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176 Cards in this Set

  • Front
  • Back
the right to publicity was first recognized in which case?
Haelan Laboratories v. Topps Chewing Gum
In Illinois are rights to publicity desendable? If so indefinitely or is there a time limit?
Yes, but they enter the public domain after 50 years
What are the sticks in the property bundle
(1) right to exclude
(2) the right to alienate/transfer
(3) righ to use /profit
(4) right to possess.
Real property
consists of rights in land and anything attached to the land (e.g., buildings, signs, fences, or trees)
Personal property
consists of rights in things other than land.
what are the 2 main types of personal property?
chattels (tangible, visible personal property such as jewelry, livestock, cars, and books)
intangible personal property (invisible, intangible things such as stocks, bonds, patents, debts, and other contract rights).
tangible, visible personal property such as jewelry, livestock, cars, and books
intangible personal property
invisible, intangible things such as stocks, bonds, patents, debts, and other contract rights
Labor-Desert Theory
posits that people are entitled to the property that is produced by their labor. Strong traces of this theory linger in American property law, sometimes mixed with first occupancy theory
Utilitarianism: Traditional Theory
Under the traditional utilitarian theory, property exists to maximize the overall happiness or “utility” of all citizens. Accordingly, property rights are allocated and defined in the manner that best promotes the general welfare of society. This is the dominant theory underlying American property law.
What is the dominant theory underlying American property law?
Utilitarianism: Traditional Theory
Utilitarianism: Law and Economics Approach
The law and economics approach incorporates economic principles into utilitarian theory. This view essentially assumes that human happiness can be measured in dollars. Under this view, private property exists to maximize the overall wealth of society
Liberty or Civil Republican Theory
Liberty theory argues that the ownership of private property is necessary for democratic self-government.
Personhood Theory
Personhood theory justifies private property as essential to the full development of the individual. Under this approach, some items are seen as so closely connected to a person’s emotional and psychological well-being that they virtually become part of the person, thereby justifying broad property rights over such items.
Name the property theories which have contributed to American Property Law
1. Personhood theory
2. liberty/civil republican theory
3. Utilitarianism; law & economics approach
4. Utilitarianism: traditional theory
5. labor-desert theory
6. first occupancy/possession
First Occupancy/ First Possession theory of property rights
First occupancy theory reflects the familiar concept of first-in-time: the first person to take occupancy or possession of something owns it. This theory is a fundamental part of American property law today, often blended with other theories.
Pierson v. Post
foxhunt case
Pierson, fully aware that Post was chasing the fox, killed it himself. The court held that Pierson was the true owner, because he had been the first to actually kill or capture the fox, however rude his action may have been.
What is required to aquire property through adverse possession?
possession is
1. actual
2. adverse
3. hostile
4. exclusive,
5. open and notorious
6. and continuous for the requisite period
When does a patent expire?
20 years from application
Fee Simple/Fee simple absolute
Owner has all the sticks in the bundle
Life Estate
The life estate is a freehold estate whose duration is measured by the lives of one or more specified persons. For example, a grant “to A for A’s life” creates a life estate in A for as long as he lives. Alternatively, the duration may be measured by the life of a person other than the grantee (e.g., “to A for B’s life”); this is called a life estate pur autre vie.
Affirmative waste
occurs when the voluntary acts of the present estate owner significantly reduce the value of the property (e.g., destroying a valuable house)
Permissive waste
stems from inaction: the failure of the estate owner to exercise reasonable care to protect the estate (e.g., failing to fix a leaky roof).
3 Types of Concurrent Estates
Tenancy in Common
Joint Tenancy
Tenancy by the Entirety
Tenancy by the Entirety
can only be created in a husband and wife (e.g., “to A and B, as tenants by the entirety”). It requires the same four unities as the joint tenancy, plus the fifth unity of marriage.
How can a tenancy by the entirity be severed?
It can be terminated only by divorce, the death of one spouse, or mutual agreement of the spouses
How does joint tenancy differ from tenancy in common
a joint tenant has a right of survivorship.
how does a joint tenancy differ from a tenancy in common?
a joint tenant has a right of survivorship
Tenancy in Common
each co-owner holds an undivided fractional share in the entire parcel of land, and each is entitled to simultaneous possession and enjoyment of the whole parcel. A tenancy in common interest is freely transferable during the holder’s lifetime and at death.
Which type of tenancy has a right to surviorship
Joint Tenancy
partition in kind
When a court ends a tenancy in common or joint tenancy by physical division of the land
partition by sale
When a court ends a joint tenancy or tenancy in common by division of proceeds from the judicial sale of the land
four unities
joint tenants had to
1. acquire title at the same time;
2. acquire title by the same deed or will;
3. each interest had to be identical in size
4. each tenant had to have an equal right to possession
When an owner conveys a vested estate smaller than the estate he owns, he retains a future interest called a reversion. For instance, if O holds fee simple absolute, but conveys merely a life estate to A, O retains a reversion
A remainder is a future interest created in a transferee that is capable of becoming possessory upon the natural termination of a prior estate created by the same instrument. For example, if A conveys “to B for life, and then to C,” C’s interest is capable of becoming possessory when the prior estate (B’s life estate) naturally terminates; C holds a remainder.
Minority/ "American view a Landlord’s duty to deliver possession
The minority or “American” view is that the landlord need only deliver the legal right to possession, and thus has no duty to oust a holdover tenant.
The majority/"English" view of a Landlord’s duty to deliver possession
The majority or “English” view requires the landlord to deliver actual possession of the leased premises to the tenant when the lease term begins, in addition to the legal right to possession.
Constructive Eviction
Constructive eviction occurs when wrongful conduct of the landlord substantially interferes with the tenant’s use and enjoyment of the leased premises.
Implied Warranty of Habitability
implied warranty that the landlord will deliver the premises in habitable condition and maintain them in that condition during the lease term
Remedies for when the implied warranty of habitablity is breached
In general, the tenant must notify the landlord of the defect and allow a reasonable time for repairs to be completed. If the landlord fails to act, the tenant may remain in possession and also: (1) withhold rent; (2) sue for damages; or, in some jurisdictions, (3) repair the defects and deduct the cost from rent due the landlord. Alternatively, the tenant may terminate the lease and sue for damages.
Common law approach to landlord liability for personal injury
At common law, the landlord was generally not liable for personal injury to tenants or others caused by dangerous conditions on leased premises, even if the landlord was negligent.
Modern trend approach to landlord liability for personal injury
The modern trend is to require a residential landlord to exercise reasonable care to prevent such injuries.
Distinguish Between Assignment and Sublease
Most states use an objective test in distinguishing between an assignment and a sublease. If a tenant transfers the right of possession for the entire remaining term of the lease, the transfer is an assignment. However, if only part of the remaining term is transferred, a sublease arises.
Rights in Airspace: How High up does the landowners rights extend (CL view)?
Common law courts proclaimed that each landowner owned “to the heavens.” collapsed with the advent of the modern airplane
Rights in Airspace: How High up does the landowners rights extend (Modern view)?
Today it is increasingly accepted that a landowner owns only the airspace that is reasonably necessary for the use or enjoyment of the land.
Pennsylvania Coal Co. v. Mahon,
Pennsylvania adopted a statute that prohibited the mining of coal under residential areas in a manner that caused the subsidence of any dwelling. In effect, this required that pillars of coal be left in place underground to support the land surface; prior Pennsylvania law had recognized that such pillars were an estate in land (a “support estate”) separate from the rights in removable coal. The Court found that the statute took the coal company’s entire support estate—so the extent of the taking was “great”—and that this was not justified by the public interest. Because the statute made it illegal to mine the pillars, this had “very nearly the same effect for constitutional purposes as appropriating” the coal. The Court struck down the statute as an unconstitutional taking.
Penn Central Transportation Co. v. New York City
established a multi-factor balancing test to be applied generally to any takings claim.
Multi-factor balancing test (takings) factors
(1) “[t]he economic impact of the regulation on the claimant,”
(2) “particularly, the extent to which the regulation has interfered with distinct, investment-back expectations,” and
(3) “the character of the governmental action.”
Loretto v. Teleprompter Manhattan CATV Corp.
deals with permanent physical occupation takings
Key takings rule from Lorretto
any permanent physical occupation authorized by government was a taking regardless of the public interests that it may serve or the economic impact on the owner.
How can a tenancy in the entirities be terminated
the death of one spouse,
or mutual agreement of the spouses.
four unities
acquire title at the same time;
acquire title by the same deed or will;
each interest had to be identical in size;
each tenant had to have an equal right to possession.
is a joint tenancy alienable
No it is inalienable
Joint tenancy
If O conveys land “to A and B as joint tenants, with right of survivorship,” and A dies first, then B holds fee simple absolute.
Constructive possesion doctrine
where actual possesion of a subsurface or air right has not yet occured there is constructive possession and violations are trespasses
Rule of capture
for fugacious resources like oil, water, gas, he who captures/posesses it first gets it
fair share doctrine
rule some states have adopted to stop the waste caused by the rule of capture
Ameliorative waste
substantial alteration, can be one that increases the value, which changes the charecter of the property
what is survivorship?
the last surviving joint tenant takes the entire estate
acronym for 4 unities
Unity of time
cotenants aquire title at the same time
unity of title
cotenants aquire title by the same instrument
unity of interest
cotenants own equal shares
unity of possession
cotenants have equal rights to possess the whole property
what happens if a joint tenancy is severed?
that tenants share is converted to tenancy in common
What type of tenancy is the modern presumption?
tenancy in common
which type of tenancy is between husband & wife
tenancy by the entireity
Tenancy the requires equal interest
Joint tenancy
Tenancy that allows unequal interest
tenancy in common
if a joint tenant conveys their interest what happens?
the joint tenancy is severed, the conveyed portion becomes a tenancy in common
rule that requires the landlord to deliver actual posession to the tenant
english rule
rule that says a landlord is not responsible if the tenant cannot take posession because of the interference of others such as a prior tenant.
american rule
under the common law did a landlord have a duty to mitigate if the tenant abandoned the premises during the lease?
CL LL tort liablity once tenant takes posession
Exceptions to CL LL tort liablity
Liable if
1. injury is due to a latent defect known to LL and not disclosed to tenant

2. injuries in common areas

3. negligent or failure to make covenanted repairs

4. code violation
what kinds of tenancy transfers are there
tenant transfers entire remaining lease term
tenant transfers less than the remainin lease term
who has privity of estate in an assingment
assignee & landlord
who has privity of estate in a sublease
original tenant & landlord
who has privity of contract in an assignment
original tenant & landlord
sublessor & sublessee
who has privity of contract in a sublease
original tenant and LL
sublessor & sublessee
what is the majority rule for actual/legal possession
English rule, LL has to give over actual possession
What is the majority rule for Partial Actual Eviction remedy
100% of the rent can be withheld
REST view of partial actual eviction
breach of contract, so contract remedies are available. the abatement can be proportional based on the actual effect of the portion.
CL view of LL tort liablity
possession has passed to the tenant so it is the tenant’s responsibility to maintain safe premises
what are some things that are considered vital facilities under the implied warranty of habitablity?
toilet, heat, water, security (if high crime)
argument for rent abatement as a remedy for implied waranty of habitablity
expedient, no court required
argument against rent abatement as a remedy for implied waranty of habitablity
remedy is limited by the amount of rent
argument against damage claim as a remedy for implied waranty of habitablity
requires that the tenant go to court, expensive and claim may not be worth it
argument for damage claim as a remedy for implied waranty of habitablity
can get more money, not limited in recovery by the amount of rent
Requirements for Constructive eviction
LL or someone acting for him is responsible, must be w/in LL control
Premises must be uninhabitable/unable to enjoy use
Material deprivation
Permanent deprivation
In some Jurisdictions, tenant must vacate w/in a reasonable time or they waive right to do so
constructive eviction
LL acts/omits a legal duty & makes property uninhabitable
partial actual eviction
Tenant is physically excluded from part.
remedy for Constructive eviction
Tenant may terminate lease & seek damages (best to let them sue you because you can raise this as an affirmative D and then the burden is on them)
remediy for partial actual eviction
1.de minimis then no remedy
2. > than de minimis then 100% abatement
3. if the encroachment is substantial you can abatement 100%
4.Restatement (contract) abatement is proportional
Rule: PAE doesn’t break the lease the promises are independent of each other
The covenant of quiet enjoyment
LL won’t interfere with tenants possession and enjoyment of the premises
Exceptions to FHA
1.Single family sold or rented by the owner who does not advertise, use a broker or sales agent
2.Rental buildings of 4 or fewer units one of which is occupied by the owner
3.Religious institutions
4.Private clubs
5.Housing for the elderly (rules on familial status are relaxed)
NOTE: FHA advertising provision applies to all housing and is not limited by the above exceptions
FHA prohibits housing discrimination on the basis of
•Mental/physical handicap
•Familial status
•National origin
FHA stands for?
Fair housing act (FHA)/Civil Rights act of 1968
Term of years
fixed period of time, § of frauds requires that leases of a year or more must be in writing
Periodic tenancy
like term of years but automatic renewal
Tenancy at will
open ended agreement lasts until a party terminates.
Notice: equal to period which rent was paid.
Termination: death, LL sells, tenant abandons
Tenancy at sufferance:
prior lawful tenant holds over.
Some cts view acceptance of rent at previous rate as a renewal for another term
Some ct give LL double rent & do no burden the tenant with another full term
how much notice is needed to terminate tenancy at will
Notice: equal to period which rent was paid.
how is a tenancy at will terminated
Notice: equal to period which rent was paid.
•Licensee has non-possessory interest
•Licensee has limited use(minimal & specified use)
•No Tort liability
•Revocable @ sole discretion of licensor*, No good cause needed for termination
* the licensee can still sue if they had some sort of reliance and were enticed.
•Lessee has possessory interest
•Could be transferable
•Tort liability
•Usually not cancelable
Quitclaim deed
don’t know what I own but I’m transferring to you, the specifics are your responsibility ex. QC would be used to transfer rights in a contested will
Waranty deed
makes warrants/promises, this is exactly what you are getting, the responsibility is mine, I guarantee this is what I own and it is yours now.
REST exceptions to LL tort liability:
LL failed to warn of hidden defect that they knew about
Negligent repairs voluntarily undertaken
Common areas under LL control
Public premises like theaters & sporting events
CL LL tort liablity
LL not liable for injuries to the tenant or the invitee
Pure Negligence Approach to LL tort liablity
LL liable if the tenant can prove the LL actions/inactions caused an unreasonable & foreseeable risk of injury
LL liability for 3rd party criminal acts (traditional)
Traditionally once land is conveyed LL has no right to the land, so it is up to the tenant to guard
modern exceptions to the traditonal lack of LL liability for 3rd party criminal acts
voluntary assumption
special relationship
overriding foreseeablity
Temptation & opportunity created because of LL actions ex. broken deadbolt.
Landlord releases the original tenant and signs a new contract
Trend for LL ability to restrict a sublease or assignment
landlord must give a “reasonable” reason for the prohibition.
If T puts up a permanent building the T owns during the lease at the end of the lease the LL owns it
Waiver if you give consent once then you must give consent for everything
CL default if the conveyence doesn't specify estate
life estate
Statutory default if no estate is expressed
fee simple
What is the statute of limitations begins for commissive waste
begins with the act
What is the statute of limitations begins for permissive waste
on the death of the tenant
Commisive/voluntary/affirmative waste
Intentional or negligent damage to the property
Ex.Change by cutting down trees and stuff
ameliorative/meliorative waste
substantial alterations which change the charecter (can be good stuff but still frowned on unless reversable
permissive waste
co-tenant dominates the land as to physically exclude the others from enjoying their occupancy rights.
Exceptions to the rule that there is no right of contribution where a co tenant in sole possession makes repairs/improvements w/o consent of other co-tenants
1: other co-tenants stood by and permitted him to proceed
2: required to contribute pro rata share of expenses if co-tenant in possession acted in good faith, believing he was sole owner
3: when repairs are essential to preserve or protect the common estate
if the partition is uneven one might have to pay $$ to a co-tenant to even out the disparity.
Things ct should consider when deciding to partion or sell
Efficient agricultural management/ efficient use/full utilization
Respective financial abilities of the parties, ability to buy out
Location and character
Size and utility of the shares
Sentimental reasons (subordinate to pecuniary interests)
Willingness to lease back
How do can you oust a cotenant using adverse possession
1. must oust with unmistakable, unlawful & provocative actions which give notice
2. meet the statuory period
Is notice required if a Joint tenant decides to convey the property to sever the tenancy
can a co-tenant in a joint tenancy prevent another co-tenant from severing through conveyance
Does a lien against a joint tenant sever the joint tenancy?
Title theory of mortgage
mortgage is a transfer of title
Murder & joint tenancy
murder severs the joint tenancy
Definition easment
non possessory interest in the land of another. For specific limited purpose
Affirmative easement
let dominant estate holder do something on the land of the servient estate ex. cross it for ingress egress
Negative easement
restricts the servient holder from engaging in prohibited conduct for benefit of the dominant estate ex. not block sunlight
Appurtenant easement
more important & numerous, ingress/egress always this type, tied to dom. Estate and cannot exist apart from it, transferred with the land even if not explicitly transferred
Type of easment tied to the land even if not explicitly transferred
Appurtenant easement
Gross easement-
personal to the easement holder not tied to land
what are signs it is an easment not a license?
implies interest in the land, and permanent, possbly gives up an absolute right
what are signs it is a license not an easement?
no interest, personal privilege, no possession, never gives up an absolute right
In a grant where there is ambiguity that cannot be resolved through construction who is it resolved in favor of ?
What is the presumption in a grant?
Fee simple is presumed unless it states otherwise
Factors to look at when figuring out if a grant is for an easment or a fee simple?
Particularity of description of property
Extent of the limitation upon use
Type of interest which best serves the manifested purpose of the parties
Peculiarities of wording
To whom the property is assessed/who pays taxes
How the parities, heirs, assignees have treated
If there is no agreement about easment repairs who's responsiblity are they?
Dominant estate
What are the rights of the servient estate owner when it comes to land use?
may use the way for any lawful purpose as long as it doesn’t interfere with right of passage of easement owner.
Can the dominant make alterations to the charecter of the estate?
dominant cannot make material alterations in the character of the easement without servient’s permission
can an easement be used for non dominant use?
no that is per se overburdening
profit a prendre
easment that grants the right to come on the land with the purpose of removing some resource
what do cts usually say if it is not possible to separate dominant & non dominant use of an easment
the easment is forfeit
what are the 2 ways an easment can be overburdened
non dominant use
use not intended by grantor
what type of use change of an easment is permitted
type of use
what type of use change of an easment is not permitted
degree of use
: Ct will reluctantly grant easement if there is no other way to access. They may charge the DOM $$ and they will only grant the bare minimum. The way of necessity is rescinded if an alternative way of access opens up.
If a dominant property is subdivided what becomes of the easment
the easement is valid for all the dom pieces. Ct might still refuse based on type of use if that changes.
Restatement view of moving an easment
can be unilateral if it doesn't burden the dom and it is done at the serv. expense
Majority rule about relocating easments
cannot be moved without mutual agreement
an easment that is not assignable
easment in gross
Easement appurtenant
is attached to the property and is inheritable
Easment in gross
purely personal right, not assignable, terminates upon the death of the individual for whom it was created
Easment in gross for commercial purposes
easement in Gross for commercial purpose is assignable
Default of an easment gross or appurtenant
Easement by prescription:
Like an adverse possession
Easment gained by use that is open, notorious adverse & continuous for 20 yrs
Traditionally is an easment in gross transferable
Is an easment in gross for commecial purposes transferable
4 ways to lose an easment
Merger- dom & servient merge together, even if they separate again the easement stays gone.
Adverse possession
will non-use extinguish an easment
Restatement view on non use of an easment
easement can be lost by abandonment, intenttional reliquishement demonstrated by conduct
4. Easement by estoppels
owner w/o objection allows another to spend money in reliance upon a supposed easement, when in justice and equity the former ought to have disclaimed his conflicting rights he is stopped to deny the easement
For nuisance show
Extent of harm
Character of the harm
The social value that the law attaches to the type of use or enjoyment invaded
The suitability of the particular use or enjoyment invaded to the character of the locality: and
The burden on the person harmed of avoiding the harm
trespass approach to nuisance requires
the showing of damages
If two lawful equally needful things on neighboring properties conflict what is done
If equally needful the person who built first has priority
What must be shown to bring public nuisance suit
some kind of special injury