Professional Documents
Culture Documents
Table of Contents
1. WHAT IS PROPERTY?..............................................................4
A: RIGHT TO EXCLUDE................................................................................... 4
Jacques v Steenberg Homes damages for trespass...........................5
State v Shack limiting right to exclude..............................................6
Intel v Hamidi virtual property...........................................................6
B: WILD ANIMALS, NATURAL GAS AND WATER...................................................7
a) Wild Animals..................................................................................... 7
b) Capture Doctrine.............................................................................. 9
c) Oil/Natural Gas............................................................................... 11
d) Water.............................................................................................. 11
Lateral/Subjacent Support..................................................................16
C: FINDERS, BAILEES AND TREASURE HUNTERS...............................................17
CONQUEST, ADVERSE POSSESSION AND PRESCRIPTION..............26
CONQUEST................................................................................................ 26
ADVERSE POSSESSION.................................................................................26
Rights of Adverse Possessors:............................................................26
Color of Title....................................................................................... 26
Elements of Adverse Possession........................................................27
Elements of easement by prescription...............................................30
Tacking............................................................................................... 30
Tolling................................................................................................. 30
Color of Title....................................................................................... 31
Adverse Possession Against the Government.....................................31
Relation Back..................................................................................... 32
Adverse Possession and Future Interests...........................................32
Easement by RX vs. AP.......................................................................33
ADVERSE POSSESSION OF PERSONAL PROPERTY/ CHATTELS...............................33
Discovery Rule vs demand rule..........................................................34
Defenses............................................................................................ 35
Acquisition of Rights by Public Use.....................................................36
Current Controversies re Capture, Conquest and Prescription
Doctrines................................................................................................. 37
PROPERTY RIGHTS IN CREATIVE WORKS AND HUMAN TISSUE.....38
RIGHT OF PUBLICITY....................................................................................38
COPYRIGHT............................................................................................... 41
Prima Facie Copyright Infringement...................................................41
Overview............................................................................................ 41
Scope................................................................................................. 42
Idea/Expression Dichotomy and Compilations....................................42
Functional Items copyright..............................................................43
Doctrine of Fair Use (affirmative defense)..........................................44
MISAPPROPRIATION AND COMMON-LAW UNFAIR TRADE DOCTRINES......................45
Intellectual Property, Cyberspace and the Digital Millennium Copyright
Act........................................................................................................... 46
COPYRIGHT VS. TRADEMARK.........................................................................47
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1. What is Property?
A: Right to Exclude
Role of property
1) Self-development (Radin); 2) Individual liberty vs state (Sunstein); 3)
Basis for participation in political life; 4) Asserting ones
personality/personhood (institutions without private property: prisons;
military; monastery; some schools); 5) Economic/use of goods in trade
Bundle of property rights
Right to exclude
Right to use/license for others use
Right to dispose (sell/donate)
Trespass and Actual Damage (Land v Chattels)
Interest in land regarded as extremely important (historically) and
given much more protection than interest in chattel property
Hamidi: applies personal property rule to intangible intrusions on land
(smoke, electromagnetic radiation) though nuisance action can be
used
Limitations on the right to exclude
Emergency/necessity
o Landowner who refuses entry to one in emergency may be liable
for ensuing damages
Protectus Alpha Navigation Co v North Pacific Grain
Growers dockowner prevented firefighters from reaching
burning ship; held liable for CDs and PDs
Rescue
Retrieving child/pet/other wandering chattel
Where landowner has taken chattel belonging to someone else
Petty trespass (matter of inches)
o Brownstone Condo Assoc. v Geller condo assoc sued Geller for
three-inch intrusion of his bolts onto their brick wall
o Court held intrusion so petty it did not merit adjudication; said
spite case
o the mere fact that there is a trespass does not warrant any
affirmative action by the court the close quarters of an urban
society demand flexibility when we encounter an intrusion on
our personal bubble.
Civil Rights statutes which limit ability to discriminate on basis of
race/religion/sex/other grounds
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a) Wild Animals
Broad Rule re Wild Animals/ferae naturae
You can acquire property interest in wild animal by taking interest in it
o Since not normally owned by someone one gains possession by
capturing has rights superior than all the world
More than one way of protecting a particular activity or form of interest
o Even if you cant protect based on possession (property
interest), you may be able to protect on basis of interference
with economic relationships, etc.
If you have a case where it is difficult to use possession,
think about using something else where someone is
interfering with your rights in a way that is causing
damage to you
General Rule of Wild Animal Possession: Pursuit (spotted/chased)
is not enough you need capture or mortal wounding (ex. trap) to
deprive the animal of its natural liberty
o Pierson v. Post: Plaintiff was hunting a fox and defendant
knowing this, killed the fox and carried it off. No trespass;
possession awarded to D
Purpose of this rule is to prevent litigation. Mere
ownership of the land that an animal happens to be on
does not give landowner a right to the animal except
against a trespasser who goes on the land for the purpose
of taking the animal.
o In a close case the court may look at custom or usage; courts
can draw on custom to determine property rights.
o
Dissent: The case should have been submitted to hunters, so
they could resolve it on custom.
Escaped Animals
Q: What happens if animal is captured alive and later escapes?
Traditional Rule: Blackstone: if animal escapes, they regain their
natural liberty and cease to become property unless they have a
disposition to return
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b) Capture Doctrine
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c) Oil/Natural Gas
Anderson v Beech Aircraft Corp
TRADITIONAL APPROACH: Anderson v Beech Aircraft Corp, KS
Held: Where the landowner is not a natural gas public utility and has
attempted to create an underground storage reservoir under the property
of an adjoining landowner without acquiring by contract the right to do so,
the law of capture should be applied to any non-native gas which is
purchased elsewhere and injected into the common pool for storage.
Beech aircraft lost its ownership of the stored gas after injecting it into the
reservoir in this case.
Precedent: Hammonds v Central KY Nat Gas Co (KY 1934) + others
o Hammonds brought trespass suit for company putting natural gas
in reservoir which seeped under her land
o Court analogized gas to wild animals or animals ferae naturae it
can be captured, but when restored to its natural wild and free
state, the dominion of any person over them is at an end and they
resume their status as common property.
o The court found if non-native injected gas wanders into the land of
an adjoining homeowner, the gas company is not liable for trespass
as the gas company no longer owns the gas.
Rationale:
o Beechs position would lead to endless litigation, to determine how
much of gas being produced is native/stored, what damages are
owed to various adjacent landowners, etc.
MODERN APPROACH:
Hammonds called into question by TX American Energy Corp v Citizens
Fidelity Bank & Trust (KY 1987):
o Gas has no similarity to wild animals. Gas is an inanimate,
diminishing non-reproductive substance lacking any will of its own,
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d) Water
different rules apply to 1) percolating ground water (underground), 2) lakes
and streams (surface water), and 3) runoff water (diffused surface water
/enemy waters)
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Lateral/Subjacent Support
Rule: every landowner is entitled to have his land receive necessary physical
support from adjacent or underlying soil.
1) lateral support: support in a vertical plane from the adjoining lands of
other persons
o this is an absolute right
neighbor is strictly liable for removing support
o If adjacent owner makes a excavation that cause the water to
flow beneath plaintiffs land thereby weakening the surface then
lateral support is violated
o implicit is that neighbor is not strictly liable if Ps land would not
have collapsed had it been in natural condition, unburdened by
buildings or other artificial weight
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Policy Arguments:
Giving finder the property encourages disclosure; otherwise the finder may not disclose
to anyone that he found the property
Giving it to owner of premises can be better because true owner is more likely to return
to the premise where the object was lost; and the premise owner must store and care for
found object in case true owner returns
Finder Statutes
Finder statutes typically cut off the interests of true owners who do not
appear within a set period of time after notice
lost property statutes are intended to encourage and facilitate the
return of property to the true owner, and reward the finder for his
honesty if the property remains unclaimed (Willsmore v Township of
Oceola Michigan case/rule)
o public policy in favor of honesty by finders supports vesting
clear title in them at some point. To do otherwise would cause
practical problems of continuous bailment. (Willsmore v
Township of Oceola, MI 1981)
MI lost goods act provides protection to finder, a reasonable method
of uniting goods with their true owner, and a plan which benefits the
people of the state through their local governments
o 50/50 split between finder and local gov.
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2. Mislaid Property:
General Rule: Mislaid property is not the same as lost property; finder does
not have superior claim to it but rather has the duty to safe keep in bailment
until the owner comes for it
Finder is entitled to reasonable expenses incurred in taking care of the
found item under the law of bailments
This rule protects the true owner because likely to return to place of loss
o McAvoy v. Medina: plaintiff found wallet left at barbershop and
barber rightly asserted bailment to keep for true owner. Wallet was
not lost but voluntarily placed on table and accidently left (versus
lost property which has not been voluntarily placed anywhere)
Held: Property deliberately placed in the shop but then
forgotten by a customer is not lost as such, and because it is
not lost property, P does not have the superior claim to
it; rather D has the duty to safe keep it until the
owner should call for it
o Benjamin v. Lindner Aviation, Inc.: Plaintiff worker found money in
the wing of airplane; money turned over to authorities. It was
mislaid property, and so worker has no right to it. Money belonged
to the bank which owned airplane and not even to the hanger
company where plaintiff worked.
More likely given to landowner if object in private portion rather than
premises open to public based on rationale that owner of premise not
open to public has intent to posses the place and whatever may be
located within. Example: in bank
o Ritz v Selma United Methodist Church : Ritz v Selma United
Methodist Church, IA 1991)
Original owner of money buried in jars and tin cans on real
property retained ownership of money as against
subsequent owner of property who found money, even
though real property on which money was found was
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propertyfoundbyemployees
o Ifemployeesjobdescriptionincludesturningoveritemsfoundonthejob
employerentitledtothem
Womenperformingmenialjobsusuallylose
o Otherfindersfarebetter
Hotelentitledto$800foundbymaid(JacksonvSteinberg,OR1948)
Interiordecoratorentitledto$760foundunderruginhotelroomhewas
decorating)EricksonvSinykin,Minn1947)
Bankemployeewhofoundmoneyinsafedepositboxwasentitledtoit
whensixyearspassedwithoutownerclaim(BurnleyvFirstNationalBank,
PA1954)
Shipstewardheldentitledto$3,000hefoundonthefloorofapublicmens
roomontheship(KalyvakisvtheTSSOlympia,SDNY1960)
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BAILMENTS
Created when possession of chattel is transferred from one person (bailor) to another
(bailee) for limited purpose
Can be constructive or involuntary bailment with mislaid property: when retained under
circumstances which should keep it safely and return it to its owner
Bailees responsibilities
o Duty to return property to bailor
o Level of responsibility to care for property
Varies depending on jurisdiction and whether bailment
benefits bailor or bailee
Coggs v Bernard (Eng. 1703) made six types of
bailments to determine level of care owed by bailee
to bailor
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The Winkfield: after the Winkfield collided with and sank the Mexican the
Postmaster-General sued for the loss of mail bags and parcels on board the Mexican.
The ship was bailee and has absolute title against all but the rightful owner.
propertyfoundbyemployees
o IfLindneraircrafthadprevailed,Benjaminmayormaynothavebeenentitledtothe
money
Ifemployeesjobdescriptionincludesturningoveritemsfoundonthejob
employerentitledtothem
Womenperformingmenialjobsusuallylose
Otherfindersfarebetter
Hotelentitledto$800foundbymaid(JacksonvSteinberg,OR
1948)
Interiordecoratorentitledto$760foundunderruginhotelroomhe
wasdecorating)EricksonvSinykin,Minn1947)
Bankemployeewhofoundmoneyinsafedepositboxwasentitledto
itwhensixyearspassedwithoutownerclaim(BurnleyvFirst
NationalBank,PA1954)
Shipstewardheldentitledto$3,000hefoundonthefloorofapublic
mensroomontheship(KalyvakisvtheTSSOlympia,SDNY1960)
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Principle of discovery: European rule: country that discovered and laid claim to possession
of new lands was entitled to right of that land or transfer title
Johnson and Grahams Lessee v. MIntosh: Plaintiffs had acquired title to land from
Native-American tribes, but US claimed that it held title to the territory and
consequently only it could convey good title to others so defendant with title from
US.
Adverse Possession
Rights of Adverse Possessors:
Before Statutory Period: Liable for trespass and mesne profits
o
And can have trespass action against others (because trespass based on possessory not
ownership and a defense that no title is not good
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Can sell and new AP can tack based on privity and then can tack on
Relation back doctrine: adverse possessions title is effective back when first took
possession
Not possible to gain title by adverse possession to land owned by the federal or state
government
Color of Title
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Small Encroachments?
5) Continuous
Possession must be maintained throughout the statutory period
Continuity does not mean the adverse possessor must be present at all
times
o Seasonal or intermittent use may be sufficient so long as the use
is similar to that which would be made by an ordinary owner of
property like that in dispute
See Nome 2000 v. Fagerstrom: Adverse possessor used
plaintiff land for recreational purposes, began making
substantial improvements, spending more time, built shed,
and spent weekends there. Later built cabin. Held:
conditions of continuity and exclusivity require only
that the land be used for the statutory period as an
average owner of similar property would use it
Their use was consistent with the Native Alaskans
Must look at contextual factors/ case by case basis
o If a break in possession is caused by owners re-entry, or
acquisition of title by the government, the adverse possessor may
have to start over with the statutory period
A third-party intrusion usually does not defeat the continuity
requirement, provided the adverse possessor regains possession
o
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Rationale
1) long-continued use of property creates an entitlement to the property
2) 2) flawed title may be perfected by continued use or possession of the
property
3) 3) long-continued use or possession is evidence of a title previously
granted but now lost
a. before public records, loss of deed was not uncommon
b. in societies lacking literacy, ceremonies rather than written
documents were used to transfer property titles
4) the time for asserting legal claims should be limited
5) Ballantine: Title by Adverse Possession:
a. A thing which you have enjoyed and used as your own for a
long time, whether property or an opinion, takes root in your
being and cannot be torn away without your resenting the act
and trying to defend yourself the law can ask for no better
justification than the deepest instincts of man.
b. the statute has not for its object to reward the diligent
trespasser for his wrong nor yet to penalize the negligent and
dormant owner for sleeping upon his rights; the great purpose is
automatically to quiet all titles which are openly and consistently
asserted, to provide proof of meritorious titles, and correct errors
in conveyance.
Tacking
Tolling
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Color of Title
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Relation Back
until the adverse possessor gains title, they are liable for trespass and
mesne profits
o mesne profits often have their own statute of limitations of 6
years
Once title has ben acquired, it relates back to the date of entry, and
causes of action for trespass and mesne profits are barred along with
the action in ejectment
Principle: the adverse possessor acquires no more than the estate held
by the person entitled to possession at the time the adverse possessor
took possession of the property or, in the case of a prescriptive easement,
when he began using the property
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Easement by RX vs. AP
Advantage of Easement by RX:
1) AP requires exclusion of use by owner of property, but Ds customers
were using the same area that P used throughout the prescriptive period
exclusive use not required for easement
2) Successful claims of AP in CA require payment of property taxes for
five-year statutory period
o this requirement does not apply to acquisition of more limited use
rights, e.g. easement by prescription
courts disallow claims of easements to circumvent this when
the use is really like AP (Silacci v Abramson, CA 1996 no
prescriptive easement for 1600 square feet of neighbors
property fenced in and used as backyard)
if you have fenced in part of someone elses property
and later try to claim prescriptive easement, you are
likely going to lose
but if you are just using someones driveway, you are
likely to win
possession = extensive uses; easement = particular,
limited kind of use
Principle Works the Other Way, Too Easements Travel with the Property
Against Owners
Ex: If AP acquires title to Blackacre, which was subject to an easement
giving the owner of Whiteacre the right to use the driveway across
Blackacre, the title AP acquires is subject to that easement
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Like real property, after statute of limitations runs you get title for personal property
Seller cannot convey a better title then he holds, which is universally applied with stolen
property
Bona fide purchaser = innocent party who purchases property without notice of any
other party's claim to the title of that property.
Replevin = remedy
Replevin is action at law whereby the owner or person claiming the
possession of personal goods may recover such personal goods where
they have been wrongfully taken or unlawfully detained. (IN law)
Elements:
o 1) P has title or right to possession;
o 2) property is unlawfully detained
o 3) D wrongfully holds possession
Is tacking allowed in adverse possession of chattels?
Calif. rule = no
o Society of Calif. Pioneers v Baker 1996: wrongful possessor may
not add the time of possession of his predecessor to his own
possession
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Defenses
Laches (in demand cases)
Defense directed at conscience of court and its ability to bring
equitable considerations to bear in the ultimate disposition of the
painting
Trial judge will consider if P did not exercise reasonable diligence in
locating the painting in the context of the laches defense
Conduct of P and D will be relevant to any consideration of this defense
at the trial level
Remedy if laches successful:
o If successful, might be able to keep the painting
o Or could get damages resulting from her keeping the painting
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o
o
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Criticism
Wendt Kozinski Dissent: Problem lies with Whites sweeping standard
State courts limit RoP to name/voice/face/signature
o a copyright holder can generally avoid using any of these
tangible elements in exploiting its copyright
White decision exploded RoP to include anything that brings the
celebrity to mind inevitable so broad and ill-defined a property right
will trench on the rights of the copyright holder
o When portraying a character who was portrayed by an actor, it
is impossible to recreate the character without evoking the
image of the actor in the minds of viewers.
To avoid this, producers will have to cast new actors who
look and sound very different from the old ones
Goodwill associated with old show is lost; artistic freedom
of writers and producers is cramped
Is there a right of publicity after death?
Yes: The right of publicity, exploited during lifetime, is inheritable at
death (Elvis Presley Intl Memorial Found v Crowell, TN App 1987)
o When people invest in their name/image during life, they create
an asset that should be transferable at death like any other
asset
To allow others to make free use of the name or image
after death would be unjust enrichment
No: Bela Lugosis lifetime right to exploit fame and likeness for
commercial purposes did not survive his death (Lugosi v Universal
Pictures, Cal 1979)
o Court troubled by unbounded nature of claimed right
Where would line be drawn?
Is drawing such a line within the scope of judicial
authority?
o This led to CC 3444.1 (overruling Lugosi v Universal
Pictures), which extends RoP 70 years after death
IN: 100 yrs; KY: 50 yrs; NV: 50 yrs
Right of Publicity and the First Amendment
ETW Corp. v Jireh Publishing, 6th Cir 2003: artist painted Masters of
Augusta, including Tiger Woods
o Held: (1) use of athlete's trademarked name was noninfringing
fair use; (2) athlete's image was not protected; and (3) print was
entitled to First Amendment protection.
Fact that expressive materials are sold does not diminish
degree of protection to which they are entitled under First
Amendment
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Copyright
Copyright Clause
The congress shall have the power to promote the progress of science
and useful arts, by securing for limited times to authors and inventors the
exclusive right to their respective writings and discoveries. US Const. art I
8 cl. 8
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Overview
Purpose and Duration of Copyright
Purpose: Copyright clause intended to be the engine of free
expression.
Goals:
o 1) promotion of learning:
o 2) protection of public domain
o 3) granting of exclusive right to author
The authors ownership is in the copyright and not in the work itself
Duration: Most copyrights for works created after 1978 last for
lifetime of author + 70 years
o Duration has been extended, most recently in 1998 (Sonny Bono
act), adding 20 years to the term of existing copyrights
in copyright law, the balance between the First Amendment and
Copyright is preserved by the idea/expression dichotomy and the
doctrine of fair use
What are possible costs of infringement?
Any profits you make from the infringement are fair game
The burden is on D to show what net revenue is as opposed to GR
Remedies
Injunction?
SCOTUS: No presumption of irreparable injury when alleged infringer
has bona-fide fair use defense
Further, monetary harm that can be remedied through damages
irreparable
Scope
Copyright Act of 1976 expanded scope from all writings of an author to
fixed:
1) literary works; 2) musical works; 3) dramatic works; 4) pantomimes
and choreographic works; 5) pictorial, graphic and sculptural works; 6)
motion pictures and audiovisual works; 7) sound recordings; 8)
architectural works
Copyright and Computers
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so a familiar shape can by copyrightable only if it creative beyond the basis shape
and must not be functional part (which is not copyrightable)
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Trademark
Lanham Act: gives a seller or product the exclusive right to register a
trademark and to prevent his or her competitors from using that trademark.
trademarks include any word, name, symbol, or device, or any
combination thereof.
Overview
Trademark: allows seller to register a trademark and prohibits competitors
from using it. Policy behind trademark is that they help customers easily
identify a brand they associate with quality. They allow consumers to identify
the source of the product or brand immediately. It also promotes company
that produces good products because other people cannot knock off their
products and reward investments of companies and prevent others from
swooping in,
Def: A trademark is a word, phrase, symbol or design, or a combination
of words, phrases, symbols or designs, that identifies and distinguishes
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Secondary Meaning
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Functionality Doctrine
Functionality doctrine:
functional feature cannot be trademarked
Functionality doctrine prevents trademark law, which seeks to promote
competition by protecting firm's reputation, from instead inhibiting
legitimate competition by allowing producer to control useful product
feature.
o it is the province of patent law to encourage invention by granting
inventors a monopoly over new product designs/functions for a
limited time
Test: Generally, product feature is functional, and could not serve as
trademark, if it is 1) essential to use or purpose of article or 2) if it affects
cost or quality of article, that is, if exclusive use of feature would put
competitors at significant nonreputation-related disadvantage.
o e.g. if exclusive use of feature would put competitors at significant
non-reputational disadvantage
Test for Nonfunctional Designs
PAF S.r.l. v Lisa Lighting Corp, SDNY 1989: designer of acclaimed Dove
lamp secured judgment against importer of Swan lamp
o Dove lamp entitled to protection because highly distinctive,
aesthetically appealing lamp, not a predominantly functional
lamp, and fact that D copied established that its trade dress had
acquired secondary meaning
o the crux of the doctrine of secondary meaning is that the mark
comes to identify not only the goods but the source of those
goods.
see Qualitex v Jacobson:
Held: Sometimes, a color will meet ordinary legal trademark
requirements, e.g. through secondary meaning. When it does so, no
special legal rule prevents color alone from serving as a trademark.
no objection in functionality doctrine
o the fact that sometimes color is not essential to products use or
purpose and does not affect cost or quality indicates that
functionality doctrine doesnt create absolute bar to use of
color alone as a mark
result serves the goal of TM law:
o law encourages production of quality products and discourages
those who hope to sell inferior products by capitalizing on
consumers inability quickly to evaluate quality of an item
offered for sale
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Trade-Dress
Trade dress: trade dress can be protected under federal law
Trade dress traditionally referred to the packaging or labeling of a
product, but it has been extended to the total image of the product,
and may include features like size, shape, color, color combinations,
textures or graphics. anything which serves to identify the
product w/ its manufacturer or source
o a design or package which acquires this secondary meaning is a
trade dress which may not be used in any manner likely to cause
confusion as to the origin, sponsorship or approval of the goods
o but the person asserting such protection in an infringement
action must prove that the matter sought 1) is not functional
or 2) puts competitors had a non-reuptation advantage
See Traffix Devices, Inc. v. Marketing Displays, Inc:
plaintiff held expired utility patents for dual spring design for road
signs and claimed that defendant infringed on its trade dresscourt
held that it was not protected under trade dress because plaintiff could
not overcome the strong inference of functionality: the design provides
useful mechanism to resist wind force
o 15 USC 1125(a)(3): burden on party asserting protection
the person who asserts trade dress protection has the burden
of proving that the matter sought to be protected is not
functional.
A utility patent is strong evidence that the features
therein claimed are functional. If trade dress protection is
sought for those features the strong evidence of
functionality based on the previous patent adds great
weight to the statutory presumption that features are
deemed functional until proved otherwise by the party
seeking trade dress protection.
Can do so by showing that it is merely an ornamental, incidental, or
arbitrary aspect of the device.
o But here, In this case, beyond serving to inform consumers re:
MDIs manufacture, the dual-spring design provides a unique
and useful mechanism to resist the wind
o Thus, the dual-spring design is not an arbitrary flourish in the
configuration of MDIs product; it is the reason the device works
Patent
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Possible to get a business patent, but not easy because patents are not for abstract ideas
Bilski v. Kappos, Supreme Court affirmed decision denying a patent to the claimed
invention of a business method by which sellers of commodities in the energy market can
hedge against the risk of price changes. machine or transformation test is not the sole
test of patentability, and that this particular claimed invention was not patentable because
it was merely an abstract idea. The primary concern is that patents on business methods
may prohibit a wide swath of legitimate competition and innovation.
o
Facts: Moore (P) underwent treatment for hairy cell leukemia at UCLA Medical Center. Doctors
(D) removed his spleen with his consent, but then used the spleen for research purposes, and
collected biological materials from which they produced a marketable cell line all without
Moores consent. The Regents, Moores doctor, and researcher patented the cell line and planned
to split the proceeds of commercial development. Moore sued physician and UCal for failing to
disclose preexisting research and for his economic interest in the cells.
Issue: Does Moores complaint state a cause of action?
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Determining damages
Rule: The fact that next of kin have the exclusive right to possess the
bodies of their deceased family members creates a property interest in
the body, the deprivation of which would be a violation under the 14th
Amendment of the Constitution.
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Common law rights, combined with statutory right under California law to
control disposition of their children's bodies, created in parents a property
interest in the corneas of their deceased children protected by the Due
Process Clause of the Fourteenth Amendment.
While the legislature may elect not to confer a property interest, it may
not constitutionally authorize the deprivation of such an interest, once
conferred, without appropriate procedural safeguards.
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ESTATES IN LAND
ESTATES IN LAND
IN GENERAL
These are possessory interests in land. They may be presently possessory (present estates), or
they may become possessory in the future (future interests). They may be freeholds, which give
possession under legal title or right to hold (fees or life estates), or they may be nonfreeholds,
which give mere possession (leases). Estates in land are distinguished from nonpossessory
estates (easements, profits, covenants, and servitudes).
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Creation:
1
O conveys Blackacre to "A and his heirs"
a
to A creates interest in that land to A (words of
purchase)
a
and his heirs limit and describe this conveyance
(words of limitation)
a
Notes: A receives the full fee simple absolute, and
his heirs receive nothing. It only means that A is
capable of transferring to heirs. Technically, A has
no heirs while he is living.
1
Notes: Common law words of inheritance have been
abolished in all states. Now, it is presumed that fee
simple is intended to pass by grant of real property unless
it appears lesser state was intended in the grant
Alienability:
1
Fully alienable: can sell, divide, or devise it. Can be
inherited intestate.
Inheritance of a fee simple absolute
1
Heirs: Persons who succeed to the real property of an
intestate decedent (someone who dies without a will)
under a states statute of descent.
a
Surviving spouse, issue, ascendants (grandparents,
parents, etc.)
1
Issue: lineal descendants to all degrees
i
i
Page 67 of 160
Defeasible Fees
Fee simple estates of potentially infinite duration that can be terminated by happening of a
specified event. There are three kinds:
1
1
1
An estate that automatically terminates on the happening of a stated event and goes
back to the grantor. It is a tool used for controlling land use/ behavior.
1
1
1
Creation:
a Use durational/adverbial language: for so long as,
while, during, until.
a Example: O conveys land "to A, so long as no
alcoholic beverages are consumed on premises" A
has fee simple, so long as nobody drinks on
premises. If A conveys to B, he has fee simple, so
long as nobody drinks. If A does not convey and
dies, it will pass by will or intestacy, who have fee
simple, unless someone drinks. However, if at any
time somebody drinks, O will become the owner of
the fee simple, even if he's dead.
Alienability:
a Can be conveyed, but grantee takes land subject to
termination by happening of condition
Inheritance:
a Transferred in same manner as fee simple absolute,
as long as stated event has not happened
a But, fee simple remains subject to the limitation no
matter who holds
Possibility of reverter
Since grantee's estate may terminate upon breach of a condition, grantor retains a
possibility of reverter.
a
a
Page 68 of 160
An estate that the grantor retains the right to terminate upon the happening of a
stated event and goes back to the grantor. It is a tool used for controlling land use/
behavior (more desirable than determinable). When condition happens, estate of
grantee continues until grantor exercises right of entry
1
1
1
1
Creation:
a Use language like: upon condition that, provided
that, but if, if it happens that.
a Example: Same example as with fee simple
determinable, but grantor retains right to enter,
rather than automatic reversion.
Alienability: Same as determinable
Inheritance: Same as determinable
Right of entry (aka: right of reentry, power of
termination)
Page 69 of 160
Notes:
1
Adverse possession: When a condition occurs, the holder of a
possibility of reverter or executory interest becomes the owner and
possessor becomes an adverse possessor. Title held on condition
subsequent doesn't become AP until grantor exercises right of
entry.
1
Alienability:
a
At common law: For reverter and reentry, went to heirs at
death and were not alienable inter vivos.
a
Today: In some states, attempt to transfer is simply void; in
others, it destroys the interest
a
This isn't so important, because many states have created
SOL for entry
1
Duration:
a
At common law: reverter and entry had potentially unlimited
duration, because they weren't subject to the RULE.
Executory interests were subject to the RULE.
a
Today: In some states, conditions expire after certain period,
leaving possessor with fee simple absolute. In other states,
common law rules of duration apply, but may require
recording every so often.
ii
Reform?
1
California has converted all defeasible fees into fees simple
subject to condition subsequent (Cal Civ Code 885.010(a)(2)
2
California has converted all possibilities of reverter and
executory interests into powers of termination
a
SoL on exercising power of termination is 5 years after
occurrence of the condition
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A Fee Tail
An estate that limits inheritance to lineal descendents of the grantee. Estate created at common
law to keep land in the family.
1
Life Estate
An estate that is not terminable at any fixes or computable period of time, but can't last longer
than the life/lives of one or more persons. Then reverts back to grantor, or grantors estate; or it
can be granted to someone else, in what is known as a remainder estate. Today, this device is
used to set up trusts, so that trust pays the life tenant income from the property.
1
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Waste
Page 77 of 160
care to protect
o the estate
Ameliorative or meliorating waste
o when life tenant increases the value of the property by
making permanent changes in its use, substantially altering its
structures or building additional structures on the property
o life tenant may make changes necessary to permit
reasonable use of the property so long as the value of the
property is not diminished
no damages, but future interest holder may enjoin life
tenant from making threatened changes, or may require
restoration of the property to its previous state
Page 78 of 160
Restraints on Alienation
1
Background
i
Starting in Middle Ages, there was a movement to remove
restraints on alienation of property.
i
4 reasons why restraints were considered bad:
1 Particular land may be unavailable for its best use
1 Restraints tend to perpetuate concentrations of wealth,
because it makes it impossible for owner to sell the land
consume the proceeds of sale
1 Restraints discourage improvement of land, since the
owner cannot sell and profit from improvements
1 Restraints prevent the owners creditors from reaching the
land
Types of restraints:
i
Disabling restraint: One that withholds from the grantee the
power of transferring his interest
i
Forfeiture restraint: Provides that if grantee attempts to
transfer his interest, it gets forfeited to someone else
i
Promissory restraint: Extracts a promise from grantee not to
transfer his rights and results in contract damages if there is
such a transfer, including injunction
1 Any direct restraint on a fee simple is void.
1 "I grant you this property but you have no power to
sell it. If you try to sell it, I get it back."
1 Partial restraints may be valid
1 A partial restraint is valid if, under all circumstance
of the case, the restraint is found to reasonable in
purpose and limited in duration
1 Look at legitimacy of purpose, impact on
marketability, duration
1 Example: Those that ensure affordable housing.
You may be prohibited from reselling it to anyone
but the agency from which you bought it. This is
how we keep housing affordable. If they could turn
around and sell it for market value, your affordable
housing initiative wouldn't be effective
1 Behavior restrictions may be valid
1 Conditions designed to prevent a first marriage are
void, but conditions designed to prevent remarriage
are ok (Once the spouse remarries, they will be
dependent on someone else, so they don't need
your property anymore)
1 Conditions which tend to disrupt families are often
void
1 Conditions which tend to keep families together are
often upheld
1 Problems (336): Condition that requires farmer's children
to remain on land for 25 years invalid because there is no
social utility to keeping children on the farm. Also,
Page 79 of 160
FUTURE INTERESTS
An estate that doesn't entitle owner to possession immediately, but will/may give possession in
the future. This is a present, legally protected interest, not an expectancy
i
i
i
Possibilities of reverter
a Definition: Possibility of reverter arises when an owner
carves out his estate a determinable estate of the same
quantum in most cases, possibility of reverter deals
with carving a fee simple determinable out of a fee simple
absolute
a Example: O conveys Blackacre to A and his heirs so long
as liquor is not sold on the premises
1 A has fee simple determinable; O has possibility of
reverter
1 If liquor is sold on premises, land reverts to O
a Termination: Possibility of reverter could endure
indefinitely; because inheritable, grantors heirs could
enforce possibility of reverter hundreds of years after
grantors death (some states limit life of possibility of
reverter by statute)
Remainders
Page 81 of 160
a Vested remainders
A remainder created in an ascertained person and not subject to a condition precedent
i
Page 82 of 160
i.
Arises when remainderman is in existence and ascertained and his interest isn't subject to
any condition precedent, but his right to possession is subject to being defeated by the
happening of a condition subsequent
i
A future interest with no conditions attached to it, and owned by an identified person
i
i
i
If the person who own the remainder dies before the life
tenant, the remainder passes to heirs or devisees of
owner.
Fully alienable by lifetime transfer
Example:
1
O to A for life, remainder to B
Unidentified person
Page 83 of 160
If one person holds two estates in the same piece of property, and there are no intervening
estates held by other parties, the two estates merge into the larger estate
i
Executory Interests
a Definition: A future interest in a transferee that must, in order to
become possessory
i
Divest or cut short some interest in another grantee
(known as shifting executory interest); or
i
Divest the grantor in the future (springing executory
interest)
Page 84 of 160
Gives the property to third parties when a condition occurred that terminated a prior
vested estate in fee simple
i
The Trust
A device that allows you to split the title of property into two parallel and simultaneous titles
called the "legal" and "equitable" title.
a
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a
a
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Landlord-Tenant
I. THE LEASE
A contract by which a rightful possessor of real property conveys the right to use and occupy that
property in exchange for consideration (usually rent)
A. Nature of Lease
1 Lease is both conveyance and a contract
a Lease is a conveyance of property and the tenant has
purchased a leasehold estate in land
a Lease is a contract containing promises (covenants) of the
parties i.e., promise to pay rent, taxes, insurance, to
repair, etc.
1 Lease distinguished from other relationships
a In a lease, landlord transfers to the tenant the right to
possession of that premises; apart from freehold
estates, a leasehold is only other interest that gives the
holder right to possession
a Other interests such as an easement, license entitle
holder to use anothers land, but do not give possession
B. Statute of Frauds
An English statute (1677) declaring certain contract judicially unenforceable if they are
not committed to writing and signed by the party to be charged
1
1
Page 90 of 160
Estate Types
1+ year 6 months
otherwise, requires notice equal to length of tenancy
period
notice must terminate tenancy at the end of a period
3) Estate/tenancy at will
o if either party can terminate at will tenancy at will
but modern statutes commonly provide notice
requirement equivalent to tenancy at will
o CL: terminated if either party dies; landlord conveys landlords
interest; T commits waste or attempts to assign tenancy; L
executes lease to 3d party
but statutes have altered this too
4) Estate/tenancy at Sufferance
o wrongful possession of land by a tenant who improperly holds
over at the end of this lease
o valuable fiction for the landlord, who can treat the holdover
tenant as a trespasser subject to eviction or as a tenant for a
new valid tenancy who must pay rent
THEMES IN LT LAW
1
Page 91 of 160
Residential/commercial dichotomy
Residential: Courts favor T to provide habitable shelter
and to regulate evictions of T from their homes. This is
because L has greater economic power and skill than the
residential T.
Commercial: Courts view commercial leases as a free
market transaction between parties with equal bargaining
power and skill that should be enforced as any other
consensual agreement.
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o
o
o
o
o
o
o
1
Remedies:
a T may move out and terminate lease
a T may make repairs and offset cost against future rent
a T may reduce or abate rent to fair rental value of property, or
withhold all rent until the court determines fair rental value
a T may remain in possession, pay full rent, and seek damages
Damages:
Difference in value
i
Fair rent if warranty was complied with - Actual rent agreed
upon
i
Amount agreed upon - Fair rent for premises as is
a Percentage reduction in value
i
Reduce the rent by percentage of rent that is to be paid by
looking at how much of the value of the property has
diminished based on the lack of fulfilling the warranty
Issues
a Tenants cant waive the right. This is to protect people living in
substandard housing.
i
Bargaining power: most tenants arent in a position to be
able to bargain
i
Public health: the public is better served when people live in
acceptable conditions
a Doesnt apply to commercial leases:
i
CT have equal bargaining power
i
More varied situations
i
Courts not concerned about people running business in
crummy environment
Page 97 of 160
McNair v CK Realty:
Actualdamages,underCA1942.4whichallowsactualdamagesforlandlord'sbreach
ofstatutorydutytorepairsubstandardconditions,includeddamagesforemotional
distresssufferedbytenantswhoclaimedembarrassment,anger,fear,stress,helplessness,
andfrustrationfromunsanitaryconditionslandlordfailedtoremedy.
oftheapartmentisnotdeterminativeofdutyoflandlordtomaintainpremiseswhichare
habitable;thesamereasonswhichimplytheexistenceofthewarrantyofhabitability
inequalityofbargainingpower,shortageofhousing,andimpracticabilityofimposing
upontenantsadutyofinspection,compeltheconclusionthattenant'slackofknowledge
ofdefectsisnotaprerequisitetolandlord'sbreachoftheimpliedwarrantyofhabitability.
Page 98 of 160
Tenant Duties
TENANT DUTIES: duty to preserve premises, duty to operate, and duty to pay rent
Page 99 of 160
Ameliorative waste
Compare Sigsbee with Melms v Pabst Brewing Co WI 1899
used defense of ameliorating waste, which provides technical waste is
not actionable where the tenants actions increase the value of the
property
o Held: The evidence shows that the property became valueless
for the purpose of residence property as the result of the growth
and development of a great city. Business and manufacturing
interests advanced and surrounded the once elegant mansion,
until it stood isolated and alone, standing upon just enough
ground to support it, and surrounded by factories and railway
tracks, absolutely undesirable as a residence, and incapable of
any use as business property.
Result endorsed by NY Real Property Acts Law 803:
o 1. When a person having an estate for life or for years in land
proposes to make an alteration in, or a replacement of a
structure or structures located thereon, then the owner of a
future interest in such land can neither recover damages for, nor
enjoin the alteration or replacement, if the person proposing to
make such alteration or replacement complies with the
requirements hereinafter stated as to the giving of security and
establishes the following facts:
a. That the proposed alteration or replacement is one
which a prudent owner of an estate in fee simple
absolute in the affected land would be likely to
make in view of the conditions existing on or in the
neighborhood of the affected land; and
b. That the proposed alteration or replacement, when
completed, will not reduce the market value of the
interests in such land subsequent to the estate for life or
for years; and
c. That the proposed alteration or replacement is not in
violation of the terms of any agreement or other
instrument regulating the conduct of the owner of the
estate for life or for years or restricting the land in
question; and
d. That the life expectancy of the owner of the estate for
life or the unexpired term of the estate for years is not
less than five years; and
e. That the person proposing to make such alteration or
replacement, not less than thirty days prior to
commencement thereof, served upon each owner of a
future interest, who is in being and ascertained, a written
notice of his intention to make such alteration or
replacement, specifying the nature thereof, which notice
Duty to Operate
Duty to Operate: unless expressly written in the lease, a duty to operate
will be construed against landlord
Continuous operation covenant
In finding this covenant, courts look to:
o Substantial base rent vs. percentage rent
o Express right to assign or sublet without consent
o use clause
e.g. lessee may not abandon or vacate
o granting to T of exclusive right to use in a shopping center
o cost of improvements paid by LL for this particular tenant
o lease actively negotiated between parties
o discussions between parties during negotiations re: continuous
operation
Remedy
o Damages?
Hornwood v Smiths Food King No 1 NV 1989: diminution in
value of shopping center
o Injunctive relief? What if store operates at loss?
New Park Forest Associates Ill v Rogers Enterprises ILL 1990:
K not to vacate couldnt be specifically enforced
o Termination of lease?
See Piggly Wiggly Southern Inc. v. Heard: supermarket moved out before end
of lease but continued paying. Court held lease agreement did not include
any provision indicating a covenant of continuous operation; existence of a
base rent also suggested absence of an impied covenant of continuous
operation.
Impossibility of performance
Modern Rule (Greenfield v Kolea): It is no longer reasonable to
assume that in the absence of a lease provision to the contrary the
lessee should bear the risk of loss in the event of total destruction of a
building.
o Court should look to parties intent to determine if parties
intended to lease out land or the building on top of it
See also Restatement Contracts 460:
o (1) Where the existence of a specific thing or person is, either by
the terms of a bargain or in the contemplation of both parties,
necessary for the performance of a promise in the bargain, a
duty to perform the promise
(a) never arises if at the time the bargain is made the
existence of the thing or person within the time for
seasonable performance is impossible, and
(b) is discharged if the thing or person subsequently is
not in existence in time for seasonable performance,
o where a contract relates to the use and possession of specific
property, the existence of which is necessary to the carrying out
of the purpose in view, a condition is implied by law, as though
written in the agreement that the impossibility of performance
arising from the destruction of the property, without fault of
either party, shall end all contractual obligations relating to the
thing destroyed. Greenburg v Sun Shipbuilding Co,
Statutes may:
o Automatically terminate tenancy upon sudden destruction
o Give tenant an option to do so
o Keep the lease in place but suspend rent until repairs are made
Tenant cannot force landlord to rebuild the building termination is
the only remedy (Farnham v Windle, 7th Cir 1990)
o French: possible there is a right to damages (diff of new rent,
etc)
o What if LL carried insurance?
If lease doesnt specify, LL may keep insurance and not be
forced to share insurance w/ tenant or rebuild w/
insurance money
It may be again Ts only remedy is termination
LANDLORDS REMEDIES
1) RECOVERY OF POSSESSION
I) Fortfeiture
2) SELF-HELP
English Rule: a landlord entitled to possession is not civilly liable for ejecting
a tenant without resort to the legal process so long as he uses no more force
than is necessary to effect the entry, even though his actions may constitute
a crime
U.S. rule: Most states historically allowed LLs to use self-help without being
held civilly liable
o This was partly because an action in ejectment is such a lengthy
process (must prove superior title to all)
States thus enacted FED (forcibly entry and detainer) statutes:
o Making it a criminal offense for a party to forcibly oust another
o Providing a summary judicial proceeding to quickly evict a tenant
To begin, LL files unlawful detainer action
Today, All jurisdictions have enacted FED or UD statutes
Such statutes allow tenant an opportunity to challenge LLs legal grounds
for eviction while furthering LLs interest in expeditiously evicting a
holdover or nonpaying tenant through judicial proceedings
Unlawful Detainer Proceedings Today
Most jurisdictions today have case law/statutes barring any type of
self-help in residential leases and requiring landlords to use the legal
process
o A few jurisdictions allow only peaceful self-help measures (AL,
AK)
Court found no breach of peace where commercial LL
reentered restaurant premises after business hours and
changed locks (Rucker v Wynn, GA 1994)
Many states permit peaceful self-help in commercial leases
Remedies when LL Uses Improper Self-Help?
Action to regain possession
Damages for improper eviction
Tort claims for injury to person or property
Punitive damages (in some jurisdictions)
Abandonment unlawful detainer
T told LL he would return in 2 days and left for 8 weeks, not paying rent
or contacting LL; LL entered premises, removed and stored tenants
possessions and re-rented apartment LL not liable for improper
self help inference that tenant abandoned premises allowed LL to
property.
Nonrent breaches are seen most often in the commercial context,
where examples include:
o Violation of use restrictions or a covenant against subleasing or
assignment
o Violation of an obligation to maintain and repair the property
o Violation of an alterations restriction
o Nonpayment of a late fee
o Failure to give notice of a hazardous substance release
The landlord must exercise caution in proceeding with an eviction for a
nonrent violation. A trivial breach will not support a termination, and
the tenant may raise substantial performance as an equitable defense
to a UD action. [See Hignell v Gebala (1949) 90 CA2d 61, 6566.]
The proper notice for a curable breach is a 3-day notice to perform or
quit.
serving the tenant with a 3-day notice to quit, he or she may have
waived the original notice. [See EDC Assoc. Ltd. v Gutierrez (1984) 153
CA3d 167, 170.]
In a case involving a 30- or 60-day notice, notice is waived only if the
landlord accepts rent for a period that falls after the expiration of the
notice period.
Whether a waiver of notice occurred is a factual issue.
Monetary Damages
The Calculus of Remedies
Forfeiture
Classic rule: LL cant collect on rent after termination of the lease
Contract-era future-rent rule: Where LL terminates lease pursuant
to forfeiture clause and evicts lease provision typically allows them
to re-rent premises upon termination and recover damages from
tenant in amount of difference between rent reserved in lease and
the new rent
Calif. rule: LL can recover this even without lease provision
o CCC 1951.2(c)(2): Lessor can collect damages if The lessor relet
the property prior to the time of award and proves that in
reletting the property he acted reasonably and in a good-faith
effort to mitigate the damages
Abandonment
Security Deposit:
Assignments
Assignments
An assignment is a complete transfer of the remaining term
Subleases
A lease by a lessee to a third party, conveying some or all of the leased property for a shorter term
than that of the lessee, who retains a reversion in the lease
1
1
Consent
L must consent to the sublease or assignment before T can transfer his interest in property:
Should a reasonableness requirement be read into a clause requiring LLs
consent?
No: Merchants Row Corp v Merchants Row MA 1992
Yes: Park Place Enterprises v Park Place Mall Associates TN 1992
o These cases state it applies equally to assignments and
subleases (Kendall v Ernest Pestana Inc CA 1985 consent may
be withheld in a commercial lease only for a commercially
reasonable objection)
Traditional rule vs. Julian approach
Julian: if lease contains silent consent clause providing that tenant
must obtain landlord's consent in order to assign or sublease, such
consent may not be unreasonably withheld.
o This is generally accepted in commercial leases, if LL has not 1)
expressly retained right to be arbitrary/unreasonable
Traditional rule: if lease contains silent consent clause providing that
tenant must obtain landlord's consent in order to assign or sublease,
landlord may withhold such consent even when doing so is arbitrary or
unreasonable
o this still prevails in majority of jurisdictions in residential cases
Consent Clause May Require LLs Consent May Not Be Unreasonably Withheld
This requires courts to make this determination
Statutory Treatment of Consent Clauses
Kendall rule codified by CA Leg. in CC 1995.010-340
o Statute only injects reasonableness standard into commercial
leases
NY Leg provided rules for assignment/subletting of residential leases
o w/r/t assignments T cannot assign without LLs consent; LL
may withhold consent without cause
but if LL unreasonably withholds consent, T released from
lease on 30 days notice
if consent reasonably withheld T may not assign &
lease stands
Restraints on Alienation
1
1
1
Consent
Assignment by
Tenant
Landlords consent
may be required by
lease
Sublease by Tenant
Landlords consent may
be required by lease
Privity of
Estate
Privity of
Contract
A and C
A and B
A and B
A and B
B and C (if contract
assumed)
Liability for
Covenants in
Lease
C liable to A on all
covenants that run with
land because of privity
of estate
B remains liable to A
for rent and all other
covenants in lease
because of privity of
contract
CONCURRENT ESTATES/MARITAL
PROPERTY
Four ways to divide property ownership concurrently:
Tenancy in Common
for married couples only, except states granting this right to domestic
partners)
Right of survivorship as in joint tenancy
However, cotenants cannot transfer their interests independently
i. Tenant cannot acquire right to sell their interest or the whole
property, or dispose by will, without permission of both
spouses (except in case of divorce)
When you divorce becomes joint tenancy or tenancy in common
Community Property
for married couples only, except states granting this right to domestic
partners)
Can only be transferred inter vivos if both spouses join in the
conveyance
But can be disposed of by will
Partition
Every partition action includes an equitable final accounting
Credits for:
Expenditures in excess of co-tenants fractional share for necessary
repairs; improvements that enhance the value of the property; taxes;
payments of principal and interest on mortgages; other liens;
insurance for common benefit; protection and preservation of title
But see Wallace v Daley:
In an action to partition real property by sale and division of the
proceeds, plaintiff co-owner was not entitled to any credit for an
increase in the value of the property caused by improvements she
made to the property herself before or after acquiring her interest,
where at all relevant times plaintiff remained an ordinary
tenant under a month to month tenancy rental agreement
Ouster
Delivery
a
Constructive Delivery
When the subject matter of an oral gift is not readily available or
capable of manual handing-over, courts recognize gifts effected by
delivery of means of gaining access to the subject matter
o Gift of furnishings in a house effectuated by handing over the
key (Libel v Corcoran Kan 1969)
o Gift of car made by handing over keys to the car in Estate of
Lines NY 1959
Disclosure of the location of the item may serve as delivery
o Valid gift when testator discloses location of buried cash (Waite
v Grubbe Or 1903)
o Valid gift by disclosing combination to a safe (Teague v Abbott IN
1912)
Symbolic Delivery and Delivery to a Third Person
Instead of delivering subject matter of a gift, donor can deliver a
symbol (title, etc.)
o If donative intent clear court may uphold gift of chattel by
symbolic delivery
o Beck v Givens: gift of sheep upheld by delivering instrument
purporting to be bill of sale to done, though donor retained
sheep
Via Third person:
Gift may be made by delivering subject matter to third person with
instructions to deliver to done immediately or at some time in the
future
o Except as gift is otherwise revocable, attempt by donor to retain
power to revoke is likely to cause trouble; gift fails for lack of
delivery if donor retains express power to revoke
Can use a revocable trust to accomplish the same goal
o Third person should be independent or agent of donee
PROBLEMS
1
1
1
1
Did you use the right form? If you used an inter vivos gift, but
nothing is supposed to pass to donee until death, then you used
the wrong instrument. You should have used a will. We now
accept a wide range of will substitutes, because there has been
increasing disfavor for probate process. (Pay on death
designation).
GOOD PRACTICE
1
1
Statute of Frauds
Sets out the requisite formalities to create a binding contract of sale for real property
a
Financing condition
Page 133 of 160
Marketable Title
a Adverse Possession
A title based on AP can be a marketable title
i
i
i
ii
iii
Buyer
1
1
1
Installment Land Ks
Equitable conversion
Equitable conversion if you have a specifically performable right in
property, equity will treat you as the owner of the property
o This is an equitable interest rather than a legal interest
o But for some purposes the buyer will be treated as the owner of
the property and will be regarded as having an interest in real
property while the seller will have the right in personal property
Payment = personal property; conveyance of land = real
property
o Used in cases of loss but also if the owner dies
o Also applied by courts to solve other real-estate matters
Assume S&B sign a K for B to buy Blackacre from S; before closing,
both die; Ss will leaves realty to S1 and personalty to S2; B leaves
realty to B1 and personalty to B2
o Clapp v Tower ND: proceeds on resale of real property after
executors cancelled contract made by decedent must be
accounted for as personal property of the estate
Caveat Emptor?
Duty
The Deed
Classifications of deeds:
1) general warranty deed
o grantor warrants good title title against defects arising
before and during the time the grantor was unconnected with
the land
if untrue, this ousts the buyer, or buyer has action for
damages
2) special warranty deed
Merger Doctrine
Upon delivery of deed, K of sale merges into deed and disappears unless
parties provide otherwise
Exception: collateral promises
o Express warranty to construct a house in a good/workmanlike
manner = collateral (Davis v Tazewell Place Associates VA)
o Sellers promise to place mortgage it receives from buyer in
position subordinate to other mortgages = not collateral/clause
merged into deeds (40 North Corp v Morrell WY 1998)
Types of notice
3 types
1) actual notice B actually knows of Os prior conveyance to A
2) record notice if document is recorded in chain of title, all people in
the world are deemed to have record notice
o one does not have record notice of documents outside the chain
of title
o thus, chain of title determines extent of search that must be
conducted and those documents that give record notice
3) inquiry notice law requires a person to make reasonable inspection
of property and make reasonable inquiries about ownership that such
inspection would trigger
o Def: an easement created by operation of law and held by the
owner of a lot in a residential development that entitles the
holder to enforce restrictions that were part of the general
development scheme against the developer and subsequent
buyers who purchase free of the restrictions
what qualifies as a BFP? How do you get notice?
Actual notice
Record notice comes from public records
Chain of title problems
a Wild title
Ryckzowski v. Chelsea: Grantor got possession of property from Nevada in
1946. He gave an easement to power co. in 1949. In 1952, Nevada
transferred actual title to grantor (easement came before title). In 1952,
grantee (P) bought property, and title insurance (D) didn't show easement.
Page 144 of 160
vi.
Title Insurance
a Definition: Title insurance guarantees that the insurance company has
searched the public records and insures against any defects in the
public records, unless such defects are specifically excepted from
coverage in the policy. Accordingly, the standard policy insures only a
good record title as of the policys date.
a Who is insured: Title insurance can be taken out either by the owner of
the property or by the mortgage lender. The insurance only protects
the person who owns the policy. Policy does not run with the land to
subsequent purchasers.
a Exclusions: The standard title insurance policy does not insure against
i
Liens imposed by law but not shown on public records
i
Adverse possession claims not shown on the public records
i
Encroachments and boundary disputes
i
Implied easements or covenants and easements by necessity or
prescription
i
Government regulation restricting land use
Jones v. Alfred Mayer Co: Whether congress has the power to prohibit
private parties from refusing to sell their property on racial grounds.
Respondents refused to sell petitioner a home because he was black.
The lower court dismissed because 1982 only applied to state action
and did not bar private individuals from refusing to sell based on race.
The Court reversed because 1982 barred all racial discrimination
by private owners and public authorities in the sale or rental of
property. The plain language of the statute granted to all citizens the
same rights to purchase property as enjoyed by white citizens. The
Court was unwilling to read into 1982 an exception for private
conduct when the legislative history did not furnish the slightest
factual basis for an exception.
damages. The board called the lawyer saying that someone wanted to
sell to kids which violated the covenant. The lawyer called the
Simovits and threatened them. Then, the same lawyer, goes back to
the board and tells them that this is illegal. He must have realized
later that he messed up. The board disregards his advice, and
discriminated anyway. They take the risk anyway, and ultimately get
punitive damages.
3) Actual damages, punitive damages and injunctive relief are
available to the Simovits and Hope, but not emotional distress
damages
o Simovits have not shown a causal connection between their
alleged injuries and the associations conduct
Old-person exemption:
(2) As used in this section, housing for older persons means housing
(A) provided under any State or Federal program that the Secretary
determines is specifically designed and operated to assist elderly
persons (as defined in the State or Federal program); or
(B) intended for, and solely occupied by, persons 62 years of
age or older; or
(C) intended and operated for occupancy by persons 55 years of age or
older, and
(i) at least 80 percent of the occupied units are occupied by
at least one person who is 55 years of age or older; Simovits
couldnt show
(ii) the housing facility or community publishes and adheres
to policies and procedures that demonstrate the intent required
under this subparagraph; and Simovits couldnt show
(iii) the housing facility or community complies with rules
issued by the Secretary for verification of occupancy, which shall
Nuisance
Public Nuisance
Rest Torts 2d 821B: Public Nuisance
1) A public nuisance is an unreasonable interference with a right
common to the general public.
2) Circumstances that may sustain a holding that an interference with
a public right is unreasonable include the following:
o (a) Whether the conduct involves a significant interference
with the public health, the public safety, the public
peace, the public comfort or the public convenience, or
o (b) whether the conduct is proscribed by a statute,
ordinance or administrative regulation, or
o (c) whether the conduct is of a continuing nature or has
produced a permanent or long-lasting effect, and, as the
actor knows or has reason to know, has a significant effect upon
the public right.
Rest Torts 2d 821C: Who Can Recover for Public Nuisance
1) In order to recover damages in an individual action for a public
nuisance, one must have suffered harm of a kind different from
that suffered by other members of the public exercising the right
common to the general public that was the subject of interference.
(2) In order to maintain a proceeding to enjoin to abate a public
nuisance, one must
o (a) have the right to recover damages, as indicated in
Subsection (1), or
o (b) have authority as a public official or public agency to
represent the state or a political subdivision in the matter, or
o (c) have standing to sue as a representative of the general
public, as a citizen in a citizen's action or as a member of a class
in a class action.
See Mark v State Dept of F&W:
Undesired nude exposure = public nuisance
Citing Blagen v Smith: Ps owned land adjacent to brothel; injunction
granted on grounds of public nuisance
o General rule: brothels = private nuisance if it renders the
neighbors premises unfit for comfortable or respectable
occupation and enjoyment
In this case, court held public nuisance , finding the harm different
from that suffered by the public as a whole because where by reason
of the proximity of such property to the public nuisance, disgusting
scenes and sounds shock the sense of those whose property, or
Private Nuisance
Rest Torts 2d 821D: Private Nuisance
A private nuisance is a nontrespassory invasion of another's
interest in the private use and enjoyment of land.
a. Nature of interest invaded: It is obvious from the history of the
action for private nuisance that the interests originally protected were
interests in the use and enjoyment of land, including interests in the
use and enjoyment of easements and profits. These interests continue
to be the interests that are protected by actions for private nuisance.
When there is an invasion of these interests, the plaintiff may recover
not only for harm arising from acts that affect the land itself and the
comfortable enjoyment of it, but also for harm to members of his
family and to his chattels.
Rest Torts 2d 821E: Who Can Recover for Private Nuisance
For a private nuisance there is liability only to those who have property
rights and privileges in respect to the use and enjoyment of the land
affected, including
o (a) possessors of the land,
o (b) owners of easements and profits in the land, and
o (c) owners of nonpossessory estates in the land that are
detrimentally affected by interferences with its use and
enjoyment.
Rest Torts 2d 821F: Significant Harm
There is liability for a nuisance only to those to whom it causes
significant harm, of a kind that would be suffered by a normal person in
the community or by property in normal condition and used for a
normal purpose.
b. LiabilityDamagesInjunction. The rule stated in this Section
applies only to tort liability in an action for damages. either a
public or a private nuisance may be enjoined because harm is
threatened that would be significant if it occurred, and that would
make the nuisance actionable under the rule here stated, although no
harm has yet resulted. The recovery of damages in a tort action
is, however, limited to those who have in fact suffered
significant harm of the kind stated in this Section.
Rest Torts 2d 822: General Rule
One is subject to liability for a private nuisance if, but only if, his
conduct is a legal cause of an invasion of another's interest in the
private use and enjoyment of land, and the invasion is either
o (a) intentional (see 825) and unreasonable (see 826) or
o (b) unintentional and otherwise actionable under the
rules controlling liability for negligent or reckless
Whalen rule (old NY rule): where a nuisance has been found and where
there has been substantial damage shown by the party complaining,
an injunction will be granted despite disparity in economic
consequences
See Boomer v Atlantic Cement: (new NY rule): Where neighboring
landowners sustained injury to property from dirt, smoke and vibration
emanating from defendant's cement plant, and defendant's investment
in plant was in excess of $45,000,000 and over 300 people were
employed in the plant, and it appeared that techniques to eliminate
annoying by-products of cement making were unlikely to be developed
by any research defendant could undertake within any short period,
injunction would be conditioned on payment by defendant and
acceptance by landowners of permanent damages in compensation for
servitude on the land.
Misc. Nuisances
Riparian doctrine and environmental injunction
Riparian doctrine provides an additional standard for determining
whether upstream activities constitute a nuisance
o In Whalen, the downstream farmer was entitled to receive water
undiminished in quality/quantity under the natural flow doctrine
What is a standard payment for damages?
In eminent domain cases difference between fair market value of
property before the interference occurred and its value after the
interference occurred
Spite Fence Doctrine
When a fence is erected solely for the purpose of maliciously harming
ones neighbor courts intervene and may require removal of the
fence
Modern doctrine:
o courts utilize spite fence doctrine where rival competitors erect
fences to block visibility of competitors (motel case Sundowner
v King)
o courts use spite fence doctrine to enjoin blocking of a billboard
by a rival billboard Hullinger v Prahl)
also applies to malicious use of water resources
o failure to cap ones artesian well solely out of malicious spite of
drawing down the pressure capacity of a neighbors well is
actionable
How much does nuisance cover?
Halfway house?
Injunction upheld
Malibu View case
o Rosenblum v Shayne 2003: P sued after D began construction,
blocking Ps views in violation of covenants
Held: obstruction of a view not a nuisance
Other nuisances
Genetically modified corn
o Starlink v Aventis IL: dissemination of genetically modified corn
to farmers could support action for public and private nuisance
Electricity
o Public Service Co of COLO v VanWyk: land owners had viable
claim for intentional nuisance for increase in line voltage even
though it was approved by PUC
o Martins v Interstate Power Co IA: dairy farmers could maintain
nuisance actions for stray voltage w/out accompanying
negligence claim
Cell towers
o GTE Mobilnet v Pascouet TX: 125-foot cell tower is a nuisance
Animals
o Gamecock-breeding operation enjoined Lambert v Matthews MS
o Barking dogs = public nuisance Patterson v City of Richmond VA
o Possession of live tiger a nuisance despite state permit to keep
the tiger in the neighborhood; while not loud nor smelly nor
visible, it is exotic and undomesticable animal and mere chain
link fencing wouldnt hold it back (Fairview Township v Schaefer
PA 1988)
Mandatory injunction granted
Gun Club
o Gun clubs conduct constitutes nuisance and trespass (Citizens
for a Safe Grant v Lone Oak Sportsmens Club MN 20010