Prperty Outline 2 Trademarks: prtectin fr wrds, symbls, ther indicatrs f surce r service; based n use e.g. delta faucets and delta airlines; 3 require

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1 Prperty Outline 1 Acquisitin f Prperty Rights: First Pssessin f Prperty Rights: Intrductin t curse, excerpt frm Steven Friedland, Teaching Prperty Law: Sme Lessns Learned, 46 ST. LOUIS U. L. REV. 581 (2002), n TWEN, Curse Materials. Themes f prperty law: prperty as relatinships amng peple e.g. nuisance, health and safety risks prperty as smething f value; diff peple can have rights in the same prperty labr as value f land (Lcke) The schema that Friedland presents als reflect themes we will encunter thrughut the curse. Be clear n thse schema. Bundle f sticks: (nt abslute, can be sep/split amng diff peple) Right t pssess the prperty e.g. rad-widening; nt abslute Right t transfer the prperty e.g. fair husing act Right t use/ccupy the prperty (but, zning) Right t exclude thers (but, can t exclude invitees) Acquisitin by Discvery, 3-18; excerpt frm Eric Kades, Histry and Interpretatin f the Great Case f Jhnsn v. M Intsh, (tw titles, ne US and ne Native American) Hw wuld yu state the rule f law in M Intsh? Investing labr creates superir prp right. First in time wins. Discvery rule: Eurpeans agreed amngst themselves that when they discvered new land nt discvered by ther Eurpeans, they claim it and the thers wuld respect it. Hw des the Curt justify its hlding? Acquisitin by Capture, 18-26; Wh is held t have a prperty interest in the animals in Piersn and Keeble? What is the ratinale fr awarding prperty rights t the winners? What is yur evaluatin f that ratinale? Piersn v. Pst: Fx pursuit case; Rule = ht pursuit is nt enugh, must have the animal in cntrl and deprive it f its liberty; shws the tensin between labr and time; prmtes certainty; easier t administer Keeble: duck pnd case; neighbr scared away ducks; rule = landwners are cnsidered prir pssessrs f wild animals n their land; encurage duck hunting; labr v. time (but P desn t have first pssessin) Acquisitin by Creatin (ideas and expressins), What prperty right, if any, des AP have in its news? Why? Is there a relatinship between the disseminatin f news and the killing f a wild fx? If yu create smething (first in time) then it is yurs t explit, but nt always Assciated Press: (news rg taking news frm AP and using it fr their paper) Is there a prperty right in news? If yes, des it survive after paper is published? Yes, quasi prperty between news cmpetitrs because seeking prfit. Neither party has a prp interest as against the public; shuldn t be able t prfit ff ther s labr (labr thery) Cheney Brs: silk scarves case; stealing patterns? = n! Patents: limited mnply fr inventins prducts r prcesses; but must be new, useful, and nt bvius

2 Prperty Outline 2 Trademarks: prtectin fr wrds, symbls, ther indicatrs f surce r service; based n use e.g. delta faucets and delta airlines; 3 requirements: distinctiveness, nn-functinality, first use in trade; Cpyrights: prtectin fr creative wrks like bks, art, music, etc.; limited t expressin and nt ideas; fair use is allwed e.g. Weird Al Acquisitin by Creatin, cnt. (persna, persn), Our fcus in Mre is the cnversin claim. What are all f the reasns the curt harnesses t deny the claim? In what ways is this case similar t, r different frm, ur prir cases regarding the acquisitin f prperty rights? The Right f Publicity: White v. Samsung: Vana White rbt; using her likeness; argues CL right f publicity; SC says nt her name/likeness, celebrity has invested int their identity (labr); peple dn t mistake the tw Mre: transfrmed cells int immrtal cell line fr research and patented that; yu can sell things e.g. plasma that are replenishable, nt rgans; he culd have negtiated a better deal if he had knwn; SC hlds that P did nt have a COA because its nt unique (we all have cells), wuld create mre litigatin and stifle research, abandned waste; labr? Scientist put in the labr w/research = $$ Right t Exclude, Can yu recncile Jacque and Shack? Makes the difference between public/private prperty, but nt abslute, limitatins e.g. ambulance, plice, etc. Jacque: mbile hme delivery case; TC says did trespass = $1 nm and $100k punitive damages; they knew it was wrng; trespass needs t have teeth State v. Shack: migrant wrkers living n shack n farmer s land; dr & lawyer cming and trying t talk t them privately, he refuses; arrested fr trespass; was it? N, they were invitees, farmers invited wrkers t live there = rights t thse services Pcn Springs: unusable lts; tried t abandn; HOA didn t want t let them ut f paying dues; Rule: abandned prp is that which an wner vluntarily relinquished all right, title, calim, and pssessin with the intentin f terminating his wnership, but w/ut vesting it in any ther persn and w/the intentin f nt reclaiming pssessin, wnership, enjyment, etc. Hlding: n, yu cannt abandn this real prp in the way yu wuld persnal prp (taxes!) Subsequent Pssessin f Prperty Rights: Acquisitin by Find, What is the general rule regarding finders rights? What are the factual distinctins that give rise t variatins f this rule? D these factual distinctins really matter? Why r why nt? Armry: Chimney sweep finds ring, jeweler gives it back t him w/ut the jewel, Rule = finder has the right as t everyne except the true wner r prir finders Hannah: quartered sldier finds a brch; Rule: the finder f an bject has superir rights even f the wner when the wner desn t have cntrl f the item (nly wner wh has never been t the prp; narrw) Bridges: mney fund n the flr; wh has cntrl f it SS Water: cleaning pl and finds tw rings; rules fr hmewner; it was in the pl = it was in the land = pssessin f the hmewner Elwes: bat fund while mining; rules fr landwner; fairness Rule after Hannah: When a true wner f lst chattles des nt claim prperty, it belngs t the finder whe:

3 Prperty Outline 3 It is nt embedded r underneath the grund, AND It is fund n private prperty that had never been ccupied by the wner and the wner had n knwledge f the bject, OR It is fund n a business premises pen t custmers and the business wners d nt take steps t cntrl the prperty But, it belng t the wner f the premises, nt the finder, when The finder is emplyed by the wner f the lcatin, OR When the prperty is embedded in r underneath the grund McAvy v. Medina: custmer fund lst wallet and left it with stre wner; demands it back when n ne claims it; rules fr wner; wasn t lst just misplaced Acquisitin by Adverse Pssessin, ; Brwn v. Gbble, n TWEN, Curse Materials; 159 (beginning with Nte 2) Be clear n the elements required t establish adverse pssessin as well as the separate rules related t each element. Under Gbble, des the pssessr need a particular state f mind t prevail? (See nte 2). What state f mind, if any, shuld the law require f a pssessr fr a successful claim? Brwn v. Gbble: survey shws their land extends tw feet past fence; tacked n prir wner s use f the land (ttal f 40+ years) Elements f AP: Adverse/hstile Actual pssessin Open and ntrius Exclusive Cntinuus Under claim f title r clr f title All fr a perid f ten years Adverse Pssessin, cnt., Hw des a mistaken imprver (r inncent trespasser, as Mannill discusses) differ frm an adverse pssessr? Manill v. Grski: Sn expands entrance t huse t encrach n neighbr s land by 15 inches; Incursin Rule: if the AP is nly a minimal incursin f the prp, the neighbr must have actual ntice f the incursin; makes it mre difficult; must actually tell them, survey that tells them (Gbble); als lks at intent and whether they needed t knw they were encrach; still same result that landwner was neglectful f his prperty If they cannt remve the encrachment w/ut great expense/hardship, wner may be frced t cnvey the land upn payment f fair value Hward v. Kunt: Beach huse deeds ff by ne; cntinuus/lng enugh even th nly summers b/c that was nrmal use, needs t be suff cnnectin between wners fr tacking e.g. selling, s as nt t encurage squatting; tacking = needs t be chain f privity; shw w/chain f title, gift f transfer Limits f AP: can t AP against the gvt; can t if true wner has disability (minr, unsund mind, imprisned), can t cmbine successive disabilities Acquisitin by Adverse Pssessin (chattels),

4 Prperty Outline 4 What is the difference between the discvery rule in O Keeffe and the demand rule in Guggenheim (nte 3)? Which rule is better and why? O Keefe: claims three paintings were stlen but wner says he purchased them frm O Keefe s husband, wh was wner f the gallery; culd thief transfer title? N; Discvery Rule: SOL wuld begin when the injured party discvers r shuld have discvered by exercise f reasnable diligence and intelligence, facts which frm the basis f COA; same rules fr AP; hard t prve pen and ntrius fr art, burden n wner; Demand and refusal Rule: system fr NY, until the wner demands it back and is refused; better fr museums; Acquisitin by Gift, Wrk thrugh the prblems fllwing Newman, in paragraphs 2-4. Be able t justify yur result. Three basic requirements intent t transfer title by dnr delivery f prperty acceptance by dne Newman v. Bst: wman caring fr ld man then he dies; his estate tries t keep her frm getting what he left her; curt says she is nly entitled t what they key pens; what he had present intent t give her; there are gifts given right befre death and gifts given during life (e.g. Julia s pian) Gruen v. Gruen: Sn says father gave him painting $$ but brrwed it t keep in his ffice; dies; stepmm says it ges t her; was there present intent and delivery (cnstructive = access, symblic = dcument) C-Ownership f Prperty and Marital Prperty Cmmn Law Cncurrent Interests (types, characteristics & creatin; severing jint tenancies; jint bank accunts), Tenancy in Cmmn: default; freely alienable; separate but undivided interests in the prperty; each tenant in cmmn wns an undivided share f the whle; have right t use the whle; fractinal shares can be transferred during life r at death, n right f survivrship; mst alienable Jint Tenancy: hld unequal and undivided interest in the same prperty w/equal rights t use and pssess the prperty; right f survivrship (1/3 dies ½); keeps in family; minimizes prbate; regarded as single wner; t create, must be created at the same time, same title (instrument), same interest (equal shares and duratin), equal pssessin; ne JT culd take ut interest and create tenancy in cmmn; trend is mving away frm fur unities and t intent test Tenancy by the Entirety: special cncurrent interest fr married cuples; like JT in the fur unities + created in husband and wife; surviving tenant has right f survivrship; must cnvey tgether; divrce terminates; exists in less than half the states; can t bring actin fr partitin except fr divrce; curts split n whether creditrs f ne spuse can seize TBE prperty; meant t prtect wife Avidance f Prbate: JT avids the prblem (cstly, time, n interest passes); JT cannt pass her interest in a jint tenancy by will; Riddle v. Harmn: Wman tries t terminate a JT by cnveying her interest frm herself as JT t herself as TIC; curt uphlds = ne JT may unilaterally severe the JT w/ut use f a strawman; plicy = efficiency, culd put prp in danger

5 Prperty Outline 5 Harms v. Sprague: 1 brther signs mrtgage fr lver; then brther dies and lien n huse and bank wants the secnd half f brthers huse; mrtgage was executed by less than all f the JT s; the mrtgage n the JT prperty was nt a lien after the death f the JT and did nt sever the unities f JT, did nt transfer title, thus the surviving T became sle wner f the prperty; Cmmn Law Cncurrent Interests, cnt., (relatins amng cncurrent wners partitin, sharing the benefits and burdens, nte n accunting), Delfin v. Vealencis: V had 45/144 f the prp, lived there, business n the prp, nly stres the garbage trucks there, nt actual trucks; hlds that Partitin by sale wuld nt best prmte the interests f the parties; lked at physical characteristics f prp; favrs partitin in kind ver sale (nly fr emergency); can nly rder a partitin by sale when: 1. physical attributes f the land are such that a partitin in kind is impracticable r inequitable, r 2. the interests f the wners wuld be better prmted by a partitin f sale BOP is n the party requesting the partitin by sale t shw it wuld better prmte the Mdern practice is t decree sales in partitin in great MAJ f cases Benefits and Burdens: Accunting: relates t receipts Equitable actin where c-tenants petitin curt t require anther t state the incme, rents, r prfits fr the prperty and t give the P her share Cncurrently wned prp can yield benefits t ctenants but can als bring abut expenditures In all states, a CT wh cllects frm 3rd parties rents and ther payments arising frm the c-wned land, must accunt t CT s fr the accunts received, net f expenses A CT paying mre than his fair share f taxes, mrtgage, etc. generally has a right t cntributin frm the ther ctenants Spiller v. Mackereth: wned building as TIC; P began using it as warehuse; D demanded either vacate r pay fr half the rental value; Curt hlds each c-wner has the ability and the right t use the ENTIRE prperty (P desn t have t mve it all ut); uster: if they have kicked ut, usted yu, preventing yu frm using the prperty (prves interference w/use f prperty, but has t have attempt denied), cnstructive uster is when abslutely impssible fr c-wner t use prp based n ther c-wner s use Swartzbaugh v. Sampsn: walnut farm; husband and wife wned as JT; husband added bxing ring; wife sued develper and husband fr injunctin; hlds that husband has the right t use the entire prperty, can lease ut his right, nly thing she can d is t sue fr uster; an estate in JT can be severed by destrying ne r mre f the unities but didn t happen here; JT can cmpel rent; JT cannt bind r affect right f ther w/ut cnsent f ther; JT cannt lease w/ut f CT; JT is entitled t pssessin f entire prperty Expenses and Cntributin: Cntributin: duty t share expenses require t maintain wnership f prp C-wner can seek reimbursement frm fellw c-wners fr certain types f expenses

6 Prperty Outline 6 N affirmative right t cntributin frm ther CT fr repairs unless agreement CT has n right t cntributin frm ther CT fr expenditures fr imprvements Carrying Csts: e.g. taxes; can t be a httub Exclusive Pssessin Exceptin Anything that culd frfeit the prperty Injunctin Against Waste: c-wners can t cmmit waste e.g. turning int a dump Necessary Repairs: e.g. fundatin crack, water leak frm rf MAJ says n right t cntributin (grey area, vague, subjective) WA allws if ntice given; BUT can get the csts back that the curt deems reasnable & necessary BEFORE the prceeds f the huse are divided Multiple-Party bank accunts jint accunts: "A and B", "A r B"; Current Use and Survivrship; mst cmmn; bth parties can use and bth have survivrship; "true jint tenancy" bank accunt: depsit $ with intentin f gifting t ther tenant 1/2; "cnvenience" accunt: nly draw n t use fr bills, n survivrship rights; many banks are weary f pwer-f-attrney accunts and prefer jint accunts; all purpse accunt = invites litigatin t establish true intentin f depsitr; e.g. if heirs can establish putting Jt's name n the accunt was nly fr purpse f paying decedent's bills, then mney culd belng t decedent's estate and nt jint tenant MAJ surviving jint tenant takes mney remaining n depsit in jint accunt unless clear and cnvincing evidence a cnvenience accunt was intended savings accunt trusts (Ttten Trusts) "B, in trust fr A"; Current use; e.g. t parent t use fr child, and nly fr child while the child is alive, caring fr elderly relative; limits n hw yu can use the funds and allw smene t sue if yu misapprpriate the funds payable-n-death accunts "A, payable n death t B"; all it is is survivrship; sme states allw b/c shuld d in a will; in sme jdx's nt permitted because viewed as a testamentary instrument that is nt signed and witnessed in accrdance with the requirements f the Statute f Wills Relatinships Amng Cncurrent Owners: plicy: fairness and efficiency; Remedies Available t C-Owners: Partitin: judicial remedy t terminate JT r TIC; tw kinds 1) in kind: physically divide up real estate [alienability, t keep the peace] 2) by sale: rdering auctin sale f prp then dividing up $ based n share) Cncurrent landwners may decide t terminate a ctenancy, in event that vluntary agreement is impssible, recurse t equitable actin f partitin is necessary; available t any JT r TIC, unavailable t TBE Marital Interests (cmmn law system), Cmmunity Prperty (Spanish Traditin) marital prperty is kept separate; that they acquire in their wn name; anything yu get befre marriage e.g. inheritance, gifts; (incme in cncept) Three schemes: 1) hld all prp in sep wnership 2) hld prp acquired frm earnings as cmm prp and inherited as sep 3) hld all prp frm all surces as cmm prp

7 Prperty Outline 7 Prperty acquired r pssessed by either husband r wife is presumed t be cmm prp unless prved therwise by prepnderance f the evidence Big diff between CP and JT/TIC: Cp can nly exist between husband/wife, neither spuse acting alne can cnvey prp except t ther spuse; at death each partner has pwer t dispse f by will ne half at death (n survivrship); at death f ne spuse prp receives tax advantage Management f CP: each T cannt cney his undivided interest; mst CP states give bth equal management pwers; must act in gd faith but gd judgement is nt necessary; creditrs f managing spuse can reach whatever CP the spuse is legally entitled t manage Mixing the tw: nt all state in agreement, diff rules as t the time it is determined Migrating cuples: depends n dmicile f the spuses when the prp is acquired; nce prp has been characterized des nt change when parties mve; CL state gen recgnize CP when brught in Rights f Dmestic Partners: CL marriage is nly recgnized in 10 states CL/Sep Prp: prp that a spuse can wn and manage n their wn w/ut cnsent f ther spuse; things brught int marriage, gifts, inheritance; upn divrce, prp f spuses remained the prp f spuse hlding title; held in TBE was cnverted int TIC; placed emphasis n way title was held (e.g. in husband s name) and largely ignred wife s cntributins N fault divrce trend; rule f Equitable distributin Sawada: husband gt in car wreck and didn t have insurance; sisters seriusly injured that he hit; g after husband s hme (his nly asset) wanted t attach lien frm prir suit; but husband transfers wnership f huse t children. Fraud? N, curt says can t attach debt f ne t TBE f the prp; nt fair t wife; dissent says shuld be equal; In re Marriage f Graham: divrce, but during marriage wife had wrked full-time t supprt husband getting his MBA. Curt held that the MBA was nt marital prperty which was subject t divisin by the curt; desn t have cash value, lan value, redemptin value, lump sum value, r value realizable after death = what makes up wealth; culdn t be assigned, sld, transferred, cnveyed, r pledged, didn t terminate upn death; nt encmpasses by brad view f prperty; just achievement Elkus v. Elkus: famus pera singer whse husband was cach, dedicated life t her; husband was entitled t distributin f fame as marital prperty; brad def f marital prperty; desn t need t be license as a business; the nature and extent f cntributin f husband determined the status as marital prperty Marital Interests, cnt. (terminatin by death; cmmunity prperty system), and lk up and bring t class R.C.W , R.C.W , and R.C.W Terminatin f Marriage by Death f a Spuse English: land shuld stay in patriarchal family and supprt widw Dwer: gift made by bridegrm at wedding; law gave dwer t a surviving wife in all freehld land f which her husband was seised during marriage and that was inheritable by the issue f husband and wife; was life estate in 1/3 f each parcel f qualifying land; but extinguished if she died first Curtesy: at wife s death, widwer was entitled t life estate in each piece f wife s real prp if certain cnditins were fulfilled; attached t all freehld land f which wife was seised during marriage and that was inheritable by the issue f

8 Prperty Outline 8 husband and wife; but did nt attach t land unless issue f the marriage capable f inheriting the estate was brn alive; ablished in all but 4 American jdx Take away: bth husband and wife must sign deeds t land t release dwer, even thugh the title is nly ne f them Mdern Elective Share: pst-civil war era frced share legislatin giving surviving spuse an elective share in all prp; entitled t wnership share, nt just supprt Elective share statutes: surviving spuse can renunce the will and elect t take a statutry share; usually larger, nly t the prp that spuse wns at dealth, nt t JT r insurance prceeds, need t say equitable divisin by judge Leasehlds: Landlrd-Tenant Law: The leasehld estates and the lease, ; RCW Types f Leasehlds: Term f years: agreement that is set t expire at the end f a certain perid; has specified end date; dn t need ntice; bth T and LL knw that is the date yu are suppsed t vacate and LL can rent t smene else; culd be mnths Peridic tenancy: aut renew until ne r bth parties stps it; LL desn t knw when T is leaving, need t prvide ntice t terminate, e.g. mnth-t-mnth give a mnth s ntice; ntice must cme 6 mnths befre terminate; if yu dn t give enugh ntice yu have renewed fr anther term; plicy: give LL enugh time t find new T; mst states are shifting t 30 days ntice Tenancy at will: messy, n perid, express r implied, year r mre has t be in writing; must g thrugh evictin prceedings r prper ntice when yu want them t leave but mst states require 30 days ntice, Tenancy at sufferance: LL suffers, brief perid when T was suppsed t mve ut but didn t, very cmmn, LL has tw ptins: evictin r cnsent (t sme srt f lease ging frward) Is it a lease? License? Cnveyance? Lease transfers a pssessry interest in land s it s a cnveyance that creates prp rights; Garner v. Garish: priv f terminatin at a date f his wn chice ; ruled lease creates a life tenancy, which can be terminated by the lessee r at the altest, upn his death. Lease grants a persnal right t named lessee t terminate at a date f his chice; create a life tenancy terminates at the will f the lessee r at the latest upn his death. Hannn v. Dusch: Lessee discvered tenants that wuld nt leave the prp he was trying t mve int; LL nly has t put T in legal pssessin, nt actual pssessin, and n duty t delivery. Case law remains divided n issue; under American Rule, T s remedies are against the persn wrngfully in pssessin, may sue t recver pssessin & damages Subleases and Assignments: Assignment: T s transfer f all f her interest fr the remainder f the lease term; assignee takes ver rest f T s estate, taking same thing T had rather than less Sublease: is smething less, T transfers nly part f the remaining lease term; T wh sublets retains sme interest in the lease a reversin; creates an entirely new k al relatinship between T and sublessee (LL isn t invlved) Privity f estate: LL can sue T; based n mutual/successive interest in same prp; if LL wanted t sue he culd sue n POE; if sublessee destrys apt, T culd sue SL based n k, but n PE

9 Prperty Outline 9 Ernst v. Cnditt: race track case, assignment r sublease? Assignment which = LL culd sue new T fr making imprvements ; Rule: if the transfer is a sublease, n privity f k and D culd nt be liable t pay rent and the expense f remval f the imprvements; if assignment, privity des exist and D wuld be directly liable fr $; An assignment cnveys the whle term, leaving n interest nr reversinary interest in the grantr/assignr; CL distinctin: if instrument transfers lessee s estate fr the entire remainder f the term = assignment; if less than entire term = sublease Tw ways t distinguish: frmalistic and intentin f the parties Selectin f tenants (discriminatin); delivery f pssessin, and the tenant wh defaults ; ; prblem 3, page 456 (Mrs. Murphy questins). Fair Husing Act: unlawful t refuse t rent, sell, r negtiate b/c f race, clr, religin, sex, familial status (nt kids), r nat l rigin; cannt discrim in terns, cnditin r priv f sale r rental b/c f ; make, print, r publish advertisement that indicates a preference, limitatin, r discriminatin based n (last ne gets peple int truble) T prve, can shw disparate treatment, r Exceptins: 1) single family huse sld r rented by wner as lng as living there, 2) rms r units in dwelling n mre than 4 fam where wner lives in ne; but d nt apply t advertisements Civil Rights Act: all citizens f the US shall have the same right as is enjyed by white citizens t inherit, purchase, lease, sell, hld, and cnvey real and persnal prperty RCW : state level act, adds families against children, leaves ut unmarried cuples, students Berg v. Wiley: T had health cde vilatins, lcks ut LL s LL picks lcks and changes them; curt rules that self-help cnstituted a nnpeaceable entry giving right t damages; LL may use self help t retake if 1) LL Is legally entitled t pssessin, and 2) LL means f reentry are peaceable (nt vilence inducing) want t discurage self-help The tenant wh abandns pssessin Smer v. Kridel: wedding canceled, student wh culdn t pay rent; LL demands rent; LL has a duty t mitigate damages by making reasnable effrts t re-let an apt wrngfully vacated by T; fairness and equity; n expenses incurred, facts e.g. if apt was advertised, shwn, T culd shw there were gd T s wh were rejected; RST says shuld nt encurage abandnment f prp; surrender is a term f art = T s ffer t end a tenancy; 42 states + DC have duty t mitigate damages Rights, duties and remedies (quiet enjyment, cnstructive evictin, illegal lease, implied warranty f habitability) Rent and Damages: LL s right t sue fr back rent and damages ccasin by the T s breach f lease bligatins is straightfrward; if T is in pssessin, Ll may als term the lease and recver pssessin; dctrine f anticipatry breach; but absent statute, anticipatry breach is gen unavailable Security Devices: purpse is t prtect LL but limits are placed n the amunt; create a trust relatinship, must be placed in trust r escrw accunt, NOT t be c-mingled w/ther funds; LL must pay interest; LL must submit itemized list f deductins frm it; penalties are levied fr vilatins Rent acceleratin: T s default = all rent fr term is due & payable (MAJ) LL s Duties: disputes between T and LL 1) T wishes t vacate r stay put pay less (n) rent 2) T injured by defective premises and claim damages angst the LL in trt

10 Prperty Outline 10 Village Cmmns v. Marin Cunty Prsecutr s Office: Prsecutr s ffice signed lease fr basement ffice; LL duty t maintain cmmn equipment; serius serius issues and prblems, mainly water intrusin; LL said wuld fix but didn t b/c f $; Rule = T will be relieved f bligatin t pay if the LL deprives T f pssessin and beneficial use f any part f the demised premises by actual evictin; water was recurring, LL s wn acts Cv f Quiet Enjyment: implied right t pssessin, ccupancy, beneficial use f every prtin f leased premises; creates duty fr LL t prvide suitable premises Cnstructive Evictin: cnditin f the leased premises amunts t a breach f the cv f quiet enjyment AND if the breach is s substantial as t justify the T absenting the premises AND if T leaves w/in a reasnable amunt f time Actual Evictin: being physically remved r kept ut by LL Partial Evictin: actual and cnstructive; relieved f all liability even if nly kept frm part f premises if actual but nt cnstructive The illegal lease: des nt apply if cde vilatins develp after making f te lease; T under illegal lease is tenancy at sufferance; LL is entitled t the reasnable rental value; T culd w/hld rent and stave ff L s actin t evict (dctrine is dead) Hilder v. St. Peter: sewage backs up in apt; nly ral lease, had paid all rent due, P cleaned up ALL sewage fr security depsit but D denied receiving; P discvered several defects and items in disrepair, fixed w/wn $ [but stays in apt]; implied warr f habitability exists, requiring the LL t deliver and maintain thrugh the lease, premises that are safe, clean, and fit fr human habitatin, cvers all latent and patent defects in the essential facilities f the unit (vital t use); must give ntice and time t fix; cannt be waived nr can T assume risk by acknwledgment; P may w/hld rent r seek damages MIN rule, nt always in cmmercial leases; Dn t have t leave, tns f diff damage ptin, mre abut making livable Plicy behind leaving caveat emptr: 1) value f prp used t be land itself, nw is the huse 2) we are n lnger a useful/handy sciety (invisible prblems) Must be willful and wantn AND essential t health/safety f T t get punitive damages Transfers f Land (the Land Transactin): Intrductin t buying and selling, Caveat Emptr: buyer beware; trend is away frm it; CL rule, exceptins (fraudulent misrepresentatin: seller makes a rep f fact & must knw r shuld have knwn what is wrng is material t the males e.g. rf leaks, made falsely w/the intent f misleading and buyer 1) justifiably relied 2) suffers injury as a result) Executry: title is nt transferred immediately upn signing, must d certain things between k and clsing e.g. title search, abstract f title, etc. gd and merchantable title = mst imprtant phrase Timeline: research/prep buyer submits ffer mutual acceptance f ffer exec perid clsing Cntract f sale (statute f frauds, marketable title), Statute f Frauds: except fr lease fr less than 3 years, n interest in land culd be created/transferred except by signed instrument by party bund Intended t prevent fraud and clarify essential terms f agreement Essential terms: ID f parties, price, prp descriptin, expressin f intent t buy/sell, signatures, etc.

11 Prperty Outline 11 T satisfy: signed by party t be bund, describe the real estate, state the price (may be implied e.g. fair market value) Exceptins: less than a year, adverse pssessin, part perfrmance, estppel (when uncnscinable injury wuld result frm denying k after ne party has been induced by the ther t change his psitin n the k) Hickey v. Green: Buyer sells ld hme hping t buy new ne; seller reneges and sells t anther fr mre $; Rule: An exceptin t the SOF is when a party t the ral k partially perfrmed in reliance n the ral k. Part perfrm allws the specific enfrcement f an ral k when particular acts, such as selling yur hme, have been perfrmed by ne f the parties t the agreement. Had changed psitin based n the k (sld hme); injustice Writing: e-sig., k r ther recrd may nt be denied legal effect/validity b/c it is electrnic frm; weakened the SOF? Marketable Title: a title nt subject t such reasnable dubt as wuld create a just apprehensin f its validity in the mind f a reasnable, prudent, and intelligent persn, ne which when guided by cmpetent legal service, wuld be willing t take and fr which wuld be willing t pay fair value; seller must cnvey it; if nt buyer can rescind Lhmeyer v. Bwer: (2-stry huse cde vilatin) A vilatin f a city rdinance as well as the ther vilatins makes this title unmarketable and dubtful; MT = free frm reasnable dubt; dubtful if expses party hlding it t hazard f litigatin; defect must be substantial character and ne which may cause injury Cntract f sale, cnt. (duty t disclse defects, implied warranty f quality), Stambvsky v. Ackley: haunted huse sale; was undisclsed cnditin that impairs value f the huse grunds fr recisin f k? Yes, where a cnditin which has been created by the seller materially impairs the value f the k and is peculiarly w/in the knwledge f the seler r unlikely t be discvered by prudent buyer exercising due care w/respect t the sale, nndisclsure cnstitutes a basis fr rescissin as a matter f equity; verrides even an express disclaimer; seller s fault fr publicizing huse; nt physical cnditin f huse Jhnsn v. Davis: seller knew the rf leaked but affirmatively represented that there were n prblems; heavy ran = buyer sues fr rescissin f k; When a seller knws f facts materially affecting the value f the prp, which are nt readily bservable and nt knwn t buyer, seller is under duty t disclse t buyer; fraudulent cncealment (bj & subj test); diff between actin and inactin; fairness and equity; ersin f caveat emptr Merger: k merges int the deed; buyer can n lnger sue seller n prmises in the k f sale nt cntained in the deed, but must sue seller n warranties cntained in the deed (exceptins f fraud, cllateral agreements, etc.) nw in disfavr Implied Warranty f Quality: CL = cnveyances f real prp carry n implied warranties f quality r fitness (caveat emptr); exceptin fr new cnstructin; applies t peple in the trade f cnstructin (e.g. nt yur handyman uncle) Lempke v. Dagenais: structural prblems with garage built by D; prp sld t P; P sues; can P sue w/ut privity f k fr defects n basis f implied warranty f wrkmanlike quality? Yes, privity f k is nt necessary t sue builder/cntractr under an implied warranty thery fr latent defects which manifest themselves w/in a reasnable time after purchase and which cause ecn harm; implied warr can transfer t sub purchaser and cver defects that arise in a reasnable time; fairness, might be sme time befre the defect appears, builder shuld knw & best repair; buy/sell is quick nw The deed: the piece f paper that affects the transfer f prperty;

12 Prperty Outline 12 handed ver at clsing; has t be in writing based n the SOF; needs names f the parties & sig f seller; Six Cvenants in Warranty Deed: Present cvenant: can be breached at the time the deed is delivered Cv f seisin: seller prmising? Cv f right t cnvey: prmises that they wn it and cnvey it; pretty limited; nt ding it utside yur authrity Cv against encumbrances: n liens, mrtgages, etc.; can be prblematic n freclsed prperties Future cvenants: prmises abut things ging frward, will nt be breached until smething happens in the future Cv f warranty: tied t seisin, seller will cme in and sell fr lawsuit if smene claims they wn it (3rd party assertin f wnership) Cv f quiet enjyment: same as warr; n ne can kick yu ut Cv f further assurances: lts f cmmercial k; will prvide yu with evidence if yu need it in the future e.g. adverse pssessin Warranties f Title: Three types f deeds: General warranty deed: warrants title against all defects in title, whether arse befre r after grantr tk title Special warranty deed; warranties nly against the grantrs wn acts but nt acts f thers; culd still have fights; Quitclaim deed: n warranties f any kind; but cheaper (1/2) Frged deeds: shuldn t punish the third party, kind f sad Estppel by deed: grantr cnveys land t grantee that the grantr des nt wn, and the grantr warrants the title t the line; if grantr acquires title t the land, the grantr is estpped t deny that he had title t the land at the time f purchase and that title passed t grantee; shuld put deed n ntice! Delivery: deed must be delivered t be effective (as well as acceptance and intent t transfer) Sweeney v. Sweeney: tw deeds, ne deed destryed in fire; Rule = if a deed has been frmally executed and delivered, the presumptin that the grantee assented t the transfer f the title/pssessin can be vercme nly if there is evidence that n delivery r transfer was intended in fact; wrried abut fraud, needs t be vluntary Rsengrant v. Rsengrant: Husband/wife and husband has cancer, nephew takes care f their farm while away, prmises it t him in deed stred in safety depsit bx, but nephew recrded after their death. Wasn t delivery b/c wasn t a present transfer: culd take it back, invalidated the will; husband cntinued t perate farm as his wn The mrtgage, Fannie Mae/Freddie Mac created market t buy/sell mrtgages Deed f trust: brrwer hlds title t the land t a persn t hld in trust t secure payment f the debt t the lender Basic Mney Mrtgage: sign a nte (says the amunt, can sue yu); sets ut structure and creates lien if yu default; hme is yurs Land sale installment k: keep prperty in bank s name, hme still stays w/seller, dn t wn prperty until last payment, prtects bank and seller, sme states allw

13 Prperty Outline 13 Murphy v. Fin. Dev. Crp: P s fell behind n mrt, paid back back payment but nt legal fees and late fees, huse was sld at sale, and sld fr lw price and buyer was nly ne at the auctin; banks have tw fiduciary duties: 1) gd faith (nt bad faith) 2) due diligence: have t act in same way reasnable seller wuld t btain fair price; bank wned P fair market value Private Land Use Cntrls: The Law f Servitudes: Easements (histry, creatin, distinguished frm licenses), Hw t create: Prescriptin, Implied by Use, Necessity, Grant, Cnditins n yur prp: judicial cntrl (e.g. nuisance), private cntrl (e.g. servitudes), legislative cntrl (e.g. zning) Servitude: an bligatin r a burden impsed n prp typically fr the benefit f anther prp wner Affirmative easement: Gives the neighbr the right t enter/perfrm an act n servient land; right t use the land f anther e.g. beach access Negative easement: frbidding ne landwner frm ding smething n his land that might harm neighbr; right t nt d smething, t restrict can use their land Real cvenant: mre f a k right than prp; same thing as neg easement, but can sue fr damages but hard t prve and pass n, Equitable servitude: can get injunctin Easement appurtenant: gives that right t whmever wns a parcel f land that the easement benefits (bth serv and dm tenement); attaches t and benefits dm; transferrable but can be made persnal, has benefit and burden; harder t prve; lk fr intent e.g. testimny f ld wners Easement in grss: gives the right t sme persn w/ut regard t wnership f land; nt benefit any land (a persn/party), invlves nly serv estate, may be in/alienable; smetimes persnal but d nt attach t land; intent r cmmercial; Dminant: ne that receives the benefit Servient: ne that is burdened by the easement Easement by grant: when a prp wner gives the easement e.g. creates a deed that gives away an easement Easement by reservatin: when prp wner wuld sell the prp but serves an easement fr himself License: ral r written permissin given by ccupant f land allwing the licensee t d sme act that wuld therwise be trespass e.g. plumber; revcable EXCEPT 1) cupled w/interest that cannt be revked, 2) becmes irrevcable under rules f estppel Willard v. First Church f Christ, Scientist: ld lady wned tw lts and let church use ne fr parking; sld t man but wanted t keep easement s is recrded in deed but desn t pass t subsequent buyer; rule ges with grantr s intent; culd vests interest t a third party; Easements (implied easements), Ges against the SOF which requires writing 1. Prescriptive easement: like AP but fr use nt pssessin 2. Licenses that becme irrevcable (easement by estppel, equitable cnsideratin) Hlbrk v. Taylr: (landlcked prp used neighbr s rad but ding cnstructin) and created license by estppel = culdn t be revked. Requirements fr easement by

14 Prperty Outline 14 estppel: 1) license (riginal permissin), 2. Sme frm f investment, and 3. Belief (that license wuldn t be revked, reasnable reliance) 3. Implied by Prir Use 4. Implied by Necessity Van Sandt v. Ryster: (verladed sewer line) used t be same lt, sues fr injunctin; hlds there was an apparent easement: was cntinuus, knwn/apparent, necessary; If the land cannt be used w/ut disprprtinate effrt and expense an easement may still be implied in favr f the grantr/grantee n the basis f necessity alne; riginal purchaser was aware f the sewer and had reasnable expectatins cncerning the prir use CL rule fr easement frm existing prir use 1) severance f title 2) apparent, existing, and cntinuing use f ne parcel at the time f sev, 3) reasnable necessity fr the use at the time f sev Implied reservatin vs. implied grant: expands the scpe f implied easement t smething that did nt exist at time f sev Terminatin f easement by merger f tenements: if dm and serv cme int same wnership,easement is extinguished frever Othen v. Rsier: landlcked parcel f land, claims easement was t muddy t use; curt hlds n easement, by necessity nr prescriptin; failed t shw that the easement was necessary rather than just cnvenient; Rule fr easement by necessity: 1) unity f wnership, 2) necessity nw, 3) necessity then (when sev); plicy: taking land frm smene else s nly want t d it when there is abslute prf f all the elements Easements (assignability, scpe), Miller v. Lutheran Cnf and Camp: Frank transfers ¼ share f his right t bat fish (and swim!) t brther; but didn t have interest in swim but leased t the camp; brther s heir wants t cmmercialize; curt held that it was an easement in grss = nly transferred cmmercially, the interest cannt be cmmercially used and licenses granted w/ut the cmmn cnsent f the present wners, wh must act as ne stck ; brther didn t have the right t grant license t camp; plicy = dn t want t verburden the easement Brwn v. Vss: tries t build huse ($11K) n tw lts w/privity f previus wner; but there was nly an easement app n the ne parcel; cnstructin caused damage t rad, tried t blck rad, CL rule is that can t use easement fr benefit f new piece f land; have t prve damages fr injunctin and weren t any and wn t be any = nminal, lking at burden n the easement and changing kind f use that was anticipated Easements (terminatin, scpe, negative easements, cnservatin easements), Terminatin: by agreement in writing, by terms f the easement, merger, AP r prescriptin, abandnment, cndemnatin, release, estppel Preseault v. US: RR tracks case fr bike trail; 1. Was an easement and nt fee simple b/c min prp they need 2. Abandnment = must be acts by the wner f the dm tenement cnclusively and unequivcally manifesting either a present interest t relinquish r a purpse incnsistent w/its future interest = yes 3. Against the intentin f the riginal grant t be used fr trail; 4. Was a taking b/c was abandned and turned int trail; Negative Easements: right f the dm wner t stp the serv wner frm ding smething n the serv land; nt favred; English exceptins: Light, air, supprt, stream; US: CA has view and cnservatin easements e.g. wn t develp prp Cvenants (histrical backgrund and creatin f real cvenants and equitable servitudes), ; Mseley v. Bishp, TWEN (Curse Materials). b/c f lphles in easements; cv are k based; lking fr a dc limiting rights

15 Prperty Outline 15 curt f equity = injunctin; curt f law = damages under real cv vertical privity: priv between ne f the cvenanting parties and a successr in interest; strict = burden = transfer f same estate; benefit = allws transfer f lessr estate runs nly w/the estate, nt the land; des nt run with an adverse pssessr hrizntal privity: priv between the riginal cvenanting parties; RST says shuldn t be necessary but hasn t influenced curts yet; must have sme mutual r successive interest in either the land benefitted r the land burdened Tulk v. Mxhay: English square, wants t build ver garden; wner must have ntice fr burden t run w/the land, either actual r cnstructive r inquiry (if can see it r figure it ut); intent = purchase price, lang f deed, etc.; fcus n ntice & fairness, equit serv is easier t bind future wners; cncern w/burdening party nt riginal signer Msley v. Bishp: tile drainage ditch, new neighbr and prblems with ditch, new neighbr wn t fix it; 3 requirements: 1. Intent 2. Tuch and Cncern 3. Privity f estate Equitable Servitude: cv respecting the use f land enfrceable against successr wners/pssessrs in equity (injunctin) regardless f its enfrceability at law Requires: 1. Parties intend the prmise t run 2. Subsequent purchaser has actual/cnstructive ntice f the cv, and 3. Tuch and cncern 4. (writing) Runs t assignees, adverse pssessrs, burdens the land itself and nt estate Traditinal diff was real cv = damages and equit serv was injunctin, but have mre r less merged; RST says shuldn t matter but hasn t influenced Cvenants, cnt. (validity and enfrcement, creatin f equitable servitudes implied by law, r reciprcal negative easements), Sambrn v. McLean: subdivisin and wants t build gas statin; develper had sld chunks f lts at a time, was gas statin subject t neg easement? Yes, but curt calls it reciprcal negative easement (implied servitude); general scheme dctrine (cmmn grantr/wner wh intends a general scheme, benefit retained prperty, unifrmity, ntice); unifrmity f area shuld have given inquiry ntice, MAJ use this but sme take SOF mre seriusly Nepnsit: HOA wants bank t pay HOA fees n freclsed prps; Yes, must pay; tuch and cncern must be t a substantial degree, the curt shuld be able t state the prblem and find reasnable methd f apprach t it; RULE: a cv which runs with the land must affect the legal relatins (adv and burdens) f the parties t the cv, as wners f the particular parcels f land and nt merely as members f the cmm in gen; used t be lgical cnnectin rule; Cvenants, cnt. (scpe, terminatin), Terminatin: all have t d w/changes inside the are restricted by cv Merger: unity f wnership, benefit & burden by same persn Frmal release, written and recrded Acquiescence, arises when P has failed t enfrce the serv against ther breaches and then seeks t enfrce against the D Abandnment: similar t acq. But makes serv unenfrceable t entire parcel rather than t P immediately invlved dctrine f unclean hands : curt will refused t enjin a vilatin f servitude that the P previusly vilated Laches: invlves unreasnable delay by P t enfrce serv against D causing prejudice t D

16 Prperty Outline 16 Estppel: D has relied upn P s cnduct making it unequitable t allw P t enfrce the servitude Western Land C: when can we term established restrivtive cv? Ren, busy street, curt says the cv s remain f substantial value t the hmewners in the subdivisin, had nt s radically changed as t nullify its purpse f restricting cmm. business; equity/fairness; Rule= as lng as rig purpse f the cv can be accmplished and sub benefit will incur t the restricted area by enfrcement, the cv will stand even if has greater value if used fr ther purpses; must be s gen as t frustrate purpse f cv; change must be s widespread that cv is essentially valueless; nt easy t d; must have everyne except fr ne t cnstitute abandnment Rick v. West: hspital case, neighbr refused t release cv = deal falls thrugh; D relied n residential restrictin and has right t enfrce the cv. Only upn evidence f a sub change in the neighbrhd that wuld render the defendant s enfrcement f the cv uncnscinable r ppressive. The restrictin is nt utmded by a change in the character f the neighbrhd and cntinues t prvide a real benefit t the defendant. The curt must cntinue t enfrce the cvenant. Cmmn Interest Cmmunities: bligatin binds wners f individual lts r units t cntribute t supprt f cmmn prp; Unifrm Cmmn Interest Ownership Act Burden Benefit Easement Real Cvenant Equitable Servitude intent ntice (writing) Appurt intent in grss intent r cmm. Intent Ntice Tuch & Cncern Hrizntal Privity Strict Vertical Priv. (writing) Intent Tuch & Cncern Relaxed Vert. Priv. N ntice N hriz. priv. Intent Tuch & cncern ntice Intent Tuch & cncern Zning: Histrical backgrund and Structure f authrity underlying zning, Industrializatin; husing explsin; 4 principles f mdern city planning: 1. Sep f uses, 2. Prtectin f single family hme, 3. Lw rise develpments, 4. Medium density ppulatin Village f Euclid: created classes f use, height, and area districts, intended t prmte plice pwer f public health, safety, gen welfare; e.g. apartments can t be built next t single family hmes; curt hlds that the rdinance is cnstitutinal; znes were excluding nuisance, value single fam hmes the mst; wants t cntrl spread, value f the prperty, safety cncerns e.g. fire, children in streets, etc A law will be upheld if the state shws that it was 1. Enacted t prmte a legitimate state interest, and 2. The law is ratinally related t the legitimate state interest The nncnfrming use and Cntrls n husehld cmpsitin ; Prblem 1, page 992;

17 Prperty Outline 17 PA Nrthwestern Distributrs, Inc. v. Zning Hearing Bard: city trying t frce ut adult bkstre by enacting zning law after it mves in; yes, a pre-existing use cnstitutes a vested prperty interest that cannt be taken away withut just cmpensatin; slippery slpe Village f Belle Terre v. Braas: restricted t single fam dwellings; curt upheld rdinance b/c deals with ecnmic and scial legislatin, and will nt vilate equal prtectin if the law is reasnable and bears a ratinal relatinship t a permissible state bjective. The plice pwer includes zning an area t prmte family values, yuth values, and quiet seclusin; des nt ban assciatin because a family within its guidelines may entertain whmever it likes. Heightened Scrutiny Test: Marshall in min thught shuld have applied: a law impacting a fundamental interest r prtected class will nly be upheld if the state shws that it was 1. enacted t prmte a cmpelling state justificatin and 2. the law is narrwly tailred t address that justificatin [use nly if fact pattern lks like Belle Terre] Zning: if yu have an undevelped lt, easier t take if yu have invested in the lt, taken steps t start building the business plan substantial investment = equity = nncnfrming use will nw vest yur rights t be a nncnfrming use Eminent Dmain: the pwer f the gvt t frce transfers f prperty frm wners t itself Backgrund, Public Use and Just Cmpensatin, Fifth Amendment cnstraints: "nr shall private prperty be taken fr public use, withut just cmpensatin" [culd be taken with just cmpensatin!] 1. public use and 2. with just cmpensatin limits bth taking and regulating f prperty Fifth Amend desnt grant the pwer, but nly cnfirms it rigins t ancient Rme Plicy: Psner argues justificatin cmes frm efficiency; hldut prblem: public gd needs particular land and peple might hld ut fr their wn selfish interests and harm the public benefit e.g. rads and railways; gvt des unsavry things s we dn't have t d them individually; need ability t put in pipes (small taking) and need t create sewage treatment plant we allw urselves t be at risk f ED because we get things back frm gvt Need "fair market value" f yur hme; but that culd vary widely; may nt be enugh including renvatins, labr, etc.; sentimental value Tw views f "public use" 1. the term means advantage r benefit t the public (brad view), and 2. the term means actual use r right t use f the cndemned prperty by the public (narrw view) lts f state leg have passed laws t narrw taking but many have lphles the Public Use Puzzle; What is it? Kel v. City f New Lndn: the Kel huse, Kat defended her; cndemnatin wuld create jbs and revitalize the city, but was nt all pen t the gen public, private lessees were nt cmmn carriers; hwever it was a public use; bradly interpreted t mean public purpse ; wuld there be harm? Western Seafd C. v. CIty f Freeprt: e.g. case; family business, waterfrnt piece f land, nthing arund it; rest f city is ecnmically depressed; private develper wants t