews automatically unless the LL or T agrees to end the lease; notice is required before either party can terminate the lease iii. Tenancy at Will: similar to a periodic tenancy except that the lease can be terminated w/o notice by either party; most states have effectively abolished this type iv. Tenancy at Sufferance: aka holdover T, tenant is rightfully in possession of the property but wrongly stays after the lease has expired; LL still needs to go thru proper eviction procedures to get a T at Suff out of the property a. Covenant of Quiet Enjoyment: must constitute a significant interference with tenant's quiet enjoyment of their property; T must leave the premises before making a claim or asserting a defense of quiet enjoyment; can claim rent abatement for the diff in value of the property w/ the breach and w/o the breach of the covenant b. Implied Warranty of Habitability: failure of landlord to comply with housing code; derived from contract law since leases are also contracts as well as property interests; T need not leave the premises before making a claim or asserting a defense of breach of IWH; can claim punitive damages if violation of the housing code is particularly bad c. Constructive Eviction: living arrangements become so unbearable for tenant that they cannot live in the apt anymore; can be used to argue a violation of quiet enjoyment AND implied warranty of habitability d. Minjak v. Randolph: Ts/Ds leased an apt in NYC for living and recording music, LL's actions made the recording studio part unlivable and Ts refused to pay full rent, only for the portion of the apt in which it was still ok to live, LL sued Ts for back rent, Ts defended on constructive eviction from breach of quiet enjoyment; court held that constructive eviction

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can be used to defend against a breach of the covenant of quiet enjoyment in only a portion of the property; Ts properly left the portion of the apt that was unlivable e. Blackett v. Olanoff: Ts withheld rent from LL b/c the bar, also a T, was playing loud music and staying open late in contravention of LLs lease, LL sued for back rent, argued he himself did not breach Ts covenant of quiet enjoyment and he is not chargeable w/ fellow Ts breach of QE; court held that even tho LL did not intend to violate Ts cov. of QE, he allowed the bar T to breach it by his lack of enforcement of the bar T's lease, the bar's actions flowed as the natural and probable consequence of what LL permitted them to do, thus LL could be held liable for constructively evicting Ts f. Javins v. First National Realty Corp.: Ts withheld rent and claimed LL violated many provisions of the DC Housing Code, LL sued for back rent; court held that an implied warranty of habitability is present in every lease; value of a lease is no longer simply in the land but includes adequate housing w/ running water, electricity, and maintaining the premises; Ts could withhold rent for breach of IWH and violation of the housing code Real Estate Transactions: Establishing Seller/Broker Agreement Deals with who can sell and commission rights 1. Exclusive broker- gives the broker the right to collect commission if property is sold by her efforts or sold to anyone at all, even if owner found buyer without brokers help. 2. Exclusive agency- broker gets commission if property is sold by her or any other broker, but not if the prop is sold by owner. 3. Open or nonexclusive- broker only gets commission if she is the first to procure a buyer. Seller/Broker duties to Buyer Caveat emptor (let the buyer beware) Buyer finds house as is Traditional rule No duty to disclose defects in the house Today No duty to disclose apparent defects (Hole in the roof, crack on the wall, crack on the floor)

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Seller has the duty to disclose material information that would not normally be available to the buyer. House had foundation problems- must disclose (latent defects) House is haunted- must disclose Next-door neighbor is registered sex offender- unclear whether need to disclose. Johnson v. Davis Duty to disclose (Johnson lies about peeling wallpaper. Davis then pays 26,000 deposit and takes title to the house) Davis wins, rescinding under a theory of fraud. Must disclose information that is Known to the seller/broker Reasonable buyer would want to know Affects the terms of the transaction or induced buyer to buy Misrepresentation vs. nondisclosure Here, there was both Nondisclosure was deemed fraudulent Purchasing the house 1. Parties sign purchase and sale agreement (usually deposit made) 2. Executory Period Inspection Financing Title search 3. Closing Buyer agrees to pay entire amount Seller delivers deed to buyer Risk of Loss if the House burned down during the executory period, the risk of loss would be on the BUYER. (some courts opposite).

DEED- Terms, Deliverty, Title Protection: Deeds terms: 1. identify parties 2. describe property being conveyed 3. state grantors intent to convey 4. contain grantors signature Delivery Deed must be delivered to grantee/donee or third party

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Recording System Race First to record deed wins Notice Subsequent purchaser prevails over earlier one only if did not have notice of earlier purchase Race/Notice Subsequent purchaser wins over prior unrecorded only if Had no notice of prior sale and Records first

Shelter DoctrineAllows a bona fide purchaser to convey property to a 3rd party even if 3rd party is on notice of an earlier conveyance.

O to A (A does not record) O to X (has no actual notice of conveyance from O to A) X records A records X conveys to C (C has notice of conveyance from O to A) A v. C R: C N: C R/N: C How does the U.S. Constitution define ones ownership of property? The Constitution confers => State govts with police powers (10th Amendment) Federal and state govts power of eminent domain (take property) The Constitution limits exercise of government 5th Amendment, Takings Clause No person shall be deprived of life, liberty , or property, without due process of law; nor shall private property be taken for public use, without just compensation. Takings Clause 1. Government taking 2. For public use 3. Just compensation 30

Kelo v. City of New London city used eminent domain to take some land as part of a development plan in Ct. question is whether the citys taking of property qualifies as a public use they used onn. Gen. stat. 8-188 to justify the taking of eminent domain. NLDC successfully acquired most of the land, but some failed, resulting in condemnation proceedings, which are the issue in this case. Kelo has lived in ft. Trumbull since 97, and made improvements, loves her water view. Petitioners own 15 properties in the area 4 in parcel 3, and 11 in parcel 4A. p.1076 proc history they brought action in superior court, and they prohibited the takings in 4A the park or marina support but denied relief as to the propertyies located in parcel 3 (office space) apeal to supreme court found that the takings were justified as for economic development relying on Midkiff and Berman(w dissent as to a heightened standard for econ. Devel. takings) Berman (public use unequivocally confirmed)btm 1077- upheld redevelopment of a blighted area,where most made into public facilities, with the remainder used for low cost housing. Midkiff purpose not mechanics decides public use

p.1080 petitioners argue that using eminent domain for economic development blurs the boundary between public/private takings. 1081 shoots down the idea that government has to show with reasonable certainty that the use will actually accrue public benefits says better job for legislature or expert agencies to do that. Held once the state has decided to use land for economic development it is not up to the judiciary to question them. The question of when/how state decides that must be debated. The petitioners case is dismissed. (taking should be upheld under Public Use Clause, const. Amendment 5, as long as it rationally relates to a conceivable public purpose ) Kennedy concurrence 1083 a court confronted with an accusation of impermissable favoritism to private parties should seriously consider it here the court took it seriously.

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a broad bright line rule saying no takings for econ dev would prohibit a large number of takings that would greatly benefit the public.

OConner Scalia Thomas Dissent p.1084 espouses a judiciary check, even if limited, on determinations of public use. Oligoply a market dominated by a small number of sellers, and they take each others actions into account the court in Midkiff broke up this type of cartel in a public taking This dissent distinguishes the necessity of the takings in Berman and Midkiff on p.1085as instances of property inflicting affirmative harm on society 1086 worried about broad ramifications if any land can be taken for possible benefit Thomas Dissent If this project is public use than any project is. The constitution came from the Common Law , and Blackstone said that public necessity is postponed tot eh sacred rights of private property back to the right to exclude. p.1087- states used em dom for quintessentially public services roads, ferries, canals, railroads and parks. p.1088 Mill Acts granted rights to prive mills to other land. P.1089- public takings destroyed minority populations in downtown areas.

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